Challenging the Federal Sentencing Guidelines on Policy Grounds

The federal Sentencing Guidelines can lead to 'patently absurd' punishments in white-collar cases. United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006) (Rakoff, J.). But judicial discretion in sentencing, strongly reaffirmed by the Supreme Court in Kimbrough v. United States, No. 06-6330 (Dec. 10, 2007), and Gall v. United States, No. 06-7949 (Dec. 10, 2007), has opened an important avenue for advocacy in business crime cases. Now, 'courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines.' Kimbrough, slip op. at 13. Because, under Kimbrough, judges who depart from the Guidelines based solely on policy grounds may subject themselves to 'closer review,' white-collar attorneys should mount general policy attacks in addition to a thorough presentation of client-specific facts based on the factors set forth in 18 U.S.C. ' 3553(a). Kimbrough noted that the Sentencing Commission ' because of its experience, expertise, and capacity to filter empirical data ' is better suited than the sentencing judge to make policy decisions. Nevertheless, in the rare instances in where the Commission has veered away from its 'characteristic institutional role' by intentionally rejecting empirical data and existing practice, policy arguments may alone merit departure. See Kimbrough at 7, 21. The Guidelines' harsh sentences for white-collar crime result from such a departure. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 1, 20 (1988) ('Breyer') (noting that pre-Guidelines white-collar sentencing typically did not result in jail time).