Although the federal sentencing guidelines continue to play a role in white-collar sentencing, this role has diminished significantly. The restoration of sentencing judges’ discretion in the post-Booker era has rendered the guidelines—widely perceived as unduly punitive—less important in the white-collar context. Recent high-profile cases involving, for example, several ex-Madoff employees and Bob McDonnell, the former governor of Virginia, demonstrate how sentencing judges and even federal prosecutors increasingly are rejecting the harsh sentences called for by the guidelines.
The U.S. Sentencing Commission has responded to complaints about the guidelines’ application by proposing a series of amendments to the guidelines governing economic crimes. Although they appear to be a step in the right direction, the revisions proposed by the commission do not go far enough to reform the white-collar sentencing scheme.
Guidelines’ Focus on Loss
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