CHAPTER EIGHT - SENTENCING OF ORGANIZATIONS


PART D - ORGANIZATIONAL PROBATION


Introductory Commentary

Section 8D1.1 sets forth the circumstances under which a sentence to a term of probation is required.  Sections 8D1.2 through 8D1.4, and 8F1.1, address the length of the probation term, conditions of probation, and violations of probation conditions.

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 422).  Amended effective November 1, 2004 (see Appendix C, amendment 673).


§8D1.1.     Imposition of Probation - Organizations

(a)       The court shall order a term of probation:

(1)       if such sentence is necessary to secure payment of restitution (§8B1.1), enforce a remedial order (§8B1.2), or ensure completion of community service (§8B1.3);

(2)       if the organization is sentenced to pay a monetary penalty (e.g., restitution, fine, or special assessment), the penalty is not paid in full at the time of sentencing, and restrictions are necessary to safeguard the organization's ability to make payments;

(3)       if, at the time of sentencing, (A) the organization (i) has 50 or more employees, or (ii) was otherwise required under law to have an effective compliance and ethics program; and (B) the organization does not have such a program;

(4)       if the organization within five years prior to sentencing engaged in similar misconduct, as determined by a prior criminal adjudication, and any part of the misconduct underlying the instant offense occurred after that adjudication;

(5)       if an individual within high-level personnel of the organization or the unit of the organization within which the instant offense was committed participated in the misconduct underlying the instant offense and that individual within five years prior to sentencing engaged in similar misconduct, as determined by a prior criminal adjudication, and any part of the misconduct underlying the instant offense occurred after that adjudication;

(6)       if such sentence is necessary to ensure that changes are made within the organization to reduce the likelihood of future criminal conduct;

(7)       if the sentence imposed upon the organization does not include a fine; or

(8)       if necessary to accomplish one or more of the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2).


Commentary

Background:  Under 18 U.S.C. § 3561(a), an organization may be sentenced to a term of probation.  Under  18 U.S.C. § 3551(c), imposition of a term of probation is required if the sentence imposed upon the organization does not include a fine.

Historical Note:  Effective November 1, 1991 (see Appendix C, amendment 422).  Amended effective November 1, 2004 (see Appendix C, amendment 673).