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In early 2024, we published alerts on separate sets of remarks from Department of Justice ("DOJ") Deputy Attorney General Lisa Monaco warning that the DOJ would be seeking stiffer sentences for offenses made significantly more dangerous by the misuse of artificial intelligence ("AI").1 Deputy Attorney General Monaco specifically warned that the DOJ would seek reforms to the existing sentencing enhancements if it determined that they do not adequately address the harms associated with the misuse of AI.2
In line with those remarks and with the goals of "deterrence, just punishment, and incapacitation," the Criminal Division of the Department of Justice has asked the United States Sentencing Commission to consider a Chapter 3 enhancement specific to AI in its annual report to that body.3 The United States Sentencing Commission is an independent agency responsible for articulating the U.S. Federal Sentencing Guidelines for the federal courts.4 Pursuant to 8 U.S.C. § 994(o), the DOJ must submit an annual report to the Sentencing Commission commenting on and suggesting any warranted changes to the Sentencing Guidelines. While the Commission does not need to adopt recommendations from the DOJ or any other external body, it must consult with authorities on various aspects of the federal criminal justice system in reviewing and revising the Guidelines.
The Criminal Division's report outlines several risks of AI canvassed by Deputy Attorney General Monaco, including that AI "can make crimes easier to commit; amplify the harms that flow from crimes once committed; and enable offenders to delay or avoid detection."5 The report also flags unique concerns associated with the misuse of AI in the contexts of cybercrime and election security, which can have wider societal ramifications.6 In light of these concerns, the Criminal Division has suggested an enhancement applicable to cases in which the defendant used artificial intelligence during the commission of an offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense.7
In its report, the Criminal Division suggests that the pre-existing enhancement provisions do not adequately capture the harms associated with AI. It notes that the sophisticated-means enhancement only applies to certain offenses and would require the use of AI to be "sophisticated," whereas the proposed enhancement would apply to all offenses of conviction. Similarly, it notes that the proposed enhancement would not necessitate a showing that "special skill" was required to use the AI, unlike the special-skill enhancement.8
The Criminal Division's recommendations are geared toward sending an "early signal that those exploiting this new form of promising technology will face increased penalties."9 However, it remains to be seen whether the DOJ's broad vision for this AI-specific enhancement will be accepted as just and proportionate by the commissioners or courts. In any event, the DOJ's recommendation represents its desire to send the message that it takes crimes involving AI seriously. As we have written in past client alerts, companies can expect a corresponding increase in enforcement and regulatory scrutiny in the AI space. Should enforcement and regulatory queries arise, the Firm's White Collar/Investigations Practice has practical and current experience managing such inquiries on clients' uses of AI.
1 DOJ Doubles Down on Warnings Against AI Misuse | White & Case LLP (whitecase.com); Recent Regulatory Announcements Confirm Increased Scrutiny of "AI-Washing" | White & Case LLP (whitecase.com)
2 Office of Public Affairs | Deputy Attorney General Lisa O. Monaco Delivers Remarks at the University of Oxford on the Promise and Peril of AI | United States Department of Justice
3 Department of Justice, Criminal Division, Annual Report to the United States Sentencing Commission.
4 About | United States Sentencing Commission (ussc.gov)
5 Id. at p. 12.
6 Id.
7 Id. at p. 13.
8 Id.
9 Id.
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