July 31, 2006
Ebbers Conviction Upheld
Posted by Lisa Fairfax

Last week the Second Circuit upheld Bernie Ebbers 25 year sentence, calling it “harsh, but not unreasonable.” In fact the Second Circuit highlighted the difference between his sentence on those for violent crimes, noting “25 years is a long sentence for a white-collar crime, longer than the sentences routinely imposed by many states for violent crimes, including murder, or other serious crimes such as serial child molestation.” The Second Circuit nevertheless upheld the sentence as reasonable apparently because, based on the manner in which the sentencing guidelines are structured, Congress had made a judgment that the loss associated with some economic crimes warranted significant sentences and because Ebbers appeared to have been motivated by personal financial circumstances. The White Collar Crime blog poses some interesting questions about the decision, and about how we should assess the reasonableness of such sentences. http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/07/commentary_on_e.html

It is a hard question. On the one hand, the Second Circuit’s language seems to invite us to assess reasonableness by comparison to violent crimes, with predictable results. Indeed, that assessment—does any economic crime merit greater punishment than the punishment we would impose on a serial child molester?—tempts us to conclude that all economic crimes should receive less punishment than violent crimes. On the other hand, Congress seems to have placed a lot of emphasis on the loss caused by economic crimes. While the emphasis acknowledges that such crimes can have a significant impact on individuals and the market, such an emphasis seems like it could lead to disproportionate results. Indeed, does the person who commits a financial fraud at a Fortune 100 company merit greater punishment than the person who commits the same fraud at a small closely held firm? Viewed in this light, the case and sentence raise an important question not about what's reasonable, but rather about how we determine reasonableness.

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