Forensics Journal - Stevenson University 2010 | Page 26

STEVENSON UNIVERSITY

2000 demonstrate an increasing public intolerance toward whitecollar crime in general. In the past, the public considered fraud and
other white-collar crimes to be somewhat innocuous when compared
to other, violent crimes; however, that is no longer the case. In fact,
according to survey results, some now view fraud as more serious than
certain street crimes (Rebovish & Kane, 2002, p. 6). Based on the history of white-collar crime scandals since 2000, and the resulting loss
of pensions and life savings suffered by many, this reaction should not
be unexpected; however, even with the Government’s response to the
massive financial statements frauds that occurred in 2001 and 2002,
Sarbanes-Oxley (SOX) regulations have done little with respect to the
punishment of the everyday occupational offender (i.e. misappropriation of assets). In fact, even with these regulations and the threat of
severe sanctions for the executive who commits a securities fraud, or
“cooks the books,” the ACFE 2008 Report to the Nation indicates the
existence of an inverse correlation with respect to SOX requirements
and the size of median losses from financial statement fraud schemes,
as well as the duration to detect them (p. 41).

discretion and allowing them to use a lower standard of proof. The
loss table, however, still remains the starting point in any sentencing
decision (Harris & Kaminska, 2008, pp. 154-155). Following Booker,
the Supreme Court decisions in Gall v United States, 128 S. Ct. 586
(2007) and Kimbrough v United States, 128 S. Ct. 558 (2007) made
further sweeping changes, as noted by Harris & Kaminska, including:
…the consideration of certain “soft” factors
[under 18 U.S. §3553(a)] present in white-collar
cases, such as age, post offense employment, and
reputational harm—which were either discouraged or prohibited under the mandatory Guidelines—thus finally shifting the focus away from
loss as a controlling factor (p. 155).
These recent cases have instilled additional determination requirements aimed at a more fair determination of culpability, by requiring
the consideration of additional factors such as the mental state and
motive of the alleged offender, as well as other characteristics; however, they have also restored a significant degree of discretion to the
courts as can be seen in the above cases (Harris & Kaminska, p. 157).
Although the