Sentencing Law and Policy

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?

Tastes great, more Skilling

As this headline suggests, I am getting a bit punchy following the Houston Chronicle's live blogging of the Skilling sentencing.  Still, I cannot turn away, and these posts have something for everyone:

• It begins
• Sentencing enhancements
• Skilling's statement (in part)
• Victims start to speak
• Victims in favor of leniency for Skilling

In addition, I see that here that White Collar Crime Prof Blog has collected a lot of "Background on Skilling."  And, speaking of collecting posts, here's my recent work in this arena:

• Skilling sentencing questions (and predictions?)
• More pre-game coverage of Skilling sentencing
• Still more Skilling sentencing pre-game analysis
• Enron sentencing archive

UPDATE:  The Houston Chronicle's blog reports here that it is now time for attorney arguments that now Judge Lake has "said under guidelines Skilling would be faced with between 292 and 365 months in jail.  He may depart from that, however."

MORE:  It seems that the sentencing hearing is wrapping up with Skilling's lawyer presenting argument; Skilling's sentence may soon be announced.  But I now need to go teach a two-hour class, so I may be the last interested person to find out what number Judge Lake picks.  Of course, that should not stop readers from noting and debating that number in the comments.

Still more Skilling sentencing pre-game analysis

With Jeff Skilling's sentencing scheduled for today, this morning brings another round of articles discussing his case and white-collar sentencing more generally. The New York Times, for example, has this piece headlined, "The Guidelines Now Tougher, Skilling to Face Sentence Today." 

The Houston Chronicle has this front-page story entitled "An era ends today as Skilling learns fate."  In addition, as detailed here, the Chronicle "plans to blog the sentencing hearing" which begins at 1 pm CDT.  The Chronicle says the hearing "is expected to take a couple of hours" and that its "blogging should begin earlier in the morning."

Recent related posts:

• Skilling sentencing questions (and predictions?)
• More pre-game coverage of Skilling sentencing
• "Enron: The Tale of Two Sentencings"
• Ken Lay's conviction vacated
• Enron sentencing archive

More pre-game coverage of Skilling sentencing

As discussed recently here, Jeff Skilling is due to be sentenced in Houston on Monday.  Today, in both the traditional media and the blogosphere, there is a lot of pre-game analysis.  For some basics, check out coverage from the AP, from the Houston Chronicle, and from Reuters.  To dig deeper, check out coverage around the blogosphere.

Tom Kirkendall at Houston's Clear Thinkers here seeks to provide "an objective evaluation of Skilling's case as a counterbalance to what the mainstream media typically serves up."  Larry Ribstein at Ideoblog here discusses the "particular problem [of] the government's buying testimony with pleas."  In a similar vein, Ellen Podgor at White Collar Crime Prof Blog here explores "what happens to the accused's right to a jury trial when there is an enormous disparity between the sentence given to cooperators and that given to those who decide to go to trial."

Recent related posts:

• Skilling sentencing questions (and predictions?)
• "Enron: The Tale of Two Sentencings"
• Ken Lay's conviction vacated
• Enron sentencing archive

Skilling sentencing questions (and predictions?)

Right after Ken Lay and Jeff Skilling were convicted in May, I did this post with first-cut Enron sentencing questions.  With Skilling's sentencing hearing scheduled for this coming Monday, these questions remain timely:

• What will be the likely offense level and sentencing range for Skilling under the federal sentencing guidelines? 
• Assuming the guideline range for Skilling is very high, will the government ask for a guideline sentence?
• Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?

With much time and many developments in this case and in other high-profile white-collar cases (see this Enron sentencing archive), we might now add these questions:

• How many victims will testify at the sentencing hearing?
• Will Judge Lake announce a sentence for Skilling on Monday, or take some time to write a sentencing opinion as he did in Olis?
• Will Skilling be granted bail pending appeal?

Of course, the ultimate question is what sentence will Skilling get.  Anyone brave enough to make predictions in the comments?

UPDATE:  Peter Henning at White Collar Crime Prof Blog adds some thoughts and insights here.  Meanwhile, CFO.com thoughtfully explores here "What Skilling's sentencing means."

"Enron: The Tale of Two Sentencings"

The Wall Street Journal today has this interesting commentary entitled, "Enron: The Tale of Two Sentencings —  If Skilling Gets 20 Years in Prison, It'll Show It Hurts Not to Sing to Prosecutors."  Here are some portions:

The surprisingly lenient prison sentence given recently to Enron Corp. former Chief Financial Officer Andrew Fastow highlights the benefits of cooperating with federal criminal authorities. The coming sentencing of former Enron President Jeffrey Skilling is likely to demonstrate the dangers of fighting them....

The likely discrepancy in prison terms for Messrs. Fastow and Skilling, widely considered to be two of the central figures of the Enron scandal, illustrates that there has never been a better time in the white-collar-crime world to rat on your colleagues.

Over the past half-decade, prison terms for financial crimes have ratcheted up. Where a convicted corporate executive could once expect probation or a few years in prison, a first-time offender now faces as long as life behind bars.  The surest way to avoid such a fate is to admit wrongdoing, cut a deal with prosecutors and help them nab others. The sentencing system "has developed a huge gulf between those who go to trial and those who cooperate," says Kirby Behre, a former federal prosecutor and co-author of a treatise on federal sentencing practices.  While Mr. Skilling faces "an astronomical sentence," cooperators such as Mr. Fastow "are still getting sweet deals," says Mr. Behre, a partner in the Washington law office of Paul, Hastings, Janofsky & Walker.

Ken Lay's conviction vacated

Though presidents and Governor's rarely grant pardons anymore, abatement doctrines mean that the grim reaper still can: as detailed in this Reuters account, Judge Sim Lake yesterday "dismissed the conspiracy and fraud convictions of Enron Corp. founder Ken Lay because he died before he could appeal."  For traditional media coverage, check out the Houston Chronicle, the New York Times and Washington Post; for blogosphere highlights and commentary, check out the WSJ Law Blog, White Collar Crime Prof Blog and Houston's Clear Thinkers.

Judge Lake's memorandum opinion is available here, and sentencing fans may be most interested in the effort by a claimed Enron victim to use the new Crime Victims' Rights Act (CVRA) to oppose vacating Lay's convictions.  Judge Lake gave these arguments short shrift, but a news report indicates that victim plans to appeal.  This part of the decision could become real interesting because the CVRA requires a circuit court to resolve a mandamus action brought pursuant to the CVRA very quickly.

Some recent related posts on victims' rights:

• Victims' rights and the Enron sentencings
• Ninth Circuit discusses victim's right to allocute at sentencing
• Interesting opinion on the right of victims to allocute at sentencing
• Pondering a victim's role in sentencing
• More on victims at sentencing

Another Enron cooperator gets shortened sentence

As detailed in this article, another Enron cooperator has received a shorter sentence as a result of that cooperation.  Here are some details:

Enron Corp.'s former No. 2 investor relations executive who helped link former company Chairman Ken Lay and former CEO Jeff Skilling to fraud in their trial earlier this year will serve probation for two years for insider trading, a judge ruled Thursday.

Paula Rieker, 52, wept before U.S. District Judge Melinda Harmon, prompting a court staff member to hand her a box of tissues as she asked for probation. Insider trading carries a maximum sentence of 10 years in prison, but Rieker was eligible to serve probation to six months behind bars under federal sentencing guidelines.

Some related posts:

• Fastow gets only six years' imprisonment
• Comparing Ebbers and Fatsow sentencing outcomes
• Enron sentencing category archive

Comparing Ebbers and Fatsow sentencing outcomes

Over at Jurist, guest columnist Douglas Branson has this very interesting commentary about recent white-collar prosecutions and sentencings entitled "Fastow and Ebbers: A Tale of Two Criminals."  The commentary is full of intriguing insights, and it closes with this paragraph:

What do we learn from this?  One, corporate CEOs are much like ship captains: they may be blamed for everything that happens on their watch, whether they are complicit or not. Two, the much ballyhooed Department of Justice guidelines mean nothing in high profile white collar crime cases. They don't prevent lynching the less blameworthy; they also permit a mere slap on the wrist to the greedy, the sophisticated, and the stealthy if they turn state's evidence.  Three, Ebbers should serve roughly the same as, or only a little more, or even a little less, time than should Andrew Fastow, at least if we are concerned about doing justice.

Further Fastow sentencing follow-up

Today's papers bring three intriguing pieces in the aftermath of the sentencing of Andrew Fastow:

• From the Houston Chronicle here, "Fastow's lawyers want him out temporarily for deposition"

• From the Washington Post here, "Feeling 'Slap in the Face' After Fastow's Sentence"

• Also from the Houston Chronicle, the insightful Professor Sandra Guerra Thompson has this commentary entitled, "In Fastow's case, the punishment fit the 'snitch'"

Further Fastow and other white-collar follow-up

Though the blogosphere had lots of commentary in a matter of hours, traditional media are now starting to reflect on the sentence given to Andrew Fastow earlier this week (basics here).  Here are two notable commentaries I have seen:

• From the Houston Chronicle here, "Fastow's 6 years has a few experts scratching heads"
• From Forbes here, "Corporate Crime: Where's The Justice?"

In addition, Houston's Clear Thinkers has this additional follow-up on Fastow and other Enron doings.  Also, reflecting more broadly on corporate scandals and sentencing outcomes, Professor Nancy Rappaport has this interesting commentary at Jurist entitled "Don't Outsource Your Conscience: Lessons in Corporate Truth."

Fastow gets only six years' imprisonment

I just received the somewhat surprising news that, as detailed in this Wall Street Journal alert and this AP coverage, that "Former Enron Corp. chief financial officer Andrew Fastow was sentenced today in a Houston federal court to six years in prison followed by two years of full-time community service for his role in the crimes committed at the energy giant."  Fastow's plea deal capped his sentence at 10 years, and I think most observers expected a sentence near that cap.

I encourage commentators to debate whether the comparable sentences now given to Fastow of Enron and Jamie Olis of Dynegy (details here) is a great example of sentencing consistency or of unwarranted sentencing disparity.   Because of all their great coverage of white-collar sentencing, I'm already looking forward to the reactions of Tom Kirkendall and the folks at the White Collar Crime Prof Blog.

For white-collar sentencing fans...

the White Collar Crime Prof Blog has lots and lots of quite interesting commentary.  Check out:

• More on Olis Re-Sentencing
• Does the Olis Resentencing Portend a Harsh Sentence for Skilling?
• Ebbers to Begin Serving 25 Year Sentence This Week
• Fastow to Be Sentenced This Week

More coverage of white-collar sentencing season

I noted in this recent post that we are in the middle of white-collar sentencing season, and today's newspapers provide some more coverage.  This piece from the Houston Chronicle discusses tomorrow's scheduled sentencin of Andrew Fastow, and this front-page piece from the Washington Post asks in its headline, "Cook the Books, Get Life in Prison: Is Justice Served?".

Some recent related posts:

• White-collar sentencing season
• Some Enron-related sentencing news
• Jamie Olis gets 6 years at resentencing

Sentencing around the LPB network

Two of my favorite reads in the Law Professor Blogs network have numerous of interesting sentencing items worth checking out.  The White Collar Crime Prof Blog has these recent posts on (surprise, surprise) white-collar sentencing:

• Another Enron Cooperator Gets Sentenced
• Olis Resentencing
• Enron Cooperator Gets Four Years Probation

Over at the Crime Prof Blog, the recent sentencing posts have a big west-coast influence:

• WA Law Makes Schools Aware of Convicted Juvenile Sex Offenders
• CrimProf Franklin Zimring Criticizes Cali's New Sex Offender Crackdown
• Packed Prisons, Solution-Stalemate: Is the Eighth Amendment the Answer?

Some Enron-related sentencing news

As detailed in this Houston Chronicle article, yesterday a "former assistant treasurer at Enron was sentenced to four years probation and a $10,000 fine for his role in deceiving credit rating agencies while working at the collapsed energy giant." 

Hat tip to Tom Kirkendall, who provides some background in this post at Houston's Clear Thinkers.  (Folks following the Olis resentencing closely with also want to check out Tom's strong posts on this past week's resentencing hearing here and here.)

UPDATE: The Houston Chronicle now has this piece previewing other upcoming Enron sentencings.

So much to do, so little time...

Though the title of this post certainly describes my life most days, it also is a fitting moniker for this week's filing by Jeff Skilling's lawyers asking for a "continuance of 35 to 45 days of all sentencing dates" in the initial schedule set by Judge Sim Lake following last month's Enron convictions.   Peter Henning here at the White Collar Crime Prof Blog provides some highlights from the filing, and also provides access here to the seven-page filing.  The filing is quite interesting in part because it flags a number of the key issues raised by Skilling's sentencing (many of which I have previously discussed in this Enron sentencing archive).

The other Ernon sentencing stories

In a series of posts, I have mentioned some issues of interest in the future sentencing of Ken Lay and Jeff Skilling.  This AP article details the issues arising in the sentencing of all the other persons connected to the case: "Now that Enron Corp. founder Kenneth Lay and former Chief Executive Jeffrey Skilling are felons, the string of ex-executives whose testimony helped the government snag those convictions face punishments of their own."

Another Enron case now turns to sentencing

I am glad I have created this Enron sentencing category archive, because another Enron-related criminal charge resulted in a conviction this afternoon.  However, as this AP story details, prosecutors only batted .500 this time around:

Jurors on Wednesday convicted one of the former executives from Enron Corp.'s defunct broadband unit to be retried after his original case ended in a hung jury last year. Former broadband unit finance chief Kevin Howard was convicted of five counts of fraud, conspiracy and falsifying records while former in-house accountant Michael Krautz was acquitted of the same charges after a monthlong trial.

More good coverage of Enron sentencing dynamics

This morning's Chicago Tribune has this interesting article, entitled "'Ashamed' wrongdoer gets break: Deal limiting sentence of former finance chief key to prosecution, but some say it goes too far."  As the title suggests, the article focuses on the steep sentencing discounts given to cooperators in corporate fraud cases. Here's the article's start:

They blamed him above all others for bringing down Enron Corp., forcing him to admit repeatedly under oath that, yes, he is a shameful excuse for a human being.  Yet in the end, the contrite Andrew Fastow stands to come through the Enron scandal in far better shape than the unrepentant Kenneth Lay and Jeffrey Skilling, the ex-Enron bosses who attacked him so vigorously during the criminal trial that ended last week with their convictions.

By pleading guilty and testifying for the government, the former finance chief has limited his exposure to 10 years in prison, while Lay and Skilling face 20 years or more at their sentencing on Sept. 11.  If Fastow gets off with a relatively light sentence, he will join the swelling ranks of white-collar offenders who have reaped significant rewards for their cooperation.  The crackdown on corporate crime that culminated in Thursday's Enron verdict has led to vast disparities in punishment between those who strike plea bargains and those relative few who go to trial.

Recent related Enron posts:

• Strong media coverage of Enron sentencing issues
• First-cut Enron sentencing questions (and links)
• Enron guideline calculations (and a fascinating post-Booker question)
• Victims' rights and the Enron sentencings

Strong media coverage of Enron sentencing issues

As I predicted, the Enron conviction stories are now starting to turn to sentencing issues.  And today both the Houston Chronicle and the AP have terrific stories about some key issues to be raised by the sentencing of Ken Lay and Jeff Skilling.  Both stories rightly focus on the extraordinary importance of loss calculations under the federal sentencing guidelines, and I especially liked how Mary Flood starts her great Chronicle piece discussing the federal sentence process:

On their way to sentencing, Ken Lay and Jeff Skilling will next be put under a microscope by a federal probation officer as their attorneys try to convince the judge that they didn't cause shareholders to lose a penny — or at least not many pennies.

Sentencing in the federal courthouse has its own nearly indecipherable procedures.  They are so complicated that experienced lawyers often disagree about what will likely happen.  They do agree a probation officer will be assigned to look at everything from the men's mental health and family history to financial assets and losses they caused.

Recent related Enron posts:

• Now Enron prosecution is a sentencing (and Booker) story...
• First-cut Enron sentencing questions (and links)
• Enron guideline calculations (and a fascinating post-Booker question)
• Victims' rights and the Enron sentencings

UPDATE:  I now see that Peter Henning at the White Collar Crime Prof Blog has this interesting post entitled "The Parameters of CEO Sentencing."  Here are some of Peter's many good insights:

The government's memorandum for [WorldCom CEO Bernie] Ebbers sentencing sets out what I expect will be the likely approach of the Enron Task Force regarding a non-Guidelines analysis based on comparable sentences given in other cases to avoid sentencing "disparity," one of the goals of the Guidelines.  Here, the 25-year sentence imposed on Ebbers and the 15 years that the 80-year old [Adelphia CEO John] Rigas received could be argued by the government as the appropriate parameters of a "reasonable" sentence for Lay and Skilling, and prosecutors would be expected to seek a sentence at the higher end of that range.