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Assistant Attorney General Breuer Expresses Concern about Disparate Sentences

Wednesday, November 23, 2011

Raphael Rosenblatt | Bloomberg Law DOJ Speech, Assistant Attorney General Lanny A. Breuer Speaks at the American Lawyer/National Law Journal Summit (Nov. 15, 2011) Addressing a group of litigators, Assistant Attorney General Lanny A. Breuer welcomed the opportunity to speak about "an issue of criminal law policy that does not frequently come up in conferences like this one," federal prison sentencing. Breuer, who is the head of the Justice Department's Criminal Division, leads a team of approximately 600 lawyers whose mission is "to enforce the nation's federal criminal laws, and to help develop and implement our criminal law policy."


Breuer noted that there are currently approximately 218,000 inmates in the federal prison system, in addition to more than two million currently incarcerated in state prisons and jails. Thus, sentencing is an important component of the criminal justice system. Breuer noted that the Sentencing Reform Act of 1984, among other things, enacted the Federal Sentencing Guidelines (Guidelines) in an effort to equalize sentences based on criminal conduct, history, and other factors. However, in 2005, the U.S. Supreme Court decision of U.S. v. Booker, 543 U.S. 220 (2005), made the Guidelines advisory rather than compulsory and, according to Breuer, "judges have increasingly been sentencing defendants to prison sentences outside the ranges prescribed by the [G]uidelines."

Financial Fraud

Significant disparity exists in sentencing perpetrators of financial fraud. According to Breuer, judges are inconsistently sentencing fraud offenders—especially ones involved in high-loss fraud cases. "For example, a defendant in one district may be sentenced to one or two years in prison for causing hundreds of millions of dollars in losses, while a defendant in another district is sentenced to ten or 20 years in prison for causing much smaller losses." What accounts for the disparity, in large measure, is the district in which the defendant is sentenced. By way of example, Breuer noted that judges in the Southern and Western Districts of Texas sentence defendants within the Guidelines range approximately 71.5 percent of the time. By contrast, judges in the Southern District of New York only sentenced within the Guidelines range approximately 32.6 percent of the time.

Various Challenges

Breuer concluded by discussing the significant challenges resulting from an increasing prison population, coupled with a general hiring freeze within the Justice Department, in the context of current efforts to stabilize costs. Breuer invited comment and discussion about sentencing and corrections reform. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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