Sunday, October 22, 2006
With the Skilling sentence set for Monday, all eyes are clearly focused on the possibility that this sentence will be in double digits. The real question is whether it should be. Co-blogger Peter Henning focuses on the issues surrounding this case (here), but lets also look at equity in sentencing and the role of cooperation. Does Skilling's lack of cooperation and desire to avail himself of his constitutional right to jury trial significantly hurt him?
Cooperator Scott Sullivan, former CFO at WorldCom received 6 years as a part of his plea agreement, while Bernie Ebbers who risked a trial received 25 years. Andrew Fastow's sentence was 6 years, and it would be hard to find someone who might predict Skilling's sentence would be equal to or less than that number.
What becomes obvious here is that if you play the government's cooperation game, the rewards are incredible. You can clearly avoid a lengthy sentence by helping the government make its case against others. Is this good and is this proper?
The sentencing guidelines, something the government is quick to advocate for, were enacted in order to have truth in sentencing and to curtail sentencing disparities. Left open within the guidelines was a loophole for government use - the 5K1.1 motion that allows prosecutors to ask for a sentence outside the guideline range. Thus, despite the aim of equity in sentencing, prosecutors were left with an incredible stick that allowed them, and only them, the ability to ask a court to reduce a sentence outside the guidelines when the accused cooperated with them.
This prosecutorial power was weakened with the Supreme Court's decision in Booker, that now allowed judges some opportunity to go outside the guidelines, but still requiring them to use the guidelines as their first step in the process of determining the sentence. The bottom line is that even after Booker, prosecutors still retain significant power in lowering a sentence for cooperation. One need only look at the sentences of cooperators Scott Sullivan, Andrew Fastow, and Jack Abramoff, to confirm this.
Clearly the government needs cooperators to make their cases, and there is no doubt that this provides efficiency to the system in addition to it being less costly. But what happens to the accused's right to a jury trial when there is an enormous disparity between the sentence given to cooperators and that given to those who decide to go to trial?
The right to trial by jury, as guaranteed by the Sixth Amendment, is clearly diminished when there is so great a reward presented to cooperators. Innocence or guilt may become irrelevant as the risk of going to trial in order to receive a "not guilty" verdict is weighed against a possible outcome that is five times greater than could be received if one cooperates with the government. This seems strange since the right to trial by jury, as guaranteed by the Sixth Amendment, was provided "in order to prevent oppression by the government." Duncan v. Louisiana.