Unsophisticated Sentencing

30 Pages Posted: 6 Oct 2015 Last revised: 2 Jun 2016

Date Written: October 5, 2015

Abstract

This essay, written for the Wayne Law Review’s 2014 Symposium on white collar crime and sentencing, examines the rising popularity of the “sophisticated means” enhancement under Section 2B1.1 of the United States Sentencing Guidelines. Over the past decade, the rate at which federal courts apply the enhancement in criminal fraud cases has more than tripled. This Essay considers several possible explanations for the enhancement’s increasing prevalence, including the possibilities that: (i) fraud offenders as a whole have become more sophisticated; (ii) federal prosecutors are investigating and charging more sophisticated frauds; and (iii) the enhancement’s meaning has, over time, gradually expanded to include additional conduct, a phenomenon I refer to as “sentencing creep.” With this final explanation in mind, the Essay concludes with some practical advice for reinvigorating the enhancement as a useful sorting device.

Keywords: fraud, white collar crime, deterrence, sentencing

Suggested Citation

Baer, Miriam H., Unsophisticated Sentencing (October 5, 2015). Wayne Law Review, Vol. 61, p. 61, 2015, Brooklyn Law School, Legal Studies Paper No. 423, Available at SSRN: https://ssrn.com/abstract=2669654

Miriam H. Baer (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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