The author argues that when commissions do not include in their analyses major social and political forces that will affect the implementation of their recommendations, their work is incomplete. The U.S. Sentencing Commission first disregarded these forces and as a result had to redraft its recommendations drastically. After several twists and turns, it ended up with some creative responses to pressures by the business community. The commission tried to follow suggestions made on the basis of neoclassical economists; however, these proved to be impossible to implement and in conflict with basic values.
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References
1.
1. Amitai Etzioni, The Responsive Society: Collected Essays on Guiding Deliberate Social Change (San Francisco: Jossey-Bass, 1991), chap. 5.
2.
2. Victoria Toensing, “Corporations on Probation: Sentenced to Fail,”Legal Times, 12 Feb. 1990.
3.
3. Robert J. Giuffra, “Sentencing Corporations,”American Enterprise (May-June 1990).
4.
4. Neil A. Lewis, “White House Aide Intervenes on Tough Fines for Businesses,”New York Times, 29 Apr. 1990.
5.
5. Amitai Etzioni, “Going Soft on Corporate Crime,”Washington Post, 1 Apr. 1990.
6.
6. Barbara Franklin, “Corporate Penalties: Model Sentencing Guide Rewards Good Behavior,”New York Law Journal, 29 Mar. 1990.
7.
7. Stephen Wermiel and Martha Brannigan, “Sentencing Panel Puts Off Debate on Guidelines for Corporate Fines,”Wall Street Journal, 11 Apr. 1990.
8.
8. The treatment of Exxon after the Valdez spill is the exception, not the rule; also, in general, environmental groups are more powerful than other groups that support penalties on corporations, such as consumer and other liberal groups.
9.
9. Testimony of Jeffrey Parker before U.S., Congress, House, Committee on the Judiciary, Subcommittee on Criminal Justice, 101st Cong., 2d sess., 24 May 1990, pp. 463-464.
10.
10. A fuller discussion of this issue can be found in papers from “A National Conference on Sentencing of the Corporation,” George Mason University Law School, Fairfax, VA, 25 Oct. 1990. For a much more complete discussion of this issue, see Amitai Etzioni, The Moral Dimension: Toward a New Economics (New York: Free Press, 1988).
11.
11. For further discussion of the commission, see the proceedings of the Cato Institute's conference“Corporate Sentencing: The Guidelines Take Hold,”Washington, DC, 31 Oct. 1991.
12.
12. Gary S. Becker, “The Economic Approach to Fighting Crime,”Business Week, 28 Oct. 1985, p. 20.
13.
13. Parker testimony before House Subcommittee on Criminal Justice.
14.
14. Thomas C. Hayes, “Sick Savings Units Riddled by Fraud, FBI Head Asserts,”New York Times, 12 Apr. 1990.
15.
15. Marshall B. Clinard, Illegal Corporate Behavior (Washington, DC: Department of Justice, 1979), p. 108.
16.
16. See U.S., Sentencing Commission, draft guidelines, 5 Nov. 1990, sec. 8C5.
17.
17. Testimony of James Carty of the National Association of Manufacturers before U.S., Congress, House, Committee on the Judiciary, Subcommittee on Criminal Justice, 101st Cong., 2d sess., 24 May 1990, p. 244.
18.
18. Federal Register, 55(214):46612, 5 Nov. 1990.
19.
19. Testimony of Joseph diGenova before U.S., Sentencing Commission, 14 Feb. 1990.
20.
20. Testimony of John Borgwardt of Boise Cascade Corporation before U.S., Sentencing Commission, 14 Feb. 1990.
21.
21. Parker testimony before House Subcommittee on Criminal Justice, p. 446.
22.
22. James Traub, “Into the Mouths of Babes,”New York Times Magazine, 24 July 1988.
23.
23. “3 Executives Get 25 Years in Worker's Death,”New York Times, 2 July 1985. The conviction was later reversed on technical grounds.
24.
24. “Maker of Aircraft Fasterners Pleads Guilty to Conspiracy,”New York Times, 12 May 1990.
