New Comments Address Fraud Sentencing and Deferred Prosecution Agreements

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Marquette Law School

The latest issue of the Marquette Law Review features a student comment by Ryan Parsons on the treatment of “temporary victims” under the federal sentencing guidelines.  In crimes such as bank fraud, individual accountholders that have been defrauded are often reimbursed by the bank and, therefore, made economically whole.  Such reimbursed accountholders are often ignored for purposes of sentencing enhancement, even though reimbursement may not occur without time and effort expended by these temporary victims.  Parsons describes how various courts have dealt with this phenomenon, as well as the Federal Sentencing Commission’s recent decision to include all such temporary victims in the enhancement calculation regardless of whether the defrauded accountholders even knew about the fraud.  Parsons argues that in order for a sentence to accurately reflect the severity of the crime, temporary victims should be taken into account to the extent that they suffered actual, monetizable losses (e.g., time spent pursuing mitigation).

This issue also includes Rachel Delaney’s comment analyzing the use of deferred prosecution agreements (DPAs) in the corporate crime context, ultimately calling for congressional regulation of prosecutorial discretion.  

Tracing the brief history of DPAs from the 1992 Salomon Brothers case to the 2008 AGA Medical Corporation agreement, Delaney demonstrates how the DPA process has been largely governed by, initially, ad hoc decisions of prosecutors and, currently, internal guidelines that grant too much prosecutorial discretion on a variety of levels, are unenforceable, and subject to revision at any time.  She suggests that there is broad legal support for reform of the process and advocates for the passage of recently proposed legislation by Congress to curb prosecutorial abuses and effectively punish and deter white collar crime.

Both of these pieces can be accessed at the Law Review’s website.

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