The sentencing regime that governs white-collar criminal cases requires reform. The U.S. Sentencing Guidelines recommend sentences that are generally too high and place a grossly disproportionate emphasis on the concept of "loss"-the dollar value of the harm that a court finds a white-collar criminal to have caused. This concept of loss is ill defined, and often artificial to the point of being arbitrary. Moreover, the loss calculation fails to adequately approximate a defendant's culpability, dwarfing traditionally relevant considerations such as the manner in which the defendant committed the crime and the defendant's motive for doing so. Fortunately, the Supreme Court has recently opened the door to systemic reform. In Kimbrough v. United States, the Supreme Court held that-at least in certain circumstances-a sentencing judge may deviate from a Guidelines recommendation based purely on policy disagreement with that guideline. This Note argues that sentencing judges should adopt an aggressive interpretation of the Supreme Court's Kimbrough opinion and exercise their newly rediscovered discretion to deemphasize the loss calculation and restore rationality to the sentencing of white-collar criminals.
Derick R. Vollrath,
Losing the Loss Calculation: Toward a More Just Sentencing Regime in White-Collar Criminal Cases,
59 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol59/iss5/4