'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline

32 Pages Posted: 16 Jun 2016 Last revised: 10 Apr 2017

Date Written: June 15, 2016


This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.

Keywords: Criminal Law, Criminal Sentencing, Sentencing, Federal Sentencing Guidelines, Sentencing Commission, Economic Crime, Economic Crime Sentencing, Fraud, Fraud Sentencing, 2B1.1, Loss

JEL Classification: K1, K14

Suggested Citation

Bowman III, Frank O., 'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline (June 15, 2016). 82 Missouri Law Review __ (2017), University of Missouri School of Law Legal Studies Research Paper No. 2016-12, Available at SSRN: https://ssrn.com/abstract=2796353

Frank O. Bowman III (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States
573-882-2749 (Phone)

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