Takes 1

Cole Takes
Instructor: Malcolm Campbell
UWRT 1103
4/4/16

Is Punishment for White Collared Crimes too Lenient or too Severe?

Joe is a real estate agent in his prime. He has become accustom to a lavish life style with
the booming housing market. All of a sudden in 2008, the market crashes and people arent
buying houses. Joe struggles to make ends meet and eventually resorts to mortgage fraud in order
to support the life style he and his family have been living. Joe is eventually caught and given
eighty years in prison because of the number of mortgage scams he pulled off, essentially a life
sentence at his age.
Joes scenario may not be one of those stories that hurts just to listen to but there is still
an issue here. While having your jet-ski repossessed may not be the saddest thing you have ever
heard, white collar sentences are out of line when compared to other types of crimes. You dont
get a life sentence for second degree murder, so why should you get a life sentence for
committing mortgage fraud?
Joes scenario may be hypothetical, the case of Sholam Weiss is not. Sholam Weiss was
convicted of seventy eight counts of racketeering, money laundering and wire fraud. While this
sounds like a very serious list of white collared crimes, he received an eight hundred and forty

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five year sentence (Haury). Eight hundred and forty five years seems excessive for any crime
short of mass murder. It leads one to wonder the criteria a sentence like this was based on.
Sentences are based on the loss amount and the number of people affected by the crime. Trying
to calculate the loss amount caused by a crime is far from an exact science. As you can imagine
when attempting to pull of an elaborate crime you are not likely to keep a Microsoft Excel
spreadsheet of all your transactions. The number of things that are taken into account when
attempting to calculate a loss amount is outrageous. A prosecutor must account for not only the
amount of money taken by an offender but also any money lost as a consequence of this action.
This is particularly troubling when dealing with a public corporation. When an offenders actions
cause a drop in stock price the offender is held responsible for money lost by investors. This
often causes a loss amount that overstates the crime. However, the losses an offender is
responsible for often doesnt stop there. In addition to money lost by investors because of a drop
in stock price, the offender can also be held responsible for losses taken in the drop in stock price
of a competitor if the prosecutor can prove that the drop in price was due to the actions of the
offender. Because of this, the loss amount can often be substantially higher than the amount
gained by the offender (Meiti). The loss amount sometimes takes our attention from the whole
principal of criminal punishment, learning a lesson.
When a dangerous violent criminal is sentenced to prison time, they often just become
more hardened criminals and never change their ways. A white collar criminal is not guilty of a
violent crime and is often terrified of prison. Jonathan Simon, a professor of law at the
University of California, Berkeley, says it best in an article for New York Times "In contrast,
white-collar workers are extraordinarily sensitive to threats since their whole socialization and
environment encourage calculation of future benefit and cost (Sorkin). Many argue that whether

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you take money from your company by fixing the books or commit armed robbery you still stole
money and should have similar punishments. Again, it is important to keep the principal of
criminal punishment in mind that the system is designed to teach criminals a lesson and keep
society safe. Not only are white collar criminals much more likely to be terrified of jail but they
are also not a threat to society. When a violent criminal is released from jail he could easily have
access to gaining a gun. When a white collar criminal is released from jail he will almost surely
never be put in another executive position to abuse. Not to mention the offender will be flagged
by the government and the government will watch their accounts and legal documents closely. It
is a little harder to track violent crimes. The bottom line is teaching criminals a lesson and
keeping society safe. The courts have clearly decided the best way to teach offenders a lesson is
by giving the cases that do have substantial evidence overly harsh sentences. Professor Simon
proposes an alternative for how to better teach white collar criminals a lesson "it would be far
more effective to impose a lot of short sentences on a wider group of offenders rather than the
example model of harshly punishing a few celebrity cases while most potential offenders know
that they are unlikely ever to be caught and punished (Sorkin).
The Supreme Court has payed a lot of attention to revising the guidelines for sentencing
white collared criminals. Revisions of the guidelines for sentencing white collared criminals
started in 1984. At this time white collar crime is a rather new concept and is first really brought
to Americas attention in the Watergate scandal of 1970s which led to Nixons resignation. In
1984, it was believed that white collar criminals were getting off too easy. In 1984, the 1984 act
was passed and drew a tremendous amount of controversy. Some argue that the laws give very
little discretion to the judge and force them to stick to a very strict set of sentencing guidelines
which forces them to sentence the crime and not the criminal. Others argued that the guidelines

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called for too harsh of sentencing which created a problem exactly the opposite of the one that
led to the laws in the first place. From 2000 to 2005 the Supreme Court made different rulings
revising the guidelines in its decisions over Apprendi vs New Jersey, Blakely vs. Washington
and U.S. vs Booker (Meiti). It is clear that the Supreme Court takes sentencing of white collar
crime very seriously and sentencing become much more consistent and harsher through these
revisions. The revisions still have not touched on calculating loss and the belief that the
punishments are too severe is growing. On April 9th, 2015 new guidelines for sentencing white
collar criminals were approved which brought good and bad changes. The new guidelines now
give a greater weight to a criminals role and intent. This is a step in the right direction as Mary
Price from general counsel for Families against Mandatory Minimums, asked, Do we just count
drugs, or do we look at harm people really intended? How much harm did they cause? Are they
the courier or the mastermind?. Also under the new guidelines, since it accounts for a
criminals role, a secretary who is aware crimes are being committed will not receive the same
sentence as the mastermind behind the job. Finally, the new guidelines take into account what
the guidelines call intended losses, meaning a criminal will take less punishment for the amount
of money lose unintentionally, such as a drop in stock price because of the offenders actions
(Liebelson). The new guidelines certainly hit many key points and although the calculation of
losses was revised in order to account for intended losses, there are still revisions to be made.
The calculations of losses now take into account intended losses which was a major
problem up until recently but punishments still are not just. Mark Holden a senior vice president
and general counsel for Koch Industries shares this opinion when he describes the recent
revisions as a positive development and consistent with the Bill of Rights and later describing
them saying they are an effort to make the punishment fit the crime, but that more needs to be

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done on criminal justice reform overall (Liebelson). The problem remains that still under the
calculation of loss a white collar criminal can be sentenced to hundreds of years in prison. Unless
guidelines for crimes such as murder and rape plan on being revised then this just cannot be
justified. Various judges and professors of law have different takes on the issue but they all seem
to agree that the guidelines still need changing. Frank Bowman, a professor at the University Of
Missouri School Of Law expresses his problem with the consistency of the guidelines All we
want to do is make guidelines such that a federal prosecutor can actually look a federal judge in
the face and say, Impose these guidelines as written (Liebelson). The problem is that the
guidelines may take into account a lot of these things previously mentioned but they are so broad
that it is as if they are not addressed. However, while being a specific set of guidelines they must
also leave room for the judges discretion, as any good guidelines should. There is no easy fix to
making punishment for white collar crime fair and although punishment is currently too harsh, as
mentioned earlier it was once considered too lenient and it is the Supreme Courts job to find that
balance. Even if and when the guidelines are not too harsh they will always need revision
because of the changing nature of white collar crimes.

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Works Cited
Haury, Amanda C. "Sentences For White-Collar Criminals: Too Harsh Or Too Lenient?"
Investopedia. Investopedia.com., 17 May 2012. Web. 14 Mar. 2016.
Liebelson, Dana. "Why Nobody Is Really Happy With New Guidelines For Punishing WhiteCollar Criminals." The Huffington Post. TheHuffingtonPost.com, 22 Apr. 15. Web. 16
Mar. 2016.
Meiti, P.J. (2006)Fiercer Than a Tiger-White Collar Offenders Face Harsh Sentencing in PostBooker World, American University Criminal Law Brief: Vol. 1:ISS.1, Article 1, 22 Jan.
06. Web. 16 Mar. 2016
SORKIN, ANDREW R. "How Long to Jail White-Collar Criminals?" Nytimes. NYTimes.com.,
16 Sept. 2005. Web. 14 Mar. 2016.