MANDATING AND ENFORCING ETHICAL CULTURE THE FEDERAL SENTENCING

GUIDELINES

When internal mechanisms for creating ethical corporate cultures proves

inadequate, the business community can expect governmental regulation to fill the
void. The united states sentencing commission (USSC), an independent agency in
the U.S. judiciary, was created in 1984 to regulate sentencing, arbitrary
punishments, and crime control had been significant congressional issues. In
mandating sentencing procedurs, congress through the USSC has been able to
incorporate the original purpose of sentencing in their procedures, binging some of
these challenges under control.
Beginning in 1987, the USSC prescribed mandatory federal sentencing guidelines
that apply to individual and organizational defendants in the federal system,
bringing some amount of uniformity and fairness to the system. These prescriptions
based on the severity of the offense, assign most federal cimes to one of 43
offense levels. Each offender also is placed into a criminal history category based
upon the extent and recency of past misconduct. The court then inputs this
information into a sentencing grid and determines the offenders guideline range
(ranges are either in six-month intervals or 25 percent, whichever is geater), subject
to adjustments. In its October 2004 decision in U.S. booker, however the supreme
court severed the mandatory element of the guidelines from their advisory role,
holding that their mandatory nature violated the sixth amendment right to a jury
trial. Accordingly, though no longer mandatory, a sentencing court is still required to
consider guideline ranges, but is alse permitted to tailor a sentence in light of other
statutory concerns. This modification has not come without confusion. judges are
still generally following the guidelines with new cases. But figuring out what to do
with all the cases that have been sentenced under the old guidelines is the closest
thing to chaos you can describe, says douglas berman a law professor.
What is the relevance of these guidelines to our exploration of ethics and in
particular to our discussion of the corporate proactive efforts to create an ethical
workplace? The USSC strived in its guidelines to create both a legal and an ethical
corporate culture throygh these adjustments. The Sarbanes-oxley legislation
instructed the USSC to consider and review its guidelines for fraud relating to
securities and accounting as well as for obstruction of justice, and specifically asked
for severse and aggressive deterrents. In recognition of the enormous impact of
corporate culture on ethical decision making, the USSC updated the guidelines in
2004 to include references not only to compliance progams but to ethics and
compliance progams. In addition the criterion for an effective progam, which used
to be outlined in the guidelines commentary is now a separate guideline itself.
The guidelines seek to reward corporations that create an effective ethics and
compliance system so that they are not penalized (or the penalthy is reduced) if
they an effective progam but they find in court as a result of a bad apple or two. on
the other hand, firms that did not have effective ethics and compliance system

would be sentenced additionally to a term of probation and ordered to develop a

progam during that time.