In April 2013, the Criminal Justice Section of the American Bar Association formed a Task Force to evaluate reforms needed in federal sentencing for economic crimes and to draft a proposed sentencing guideline to effectuate the reforms. The Task Force—which included distinguished judges, scholars, and practitioners—released a draft report and proposed guideline in September 2013. The Task Force’s final report, issued in November 2014, calls for an offender’s culpability to play a greater role in shaping the guideline’s sentence for economic crimes, and for the loss calculations that currently have an outsized impact on the guidelines range to be de-emphasized.
On April 9, 2015, the U.S. Sentencing Commission (USSC) issued preliminary amendments to the federal sentencing guideline applicable to economic crimes (2B1.1), which are slated to take effect this November 1. The Task Force had hoped that the USSC would make significant structural changes to the economic crime guideline going well beyond the modest changes that will be implemented in November. While the 2015 amendments seek to fix certain of the smaller issues addressed by the Task Force, they fail to address the fundamental criticisms raised by the Task Force—along with many judges, scholars, and practitioners—that loss (rather than culpability) unfairly drives the guidelines range.
