Go Directly to Jail: White Collar Sentencing after the Sarbanes-Oxley Act

In 2002, reacting to the devastating collapse of Enron and other major American corporations, Congress enacted the Sarbanes-Oxley Act. Included in the Act was the White-Collar Crime Penalty Enhancement Act of 2002 (WCCPA), which sharply increased penalties for various forms of fraud. Unfortunately,...

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Bibliographic Details
Published in:Harvard law review 2009-04, Vol.122 (6), p.1728-1749
Main Author: [Unknown]
Format: Article
Language:English
Subjects:
Corporate crime
Crime and criminals
Criminal offenses
Criminal punishment
Criminal sentences
Criminal sentencing
Criminals
Deterrence
Disclosure of information (securities law)
Fraud
Jurisprudence
Laws, regulations and rules
Legislation
Prisons
Public Company Accounting Reform & Investor Protection Act 2002-US
Recidivism
Sentenced offenders
Sentences (law)
Sentencing guidelines
U.S.A
United States
White collar crime
White collar crimes
White collar criminals
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Summary:In 2002, reacting to the devastating collapse of Enron and other major American corporations, Congress enacted the Sarbanes-Oxley Act. Included in the Act was the White-Collar Crime Penalty Enhancement Act of 2002 (WCCPA), which sharply increased penalties for various forms of fraud. Unfortunately, both the Act and the WCCPA have proven overly rushed and insufficiently prescient to deal with the changing face of business crimes in America. This article argues that a major reason for this result is that judges have reacted to the harsher WCCPA sentences by increasingly departing from the Federal Sentencing Guidelines. Part I of this article lays out a basic flaw in modern white collar criminal sentencing, discussing how the current sentencing scheme neither deters crime nor requires a just level of punishment, and is thus an ineffective and perhaps retrograde method of achieving societal goals. Part II proposes two possible reasons that this problem has arisen. Part III proposes several solutions to these problems, including alteration of the loss calculation mechanism.
ISSN:0017-811X
2161-976X