Pour Encourager les Autres? The Curious History and Distressing Implications of the Criminal Provisions of the Sarbanes-Oxley Act and the Sentencing Guidelines Amendments That Followed

Authors

Frank O. Bowman III, University of Missouri School of LawFollow

Document Type

Article

Publication Date

Spring 2004

Abstract

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and the hope for rationalizing sentencing policy through insulation from political pressure. Professor Bowman concludes that the Sentencing Commission may be fatally vulnerable to an emerging alliance between Congress and the Executive in sentencing matters, and that the Commission may no longer be capable of functioning as it was intended.

Recommended Citation

Frank O. Bowman III, Pour Encourager Les Autres? The Curious History and Distressing Implications of the Criminal Provisions of the Sarbanes-Oxley Act and the Sentencing Guidelines Amendments That Followed, 1 Ohio St. J. Crim. L. 373 (2004)