Coauthored with Marc Levin of Right on Crime. This op-ed was originally published at The Hill on August 14, 2015.
Recent rulings at the U.S. Supreme Court on gay marriage and Obamacare are high-profile reminders that there is not much the left and right agrees on in this country. But yet another new bipartisan criminal justice reform bill, introduced recently by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) with the support of almost two dozen other Republicans and Democrats, shows that one thing we do agree on is that this country locks too many people up for too long at too high a price.
The bill, the SAFE Justice Act (H.R. 2944), has a little bit of something for everyone, from mandatory minimum sentencing reform to getting a handle on the proliferation of federal crimes and regulations that can snare even the most well-intentioned citizens.
The increase in overly broad and vague criminal laws has enabled overzealous prosecutors to bring charges against Americans who inadvertently violate one of them. More often, however, government lawyers have aggressively pursued those acting in the gray areas between “business as usual” and unlawful activity.
White-collar suspects have become especially popular targets for prosecutors due to populist anger at Wall Street. Netting high-profile, corporate whales is a time-tested method for ambitious prosecutors to boost their political careers.
Independent federal judges are often the only hope white-collar defendants have to resist groundless charges when they are innocent and to avoid excessive punishment when found guilty. Last December, for example, the Second Circuit Court of Appeals stopped cold the government’s effort to jail two hedge fund managers who had received information on the financial outlook for two computer companies from personal friends who worked there that the court found they had no reason to know was not public information.
Judges have also sought to restore some common sense and greater justice to white-collar sentencing. The U.S. Sentencing Commission, when drafting the first sentencing guidelines for judges, determined that corporate wrongdoers should be sentenced to short but definite prison terms. Economic crime offenders are less likely to reoffend than drug dealers and other street criminals, but the Commission thought prison time would deter others.
Beginning in the early 2000s, the U.S. Sentencing Commission and Congress reacted to high-profile frauds by launching an arms race that has more than doubled prison sentences for individuals convicted of economic crimes. The Sentencing Commission began the bidding by enacting several changes to the federal sentencing guidelines that, among other things, called for higher sentences based on the dollar amount involved.
A couple of years later, fueled by the collapse of Enron and WorldCom, Congress passed the Sarbanes-Oxley Act, which raised the maximum statutory penalty for fraud from five years to twenty and forced the Commission to further increase its recommended prison terms for economic fraud.
The result: economic crime guidelines are nearly useless for judges whose job is to impose fair sentences based on the total circumstances of an offense (not simply the loss amount) and the characteristics of the defendant.
Judges have been unusually vocal in pointing out the guideline’s shortcomings, labeling it “a black stain on common sense” and “patently absurd on their face.” The guideline frequently contains terrible guidance. Why, for example, should a scheme that resulted in a $100 loss to 250 victims warrant a sentence more than three times as high as a fraud that caused a $25,000 loss to a single victim? It makes no sense.
Congress and the Sentencing Commission need to rethink their zeal to ratchet up prison terms for everyone who runs afoul of Congress’s vague criminal laws and better distinguish among those who intentionally defrauded others from those who were simply negligent or could have been more conscientious in managing money.
While those who steal from others or defraud the market should be punished, imposing new mandatory minimum sentences for these crimes would be a mistake. Our existing mandatory sentencing laws –aimed largely at drug offenders – already force us to spend billions of dollars on prisons overflowing with nonviolent offenders who pose little risk to public safety. They have devastated countless families and communities and have diverted resources from more important law enforcement priorities. Mandatory minimum sentences replace a system of individualized justice delivered locally by independent judges with a one-size-fits-all, politicians-know-best sentencing scheme.
It is bad enough that Congress has surrounded the American people with an increasingly complex maze of laws and regulations that are almost impossible to avoid violating. Lawmakers should not add insult to injury by subjecting every misstep to a mandatory and lengthy prison term.