White-Collar Crime: Why the Sentencing Disparity Despite Uniform Guidelines?

Abstract

This Comment discusses major sources of sentencing disparity that continue to affect defendants of white-collar crimes despite the existence of uniform sentencing guidelines. The focus of the Comment is to answer one primary question: Why might a defendant convicted of white-collar crime in one court receive a materially different sentence than he or she would have received if convicted in another court? As will be shown, the answer has many components.

Part II of this Comment briefly discusses the history and mechanics of the Guidelines as a backdrop for the analysis to follow. Part III discusses twelve distinct circuit splits that contribute to disparity in white-collar sentencing. The circuit splits result from conflicting interpretations and application of the Guidelines by the various United States Courts of Appeals. Part IV discusses the nature and impact of "adjustments" to offense levels and "departures" from sentencing ranges under the Guidelines. The discussion reveals that both significant judicial discretion at the trial court level and the "clearly erroneous" standard of appellate review contribute to white-collar sentencing disparity. Part V addresses how judicial discretion conferred upon judges can lead to varying terms of imprisonment for similarly situated defendants of white-collar crimes. Among the sources of disparity stemming from judicial discretion are a judge's ability to select a sentence from anywhere within a given sentencing range calculated under the Guidelines, and a judge's ability to impose nonprison alternatives to physical incarceration. Part VI addresses how prosecutorial discretion held by Assistant United States Attorneys leads to sentencing disparity. Among the sources of disparity in this context are a prosecutor's discretion in determining which charges to bring, discretion in whether to seek a downward departure for "substantial assistance" provided by defendants, and discretion in whether to seek a plea agreement. Finally, Part VII concludes with a recommendation to the Commission to amend the Guidelines to resolve the circuit splits, and an observation that some sources of white-collar sentencing disparity are perhaps better left undisturbed.