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Vanderbilt Law Review

First Page

461

Abstract

The primary determinant of sentence length for federal economic criminals is the amount of "loss" resulting from an offender's conduct.' The idea of basing sentences for economic crimes primarily on "loss" has become the source of ongoing, complex, and proliferating disputes about what the term "loss" really means and how it should be interpreted in particular cases. The "loss" calculation is one of the most frequently litigated issues in federal sentencing law. There are at present splits of opinion between the federal circuits on at least eleven analytically distinct issues concerning the meaning and application of the "loss" concept. Even more significant than the identifiable circuit splits is the overall sense of uncertainty, confusion, and sheer aggravation that emerges whenever lawyers and judges who deal with federal economic crime discuss "loss."

As Special Counsel to the Sentencing Commission in 1995-96, I was asked to examine the Federal Sentencing Guidelines relating to economic crimes, as well as the cases and materials construing the term "loss," for the purpose of identifying the problem areas and determining whether some adjustments or definitional changes ought to be considered. Since leaving the Commission, I have continued to grapple with "loss." In the course of more than two years of reading "loss" opinions penned by puzzled federal judges, and talking with equally puzzled practitioners, several points have become clear.

First, the United States Sentencing Commission was undoubtedly correct in the basic judgment that the sentences of economic criminals should be determined in significant part by the magnitude and nature of the economic deprivation caused by their crimes. Where the original Commission fell short of the ideal was in the translation of a sound fundamental intuition into a just, doctrinally coherent, reasonably easy-to-interpret set of rules. Since the Federal Sentencing Guidelines ("Guidelines") first went into effect in 1987, the Commission has amended guidelines provisions regarding property crimes and "loss" many times. Regrettably, each amendment in the series has been a patch designed to fix one small component of a vehicle for sentencing economic criminals that was unwieldy and imperfectly designed to begin with.

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