Criminal justice policymakers have begun to recognize that, with respect to business offenses, too often the harsh penalties called for by the U.S. Sentencing Guidelines do not fit the crime. The relationship between increasingly high white-collar sentences and the guidelines’ focus on “loss” as the key factor in calculating an appropriate sentence is at the center of the discussion. Recent calls for sentence reform and more measured sentences compete with increased public demand for a stronger government response to the latest financial crisis. While Congress ponders the issue, courts, including recently the U.S. Court of Appeals for the Second Circuit, are beginning to act.

The U.S. Sentencing Commission also apparently recognizes that something needs to be done to the white-collar crime guidelines. The commission has announced that the potential amendment of guidelines for economic crimes, including securities, health care, mortgage, and other fraud offenses, is a priority.1 Just last month, it conducted a two-day fact-gathering meeting in New York to hear from prosecutors, defense lawyers, and judges on the issue of white-collar sentencing. Critics of the current guidelines, including the American Bar Association and defense attorneys, argue that the structure overemphasizes the loss or “intended loss” of an offense, dwarfing other relevant factors such as the defendant’s intent or the degree of harm caused to victims.2

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