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What Goes Up Can Come Down
The pattern playing out in the current economic crisis is familiar: With financial collapse and scandal, the public is insisting that corporate executives be held accountable and Congress is pressing the Sentencing Commission to ensure sentences for economic offenses are sufficiently severe.
The Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub.L. 111-203, H.R. 4173), which was signed into law in July 2010, directs the Commission to review and amend the Sentencing Guidelines for certain fraud offenses, just as Sarbanes-Oxley did ten years ago. The Commission's Sarbanes-Oxley amendments led to fraud sentences exponentially greater than the sentences under the original Guidelines Manual, and a similar result will likely follow from Dodd-Frank.
Does this mean that defendants and their counsel should abandon all hope? Not necessarily. Whatever sentencing “enhancements” Dodd-Frank inspires, defense counsel can take refuge in recent decisions permitting district courts not to follow the guidelines if they disagree with them.
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