Enron Runs On

Post from Ron:
The Houston Chronicle published a story today describing the effects of Blakely on the Enron criminal trials. The first Enron defendants were set to proceed to trial next week, but the U.S. Attorney revised the indictment to include facts supporting upward adjustments in the offense level, so the judge granted a postponement of the trial until September 20. The government will seek a bifurcated proceeding and prove the sentencing adjustment facts if they get any convictions on the charges.

Remember, this happened in the Fifth Circuit, where the guidelines supposedly are considered valid and where nothing supposedly has changed! The case points out the real limits of appellate courts to control events on the ground. The federal prosecutors (rightly) conducted their own analysis of the risk and apparently concluded that the Fifth Circuit ruling was overly optimistic about the status of current federal sentencing law, and the district judge (rightly) is allowing the government to respond to this risk with some procedural innovations.

In other news: the Bozeman Daily Chronicle reports an interesting new federalism dynamic. Where defendants once clearly preferred state court rather than federal court because of the lower sentences for comparable crimes in state court, some are now hoping to be sent into federal court, where the uncertainties of federal sentencing can keep even the wildest dreams of defendants alive.

Finally, Debra Saunders, a columnist for the San Francisco Chronicle, writes today about Blakely. She explains the Blakely decision (a little too casually, I think) as one step in a broader effort to reform federal sentencing, and concludes with this thought:

America cannot forget how it got where it is. First, too many judges were too easy on criminals. Then members of Congress were too harsh in their sentencing laws. Maybe that’s why Scalia and company have looked to the people for relief.