Recidivist Organizational Offenders and the Organizational Sentencing Guidelines

Despite congressional hearings and public attention, the question of how to fairly and efficiently punish recidivist organizational offenders remains unresolved. Any discussion regarding the most optimal legal response to recidivist organizational crime is incomplete without a solution accounting for the use of deferred prosecution agreements (DPAs) and non‑prosecution agreements (NPAs). These tools allow criminal defendants to resolve charges without sustaining convictions that attach to the defendants’ criminal records, and they are used often in the organizational context. This Article recognizes that the federal sentencing scheme fails to promote deterrence and fairness in the context of organizational sentencing and offers a practical solution to this problem. The federal sentencing scheme currently does not require an increase in an organizational defendant’s sentence when the defendant previously executed DPAs or NPAs before its subsequent criminal conduct. Yet the federal sentencing guidelines do require an increase in an individual defendant’s sentence if the individual previously executed a DPA. Meanwhile, the existence of prior DPAs and NPAs is a hallmark of organizational recidivism that demonstrates an organization is more culpable than other organizational defendants. Accordingly, this Article recommends that the Sentencing Commission amend the federal sentencing guidelines to require sentencing courts to increase organizations’ sentences based on prior DPAs and NPAs. This Article offers specific amendments for consideration. Finally, until the sentencing guidelines are amended, sentencing courts can use tools already in place to begin imposing more fair organizational sentences.