By Joe Murphy, CCEP
From Compliance & Ethics Professional, a publication for SCCE members
This is a column about the Sentencing Guidelines seven elements. Your reaction: “Are you kidding? Everyone already knows the seven elements.” My response: “Oh how I wish that were true.” It is now 24 years after the first appearance of the seven, which were revised in 2004. Yet often I see even experienced writers leaving things out. I once read a legal publication with numerous authors; seven of them purported to state the seven elements – six of them omitted at least one required point.
Because of space limits, I cannot print the entire seven here, so I will focus on things that are often omitted, but are indisputably part of the Guidelines standards.
How many times have you seen lists of the seven elements that say something like this: “Discipline and enforcement”? What do writers omit? Incentives. Under the Guidelines Element 6, if your program does not cover incentives, you do not meet the minimum standard. From my perspective, if you ignore incentives, you severely undercut your program.
Have you seen writers refer to Element 3 as covering communications/training? Communications and training are certainly in the Guidelines, but as Element 4. Element 3 calls for not delegating substantial authority to people if their backgrounds indicate they are not trustworthy. This is why companies do background checks. If your program omits this, it does not meet the minimum.
I have seen Element 5 described simply as auditing and monitoring. That needs to be in the program, but Element 5 has three minimum items. One is a reporting system – usually included by writers, but often as a separate one of the seven elements; it is not – it is only part of Element 5.
More often omitted from Element 5 is the separate requirement to evaluate the program. How is this different from auditing and monitoring? Companies must monitor and audit “to detect criminal conduct.” This is not program evaluation. Element 5 requires us: “to evaluate periodically the effectiveness of the organization’s compliance and ethics program”.
Sometimes writers include risk assessment as one of the seven. It is not. Sometimes it is left out completely. It should not be. How does it fit in? When risk assessment was added in 2004, it was not technically added to the seven; it is a separate item (c). It is an indispensable step, but not literally one of the actual seven.
Writers may not like doing background checks or not want to include incentives. We should all be free to express our opinions and specifically say that we are doing so. But we need to recognize that if we are referring to the seven elements, which are recognized as the Sentencing Guidelines standards, we do need to use what is actually there.
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