Availability of Probation in the Context of White Collar Defense
White Collar Criminal Defense By Harvey Binnall PLLC - 2019/01/10 at 12:44pm
If you’ve been charged with a white collar crime (such as insider trading, bank fraud, or various FCPA violations) then you could be exposed to a range of penalties that include significant jail time.
Though of course liability is best avoided, there are some situations in which the evidence clearly points to guilt. If the prosecution has clearly established your liability, then it’s important not to resign yourself to the worst-possible outcome — with the aid of a skilled criminal defense attorney, your sentence could be reduced and changed to probation so that you can avoid a term of imprisonment altogether.
Probation is an alternative form of punishment that allows the convicted offender to remain in their community. The offender is subjected to various probationary conditions (some of which may be quite strict) and will have to report to an assigned officer throughout the term of their probation. That aside, however, probation is almost certainly preferable to a term of imprisonment.
Let’s take a closer look.
Post-Booker Sentencing Guidelines and Mandatory Minimums
Whether your crimes are being prosecuted at the state or federal level, each offense is associated with a specific offense level that is then linked (along with one’s pre-existing criminal record) to a recommended sentence.
For example, the base offense level for bank fraud is either six or seven and may be increased depending on the amount of funds that were illegally obtained. If you have been charged with baseline bank fraud and have no prior criminal record, then the offense will fall into “Zone A.” Placement in Zone A or Zone B ensure that the offender is eligible for probation.
These recommended sentences are simply guidelines, however — they are not mandatory. In 2005, the Supreme Court (in the landmark US v. Booker case) affirmed the importance of judicial discretion in the sentencing context.
It’s worth noting that the avoidance of imprisonment altogether will not be possible if you are convicted of an offense that features a mandatory minimum sentence, unless you are able to persuade the sentencing judge to move forward with a downward departure.
Given the significant discretion given to a judge during white collar criminal sentencing, it is certainly possible to receive probation as opposed to a term of imprisonment. In evaluating whether to be more lenient, and impose probation, a judge will have to consider a variety of mitigating factors.
Factors Likely to Favorably Impact the Decision
Mitigating factors that could favorably impact the judge’s decision to impose probation include the following:
- Defendant’s actual culpability
- Defendant’s regret
- Defendant’s willingness to rehabilitate
- Defendant’s overall character (i.e., their generosity and reputation)
- Prior criminal record
- Social and organizational pressure on the defendant to commit the crime at-issue
- Whether the defendant cooperated with prosecutors and willingly disclosed important information
- Whether the defendant entered into a plea bargain
- And more
Speak to an Experienced Alexandria White Collar Defense Attorney for Guidance
Judges have significant discretion in terms of how they sentence white collar criminal defendants. As such, creative, skilled advocacy can spell the difference between a term of imprisonment and the imposition of probation.
Harvey & Binnall, PLLC is a boutique white collar defense firm located in Alexandria, VA and serving clients throughout Virginia, Maryland, and the Washington D.C. metro regions. Our attorneys boast decades of experience representing white collar defendants in complex litigation. Over the years, we have helped numerous clients minimize their sentences and secure probation instead.