Recent news headlines have been filled with see-sawing sentences for high-profile figures within President Trump’s circle of advisors and supporters who pleaded guilty or were found guilty of various crimes. The news sheds light on the broad discretion that federal judges have under federal sentencing guidelines.
It is also true, however, that judges do not have complete autonomy when determining the sentence for someone convicted of a white collar crime. In determining a sentence for a federal white collar crime, judges consider:
- The seriousness of the crime
- The criminal history of the defendant
- The need to deter criminal conduct
- The duty to protect the public
Variances and departures
U.S. Sentencing Guidelines were created to prevent unwarranted disparities in cases involving similar crimes. The guidelines establish a grid that lists potential sentences expressed in months of imprisonment. The range of sentencing used to be mandatory, but the Supreme Court ruled in 2005 that judges are not bound to follow the guidelines.
You may have heard the terms “variance” and “departure” used in connection with sentencing. A variance is a sentence that is outside of the Guidelines; a departure is a change from the Guideline range based on a Guideline policy, such as being elderly and infirm or having a substance abuse problem that is being treated. As a government-produced primer on departures and variances explains, “Departures help provide courts with a way to impose an appropriate sentence in exceptional circumstances.”
Adjustments can be up or down
Departures and variances can work for or against a defendant. That is, there can be upward or downward variances and departures. Prosecutors may ask for an upward variance in the same case in which defense attorneys request a downward variance.
The arguments for or against departures or variances are nuanced. It is critical for individuals who face federal criminal charges to work with an experienced defense attorney who understands the intricacies of seeking variances or departures in these cases.