NCJ Number
105988
Journal
Journal of Criminal Law and Criminology Volume: 77 Issue: 4 Dated: (Winter 1986) Pages: 1069-1111
Date Published
1986
Length
43 pages
Annotation
This article critiques the principle of 'modified real offense sentencing' underlying the preliminary draft of Federal sentencing guidelines and applies the critique to sentencing guidelines for criminal tax offenses.
Abstract
Under 'modified real offense sentencing,' the focus of the sentencing inquiry is on 'all the harms that the offender actually caused during the course of the conduct for which he was charged.' In determining the appropriate sentence under the guidelines, the court may rely on any information produced at trial, in the presentence report, or at the sentencing hearing that the court finds supported by a preponderance of the evidence. Under such an approach, the sentence may be largely determined by factors based on a lesser burden of proof than is required for conviction. In the sentencing hearing, the Government would be free to introduce evidence conceivably relevant to the offender's conduct in the focal incident. Predicating a sentence on a 'charge-of-conviction-offense' system, on the other hand, would standardize sentences across offense categories without involving the sentencing court in facts not established at trial under the reasonable-doubt burden of proof. Tax offenses and white collar offenses in general are particularly problematic under the sentencing guidelines, since the criminal conduct and the resulting 'harms' are more abstract and less intuitively apparent than in violent offenses. 113 offenses.