In April 2013, the Criminal Justice Section of the American Bar Section created the Task Force on the Reform of Federal Sentencing of Economic Crimes. This Task Force was created to study the current weaknesses with, and to draft and propose reforms to, the Sentencing Guidelines for economic crimes. The Task Force includes three NACDL representatives, including Kyle O'Dowd, NACDL's Associate Executive Director of Policy.
The Task Force has proposed a rewrite of the federal “fraud guideline” (USSG 2B1.1). The first draft of this proposal was unveiled and discussed extensively at the Sentencing Commission’s Economic Crime Symposium in New York in September 2013. Initial reactions from most judges and practitioners (and even a couple commissioners) were very favorable. The proposal was published in The Champion, accompanied by commentary from Task Force member James Felman, and elsewhere in hopes of eliciting support, debate and constructive criticism.
The Task Force revised the proposal based on this feedback and released a second draft of its proposal in May 2014 and a final draft in November 2014. The proposal drafts, along with Felman's commentary published in the Champion, are available below. In addition, some defense attorneys and courts have begun citing and relying upon the proposal in criminal sentencing proceedings. NACDL is attempting to collect materials from such cases and make them available on this page. Sentencing memos and transcripts from two such cases are available below.
Materials from the ABA Task Force
A Report on Behalf of the American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes (Final Draft), Nov. 10, 2014.
ABA Memo to US Sentencing Commission Re: Second Draft of Proposed Guidelines, May 15, 2014.
A Report on Behalf of the American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes (Second Draft), May 15, 2014.
"A Report on Behalf of the American Bar Association Task Force on the Reform of Federal Sentencing For Economic Crimes," by James E. Felman, The Champion, November 2013.
Criminal Sentencing Materials Citing ABA Proposal
United States v. Jesse C. Litvak, Reply Sentencing Memo of Defendant at 7-8 (D. Conn. July 8, 2014) (arguing that the ABA proposal is instructive on how loss arbitrarily inflates a defendant's culpability and sentence).
United States v. Jesse C. Litvak, Sentencing Memo of Defendant at 53-56 (D. Conn. June 27, 2014) (asking the Court to be guided by the ABA proposal, which would result in no imprisonment to 6 months under the defense theory or 24-30 months under the government theory, as opposed to the PSR recommendation of 108-135 months).
United States v. Robert Rivernider, et al, Sentencing Transcript at 208-212 (D. Conn. Dec. 18, 2013) (sentencing in which the government was asking for 324-405 months, the PSR recommended 262-327 months, but the Court sentenced the defendant at 144 months under the guidance of the ABA proposal).