Volume 72, Number 6

December 1997

Exploring Collateral Consequences: Koon v. United States, Third Party Harm, and Departures from Federal Sentencing Guidelines

Gregory N. Racz

Ever since Congress passed the Sentencing Reform Act of 1984 (Act), judges have used their powers to correct the perceived unjust effects of the Federal Sentencing Guidelines (Guidelines). One device wielded by the bench is the departure. Written into the Guidelines themselves, the departure gives district court judges discretion to increase or decrease a prescribed sentence for factors enumerated in the Guidelines as well as for factors that, in the view of the sentencing judge, were not fully considered by the authors of the Guidelines. The Supreme Court, in its recent decision in Koon v. United States, affirmed the enduring role departures play in sentencing jurisprudence. Increasing scholarly and judicial attention has focused on departures based on the effects on third parties such as family members. In contrast, judges and scholars have paid less attention to departures based on the effects on third parties such as employees.

Against this background, this Note will explore two questions. The first is whether the third party effects doctrine extends out of the home and into the workplace. The second question this Note addresses involves an unresolved issue in departure jurisprudence identified in Koon. Assuming departures are permissible, when are they justified? At present, no explicit framework exists to help courts to resolve this dilemma.