Sentencing Law and Policy

Should there special doctrines concerning "inflammatory" pre-sentencing publicity?

Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:

When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity."  And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.

Recent related post:

• SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive

As detailed in this AP report and this SCOTUSblog post, the biggest and perhaps highest-profile white-collar conviction of recent vintage is going to be reviews by the Supreme Court.  Here is the SCOTUSblog report:

The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges.  The case also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive.  This was one of four cases granted review, to be argued early next year.

I am pretty sure there are no sentencing issues before the Court in the case, but I cannot help but have a feeling that the long sentence initially given to Skilling may have played at least some role in the Justices' determination that this case merited review.

Among the interesting sentencing-related issues going forward is whether Skilling will now request bail pending SCOTUS review.  Conrad Black failed to get such bail when the Supreme Court took up his case, but he (a) had served less time, and (b) was subject to a much shorter sentence.

Any early predictions on Jeff Skilling's likely sentence the second time around?

As noted here, the Fifth Circuit ordered former Enron CEO Jeff Skilling resentenced because District Judge Sim Lake made a guideline calculation error.  But the Fifth Circuit said little else about Skilling's original sentence, which may ensure that the outcome (and even the terms of debate) for his resentencing are uncertain for the time being. This Bloomberg news reporthas this notable discussion of resentencing possibilities:

If that’s the only basis of resentencing, it would be a modest reduction,” said Kirby Behre, a partner at Paul Hastings Janofsky & Walker in Washington and co-author of “Federal Sentencing for Business Crimes.” “It might be more than modest, but it’s not going to get him down to 10 or 12 years.”

In the 2000 guidelines under which Skilling was sentenced, the financial-institution factor brought his offense level to 40 from 36 and his range to between 292 and 365 months in prison.  Lake imposed 292 months, or 24 years and four months. Dropping the offense level back to 36 brings a range of 188 to 235 months, or 15 2/3 years to 19 years and seven months....

Because the Supreme Court made the guidelines voluntary in January 2005, in a case called U.S. v. Booker, Skilling may be given the same sentence...

Other experts said the judge may reduce Skilling’s sentence to the lower range....  Lake is likely to use the guidelines again when he resentences Skilling, said Paul Cassell, a former federal judge who’s now a law professor at the University of Utah in Salt Lake City. “Most federal judges in the system follow the guidelines, particularly in a case where they’ve used them before,” Cassell said in a phone interview.

For a host or reasons, I am disinclined to make any predictions about resentencing.  In addition, because the Skilling legal team clearly plans to continue appealing his convictions, it is even unclear whether resentencing may be only a few months away or still years away.  Whatever the practical particulars, I would be eager to here reader thoughts on what might happen next on the sentencing side of the Skilling case.

Enron CEO Jeff Skilling's convictions affirmed, but resentencing ordered

The AP has this early report on today's huge white-collar sentencing news:

An appeals court has upheld former Enron Corp. CEO Jeff Skilling's convictions for his role in the energy giant's collapse but orders that he be resentenced.  A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans on Tuesday denied Skilling's request that his convictions be overturned because they were based on an incorrect legal theory.

But the judges, in their 105-page opinion, ordered that Skilling be resentenced. They said U.S. District Judge Sim Lake erred by applying guidelines that resulted in a 24-year prison term.  Skilling was convicted in May 2006 on 19 counts of fraud, conspiracy, insider trading and lying to auditors for his role in the collapse of Houston-based Enron, once the nation's seventh-largest company.

I will post the opinion once I track it down, and lots of commentary will follow whenever I get the chance to see exactly what the long opinion says.

UPDATE: The full opinion in US v. Skilling is available at this link.  The sentencing discussion does not start until page 97, and here is how the sentencing section begins:

Skilling challenges various aspects of his sentence. In particular, he disputes the district court’s application of the Sentencing Guidelines and the reasonableness of his sentence under 18 U.S.C. § 3553(a).  Because we decide that the court committed error in applying the Guidelines, we do not reach the § 3553(a) requirements, as proper calculation of the Guidelines range is antecedent to a reasonableness challenge.  See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).

Upcoming JEC hearing on costs of US drug policy

According to this webpage at FAMM, later this week "Senator Jim Webb (D-Va.) will convene a hearing of the Joint Economic Committee (JEC) to examine the economic consequences of the United States' drug policy."  Here are more details:

The hearing, entitled “U.S. Drug Policy: At What Cost?” will be held Thursday, June 19.  The panel will discuss the illegal drug economy in the United States, assess the costs of U.S. policy responses to combatting drug use and address the need for policy reforms.  The hearing is also likely to address, to some extent, mandatory minimums and sentencing issues.

This page at Stop the Drug War lists expected witnesses, though I cannot yet find any official notice of the scheduled hearing.

As noted in prior posts linked below, last year Senator Webb convened a JEC hearing on the costs of mass incarceration.  It is principally for this reason that I have been excited by the prospect of Senator Webb being on a presidential ticket.

• Congressional hearing on mass incarceration
• More on the JEC hearing on mass incarceration
• Great TNR coverage of JEC hearing on mass incarceration
• A web pitch for a Webb VP pick

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.

Brit bankers get American plea bargained justice in Enron-related sentencing

This new post at the WSJ Law Blog, titled "NatWest Three Get 37 Months Each," covers this interesting Friday afternoon sentencing story:

The curtains are closing on the corporate-law drama of the ages.  And three of its final players, we discovered this afternoon, are poised to exit the stage.  The NatWest three — the trio of British bankers who were extradited to the U.S. in mid-2006... — received their sentencing today. David Bermingham, Giles Darby and Gary Mulgrew will each serve 37 months.  Here’s the early AP report, and a report from the Houston Chronicle.

The Three — who were charged with colluding with ex-Enron CFO Andy Fastow and his lieutenant Michael Kopper to steal money from their former employer, Greenwich NatWest, now part of RBS — changed their plea from not-guilty to guilty back in November.   After claiming initially that they did not collude with Fastow, the Three signed a plea agreement, each pleading guilty to one count of wire fraud. 

According to reports, their sentences matched the recommendation of prosecutors, although federal sentencing guidelines recommended 41 months to 51 months.  They will also repay the $7.3 million they gained from the scheme.

At the Three’s request, Werlein is recommending they do their time at Allenwood, a federal prison complex in White Deer, Pa. They’ll reportedely serve six months to a year in U.S. prison before being transferred back to a British prison. (Fastow is serving a six-year term at Oakdale, in Louisiana, while Kopper is serving 37 months at Texarkana, in Northeast Texas.)

Obviously, the lawyers for the NatWest Three effectively schooled them on the reality that they are much better of cutting a deal that risking a trial to assert their claims of innocence.  Notable, the combinded plea-bargained sentences to be served by the NatWest Three and Enron's Fastow and Kopper together still add up to six years less in jail than Jeff Skilling got after his trial conviction.  As I have often said before, the extremely high trial penalty in the federal criminal justice system means that someone who is really guilty (like Fastow) knows that can and should quickly cut a deal so to be much better off than anyone else who might lose at trial after maintaining their innocence (unless they can get a commutation like Libby).

Disparities, trial penalty and Gall in Skilling reply brief

Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal.  The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:

Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.

In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:

The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants.  This is not the law.  This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences.  Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.”  Gall, slip op. at 9....

There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.

Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.

Fascinating review of recent white-collar sentencing realities

I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime.  The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:

Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....

A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....

Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....

The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list.  Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....

Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...

At least 129 defendants cooperated with prosecutors, court records show.  The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government.....  Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial. 

Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud.  Of 193 defendants convicted at trial, 38 got 10 years or more....  "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace.  The going-to-trial penalty should be an embarrassment to judges everywhere.''...

Is there any principled basis for DOJ opposition to the crack amendment being retroactive?

Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive.  The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:

As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive.  The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.

The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.

The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work.  The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.

"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM).  Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.

Yet to weigh in on the retroactivity issue is the U.S. Department of Justice.  But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline.  I can tell you that our comment will reflect our opposition to retroactive application."

I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy. 

Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant.  But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation.  Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.

Some related posts:

• The Sentencing Project urges retroactivity of USSC crack amendment
• USSC schedules public hearing on crack amendment retroactivity
• USSC analysis on potential crack amendment retroactivity impact
• Crack wackiness brewing over impact of crack amendments
• Latest FSR issue covers crack sentencing
• ABA makes pitch for USSC crack amendments to be made retroactive

Ernon appeal in the news

As detailed in this Houston Chronicle article, entitled "Enron's Skilling asks court to throw out all his convictions," the highest profile white-collar conviction is back in the news.  The WSJ Law Blog has more here on the looong opening appeal brief filed by Jeff Skilling's lawyers.  The sentencing arguments made to the Fifth Circuit start on page 206 of the 239-page brief.

I expect that it will take a while for the Government to respond, and thus it seem unlikely that oral argument will take place before 2008 and it surely could be a full year or more before Skilling's appellate claims are adjudicated.  Because he lost his plea for bail pending appeal, Skilling is serving time in prison while his arguments on appeal work their way through the courts.

Another Enron defendant sentenced

As detailed in this AP article, a " key prosecution witnesses whose testimony helped convict former Enron CEO Jeffrey Skilling and company founder Kenneth Lay was sentenced Monday to 27 months in prison."  Here are more details:

It's been nearly three years since Kenneth Rice, 48, the former chief of Enron Corp.'s high-speed Internet unit, pleaded guilty to securities fraud and agreed to help federal prosecutors on other cases related to the energy giant's collapse.  His sentencing was postponed as he cooperated with prosecutors.

Rice becomes the ninth ex-Enron executive to receive a jail term after pleading guilty to crimes.  Before sentencing, Rice apologized for his role in the corporate scandal that wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans. "I'm sorry. I wasn't raised that way and I'm ashamed of that," he said, his voice breaking with emotion. "I'm committed to turning my life around."...

Assistant U.S. Attorney Ben Campbell said he was satisfied with the sentence.  He had noted to the court Rice's "candid testimony" in the trial of Skilling and Lay, who were convicted last year for their roles in the company's collapse.  In addition to that testimony, Rice was a key witness for eight days at the trial of five former colleagues at the Internet unit.  Rice also met 63 times with prosecutors.  One of Rice's attorneys, Dan Cogdell, said he had never seen such cooperation by a witness in his 25 years of practicing law.  He said Rice had unquestionably accepted responsibility for his role in the fraud and had cooperated with prosecutors since the start of their investigation.

Justice Talking on the death penalty

The radio program Justice Talking, which is produced by the Annenberg Public Policy Center and distributed nationally by NPR, has this new program on the death penalty.  Here is the overview:

First used in Texas in 1982, lethal injection is the method of execution now authorized in 37 of the 38 states that have the death penalty. But the recent botched execution of Angel Nieves Diaz in Florida raises new questions of whether the method violates the Eighth Amendment's prohibition against cruel and unusual punishment.  Join us on this edition of Justice Talking as we take a new look at capital punishment and ask age-old questions about whether the death penalty is appropriate retribution for heinous crimes, whether it deters criminal activity and whether it can be administered in a fair and humane way.

That was quick... Skilling to start serving sentence

The AP reports here that, less than 24 hours after staying the start of his sentence (news here), the Fifth Circuit "denied former Enron Chief Executive Officer Jeffrey Skilling's request to remain free during his appeal Tuesday and ordered him imprisoned immediately."  According to the AP story, the Fifth Circuit's "order notes 'serious frailties' in Skilling's convictions, [but] says those problems fail to raise a 'substantial question' likely to result in the overturning of all Skilling's convictions, as would be required to grant bail during appeal."

When will Skilling have to report to prison?

Lots of news folks were talking up the fact that Jeff Skilling was due to report to prison this week, as evidenced by articles here and here and here.  But, as the Houston Chronicle reports here, the Fifth Circuit has now stayed Skilling's prison report date so it could fully consider his motion for bail pending appeal:

The U.S. 5th Circuit Court of Appeals has delayed the start of former Enron CEO Jeff Skilling's prison sentence that was scheduled to begin here Tuesday.  The court said today he would not have to report to prison while it considers his motion for bail pending his appeal on his conviction. "This order is entered solely to allow this court to give careful consideration to the request for bail pending appeal," the court said.

The Washington Post has more coverage here.

Final Enron sentencings

As detailed in this Houston Chronicle story, two final Enron executives learned their sentencing fate on Friday.  Here are the basic details:

Two former Enron executives who pleaded guilty to crimes and helped prosecutors pursue others in the scandal-ridden company learned their punishments today. Michael Kopper, former Enron finance chief Andrew Fastow's onetime top lieutenant, will serve three years and one month in prison followed by two years probation for helping scam the company out of millions of dollars while manipulating its books, U.S. District Judge Ewing Werlein ruled today. Shortly thereafter, Werlein sentenced former Enron investor relations chief Mark Koenig to 18 months in prison followed by probation for two years for helping top management mislead investors about the company's financial health.

Closing chapter 1 of the Enron sentencings

As the Houston Chronicle details here, a number of the remaining Enron-related sentencings will take place this week: Richard Causey will be sentenced on Wednesday, and Mark Koenig and Michael Kopper are set for sentencing on Friday.  White Collar Crime Prof Blog here is promising analysis throughout this week.

I consider these sentencings only the close of Chapter 1 because Jeff Skilling is sure to pursue some sentencing issues on appeal.  And that appeal could be significantly impacted by the two now-pending SCOTUS cases on reasonableness review, Claiborne and Rita (background here).  The outcome in the Rita case, which involves review of a relatively lengthy within-guideline sentence for a first offender, could be especially important to Mr. Skilling's fate.

More Skilling reactions and a query

Those interested in more post-game analysis of the Skilling sentence should be sure to check out Tom Kirkendall's analysis here and also the Houston Chronicle's cool extended podcast with expert commentary from an assortment of thoughtful experts.

The Houston Chronicle's podcast is really intriguing from start to finish, and it begins with lots of praise for Skilling's lawyers for keeping his sentence from being even higher than 24+ years.  I would like to hear from readers whether they agree with this assessment.

Some more blogosphere (and media) reactions to the Skilling sentence

In addition to some prior reactions noted here, folks looking for the blogosphere's various takes on Jeff Skilling's sentence of 24+ years can check out these posts:

• Dave Hoffman here at Concurring Opinions
• Norm Pattis here at Crime & Federalism
• Peter Lattman here at the WSJ Law Blog

UPDATE: Howard Bashman now has all the major media coverage of the Skilling sentence linked here.

Skilling gets guideline sentence of 292 months

As well reported by Howard Bashman here, Judge Sim Lake sentenced Jeff Skilling at the low end of the (now advisory) 2000-era Guidelines range by imposing a sentence of 292 months of imprisonment (That's 24 years and 4 months for those not good at dividing quickly by 12.)

Because Skilling was sentenced in the Fifth Circuit, his within-guideline sentence will be deemed presumptively reasonable on appeal (though I suppose Skilling could contest on appeal some guideline calculation issues).  Notably, I do not believe any other high-profile white-collar defendants have received a within-guideline sentence recently.  Though WorldCom's Bernie Ebbers was sentenced to 25 years, the guideline range in that case was life, I believe.

I have not heard if Judge Lake has plans for a written opinion in this case, but I hope he will write up an explanation for his various decisions.

UPDATE:  Ellen Podgor and Peter Henning at White Collar Crime Prof Blog have lots of interesting reactions here.  I found this comment by Peter especially provocative:

While Jeffrey Skilling receives 24 years for presiding over the collapse of Enron, former Congressman Randy (Duke) Cunningham sells his office to a string of defense contracts for a bit over $1 million and receives a sentence of 8 years.  Soon-to-be former Congressman Bob Ney will likely be sentenced to less than 3 years in prison for selling out his office to lobbyists led by Jack Abramoff.  How can there be such a disparity between the sentences for public corruption and the corporate frauds perpetrated by Ebbers and Skilling?