The University of New Hampshire Law Review


[Excerpt] “Until the passage of the U.S. Federal Sentencing Guidelines in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. This judicial discretion led to a disparity in the sentences of similarly situated offenders, particularly in white-collar cases. The Guidelines attempted to eliminate this disparity by establishing maximum and minimum sentences for certain offenses based on the characteristics of the crime. An important feature of the Guidelines system was its mandatory nature, which decreased and structured the judiciary‘s discretion within bounds set by Congress.

The mandatory application of the Guidelines resulted in stiff sentences for white-collar criminals, effectively reducing the disparity in sentencing that had existed prior to implementation. However, in January of 2005, the U.S. Supreme Court held in United States v. Booker that the Guidelines‘ mandatory use of enhancing factors not found by a jury was unconstitutional, and the proper remedy for this constitutional error was to sever the provisions from the statute that made the Guidelines mandatory, rendering the Guidelines advisory. Then, in December of 2007, the Court effectively eliminated the mandatory guideline sentencing entirely in Gall v. United States.

Although the Gall decision impacts all sentencing within the federal court system, a significant group of criminal defendants that one should expect to be impacted are high-ranking corporate officers convicted of financial crimes. Theoretically, those defendants should now expect to receive lighter sentences, in part because of the subjective factors available to district court judges during sentencing which were expressly rejected by appellate courts prior to Gall.

Additionally, because judges often articulate the view that white-collar crime lacks violence and identifiable victims — a belief that tends to obscure the severity of the harm caused by white-collar crimes — their personal views often influence white-collar defendants‘ sentences. Although one of the motivating factors behind Congress‘s passage of the Guidelines was the relatively light sentences given to white-collar criminals, recent trends demonstrate that judges have increasingly imposed more lenient sentences upon white-collar defendants since the Booker decision, a trend which Gall could help accelerate. This note will theoretically analyze why one should expect lighter sentences for defendants convicted of financial crimes, and it will test that theory by examining sentences imposed on Chief Financial Officers (CFOs) from 1998 to 2007.”

Repository Citation

S. Patrick Morin, Wherefore Art Thou Guidelines? An Empirical Study of White-Collar Criminal Sentencing and How the Gall Decision Effectively Eliminated the Sentencing Guidelines, 7 Pierce L. Rev. 151 (2008), available at http://scholars.unh.edu/unh_lr/vol7/iss1/8