The Federal Numbers Game Debunked
Simple Justice: Before 1987, the “value” of a crime in federal court was a matter of argument between counsel. The government would try to stuff in every penny it could find, while the defense would minimize the damage. It was but one of the points raised at a sentence, and not nearly as significant as the nature of the defendant’s conduct, the “maliciousness” of his act.
With the acceptance of the federal sentencing guidelines, the entire world turned around. Suddenly, numbers meant everything. Whether drugs or financial crime, the severity of the sentence was based on a number attributed to the crime by the government, which tied the judge’s hands as to sentencing range. What was meant by those numbers quickly became clear: The numbers bore little connection to any rational view of the crime, but rather to some fictional construct that served to make sure that a $10 theft looked like a million dollars. The defendant was sentenced accordingly.
Twenty years later, with the heat turned down to a mere simmer, the Supreme Court is finally fleshing out some of the harshest, most bizarre applications. In an odd 4-1-4 decision, the Supremes decided United States v. Santos, which held (kinda) that proceeds, at least in the context of gambling crimes, to mean “profit”. In this case, the crime itself involved the laundering of “proceeds”, and the issue arose in the context of a numbers runner delivering winnings.
While the lawprofs and Supreme Court watchers are fascinated with the breakdown of the vote, noting that Justices Scalia, Thomas, Souter and Ginsburg make up the bulk of the majority, with Justice Stevens providing the tie breaker, this is of less concern for me since I dwell in the trenches.
My hope is that this will bring reason back to the loss calculations of the sentencing guidelines.
Consider the implications: Santos…