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The loss-culpability connection (or disconnect) in white-collar sentencing

By Douglas A. Berman

Especially in the federal sentencing system, where the (now advisory) guidelines place so much emphasis on the concept of "loss," the relationship in white-collar sentencing cases between loss amounts and criminal culpability is an extremely important and largely under-examined topic in much of the caselaw and commentary.  Fortunately, a soon-to-be-available new issue of the Federal Sentencing Reporter will be examining these issues at some length.  And, even before this FSR issue becomes available, a new decision from the First Circuit, US v. Innarelli, No. 06-2400 (1st Cir. Apr. 29, 2008) (available here), addresses these matters briefly.  As noted by AL&P, Innarelli covers lots of issues, but this passage struck me as especially notable: [W]e focus our loss inquiry for purposes of determining a defendant's offense level on the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes...continue to full post

Full post as published by Sentencing Law and Policy on April 30, 2008 (boomark / email).