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June 24, 2010

Am I crazy to see a sentencing back-story in the Skilling ruling?

As my students know, I think everything in the world (not just everything related to criminal justice) is somehow.  Consequently, I may be trying a bit too hard to find a sentencing story in the Supreme Court's decision today in Skilling and the other honest services cases it handed down this morning.  Still, even though sentencing issues are discussed in the Skilling opinions, it think it is reasonable to speculate that the very lengthy prison sentences that are now often prescribed under the federal sentencing guidelines for fraud may have played a role in the Justices' thinking.

Back in the late 1980s when the Supreme Court decided the McNally case and Congress responded by creating the honest services fraud statute, even the most notorious white-collar defendants rarely got very long prison sentences and regularly could secure early release via parole.  For example, junk bond king Mike Milken, who might be seen as the 1980s version of Jeff Skilling, was sentenced to only 10 years and ultimately served less than two years in federal prison.

But now, under modern federal sentencing rules with parole eliminate and very long prison sentences now very common, defendants like Jeff Skilling and Conrad Black face the prospect of a whole lot of years and perhaps many decades in federal prison following a fraud conviction.  Against this backdrop, I believe all the SCOTUS Justices may well have been uniquely concerned about allowing defendants to be convicted under a vague fraud statute given that the sentencing stakes in these cases are now so high.

Related posts on SCOTUS honest services rulings:

June 24, 2010 at 11:53 AM | Permalink


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You are probably right about the "long prison sentences" affecting the Skilling ruling. I attribute it to the "there but for the grace of God go I" effect. For that reason, I don't expect long sentences to be influential in other than white collar criminal cases.

Posted by: wishful | Jun 24, 2010 12:22:52 PM

Have not yet read the decision.

The severe prison sentence did it help the Court to make the law better or worse. By demanding greater specificity, measurability, better notice, the Court improved the law.

By analogy, a death penalty for business crime that destroys more than $6 million (the value of an economic person), would make the law very precise and by force.

Posted by: Supremacy Claus | Jun 24, 2010 3:19:31 PM

It is interesting how the Republicans complain about "activist judges". Under Rehnquist, the Court decided only the question before it on very narrow grounds. Under Roberts, they fashion themselves legislatures. In the campaign speaach case, Skilling and many others they simply write law. Roberts and Alito are the most activist judges in recent memory.

Scalia's dissent was the best part of the opinion. Send it back to Congress.

As far as sentencing, it will help. USSG 2C1.1 contains honest service fraud in its title, lumped together with bribery and extortion. USSG 2B1.1 is simple theft and fraud. District courts are divergent on which guideline to use whe 1346 is alleged. Prosecutors arbitrarily add 1346 to produce higher sentences when the real offense conduct is theft, thus employing 2C1.1 and double the sentence. This ruling puts an end to this. By limiting 1346 to bribery or kickbacks, 1346 convictions will fall squarely into 2C1.1, while other conduct, formerly charged under 1346 to produce higher sentences (thank you Ashcroft and Comey) will now be sentenced under 2B1.1.

Posted by: bryan | Jun 24, 2010 4:09:26 PM

Don't forget the great judicial legislation of our time--the Booker remedy. Scalia was right there, too--send it back to Congress.

Posted by: Def. Atty. | Jun 24, 2010 4:43:35 PM

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