WHY FEDERAL ECONOMIC CRIMES UNDER SECTION 2B1.1 SHOULD NOT BE DRIVEN BY VICTIM LOSS CALCULATIONS

Despite entrenched opposition from the Department of Justice and other prosecutorial organizations the United States Sentencing Commission's new changes for federal economic crimes (also known as white collar crimes) will take effect on November 1, 2015. Because federal sentencing for these crimes is driven almost entirely by dollar amounts of victim loss, many years of inflation made it far easier for federal prosecutors to demand hefty sentences in these cases with many federal judges lacking the courage to go under the sentencing guideline ranges.

Inflation Adjusted Victim Loss but no Common Sense

The new inflation adjusted victim loss amounts will reduce guideline ranges for most federal defendants facing these economic crimes that include scheme to defraud, fraud, embezzlement, theft and tax evasion. Yet the underlying problem in federal sentencing for these Section 2B1.1 economic crime cases has not changed in that the dollar amount of loss still drives the federal guideline range sentencing structure to the belittlement of other factors that should be relevant in sentencing. This is absurd. Although the dollar amount is important and a wise judge should certainly give it some consideration, in many cases the dollar amount alone dictates a long prison term. 

In fact many first time nonviolent offenders are sent to federal prison for hefty terms for these economic crimes, thus denying the defendants the ability to ever make restitution to their victims. Since federal sentencing is rigged so that the amount of loss is the over-riding factor in these cases, you'd think some consideration might be given to those who actually suffered the monetary loss. What do the victims actually want? Isn't it likely that most victims would prefer defendants to make restitution than languish in prison? In a just society it should be a very rare thing to punish any first time nonviolent economic crime offender with prison.

Clearly Federal Judges (rather courageous or not) should be given an array of sentencing options in these federal criminal cases based on the entire criminal conduct including factors such as the number of victims, the average loss per victim, the likelihood of restitution and the period of time over which the crime occurred. These factors combined with any prior history of criminal conduct and personal characteristics of the defendant should then be weighed by the judge in forming the sentence without the judge forced to give undue consideration to the total loss amount as delineated in the Section 2B1.1 federal sentencing guideline amendment. 
Ultimately fair sentencing should be about more than merely adding up a list of losses to place nonviolent economic criminals in federal prison, it's about doing what's right for the victim, for the defendant and for society.