Fudge the Numbers on Your Tax Return? What if the Court Does the Same in Setting Criminal Sentences?

Fudging numbers, mystery math – it happens. Taxpayers are not allowed to do it. Should the federal courts be allowed to do it?

The federal sentencing guidelines assign points or levels to characteristics of individual crimes and individual criminal offenders. The higher the points or levels the higher the sentence imposed. It was hoped that this point system would result in uniform and rational criminal sentences being handed down by federal courts. Yet the sentencing guidelines do not specify what evidence the court may consider in applying the sentencing guidelines. As a result, the federal courts are in the position to apply the sentencing guidelines as they see fit — undermining the very reasons for having sentencing guidelines.

By way of example say a taxpayer fails to pay $500,000 of income taxes one year. The IRS discovers the omission, an investigation ensues, and the taxpayer is eventually taken into custody. The government asks a grand jury to indict the taxpayer for tax evasion. In the indictment the government alleges that the taxpayer evaded $250,000 of taxes, because that is all the government attorneys believe that they can prove in court. The government is deterred from asking the grand jury to indict based on the full $500,000 because (1) the government has to establish guilt as to that specific amount by proof beyond a reasonable doubt, which is a difficult burden to meet and (2) the government will probably not be able to get all of its evidence before the jury because the federal rules of evidence limit the admissibility of certain evidence.

So the grand jury indicts the taxpayer. A trial follows. The jury finds the taxpayer guilty of evading taxes to the tune of $250,000. The jury convicts. The jury goes home. The judge pulls out his or her sentencing guideline book. Before the judge opens the book, the government attorney says “Wait, Judge, we have evidence that this taxpayer owes an additional $250,000 of taxes. In addition, we have evidence that this taxpayer owes another $500,000 of taxes for a prior tax year.” The judge holds a hearing to see what this new evidence is all about. The hearing reveals that the government did not file a separate count against the taxpayer for the prior years taxes because the evidence was too weak to support a conviction. It also becomes apparent that the additional evidence for the extra $250,000 was not introduced because it was inadmissible under the federal rules of evidence.

Luckily (for the government) some of the federal rules of evidence do not apply at this hearing. Previously inadmissible evidence may now be admissible. Furthermore, the government’s burden of proof has been lowered to proof by a mere preponderance of the evidence.

The judge uses this additional evidence in applying the sentencing guidelines. Under the guidelines, without the additional evidence the taxpayer’s points or level would have been in the mid-twenty range and with the additional evidence it is in the low thirty range (forty-three is the highest points or level possible). So the additional evidence increases the taxpayer’s sentence by several years. The judge imposes the higher sentence. The taxpayer goes to jail.

Should the sentencing guidelines be applied based on evidence that was not heard by the jury? Or should the sentencing guidelines be applied based only on the evidence heard by the jury — the evidence that resulted in the criminal conviction? Has the sentencing guideline point system resulted in a more uniform and rational criminal sentence or is this just another example of fudged numbers or mystery math?

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