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The Rebirth of Advocacy
On Jan. 12, 2005, the Supreme Court in United States v. Booker ended months of speculation as to what was to become of the Federal Sentencing Guidelines after the Court's June 2004 decision in Blakely v. Washington, and held that the guidelines were unconstitutional. To remedy the unconstitutionality, the Court excised portions of the Sentencing Reform Act that required the sentencing judge to sentence within the guidelines range and that set the standard of appellate review of sentences.
Absent the judicially excised provisions, sentencing in the federal courts is governed by 18 U.S.C. ' 3553(a), which lists the factors that must be considered in imposing a sentence and instructs that a sentence must be “sufficient, but not greater than necessary” to:
- reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- afford adequate deterrence to criminal conduct;
- protect the public from further crimes of the defendant; and
- provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. ' 3553(a)(2).
A sentencing court must also consider: “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. ' 3553(a)(1); “the kinds of sentences available,” 18 U.S.C. ' 3553(a)(3); the applicable sentencing guidelines range, 18 U.S.C. ' 3553(a)(4); pertinent policy statements issued by the Sentencing Commission, 18 U.S.C. ' 3553(a)(5); “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct,” 18 U.S.C. ' 3553(a)(6); and “the need to provide restitution to any victims of the offense.” 18 U.S.C. ' 3553(a)(7).
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.