« Lethal injection complaints going to the dogs | Main | Interesting (quasi-sentencing?) rulings from the Ninth Circuit »

April 2, 2008

Will there be any sentencing talk in the Skilling Fifth Circuit argument?

As detailed in a bunch of news stories linked at How Appealing, the Fifth Circuit today will oral argument today in former Enron Corp. CEO Jeffrey Skilling's appeal.  Though the focal point of the news coverage and the briefing are on challenges to his convictions, I am hopeful that a bit of sentencing talk comes up during the appeal.  After all, I think Skilling has a pretty good argument based on 3553(a)(6) that his sentence is unreasonably long given that co-conspirators Andrew Fastow and Richard Causey got much lower sentences.

UPDATE:  I see that Jeralyn at TalkLeft has this effective post on the Skilling appeal which ends with this analysis:

The judges hearing the appeal will be 5th Circuit Judge Jerry Smith, 5th Circuit Judge Edward Prado and U.S. District Judge Alia Ludlum of Del Rio. Smith was one of the judges on the panel that overturned the convictions of Kevin Howard, the former finance chief for Enron's broadband division. I'm a big fan of Judge Prado (he was an early vocal opponent of mandatory minimum sentences.)

As for Skilling, I think 24 years is way too harsh a sentence for any non-violent criminal.  Especially when other culpable defendants get 6 years because they cooperated and told the Government's truth.  I hope he wins his appeal.

April 2, 2008 at 08:20 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Will there be any sentencing talk in the Skilling Fifth Circuit argument?:


Prof. Berman,

which is a worse crime? a person who out of need breaks into a house and accidently shoots a person, or a CEO who intentionally cashed in all his stocks, while teling lies to his workers about the company situation so they would not sell their stock, in which they were counting for retirement.

This men had far more impact in far more people than one violent crime.

Posted by: EJ | Apr 2, 2008 9:53:34 AM

Defense Attorney -

So EJ, accepting for the moment that every crime is "bad," society must accept and deal with the real-world reality that prison cells are finite. That being said, we need to recognize the fact that due to the limited resource of prison cells, society should save those cells for those we are afraid of, not merely those we are mad at. Finally, you can't possibly believe that a person who committed a non-violent, white-collar crime is more dangerous to society than an armed home-invader. Yes, those who played the Enron stock lottery were burned, but no one was shot, stabbed or assaulted. "Far more impact in far more people" insults the homeowner who was shot by equating a mere financial loss with BEING SHOT.
P.S. - The reason the Enron stock-holder was holding said stock is irrelevant, money being used for "retirement" is just as valuable as money being burned on a fling in Vegas; perhaps the matter hits close to home?

Posted by: Mark | Apr 2, 2008 12:27:06 PM


I don't believe in draconian sentences, nor I'm defending the ridiculous sentence this man got. However, I can see the difference between a cime committed out of greed and one committed out of necesity. It is true that a violent criminal is a greater risk for society, but we have a system that is also based on punishment. The sad reality is that most time that punishment is applied more severely on the poor and far more lenient to the rich.

Posted by: EJ | Apr 2, 2008 7:13:01 PM

Finally, you can't possibly believe that a person who committed a non-violent, white-collar crime is more dangerous to society than an armed home-invader. Yes, those who played the Enron stock lottery were burned, but no one was shot, stabbed or assaulted. "Far more impact in far more people" insults the homeowner who was shot by equating a mere financial loss with BEING SHOT.

The nature of the harm and the danger is very different, but I disagree with the idea that violent crimes are always worse than so-called "white collar" crime. I'm sorry to hurt the homeowner's feelings, but if it's absolutely necessary to compare crimes, then I'll say that several people losing their life savings can be a greater harm than one person getting stabbed.

Also, if you look at 3553(a), there's a lot more going on than just which crimes we consider "worse" than others. Going past the moral/retributive justification, CEOs probably have more to lose by going to prison than the average deranged killer. If you're Fastow or Skilling, one day you have money, power, respect and a life of luxury and the next day you're disgraced and living in a cage. On the other hand, many of the violent criminals out there have been to prison before and aren't quite as put off by the idea of going back as the average CEO might be.

If you believe in deterrence, then that weighs in favor of throwing the book at the Skillings and Fastows of the world. Put one CEO away for life and you might deter 100 others. Perhaps the injustice isn't that Skilling is facing 24 years, but that the people who cooperated only got 6.

Posted by: | Apr 2, 2008 8:26:17 PM

Oh my, I had no idea District Judge Alia Moses Ludlum was sitting on this appeal. She is about as pro-prosecutor as it gets. Plus, as her court is in Del Rio, Texas, the only criminal cases she hears, for the most part, are drug, firearm, and illegal re-entry cases. I doubt she's ever presided over a white collar case before. I predict it will be a 2-1 decision granting reversal with her dissenting (as long as she's in the minority it's okay with me).

No matter how bad a white collar crime may be, nobody deserves 24 years in prison for committing it. And people who "lose their life savings" due to white collar crime were partially negligent. First, they didn't diversify their assets and stuck all their eggs in one basket, which turned out to be run by someone who may have had questionable ethics. Second, when you invest your money, you assume the risk that the people running your investment are criminals. If you don't want to take that risk, you can keep your money in the bank, or under you mattress. Nobody forced the people who lost "all their savings" due to white collar crime to invest their money in the company/fund/stock/etc that turned out to be impacted by white collar crime. That is why comparing a burglar who breaks into a home and steals a family's life savings to a CEO who caused a family (or many families) to lose its life savings via white collar crime is such a horrible comparison. It is an appeal to emotion, not an intellectually honest comparison. It's like saying stealing a music CD is the same thing as downloading the songs on that CD. It sounds reasonable if you don't think abou tit, but it's NOT reasonable, and quite wrong.

Posted by: bruce | Apr 4, 2008 9:42:06 PM


You act as if Judge Ludlum does not have the ability to look at the facts and make a determination based on the law. You know, those minor, insignificant qualities Congress considered when they confirmed her to the district court. Yes, she was a former assistant United States attorney but so are many federal judges, including many in the Southern District of New York, the preeminent district for white-collar prosecutions. By the way, Judge Ludlum has presided over white-collar cases, including many public corruption cases.

What troubles me more, however, is your "blame-the-victim" diatribe in support of your disagreement with harsh sentences for white-collar criminals. You say that these victims are "partially negligent." You then blame them for not diversifying their investments and assuming the risk that investment professionals are criminals. Our society is based on TRUST. Trust that greed will not be the source of the loss of retirement savings. Sure, no one puts a gun to peoples' heads and forces them to invest in corporations. And no one forces you to put all of your money in one basket. But people should have the ability to trust that if they do invest in a corporation, they are not being taken for the same ride that an advanced-fee scheme or ponzi scheme would take them on.

The Title 18, United States Code, Section 3553(a) sentencing factors of the nature and circumstances of the offense and the need for the sentence imposed to provide deterrence (both subjectively and generally) significantly outweighed other factors, including the history and characteristics of the defendant, in this case and justified the sentence imposed. Was anyone violently attacked or killed in the Enron crime? No. Do I think 24 years is a long time in prison for anything short of being a violent career criminal or leader organizer of a vast drug and/or violent organization? Yes. Do any of us have access to the Pre-sentence Report and what information the sentencing judge had before them? I know I don't. Not having seen the appellate briefs, are there any arguments about the sentence or is it strictly about the trial? Can the financial and emotional injuries sustained by victims of the Skillings of the world be quantified? So far the number is 24 years. So let's see what happens on appeal.


Posted by: L | Apr 12, 2008 11:36:44 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB