This article discusses the U.S. Sentencing Commission’s vote to potentially revise the definition of loss. Anyone who has followed the Commission's deliberations on loss will see that the proposed definition attempts to address many of the contentious issues that have arisen in the case law and commentary. The issues that the proposed definition concentrates on, however, such as credits, interest, causation, and gain, tend to inform the inquiry into "actual loss" rather than "intended loss," even though the latter concept is integral to both definitions. Although neither the current nor the proposed definition provides much guidance for working with intended loss, the Commission did preserve the "whichever is greater" rule that is currently found in the fraud guideline. Unfortunately, both the "whichever is greater" rule and the proposed intended loss definition are seriously flawed. As the following discussion will demonstrate, the "whichever is greater" rule has the effect of treating different defendants similarly, and the proposed definition fails to account for certain mental states that may merit increased punishment even though they do not rise to the level of "intent." Correcting these shortcomings would improve the loss definition and help ensure that federal courts impose properly proportionate sentences.
James Gibson, How Much Should Mind Matter? Mens Rea in Theft and Fraud Sentencing, 10 Fed. Sent'g. Rep. 136 (1997).