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:

• 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
• Blakely and victims' rights
• Shaming, remorse, apologies and victims