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09.17.21 | Blog Posts

The U.S. Sentencing Commission’s Inadequate Response To Covid-19

The Insider: White Collar Defense and Securities Enforcement

For the past 18 months, federal courts have grappled with the impact of Covid-19 on sentencing proceedings, and a curious disparity has emerged. On the one hand, anecdotal evidence suggests that federal judges are imposing more lenient sentences in recognition of how the pandemic has made imprisonment harsher and more punitive than in the past. On the other hand, reports available from the U.S. Sentencing Commission tell a different story—at least for now—suggesting that courts have to a great extent ignored the pandemic when imposing sentence. I have written in the past (here and here) about how the body of sentencing law is effectively hidden from public view (as it exists primarily in court transcripts). This dearth of readily accessible sentencing law is particularly problematic during the Covid-19 pandemic, as courts are grappling with novel issues in hundreds of cases. The U.S. Sentencing Commission is uniquely positioned to fill this gap, but so far has largely failed to do so.

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