Because the federal sentencing guidelines applicable to fraud cases are widely acknowledged as broken and dysfunctional, particularly in cases where the loss amount is high, sentencing judges may increasingly seek other sources to help guide their discretion. Since its issuance in November 2014, perhaps the most thoughtful alternative framework has been that offered by the American Bar Association’s Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes, a blue ribbon panel of judges, law professors and practitioners assembled for the specific purpose of drafting a reform substitute.
With the U.S. Sentencing Commission’s own long-term review of the fraud guideline having culminated in the November 2015 adoption of modest amendments that fall well short of the mark, the potential role for the task force’s “shadow guidelines” has increased. A recent case in which Eastern District of New York Judge Eric N. Vitaliano relied upon the task force’s proposal in imposing a 63-month sentence on a former CEO where the probation department calculated that the Sentencing Commission guidelines called for a sentence of 80 years’ imprisonment illustrates the growing importance of the “shadow guidelines.”
Current Guideline
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