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Sentencing Essay

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Corporations cannot be incarcerated. Nor can they be put to death. Otherwise, corporations and individuals face many of the same consequences following conviction. Corporations can be fined. They can be placed on probation. They can be ordered to pay restitution. Their property can be confiscated. They can be barred from engaging in various types of commercial activity.
Corporations and individuals alike are sentenced in the shadow of the federal Sentencing Guidelines. Federal courts must begin the sentencing process for felonies or class A misdemeanors with a calculation of the sentencing ranges recommended by the Sentencing Guidelines. When they impose sentence, they must consider the recommendation along with the factors prescribed in
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In chapter 8C, the Guidelines set specific standards for crimes with a commercial flavor—antitrust, smuggling, and gambling offenses, for instance. The Sentencing Commission explicitly declined to promulgate special corporate fine standards for other offenses. Instead, corporate fines for such offenses are governed by two general statutory sentencing provisions. One, §3571, sets the permissible maximum amount for any fine. The other, §3553, outlines the sentencing factors and procedures applicable to both individuals and corporations. The limited case law suggests that sentencing courts may disregard the Guidelines completely in the case of a corporation convicted of one of these other offenses.
For the offense to which Chapter 8C’s fine provisions apply, a sentencing court must begin by deciding whether the defendant entity is able to pay a fine. If so, the amount of an organization’s fine is determined by the applicable offense level and the level of its culpability. An organization’s offense level is calculated in the same manner as an offense level for an individual but without the adjustments for things like vulnerability of the victim or role in the offense. Unless the amount of gain or loss associated with the offense is greater, the organization’s base fine is pegged at one of 33 levels corresponding to its offense level—from $5,000 for an offense level of 6 or less to $72.5 million for an offense level of 38 or more.
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