Tuesday, September 19, 2006
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?
Saturday, September 16, 2006
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.
Thursday, June 15, 2006
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).
Saturday, June 03, 2006
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."
Wednesday, May 31, 2006
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.
Sunday, May 28, 2006
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:
Saturday, May 27, 2006
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:
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.
Friday, May 26, 2006
Victims' rights and the Enron sentencings
I continue to enjoy issue spotting in anticipation for the future sentencings of Ken Lay and Jeff Skilling. I have now moved from first-cut questions and guideline calculations to pondering the role of victims in the Enron sentencing process.
As criminal law gurus should know, a few years ago Congress enacted the Crime Victims' Rights Act (CVRA), which guarantees crime victims eight different rights, including the "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). Notably, as detailed here, the Ninth Circuit recently declared that this provision gives crime victims a right (which they can independently enforce) to "allocute at sentencing" in addition to submitting a written impact statement. District Judge Paul Cassell, as detailed here, has likewise ruled in a thoughtful recent opinion that, under the CVRA, "victims of all crimes have a right to personally address the court."
In light of the CVRA, I wonder how many persons can claim to be victims of Lay and Skilling, and how many of those persons may demand to speak at their sentencings. Does every holder of Enron stock and former Enron employee have a statutory basis for claiming a right to speak in person at the Lay and Skilling sentencings? Notably, the CVRA has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" their rights, "the court shall fashion a reasonable procedure to give effect to [the CVRA] that does not unduly complicate or prolong the proceedings."
Against this backdrop, I could imagine some victims being a voice for a shorter prison sentence: e.g., some victims might urge Judge Lake to limit the prison terms for Lay and Skilling so they can earn money after their release to pay restitution to more victims. Recall that Congress has told sentencing courts section 3553(a)(7) to consider "the need to provide restitution to any victims of the offense." Consider here the possible current balance sheet of Michael Milken — who, intriguingly, was a BusinessWeek cover boy just before the Enron scandals, was just recently on the cover of Worth magazine, and has this impressive website.
Some related posts on victims' rights at sentencing:
Enron guideline calculations (and a fascinating post-Booker question)
In this list of first-cut Enron sentencing questions, I speculated that the (advisory) federal guideline sentences for Ken Lay and Jeff Skilling could be life or at least 360 to life. Confirming my instinct is guideline guru Frank Bowman, who already has prepared a snazzy PowerPoint presentation, entitled "Sentencing Ken Lay & Jeffrey Skilling" that you can access here thanks to Peter Lattman at the WSJ Law Blog. Frank concludes that both Lay and Skilling face guideline recommendations of life sentences based on his calculations (which, notably, do not even include enhancements for obstruction of justice).
In thinking (and talking to others) about the Enron guideline calculations, one especially fascinating post-Booker question has my mind racing: Which version of the guidelines should apply to Lay and Skilling?
I am pretty sure the fraud guidelines were amended significantly to increase sentences in white-collar cases in November 2001 and again in November 2003. Before Booker came along, it was settled law that ex post facto concerns generally required district judges to apply the version of the guidelines in place at the time of the crime. (This old-world reality itself raises some issues, since arguably some offense conduct took place in late 2001.)
After Booker, there is a reasonable argument that ex post facto concerns no longer limit the application of the current guidelines even if they provide for harsher sentences. (In fact, I believe Judge Easterbrook has some dicta in a post-Booker opinion to this effect.) After all, the guidelines are no longer binding law, just intricate advice.
Shouldn't Judge Sim Lake at sentencing consider the most up-to-date advice from the Commission? If the guidelines themselves are so darn reasonable and incorporate all the 3553(a) factors (as a few district judges and many circuit judges like to stress), why should Judge Lake rely on old, out-of-date and less reasonable advice from 2000 or 2001 when sentencing Lay and Skilling? In short, many of the justifications for attentiveness to the guidelines in the post-Booker world seem to call for applying the latest version of the guidelines now that they are only advisory.
So, dear readers, should the 2000 guidelines or the 2001 guidelines or the 2005 guidelines apply to Lay and Skilling? And what version of the guidelines will prosecutors to argue for (given than we can be sure the defense will argue for the most lenient 2000 guidelines to apply)?
Thursday, May 25, 2006
Enron and on and on and on
Unsurprisingly, the mainstream media and the blogosphere is abuzz about the Enron convictions (basics here, early commentary here). Most of the links set forth below involve trial post-mortems; I suspect it will be a few days before folks start to focus on the future sentencing of Ken Lay and Jeff Skilling. But, having now had a chance to talk to a few reporters about the Enron sentencing issues, I am certain that the Lay and Skilling sentencings will be a fascinating (and unique) case-study of the dynamics of the post-Booker world.
Here's just an abridged collection of some blog/MSM coverage of the Enron convictions:
- White Collar Crime Prof Blog
- Professor Bainbridge.com
- The WSJ Law Blog
- Houston Chronicle Enron Trial Watch Blog
- How Appealing (collecting media reports)
- TechBlog (collecting blogger reactions)
First-cut Enron sentencing questions (and links)
My mind is already racing with thoughts and questions about the sentencing of former Enron chiefs Ken Lay and Jeff Skilling after their convictions today. (Indeed, I have already created a new category archive for Enron sentencing discussions.) Based on just a few minutes reflection, I already have these questions for collective consideration:
- What will be the likely offense level and sentencing range for Lay and Skilling under the federal sentencing guidelines? (By my rough calculation, the guideline sentence could be life or at least 360 to life.)
- Will conduct underlying Skilling's acquittal on nine counts be included in the guideline calculation?
- Assuming the guideline ranges for Lay and Skilling are 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)?
- How might all the Lay and Skilling sentencing talk impact Judge Sim Lake's upcoming resentencing of Jamie Olis?
- Should I give up my day job and offer myself up to Lay and Skilling as a sentencing consultant?
I could go on and on, but this list gets the sentencing talk started and perhaps will prompt some informed readers to weigh in on some of these issues through the comments. Also, for additional food for thought, here are just a few links to some of my prior white-collar sentencing coverage:
- Debating life imprisonment for white-collar offenses
- White-collar sentencing and prison realities
- Pondering white-collar sentencing
- A pattern of white-collar leniency?
- White-collar Booker breaks
- Are the federal guidelines too tough on white-collar offenders?
- Tough sentences for white-collar offenders