Back to Basics: Helping the Commission Solve the "Loss" Mess with Old Familiar Tools

Abstract

Roughly one-quarter of all convicted federal defendants are sentenced for some kind of economic crime.1 There is an emerging consensus that the provisions of the . federal sentencing guidelines devoted to economic crime do not work very well, a consensus that has created a powerful momentum for significant change. This Issue of FSR is about whether the guidelines concerning economic offenses, principally ?2Bi.i (Theft) and 52F1.1 (Fraud), should be materially altered, and if so, how. The debate that has been joined over this question is technically complex and philosophically challenging. There are disagreements over issues as particular as when collateral posted by a defendant in a fraudulent loan transaction should be valued, and as broad as whether actual harm inflicted by crime or the culpable mental state of the criminal should be the most important factor in assessing offense seriousness. Whatever the outcome, the Commission's deliberations in this area promise to be among the most substantive and stimulating in years. My own involvement with economic crime sentencing began as a fraud prosecutor, and continued as Special Counsel to the Sentencing Commission. After leaving the government, my work on the problem culminated in a comprehensive analysis of punishment in theft and fraud cases,2 and a specific proposal for a consolidated theft/fraud guideline incorporat ing a substantial redefinition of the core concept of loss, both of which were presented to the Commission in October 1997. The proposal is reproduced infra at p. 173.