White Collar Crime Sentences After Booker: Was the Sentencing of Bernie Ebbers Too Harsh?

29 Pages Posted: 11 Oct 2006

See all articles by Peter J. Henning

Peter J. Henning

Wayne State University Law School


Bernie Ebbers received a twenty-five year prison sentence for his conviction on conspiracy and securities fraud charges related to the collapse of WorldCom in 2001. The Ebbers sentence came at a time of significant upheaval in the world of sentencing law. The Supreme Court reordered federal sentencing just a few months before the district court sentenced Ebbers, and the prison term largely follows the Federal Sentencing Guidelines even though, after United States v. Booker, they are no longer mandatory, but only advisory for federal judges. While the sentence was likely close to the one Ebbers would have received under a mandatory regime, his case provides a vehicle to consider where sentencing may go in the future for white collar crime cases. The Article considers whether the twenty five year term handed down by U.S. District Judge Barbara Jones, which will require the 64-year old Ebbers to spend most, if not all, of the rest of his life in prison, was too harsh.

My conclusion is that the Ebbers sentence, which came in below what the Sentencing Guidelines would have permitted, is difficult to assail as "too harsh" without a principle that would grade such offenses outside the Sentencing Guidelines. The Article reviews issues related to determining loss, a primary driver of white collar crime sentences, and argues that juries should be empowered to decide the amount of loss in fraud cases. I recommend that Congress amend the primary federal fraud provisions in Title 18, Chapter 63, by making loss (or gain) an element of the offense to ensure the jury's role in sentencing, advanced in Apprendi v. New Jersey, that allows it to make the crucial factual determination that will affect the defendant's sentence in a white collar crime prosecution. Finally, the article addresses the broader issue of whether, under an advisory Sentencing Guidelines system, the problem of disparity will creep back into sentencing, and if so, what are the possible responses. In this new era of advisory Sentencing Guidelines, it may be worthwhile to consider whether mandatory minimum sentences might be useful in fraud cases to incorporate the Sixth Amendment analysis adopted in Apprendi that led to the "earthquake" in federal sentencing caused by Booker in the first place.

Keywords: Sentencing, White Collar Crime, Federal Sentencing Guidelines, Booker, Crime

JEL Classification: K14, K22, K42

Suggested Citation

Henning, Peter J., White Collar Crime Sentences After Booker: Was the Sentencing of Bernie Ebbers Too Harsh?. McGeorge Law Review, Vol. 37, 2006. Available at SSRN: https://ssrn.com/abstract=936357

Peter J. Henning (Contact Author)

Wayne State University Law School ( email )

471 West Palmer Ave.
Detroit, MI 48202
United States

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