Prior Good Works in the Age of Reasonableness

Abstract:     
The Supreme Court's decision in United States v. Booker allows federal judges a bit more discretion in sentencing, and greater discretion in sentencing likely means less predictability in individual cases if the background of the person being sentenced takes on a larger role in assessing the appropriate punishment. One area that may become more prominent in sentencing in white collar crime cases is a defendant's prior good works, which the Federal Sentencing Guidelines discourage as a sentencing factor but judges in the post-Booker age of reasonableness may pay greater attention to in their sentencing decisions. The President's recent commutation of the sentence of I. Lewis Scooter Libby, based in part on his valuable government service, will only increase the likelihood that prior good works will be an important ground for seeking a reduced sentence.

With greater discretion comes the potential for disparity, and in this Article I offer three rules of thumb for trial courts, and appellate courts reviewing the reasonableness of a punishment, to keep in mind when considering whether a defendant's prior good works should be a factor in the sentence. The three rules are: (1) Money matters; (2) Beware the corporate chieftain; and (3) Elected officials violating the public trust should not receive credit for good works.

Keywords: Sentencing, Criminal Law

JEL Classifications: k14, k42

Working Paper Series