The United States Sentencing Commission recently adopted new guidelines for sentencing in cases involving fraud and economic crimes, seeking to better account for the actual harm to victims, individual culpability and the offender’s intent. The revised guidelines will be submitted to Congress on May 1 and will go into effect November 1 unless Congress disapproves of the amendments.

The new guidelines include a number of significant revisions. Among the changes, the Commission clarified that the “intended loss” caused by the offender is a subjective, rather than objective, inquiry that is measured by the harm “that the defendant sought to inflict,” instead of the objectively predictable consequences. The Commission revised the enhancement system based on the number of victims of the offender’s crime to provide harsher penalties on those who cause “substantial financial hardship” to more victims, whereas previously the tiered enhancement system was based on the total number of victims, regardless of hardship. In fraud on the market based cases, the guidelines now specify that the enhancement will be determined by the gain that resulted from the offense, rather than the loss.

The Commission’s press release is available here.

Daniel Ketani is co-author of this article.