More Narrative, Less Arithmetic: Appropriately Assessing the Harm of White-Collar Financial Losses

Abstract

The Federal Sentencing Guidelines are advisory but highly influential. The advice they give today is followed in a substantial majority of cases, and, in white collar criminal cases where the sentence is determined largely by number of victims or amount of financial losses, the Guidelines risk over- and under-punishing due to poorly-engineered mechanisms for quantifying harm. This Paper proposes Guideline amendments to focus the harm calculation less on the abstract mathematics of financial losses or large, distributed classes of victims and more on the nature and extent of the harms of financial losses to individuals and organizations. These amendments will result in more punishment for higher-impact harms and less punishment for lower-impact harms. As well, they will produce more punishment for substantial harms inflicted on large numbers of victims, even when the victims are not individually identifiable, and less punishment for inconsequential harms shared among broadly distributed groups of victims. The end result is an application of retributive punishment more proportionately linked to the objectively measurable impact of the harm, whether intensely concentrated or highly dispersed, to provide increased retribution and deterrence for offenses causing more human suffering.