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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:

May 26, 2006 at 04:51 PM | Permalink


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restitution figures to be a huge issue for Judge Lake when deciding upon sentencing.
The WSJ article you linked to a few posts ago shows that corporate defendants have been ordered to pay $2.2 billion (that's a B) in restitution from July 2002 to March 2005.

Posted by: Brian | May 26, 2006 5:26:03 PM

How convenient to suddenly have a heart attack.

If I were one of the shafted pensioners, I would demand PROOF. Demand to have an open-casket funeral. Demand to have DNA testing of the body to compare versus items at his house and vacation homes. Demand an autopsy.

I would not believe it for a minute.

Put yourself in his shoes.

He evaded imprisonment, and had time to plan his getaway.

If Georgie-pal could spirit BinLaden's family out of the country to evade questioning after 9/11 and have no one demand why, how hard is it to get buddy Ken Lay out?

Either way, (dead or presumed dead) Bush benefits from a dead Ken Lay- unable to talk about their chumy relations or get himself a reduced sentence.

An autopsy and DNA test and public viewing of the body should be demanded by the court. Why should he be allowed to cheat justice and the courts?

- Just a lowly citizen not so easily fooled.
We have a lawless administration. What's so difficult about one more fantasy foisted on unquestioning Americans?

Posted by: Pat | Jul 5, 2006 4:43:48 PM

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