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Legal Commentary - Mark Allenbaugh Archive



Mark H. Allenbaugh is a managing partner of Allenbaugh Samini LLP, and is a nationally recognized expert on federal sentencing, law, policy and practice. He has served as chair of the Federal Sentencing Guidelines Task Force for the D.C. Chapter of the Federal Bar Association, Co-Chair of the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers, and as a member of the ABA's Corrections and Sentencing Committee. Prior to entering private practice, he served as a Staff Attorney for the U.S. Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing policy and criminal justice, and is quoted frequently in the national press. He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice (2d ed., Foundation Press, 2002). Mr. Allenbaugh also is the Director of Allenbaugh Samini, LLP's integrated China Trade Law Division. He has extensive experience in Chinese trade law, due diligence, logistics and intellectual property matters. Finally, Mr. Allenbaugh is a former Adjunct Professor at the George Washington University where he taught courses on Ethics in Business and the Professions.
 Columns by Mark H. Allenbaugh

Keeping Consumers Safe from Defective Imported Products: After a Year of Executive and Congressional Investigations, Testimony, and Posturing, Are We Any Safer?
FindLaw columnist and attorney Mark H. Allenbaugh discusses how America can better ensure the products it imports are safe. As Allenbaugh explains, after a series of recalls of defective products from China, including products for children, both the Executive Branch and Congress sought solutions -- through The President's Interagency Working Group on Import Safety, Operation Guardian, and the bipartisan Consumer Product Safety Commission Reform Act, which is expected to soon become law. However, Allenbaugh argues that the only approach that will truly be effective remains untried: ensuring that American companies, through tradeshows or on their own, provide training and followup in China to ensure that the Chinese companies whose goods they import follow procedures that guarantee product safety.
Wednesday, Jul. 30, 2008

The State of Federal Cocaine Sentencing Policy: Will Congress Soon Finish What the U.S. Sentencing Commission Started?
FindLaw guest columnist John R. Steer, former Vice-Chair of the United States Sentencing Commission, in collaboration with FindLaw guest columnist Mark Allenbaugh, a former Staff Attorney for the Commission, discusses the current legal situation regarding federal cocaine sentencing policy. With the large disparity between crack and powder cocaine sentences the object of longstanding criticism, Congress has decided to close the gap with respect to offenders sentenced in the future. Now, the Commission is recommending that Congress address the gap retroactively as well. However, Attorney General Mukasey has opposed this measure, which would entail releasing some prior crack offenders, due to worries that the offenders may be dangerous. In response, Steer contends that in light of judges' discretion and input from probation officers and prosecutors, the few violent offenders surely will not be among those released.
Monday, Feb. 18, 2008

A Positive Development in All the Sentencing Insanity: How The Supreme Court and the U.S. Sentencing Commission Have Begun to Correct the Damage Done by the War on Drugs
FindLaw guest columnist and former U.S. Sentencing Commission Staff Attorney Mark Allenbaugh discusses two Supreme Court decisions issued last week that enhance U.S. district judges' ability to employ their own discretion in sentencing. In particular, as Allenbaugh explains, the decisions together support judges' efforts to address the large disparity between sentences for equal amounts of crack and powder cocaine. Allenbaugh welcomes this as a positive development, noting the difficulty of defending the disparity, its disproportionate impact on African-American men, and the U.S.'s stunningly large percent of imprisoned citizens, compared to other countries.
Wednesday, Dec. 19, 2007

The U. S. Sentencing Commission Considers Shortening Terms for Imprisoned Crack Offenders: Should the Reduction of the Disparity Between Crack and Powder Cocaine Sentencing Be Retroactive?
FindLaw guest columnists Mark Allenbaugh, a former Staff Attorney for the U.S. Sentencing Commission, and Paul Hofer, an attorney who is a former Special Projects Director and Senior Research Associate with the Commission, discuss the proposal before the Commission to abolish the long-criticized disparity between sentences for crack and powder cocaine offenders who were sentenced based on equal amounts of cocaine. Allenbaugh and Hofer focus, in particular, on the possibility that the elimination of the disparity will be retroactive, thus leading to the early release of a number of crack cocaine offenders, whose sentences would be revised to be more comparable to those powder cocaine offenders have served.
Monday, Nov. 19, 2007

The Unfortunate Politics of Import Safety: As Congress and the White House Squabble over Strategy, the Objective of Protecting the Public Remains in Peril
FindLaw guest columnist and attorney Mark Allenbaugh assesses two new proposals regarding import safety -- an issue that is all the more important in the wake of yet more recent recalls of products imported from China. Allenbaugh contends that neither the Action Plan of the President's new Interagency Working Group on Import Safety, nor the Consumer Product Safety Commission Reform Act of 2007, will effectively address the key objective here: preventing dangerous merchandise from reaching our stores and shelves
Monday, Nov. 12, 2007

Drugs, Disparity, and Judicial Sentencing Discretion: Two Cases Invite the Roberts Court To Finally Clarify What Constitutes A Reasonable Sentence Under the Now-Advisory U.S. Sentencing Guidelines
FindLaw guest columnists Mark Allenbaugh, a former Staff Attorney for the U.S. Sentencing Commission, and Donald A. Purdy, Jr., a former Acting General Counsel and Chief Deputy General Counsel for the Commission, comment on the significance of two sentencing cases the Supreme Court will decide this coming Term. Allenbaugh and Purdy summarize the Court's recent and extremely important decisions about the U.S. Sentencing Guidelines, which the Court deemed advisory as a result of Sixth Amendment jury trial issues, and then go on to consider how this Term's two cases, Gall and Kimbrough, may fit into this rapidly-developing area of law.
Thursday, Oct. 04, 2007

The President's Interagency Working Group on Import Safety's Initial Report: On the Right Track, but Can the Destination be Reached?
FindLaw guest columnist and attorney Mark Allenbaugh discusses an issue that has recently been making headlines: the safety of products imported into America. In particular, Allenbaugh assesses the six key policy prescriptions contained in the initial report issued earlier this month by the President's Interagency Working Group on Import Safety. Allenbaugh contends that while some of the report's points are correct, its policy prescriptions will not be truly effective unless one major revision is made. Since a hearing on the Report has yet to occur, he notes there is still time to make that revision.
Tuesday, Sep. 18, 2007

Michael Vick's Sentencing Gamble: How Much Time Can He Expect?
FindLaw guest columnists Mark Allenbaugh, a former staff attorney for the U.S. Sentencing Commission, and Frank Larry, a former Deputy Director of the U.S. Sentencing Commission's Office of Education and Sentencing Practice and probation officer, weigh in on the likely sentence star quarterback Michael Vick will face if he is convicted of, or pleads guilty to, federal charges of conspiracy to engage in racketeering and dog-fighting. Allenbaugh and Larry cover issues such as whether the gambling and dog-fighting aspects of the case will be seen as constituting separate crimes for sentencing purposes, and whether a crime against an animal is seen to constitute a "crime of violence" within the meaning of the relevant legal sources.
Monday, Aug. 20, 2007

How Placing Increased Duties on U.S. Importers And Providing U.S. Government Assistance Can Stem the Rising Tide of Product Liability Lawsuits Based on China-Made Goods
FindLaw guest columnist and attorney Mark Allenbaugh considers different regulatory strategies to curb the number of U.S. products liability lawsuits involving goods made in China. Allenbaugh contends that rather than the U.S.'s pushing China to regulate its manufacturers, the most effective strategy is for U.S. importers to put pressure on their Chinese suppliers to create a "culture of compliance," and for the U.S. government to offer assistance in that endeavor.
Tuesday, Aug. 07, 2007

The Supreme Court's New Blockbuster U.S. Sentencing Guidelines Decision:
A Clear Sixth Amendment Ruling, with an Invitation to Congress to Create a Better Remedy

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh explains the Supreme Court's recent blockbuster decision in United States v. Booker. There, the Court held the U.S. Sentencing Guidelines, in part, unconstitutional -- yet still allowed them to exist in an "advisory" role, for federal judges to consider. Allenbaugh explains how, in the opinion, two very different Court majorities -- only Justice Ginsburg joined both -- forged two holdings, and explains what the practical impact of each holding will be.
Friday, Jan. 14, 2005

The Supreme Court's Decision in Blakely v. Washington:
A Watershed Ruling that will Usher In Much Needed Sentencing Reform

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh discusses the significance of a recent decision by the Supreme Court holding that a jury -- not a judge -- must find all the facts that increase a defendant's sentence. Allenbaugh argues that this decision will have seismic effects -- requiring a rethinking of sentencing in the federal system, and those of many states as well.
Tuesday, Jul. 06, 2004

How Much Time Will Martha Stewart Do?:
How Her Sentence Will Be Calculated, And How Long It May Be

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh discusses the calculation, under the U.S. Sentencing Guidelines, of the sentence Martha Stewart will receive now that she has been convicted. Allenbaugh also discusses Stewarts chances on appeal, and explains why, at this point, a "downward departure" from the Guidelines in her case, while possible, is very unlikely.
Wednesday, Mar. 10, 2004

The King of Pop Faces the Music
The Sentences Michael Jackson May Face If Convicted Under California And/Or Federal Criminal Statutes

FindLaw guest columnist, attorney, and former U.S. Sentencing Commission staffer Mark Allenbaugh discusses the possible sentences Michael Jackson may face if he is convicted on the California abuse charges that reportedly are being brought against him, or on possible federal charges that could follow. Allenbaugh explains why, if convicted, Jackson could still serve a short amount of jail time, in part due to California's parole system.
Thursday, Dec. 04, 2003

A New Era for Corporate Ethics, Reform and Responsibility?
The Final Report by the Advisory Group on the Sentencing Guidelines for Corporations and Other Organizations

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh discusses the recent report issued by the ad hoc Advisory Group on Organizational Sentencing, which includes some of the nation's top corporate crime experts. Allenbaugh describes the current Sentencing Guidelines' provisions with respect to corporate fines compliance programs, and lauds the Advisory Group's suggestions for how the Guidelines should be strengthened to prevent further scandals like Enron.
Thursday, Oct. 09, 2003

The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo:
An Assault Against the Federal Courts

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh discusses two important and controversial pieces of federal legislation -- one enacted, and one pending -- that address federal judges' ability, in individual cases, to impose sentences lower than those prescribed in the Sentencing Guidelines.  Though the Supreme Court has upheld courts' ability to "downwardly depart," Congress and the Department of Justice are attempting to restrict that judicial option.
Wednesday, Aug. 13, 2003

Martha Stewart Living - Behind Bars?
If She Pleads Guilty, What Sentence Might She Receive? And How Might Her Celebrity Matter?

FindLaw guest columnist and attorney Mark Allenbaugh provides specifics as to the sentence that Martha Stewart might receive if she pleads guilty to, or is convicted at trial of, the offenses for which she was recently indicted.  Allenbaugh also considers how Stewart might be able to lower her possible sentence, and how her celebrity status might come into play in sentencing.
Monday, Jun. 09, 2003

The Law And Politics Of Sentencing:
Are We Finally Shifting the Focus Out of the Streets and Into the Suites?

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh contrasts several sentencing developments that have recently been in the news. As Allenbaugh explains, there seems to be a trend in which street crime -- such as death-eligible murder -- is treated more fairly, as evidenced by death penalty developments in Illinois and Maryland. At the same time, recent government announcements suggest a long overdue crackdown on white collar crime.
Tuesday, Jan. 14, 2003

Sentencing the Symbionese Liberation Army:
Why the Plea Agreement Is Too Lenient, and What Can Be Done About It

FindLaw guest columnist, attorney, and former U.S. Sentencing Commission staffer Mark Allenbaugh discusses the recent plea agreements of four members of the Symbionese Liberation Army -- a radical group that committed a series of crimes, including the Patty Hearst kidnapping, in the Seventies. Under the agreements, each of the four pled guilty to second-degree murder, in exchange for sentences ranging from six to eight years.
Monday, Nov. 18, 2002

Sentencing The Serial Snipers: Options For Their Prosecution And Possible Execution, And The Issue Of Whether They Are "Terrorists"
FindLaw guest columnist, attorney, and author Mark Allenbaugh discusses a series of controversial questions about the fate of the two men, recently apprehended, who are alleged to be the serial snipers that have terrorized the suburbs near D.C. Will the 17-year-old, if convicted, receive the death penalty? Even if the death penalty is imposed on him, might the courts strike it down as unconstitutional? Is it proper to treat the murders and shootings as "terrorism," or are they simply serial murder and attempted murder?
Monday, Oct. 28, 2002

Is There A Doctor In The House?:
High Insurance Premiums, Disappearing Doctors, And The Urgent Need For The Senate To Pass The New Health Act

FindLaw columnist and attorney Mark Allenbaugh discusses the crisis of skyrocketing medical malpractice insurance premiums, and advocates the bill being considered by the Senate as the correct solution. Allenbaugh explains how the bill would alter current law, and responds to common critiques of it.
Tuesday, Oct. 15, 2002

Patents, Pedophilia, and Punishment:
Should Intelligence, Good Acts, and Achievements Have Helped David Westerfield Avoid the Death Penalty?

FindLaw guest columnist, attorney, and former Sentencing Commission staffer Mark Allenbaugh discusses a jury's recent recommendation that David Westerfield, the convicted abductor and killer of second-grader Danielle van Dam, receive a death sentence. Westerfield's lawyers tried to argue that the jury should not recommend death in part because of Westerfield's past positive achievements. Were the lawyers right or wrong?
Monday, Sep. 23, 2002

Michael Skakel's Sentencing:
An Anachronism, And Not Only Because Of The Long-ago Crime

FindLaw guest columnist, attorney, and former U.S. Sentencing Commission staffer Mark Allenbaugh comments on the sentencing last week of Kennedy cousin Michael Skakel. Skakel was sentenced to 20 years to life in prison for the 1975 murder of Martha Moxley; at the time of the crime, he was fifteen years old. Allenbaugh explains why the sentencing is anachronistic in two respects -- both in the treatment of a violent but then-juvenile offender, and in the imposition of an indeterminate sentence whose actual tenure will be up to a parole board, not a judge.
Monday, Sep. 02, 2002

How Innovative Sentencing Reforms Can Complement Recent Legislation Designed To Address Corporate Crime
FindLaw guest columnist, attorney and former Sentencing Commission staffer Mark Allenbaugh suggests sentencing reforms to complement the reforms embodied in the just-enacted Sarbanes-Oxley Act, which is designed to fight corporate abuses. Allenbaugh also describes the new duties the Act imposes upon companies and their attorneys and auditors -- and argues that the Act reflects a reconceptualization of corporations' very purpose.
Thursday, Aug. 01, 2002

Why The American Taliban May Only Serve 13, Not 20 Years, In Prison:
The Government's Sentencing Mistake In Lindh's Plea Agreement

FindLaw guest columnist, attorney and former Sentencing Commission staffer Mark Allenbaugh explains why the plea agreement the government made with John Walker Lindh may lead to a sentence far shorter than the 20 years the government hopes for -- specifically, one of about 13 years. Because of the limited nature of the two offense to which Lindh pled guilty, Allenbaugh contends, the availability of the "terrorism adjustment" necessary to get the government the 20 year sentence it seeks is in doubt.
Monday, Jul. 22, 2002

Why A Recent Supreme Court Decision Inexplicably Will Continue To Allow Mandatory Minimum Sentences To Be Based On Hearsay Evidence Never Presented To A Jury Or Proven Beyond A Reasonable Doubt
FindLaw guest columnist, attorney and former U.S. Sentencing Commission staff attorney Mark Allenbaugh weighs in on the Supreme Court's recent, fractured sentencing decision. As Allenbaugh explains, the decision -- in Harris v. United States -- holds, via a 4 justice plurality and Justice Breyer concurring in the result -- holds, in effect, that a judge's fact finding can raise a defendant's sentence by two years without violating the Sixth Amendment jury trial right. Allenbaugh argues that the majority is in error, and that Justice Thomas, in dissent, has it right.
Thursday, Jun. 27, 2002

What Sentence for Osama bin Laden, and Other Terrorists?:
A Crucial But Neglected Question

FindLaw guest columnist, George Washington University philosophy of law professor, and author Mark Allenbaugh discusses the purposes of sentencing; how those purposes apply to terrorists; and why motive plays a crucial role. Allenbaugh notes that under U.S. sentencing standards, terrorists' culpability may be aggravated if they are motivated by anti-American hatred, but could be mitigated by their political motives, as occurred in the trials of Timothy McVeigh and al-Qaeda member Rashed Daoud al-'Owhali.
Tuesday, Dec. 11, 2001

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