The Role Of Criminal Sanctions In Antitrust Enforcement

Recently enacted sentencing guidelines were designed to reduce disparity and to increase the average sanction for white‐collar offenders. Whether these outcomes will be achieved, however, depends on how closely judges adhere to the new guidelines. We cannot yet determine how the guidelines will be implemented but can learn much about judicial behavior by studying past sentencing practice. This paper examines sentences imposed on criminal antitrust offenders from 1955 to 1980. Judges are appointed for life and ostensibly are “independent” of the political process. The data suggest, however, that judges do not operate in apolitical vacuum. When Congress increased the status of antitrust violations from misdemeanor to felony in 1974, judges responded by doling out higher penalties–even for offenders not subject to new higher statutory maximums. In addition, the paper shows that Republican judges tend to impose harsher antitrust penalties than do Democratic judges, and that sentencing behavior apparently is influenced by a judge's prospect of promotion to a higher court position. These findings have important policy implications both for the judicial selection process and for ensuring that the judicial branch follows congressional wishes.