Professor Doug Berman: Sentencing Law and Policy Expert

We were honored to host Prof. Doug Berman, the Newton D. Baker-Baker & Hostetler Chair in Law at Ohio State University and the author of the Sentencing Law and Policy blog, as our October 2023 White Collar Support Group Tuesday Night Speaker Series presenter. He joined us one week before that year’s U.S. Sentencing Commission amendments became law, and walked us through what had changed in the criminal history rules and who those changes actually reach. You can watch the full recording above.

If you have a sentencing date coming, a retroactivity motion to think about, or a lawyer who has not read these amendments closely, this is the hour to spend. By the Commission’s own math, close to half the federal prison population believed it qualified for relief and a small fraction of them actually did. Doug spent the night on that gap, because the gap is where the arguments are.

The Sentencing Commission changed direction, and compassionate release got the attention

For nearly five years there was no functioning Sentencing Commission at all. Doug’s reason for telling that story was not the politics of it. It was that plenty of defense lawyers were relieved.

We don’t look to the commission as a source of, of relief or or opportunity for our clients.

That is what a body sounds like when its entire modern history runs one direction. The rebuilt commission splits four to three, and for the first time in Doug’s memory the majority is pushing the other way.

The headline fight was over compassionate release, where the First Step Act, the law most people in our group know for its earned time credits, had taken the motion out of wardens’ hands and left the Commission to define an extraordinary and compelling reason. It sided with defendants, three commissioners dissented, and the Justice Department lined up behind them. Doug puts the real reach of that fight at maybe a thousand people. The change he says actually matters got a fraction of the coverage.

Who qualifies as a zero point offender, and who gets carved out

Status points, the extras added for offending while on probation, parole or supervised release, turned out to be poor predictors of reoffending and to fall unevenly by race. They are now halved or gone. Separately, anyone scoring zero criminal history points gets two levels off the offense level, the same currency as acceptance of responsibility. Zero points is not the same thing as a clean record, because old conduct ages out, and that distinction matters for a lot of people in our group.

Then come the carve outs, and this is where Doug slowed down and read the guideline the way he makes first year students read a statute, one word at a time. Most of the exclusions point somewhere else entirely. Two land squarely on white collar cases. The first turns on whether you personally caused substantial financial hardship.

And ultimately, that has no fixed meaning. That is not something that’s clear has any history in the guidelines, that’s going to be something that’s going to have to get litigated.

He expects prosecutors to lean on that phrase hard, at sentencing and against retroactivity motions. The second carve out is one sentence whose conjunction decides whether a common role adjustment costs you the reduction entirely. Watch him take both apart, then ask your lawyer which side of them you are on. Adam Bentley Clausen and Rachel Barkow have both talked with us about this commission from the inside.

Why intended loss is suddenly worth fighting in a fraud case

The fraud guideline says to calculate loss. It is the commentary, not the guideline, that tells courts to use the greater of actual loss or intended loss, and intended loss is where undercover proposals and speculative arithmetic do their damage. Nobody is harmed, nobody could have been, and the range climbs anyway, which is why what a forensic accountant can do to the government’s loss figure is worth understanding before that number hardens.

Several circuits now say courts owe no deference to commentary that stretches past what the guideline itself says. Doug described a credit card case in which a commentary rule turned roughly two thousand dollars of actual charges into five million on paper, and the court refused to go along with it. Other circuits disagree, the Supreme Court has shown no interest yet, and the Commission is weighing whether to strike its own commentary and start over.

There is a catch, and he names it plainly: a judge barred from using intended loss in the calculation can still arrive at the same sentence by another road, and whatever loss number survives sentencing shapes the restitution and forfeiture fight waiting behind it. What that means for how you and your lawyer argue loss is the practical heart of the hour, and it pairs well with our session with Doug Passon on building a sentencing case.

About Doug Berman

Douglas A. Berman is the Newton D. Baker-Baker & Hostetler Chair in Law at the Moritz College of Law at The Ohio State University and Executive Director of its Drug Enforcement and Policy Center. He attended Princeton University and Harvard Law School, where he was an editor of the Harvard Law Review, then clerked for Judge Jon O. Newman and Judge Guido Calabresi on the Second Circuit early in the mandatory guidelines era. He helps edit the Federal Sentencing Reporter and co-wrote the casebook Sentencing Law and Policy. The blog of the same name launched one month before the Supreme Court decided Blakely v. Washington, and judges and practitioners have been reading it ever since.