Some Thoughts on Proposed Revisions to the Organizational Guidelines

In this article, Professor O\u27Sullivan, who served as the reporter for the U.S. Sentencing Commission\u27s Ad Hoc Advisory Group for Organizational Sentencing Guidelines, reflects on that Group\u27s work. She concludes that the potential impact of many of the policy fixes within the power of the Sentencing Commission is dwarfed by decisions that lie solely within the power of the Department of Justice or Congress. Specifically, Department of Justice decisions regarding what constitutes organizational cooperation may have a determinative impact on organizational incentives regarding compliance efforts and decisions to investigate, self-report, and cooperate in the remediation of organizational wrongdoing. Professor O\u27Sullivan also describes how congressional inattention handicaps the Commission\u27s attempts to introduce consideration of corporate culpability into organizational sentencing and leaves in place important disincentives for effective compliance created by the litigation dilemma. Finally, Professor O\u27Sullivan also discusses the Sentencing Commission\u27s foray into organizational best practices for compliance purposes. She concludes that although the Sentencing Commission\u27s mandate is restricted to formulating guidelines that govern the determination of organizational culpability for purposes of criminal sentencing, attention to the purposes of criminal punishment in this context requires the Commission to create, in essence, a flexible compliance manual that outlines practices and structures necessary to effective systems for preventing and detecting violations of law