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The November 2003 Fraud and Theft Amendments: Do they signify the end of the U.S. Sentencing Commission's independence?
By Kirby D. Behre, A. Jeff Ifrah
Grid & Bear It columns.
Since its formation in 1986, the United States Sentencing Commission (the “Commission”) has overseen the operation and revision of the federal Sentencing Guidelines with extraordinary scholarship and admirable independence from Legislative and Executive Branch pressure. The recent hysteria concerning corporate accounting fraud, however, resulted in congressional and Department of Justice meddling in the Commission’s deliberations concerning the fraud and theft guidelines, which are the heart of white collar crime sentencing. The pressure that was brought to bear on the Commission resulted in quick-fix revisions to the already recently revised fraud and theft guidelines. In just a few months, political expediency replaced reasoned, empirical analysis. Is this unfortunate deviation from the Commission’s past practices a temporary aberration, or is it the beginning of a new operating procedure?
Facially, the Sarbanes-Oxley Act of 2002 instructions to the Commission are extremely deferenti
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