Twenty years after the U.S. Sentencing Commission implemented the Federal Sentencing Guidelines for Organizations, the Ethics Resource Center has issued an independent assessment of the the Guidelines’ effectiveness. Among its recommendations, the ERC said that the Guidelines should explicitly recognize that Ombuds are important and appropriate component for corporations to meet the requirements.
The Federal Sentencing Guidelines were intended to bring greater consistency in sentencing when organizations, especially corporations, were convicted of violations of U.S. law. Previously, sentencing had been left largely to the discretion of federal judges and the result was a wide variation in punishment for the same violations. After its review, the Ethics Resource Center has concluded that the Guidelines have helped inspire a major culture change among American businesses over the past two decades.
Notwithstanding these successes, the ERC identified a number of persistent concerns regarding the Guidelines and offered suggestions for several different federal entities. Among the recommendations for the U.S. Department of Justice, the ERC conveyed several suggestions received from the public, including one related to the role of Ombuds:
The Guidelines should explicitly recognize that an ombuds function may be an appropriate means of meeting the requirement “to have and publicize a system ... whereby the organization’s employees and agents may report or seek guidance regarding potential or actual criminal conduct without fear of retaliation.”
This recommendation appears to be based on letters submitted by attorney Chuck Howard and IOA President Tom A. Kosakowski, both of which are posted on the ERC website. However, the ERC did not incorporate Howard and Kosakowski's suggestions that the final report acknowledge the confidential nature of Ombuds work or the importance of supplementing formal compliance mechanisms. (Report of the ERC Advisory Group on FSGO; Comments from the Public.)