Playing with Post-Booker Fire: The Dangers of Increased Judicial Discretion in Federal White Collar Sentencing

Article excerpt

I. INTRODUCTION

II. BACKGROUND

  A. History of the United States Sentencing Guidelines

  B. Mandatory Minimum Sentences in the Federal System

  C. Impact of Blakely and Booker Generally

  D. The Impact of Booker on White Collar Crime Sentencing

  E. The Recent High-Profile White Collar Crime Boom

    1. Martha Stewart

    2. HealthSouth

  F. Game Theory Principles

III. THE POST-BOOKER GAME

  A. Applying Game Theory to Post-Booker White Collar Sentencing and
    the Congressional Response

  B. Explaining Results Outside the Scope of the Game

IV. RECOMMENDATION

V. CONCLUSION

I. INTRODUCTION

Federal criminal sentencing is currently at a crossroads. Following the Supreme Court's decision to render the federal sentencing guidelines merely advisory rather than mandatory in United States v. Booker, (1) sentencing reform is once again a possibility. This reform will most likely come in areas of great sentencing disparity or where the public and Congress feel offenders are not punished harshly enough. This Note analyzes, in game theory terms, (2) the possibility of federal sentencing reform in white collar crime cases, specifically, the imposition of mandatory minimums for certain corporate crimes.

This Note first discusses the implementation of mandatory sentencing guidelines, abolishment of parole, and popularity of federal mandatory minimum sentences as a response to growing public concern over sentencing disparity and the perception that violent criminals and drug criminals were not punished harshly enough or uniformly. Part II also discusses the recent increase in high profile corporate crime and the subsequent government crackdown on those offenses and draws parallels between the current white collar crime atmosphere and the "war on drugs" of the 1980s. Part III applies a two-period model of game theory to analyze the possibility of Congress imposing mandatory minimum sentences for white collar criminals to compensate for increasing sentencing disparity and the return to low sentences for corporate criminals. In one outcome of the "game," the increased judicial discretion following the Booker decision leads to reduced white collar sentences, provoking Congress to respond by passing mandatory minimum laws. In another outcome, judges forego using their increased discretion to decrease white collar sentences except in extreme cases, essentially leaving the guideline system in place, and Congress declines the option to impose mandatory minimum sentences for white collar crimes.

This Note recommends that federal judges opposed to sentencing guidelines should not use their newfound Booker discretion to give drastically greater sentencing departures or lower, non-guidelines sentences in non-extraordinary cases. This Note recommends this approach for two primary reasons. First, appellate courts have frequently remanded cases in which district courts have given huge departures in "non-extraordinary" cases for resentencing. (3) Thus, the district court eventually, though begrudgingly, must sentence a defendant to somewhere within or significantly closer to the guideline range in order to survive "reasonableness" review. (4) Second, by routinely departing downward or giving non-guidelines sentences in white collar cases, judges run the very real risk of provoking a response from Congress in the form of mandatory minimum sentences for white collar crimes, which would further decrease judicial sentencing discretion. Instead, this Note recommends that the best way for federal judges to keep the increased discretion offered by an advisory guideline regime is to exercise that discretion sparingly, making sure to cite specific reasons for exercising that discretion when it is employed.

II. BACKGROUND

A. History of the United States Sentencing Guidelines

Until the passage of the Sentencing Reform Act (SRA) in 1984, federal judges had relatively wide discretion in sentencing federal offenders up to the statutory maximum. …