Thank you for sharing!

Your article was successfully shared with the contacts you provided.
I’ve met Jeffrey Skilling only once. I shook hands with him across the counsel table in a Houston federal courtroom just before the sentencing hearing that sent him to prison for 24 years. I was in Houston on Oct. 23, 2006, as the defense team’s outside sentencing expert, and Skilling therefore knew of my existence (if only as a name on his pleadings), so he mumbled polite, if abstracted, thanks for my help, and turned away. For the next two hours, I watched the sentencing ritual. U.S. District Judge Sim Lake read his preliminary legal findings. Skilling addressed the court. Victims told their stories and demanded justice. The lawyers argued. The judge pronounced sentence. By the end, Skilling had completed the descent from rich, powerful, lionized chieftain of one of the world’s largest corporations to common felon, stripped of wealth, fitted with an electronic ankle bracelet, and awaiting assignment to the cell he will occupy, failing a successful appeal of his conviction, until he is more than 70 years old. Hardened though I am by many years as a prosecutor, intervals of defense work, and a decade of viewing crime and punishment with the measuring eye of a legal academic, I felt unusually moved at Skilling’s sentencing and unusually uncertain of how I felt about his fate. I suspect I would have felt much the same had I been part of the sentencings of Bernard Ebbers of WorldCom Inc. or John Rigas of Adelphia Communications Corp. But the fate of all three men leaves me certain of one fact: The rules governing high-end federal white-collar sentences are now completely untethered from both criminal law theory and simple common sense. TOO HARSH First, sentences have become too harsh. Under the Sarbanes-Oxley Act of 2002, federal rules for sentencing corporate fraud offenders have been ratcheted so high that they prescribe life or near-life sentences even for offenses of only moderate seriousness. For example, under current law, a corporate officer, stockbroker, or commodities trader engaged in a stock fraud causing a loss as low as $2.5 million could be subject to a guideline sentence of life imprisonment. In comparative terms, this means that federal law now classifies an officer of a publicly traded corporation who accedes to a fraudulent accounting fiddle as worse than a murderer, for whom the average federal sentence is less than 19 years. In addition — and largely overlooked in the public debate about whether sentences of 24 years for Skilling, 25 years for Ebbers, and 15 years for Rigas were too long — is the fact that all of them received sentences far shorter than the law now prescribes. For example, Skilling was sentenced under the version of the federal sentencing guidelines applicable to crimes committed before November 2001. Under those rules, his “offense level” was 40, and the sentence imposed by Lake was at the low end of the resultant 24-to-30-year range. But the fraud guidelines have been twice amended since the version applied to Skilling, once in 2001 and again after Enron’s collapse and the passage of Sarbanes-Oxley. If Skilling were sentenced under the guidelines in effect today, his “offense level” might be as high as 59, or 16 levels higher than that required to generate a guideline sentence of life imprisonment, which, in federal court, means exactly that — go to prison until you die. Parole was abolished in the federal system in 1987 as part of the reform that instituted the federal sentencing guidelines. Federal prisoners must serve at least 85 percent of their stated sentences. INCONSISTENCY Also, the sentencing rules for high-end corporate crime are now so at odds with ordinary notions of justice that they are hardly ever applied. The result is an inconsistency that the guidelines were enacted to avoid. The sentences imposed on the defendants in the Enron, WorldCom, and Adelphia prosecutions illustrate the point. The CEOs of these companies, who were the primary targets of the Department of Justice and the most visible objects of public ire, will serve the functional equivalent of life sentences. But those slightly lower on the corporate organizational chart received sentences decades shorter, despite the fact that their crimes were comparable. For example, the combined sentences of Andrew Fastow, chief financial officer and primary architect of Enron’s financial schemes; Michael Kopper, Fastow’s confidant and partner; Ben Glisan, corporate treasurer; Richard Causey, chief accounting officer; Mark Koenig, executive vice president; and David Delainey, chief executive of Enron Energy Services, total less than the 24 years imposed on Skilling. In a complex, multidefendant case, some laddering of sentence lengths is entirely appropriate based on differing degrees of culpability or sentence discounts for early guilty pleas and cooperation with the prosecution. But the sentencing discounts sought by the Justice Department and granted by judges to the non-CEO defendants in Enron and other similar cases are so large that they undercut both the deterrence and moral rationale for very high white-collar penalties. The deterrence argument for very high white-collar penalties is that the potential rewards of big financial crime are so enormous that only long sentences can adequately deter. But the message sent by the Enron prosecution is that no matter how crooked you are, and no matter how much economic havoc you cause, as long as you are not the CEO, and as long as you are smart enough to flip early, you’ll be out in a few years. The moral argument is that big financial crimes deserve lengthy sentences because those who steal millions with a briefcase are as culpable as and more socially harmful than those who steal hundreds at gunpoint. But if everyone but the CEO gets a sentence decades shorter than the law purports to require, what does that say about the true seriousness of such crimes in the eyes of the government officials who know most about them? The point here is that, except when dealing with marquee defendants in a famous fraud, both judges and Justice Department prosecutors behave as if they think deterrence and just deserts are satisfied by much shorter sentences than the law nominally provides. Only by making special deals and accommodations can they achieve the outcomes they really believe to be just. Make no mistake, raising federal white-collar sentences above pre-1987 levels, when probation was the predominant penalty for corporate misdeeds, was and remains a very good idea. The defendants convicted in the Enron, WorldCom, Adelphia, and similar cases committed serious crimes deserving serious punishment. Those who would excuse their behavior are at best misguided, and at worst apologists for the culture of corruption at the core of American business. Nonetheless, current sentencing law for such offenses has so far slipped the bonds of reason that the prosecutorial and judicial ministers of the law are unwilling to enforce it. That needs to be fixed. The fact that the CEOs of Enron, WorldCom, and Adelphia did receive the functional equivalent of life sentences is as revealing as the failure of the courts to impose such sentences on their subordinates. SCAPEGOAT CEOS I cannot escape the conclusion that the CEOs convicted in these cases have been made scapegoats in the sense that the long sentences imposed upon them are plainly intended to divert attention from the sins and failures of many others. Of course, unlike the scapegoat of Leviticus, who bears “all the iniquities of the people,” these men are not sinless proxy sacrifices. To the contrary, their actions endangered or brought down huge corporations and marred the lives of thousands whose livelihoods and futures were bound up with those corporations. At a minimum, they were staggeringly reckless, heedless of the risks their obsessive pursuit of corporate growth or personal wealth imposed on others, and contemptuous of the controls American law has installed to guard against the havoc that follows if gamblers or thieves take the reins of large businesses. That said, the Justice Department’s push for extraordinary sentences for these few, and only these few, mirrors the approach taken by the White House and the Republican House of Representatives in the post-Enron political frenzy that led to passage of Sarbanes-Oxley. The Democrats, who then controlled the Senate, wanted more regulation and some additional criminal penalties. The Republicans didn’t much want either. To forestall the push for enhanced regulation, President George W. Bush spoke to Wall Street on July 9, 2002, and placed the blame for the wave of corporate scandal on a few bad apples in the generally sound barrel of corporate America. His message was: Root out these few and punish them, and the basic honesty of corporate America will reassert itself. It was obvious even then, however, that problems were more deep-seated than the crimes of a few errant CEOs. BACK TO BUSINESS? The result of the political give-and-take was the Sarbanes-Oxley Act, a laudable move toward regulation with some real bite, yoked to criminal penalties raised to absurd heights. But neither the Bush administration nor corporate America has ever been happy with the regulatory components of Sarbanes-Oxley. Big business has chafed from the beginning, and its discontent is growing. The administration has lent a sympathetic ear. It is still plainly disposed to blame the wave of corporate scandal in 2001 and 2002 on isolated criminality, to entertain relaxation of Sarbanes-Oxley’s protections, and to resist further serious scrutiny of American corporations and those who finance, monitor, and regulate them. I greatly fear that on the day Skilling — the last of the big-scandal CEOs to face judgment — got his 24 years, the administration was, at least in its own mind, hoisting a “Mission Accomplished” banner. When I flew out of Houston the evening of Skilling’s sentencing, I could almost hear a vast exhalation of breath from wood-paneled suites in office towers across that city and in the political and financial centers of America — a collective sigh of relief from the battalions of lawyers, accountants, federal regulators, investment bankers, credit rating agency executives, corporate board members, congressmen, and others without whose complacency or complicity the Enron collapse and similar catastrophes would never have occurred. They were safe. The goat had been driven into the wilderness, and business could go on as before. Although it is plain that the federal sentencing rules for serious corporate fraud are no longer rational, it is not yet plain precisely how the criminal penalty structure for moderate to very big corporate malfeasance should be recalibrated. Though life imprisonment or anything like it for a $2.5 million fraud is madness, is it mad to impose 10 or 15 or 20 years on a corporate chief who gambles away the livelihoods and financial futures of tens of thousands of people? The answer to that question is not so clear. What is clear is that even if the federal sentencing rules for corporate offenders such as Skilling, Ebbers, and their subordinates are out of whack, that circumstance does not support the argument that has been gaining strength in some financial circles: that efforts to prevent debacles such as Enron through regulation should be abandoned or scaled back. Both vigorous criminal prosecution attended by tough but rational penalties and serious civil regulatory measures are necessary to prevent corporate fraud and maintain a strong system of market capitalism. The worst course that the country could pursue would be maintenance of a criminal system structured to produce the occasional noisy public sacrifice of a CEO as cover for a quiet retreat from meaningful regulation of corporate conduct.
Frank O. Bowman III, a former federal prosecutor and special counsel to the U.S. Sentencing Commission, is a professor at the University of Missouri School of Law. This commentary first appeared in The American Lawyer , an ALM publication.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.