106 Iowa L. Rev. 873 (2021)
When making sentencing decisions, judges only consider downward departures based on charitable donations when a defendant’s financial donations are extraordinary, and the offense is a white-collar crime. Because only wealthy defendants can make such extraordinary donations, a judge inherently considers a defendant’s wealth—and, by extension, a defendant’s socioeconomic status—when considering a defendant’s charitable giving. Though the U.S. Sentencing Guidelines forbid judges from considering socioeconomic status, as evinced in section 5H1.10, recent Supreme Court decisions have complicated the issue. In United States v. Booker, the Court made the Guidelines advisory. In Koon v. United States, the Court clarified that district court sentences are only subject to an “abuse-of-discretion” review. Supreme Court precedent, however, indicates that when criminal adjudication affects a defendant’s liberty, the Court is particularly committed to preserving fairness in the judicial process. This commitment protects defendants from undue discrimination, while ensuring that wealthy defendants cannot circumvent punishment by “investing” in their future liberty. Yet, a defendant can do precisely that by making extraordinary charitable donations. But this problem can be solved. In the short term, the U.S. Sentencing Commission should amend section 5H1.11 to clarify that charitable donations do not constitute charitable service. Ultimately, however, the only comprehensive solution is for the Supreme Court to hold that when judges consider defendants’ charitable donations during criminal sentencing, they abuse their discretion because such consideration impermissibly favors affluent defendants over non-affluent defendants. Such a holding will reaffirm the Court’s commitment to fundamental fairness in criminal adjudication while rebuilding public faith in the judicial process.