Monday, August 14, 2006
Although Ken Lay's estate may end up escaping liability to the government (see post here), Jeff Skilling may be penalized because of Lay's death. According to CNN here and Houston Chronicle here, the government is seeking $183 million in restitution from Skilling which represents a portion that would have been paid by Ken Lay, were he alive.
Individuals charged with a federal conspiracy can also be charged with the individual crimes of co-conspirators if the crimes were in futherance of the conspiracy and forseeable. Courts often give this instruction, known as a Pinkerton instruction, in federal cases. The question now becomes whether restitution should be jointly liable, implicating Jeff Skilling for the total amount.
An argument for the government is that one who engages in a conspiracy takes the risk of the acts committed by their co-conspirator and therefore they should be held liable. A defense response is that Skilling is basically being punished additionally just because Lay did not live.