Getting ready for the Skilling sentence

Tom Kirkendall has must read analysis and links about the sentencing of Skilling tomorrow. Tom is about the only person who has written about this case both sensibly and knowledgeably from the beginning.

I don't have a lot to add but two points of emphasis. First, the lynch mentality that has surrounded Skilling and Lay is appalling.  So bad, that I have closed comments on this post for what I believe is the first time since I've been blogging.

Second, in a cloud of injustice one particular problem stands out -- the government's buying testimony with pleas. This, and not the seriousness of the crime, is clearly what explains the likely 9-14 years difference in sentence between Skilling and Fastow.  I invite my readers -- mostly middle class lawyer types -- to think about what one year in jail would be worth to you.  Now think about 9-14 years.  Now ask: would Andy Fastow lie, or fudge the truth, under such pressure -- e.g., about the "Global Galactic" agreement?  No, the government never asked him to lie.  But did anybody ever ask him to lie? 

We hear that such deals are necessary to flush out testimony. Without it, government prosecutions like Enron might be doomed.  From this perspective, the problem discussed in the previous paragraph is one of the Perils of Criminalizing Agency Costs. I don't think it's worth it.  Indeed, I think that deliberately taking the risk of injustice is the sort of ends justifying the means that we deplore in the business context, except that in this context the result is worse and the justification is less.

Updates: Ellen Podgor discusses the 6th Amendment implications of these deals. My colleague, Margareth Etienne, who filed a brief supporting Skilling along these lines, is quoted in the Houston Chronicle. Peter Henning has more background.

Update2:  24 years, or 18 years more than Skilling.  And 13 years longer than Al Capone.