How Much Should Mind Matter? Mens Rea in Theft and Fraud Sentencing

Abstract

the U.S. Sentencing Commission. The U.S. Sentencing Commission recently voted to publish a proposal in the Federal Register that revises the definition of the primary determinant of sentence length for theft and fraud offenses.1 [Ed. Note: The Commission proposal is reproduced at p.168 of this issue of FSR.] Anyone who has followed the Commission's delibera tions on will see that the proposed definition attempts to address many of the contentious issues that have arisen in the case law and commentary. The issues that the proposed definition concentrates on, however, such as credits, interest, causation, and gain, tend to inform the inquiry into loss rather than even though the latter concept is integral to both definitions. Although neither the current nor the proposed definition provides much guidance for working with intended loss, the Commission did preserve the whichever is greater rule that is currently found in the fraud guideline: if the that the defendant intended is higher than the actual that occurred, use intended as the final figure. It also added a short definition of the term: 'Intended loss' means the [economic] harm intended to be caused by the defendant and other persons for whose conduct the defendant is accountable under ? 1B1.3 [and that realistically could have occurred].2 Unfortunately, both the whichever is greater rule and the proposed intended definition are seriously flawed. As the following discussion will demonstrate, the whichever is greater rule has the effect of treating different defendants similarly, and the proposed definition fails to account for certain mental states that may merit increased punishment even though they do not rise to the level of intent. Correcting these shortcomings would improve the definition and help ensure that federal courts impose properly proportionate sentences.