What Really Counts in White-Collar Sentencing

Co-Authored by Tim Crudo, originally published in Litigation, Spring 2015

“‘How long could I go to prison?’ is a delicate question coming from any client. Estimate a sentence too high and your client could be inclined to plead guilty in a case he or she otherwise would want to fight. Too low, and you risk one day having a very surprised (and angry) client. The U.S. Sentencing Guidelines offer different factors to count in calculating a sentence, but they help only to a point. The factors are many, the guidelines are nonbinding, and judges have considerable discretion in formulating a sentence.

When it comes to sentencing white-collar defendants in particular, what factors matter? Each case is different, of course, but the defendants caught up in the Galleon Group insider trading scheme provide an interesting laboratory to study this question. The cross section of different strategies employed by the two dozen or so criminal defendants in these highly publicized cases presents an opportunity to examine the impact of a number of sentencing factors. Looking back from the vantage of the defendants’ sentences, was it better to go to trial or take a plea? Is loss, which seems to play a huge role in calculating guideline ranges, all it’s cracked up to be? How beneficial was cooperation? Of the sentencing factors to count, what really counts?”

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