Defense lawyers who long have sought the changes say a window to act opened once the sentencing commission cut sentencing guidelines for drug crimes, clearing a major priority from its agenda.
It's unclear what action the commission ultimately will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis. But the discussion about tweaking sentences for economic crimes comes as some federal judges have chosen to ignore the existing guidelines in some cases and as the Justice Department, which has said it welcomes a review, looks for ways to cut costs in an overpopulated federal prison system.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake. Advocates arguing that white-collar sentencing guidelines are "mixed up and crazy" could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say.
Just as drug sentences historically have been determined by the amount of drugs involved, white-collar punishments typically are defined by the total financial loss caused by the crime. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability. Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually financially benefited or merely intended to.
The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role.
"It's real easy to talk about 10, 15, 20 years, but when you realize just how much time you're talking about ... it's too much," said Washington defense lawyer Barry Boss, an ABA task force member.
No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground. But defense lawyers are calling for a sentencing structure that takes into account the broad continuum of economic crime and that better differentiates between, for example, a thief who steals a dollar each from a million people versus $1 million from one person.
Any ambitious proposal will encounter obstacles.
It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities. The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population. Tea party conservatives and liberal groups united behind the change.
In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change.
"I don't think there's a political will for really cutting back or retooling the guidelines," Columbia University law professor Daniel Richman said.