Document Type


Publication Date

Winter 2000


In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the United States Sentencing Guidelines (Guidelines) mandated by Congress.1 Having cleared away most of the housekeeping chores that had piled up during its long sleep, the Commission recently turned to issues of broader scope. The first major undertaking of the newly-appointed Commission has been a reexamination of economic crime sentencing. In choosing economic crime sentencing reform as its initial large project, the new Commission elected to build on a foundation laid by its immediate predecessors. Staff work on economic crime sentencing reform began in 1995.2 In January 1997, the Commission promulgated issues for comment on economic crime sentencing reform3 and held public hearings in 1997 and *452 1998.4 In January 1998, the Commission published for comment a comprehensive economic crime reform package that would have consolidated the theft and fraud guidelines, revised the loss table at the heart of both guidelines, and redefined the exasperating, but pivotal, term “loss.”5 In April 1998, a revised version of the package came within one vote of obtaining the unanimous approval it required. Unfortunately, no further formal action was possible in 1998-99 because, by the fall of 1998, the terms of all the Commissioners had expired and the vacancies remained unfilled until December 1999. At the core of the last Commission's economic crime package lay the redefinition of the concept of ‘loss.’ The amount of loss inflicted by a convicted criminal is a primary determinant of sentence length for economic crimes. Yet, as will be discussed below, the current Guidelines provisions regarding the meaning of loss are a confusing patchwork. Reconsideration of the loss definition was so plainly essential to any meaningful economic crime sentencing initiative that, even after it became clear that they themselves would be unable to bring reform to fruition, the last Commission arranged for the loss redefinition so nearly passed in April 1998 to be field tested during the summer of 1998.6 The response to the proposed redefinition by the federal judges and probation officers who participated in the field test was overwhelmingly positive.7 Consequently, even during the 1998-99 hiatus with no sitting Commissioners, Commission staff, in consultation with interested outside groups, continued to work on refining the draft definition, with particular attention to feedback received during the field test.8 The Committee on Criminal Law of the United States Judicial Conference (CLC) has been an interested and active participant throughout the Commission's consideration of economic crime sentencing reform.9 In *453 order to assist the Commission in its deliberations, the CLC drafted and, on November 9, 2000, submitted to the Commission its own economic crime sentencing reform proposal for publication for comment.10 The CLC has built upon and refined the approach so nearly adopted in 1998. The judges recommend: (1) that the theft and fraud Guidelines be consolidated; (2) that the loss table be simplified by reducing the number of its levels and modified by decreasing sentences for some low-loss offenders while increasing sentences for some high-loss offenders; and (3) that loss be redefined. More importantly, the CLC has gone beyond general recommendations and transmitted to the Commission a specific proposal for a new loss table and draft language for a redefinition of loss. (The CLC draft of a reformed loss definition appears following this Article as Appendix A.) The purpose of this Article is three-fold. First, it explains the need for consolidation of the theft and fraud guidelines and for a revised definition of loss. Second, it introduces the CLC's proposed loss definition and explains, in detail, the reasoning behind the drafting choices made by the judges of the CLC when preparing this proposed new definition. Third, where appropriate, it addresses differences between the CLC proposal and other draft definitions that have been put forward by Commission staff and other participants in the reform process, with particular attention to the field-tested April 1998 draft and the most recent staff draft published in January 2001 (2001 Staff Draft).11 This Article does not discuss the CLC proposal regarding the loss table.12



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