前安然CEO减刑10年的真相

    上周有报道称，前安然（Enron）CEO、大诈骗犯杰夫•斯基林可能将获得多达10年的减刑。但这样大幅减刑的真正原因并非像一些媒体报道的那样。

    斯基林当初获刑之重超过了大多数的白领罪犯，仅次于 WorldCom的伯尼•埃博斯。报道称，如果这次能获得休斯顿联邦法院法官西姆•雷克的批准（雷克从2006年以来就一直主审斯基林的刑事指控案),斯基林的刑期可能从24年降至14年。[当时，《财富》杂志（Fortune）将这一判决称为“美国商业史上的里程碑”。]

    由于表现良好并参加了一项戒毒戒酒计划，现年59岁且已服刑6年的斯基林可能还可另获两年半减刑，到65岁左右时，就可以走出监狱，获得自由身了。在减刑的同时，斯基林被查封的4,000多万美元资产将解冻，补偿给安然案的财务受害人，而且斯基林必须放弃上诉。

    但是，大幅减刑并非主要是政府与辩护律师的协商结果，而是美国第五巡回上诉法庭（Fifth Circuit Court of Appeals）2009年做出的一项判决。

    了解真相，就不会猜测什么被告方可能拿到了一些有力的底牌，比如公诉不端等，就不会猜测可能只是双方寻求做个了结。

    “今天的协议将为围绕此案的法律诉讼战画上句号，”美国司法部发言人在声明中表示。“斯基林先生不能再提起上诉，必须接受对这桩美国历史上最臭名昭著的欺诈案的判决，而受害人也终将获得他们应得的4,000多万美元补偿。”

    这些年来，斯基林一直在狱中服刑（他现在被关押在丹佛市郊一座低警戒度监狱内），他的父母以及他三个子女中最小的一个都已离世。即便他能在最短时间内出狱，他的服刑时间也将是其他安然被告人的两倍。（排名第二的是前安然首席财务官安迪•法斯托，已于服刑约5年后出狱。）

    斯基林的首席辩护律师丹尼尔•彼得罗切利在一份声明中表示，这项拟达成的协议“将终结一场漫长而痛苦的诉讼征程…杰夫至少将有机会重获一段有意义的生命。”

    “这就是最终结局，”代理了多位安然客户(包括前安然副总裁莎朗•沃特金斯)的休斯顿前联邦检察官菲尔•希尔德表示，“已经到收益递减转折点。”

    让我们来回顾一下。最初，斯基林经过4个月的庭审后于2006年5月定罪。（前安然董事长肯尼斯•莱也定罪了，但六周后死于心脏病突发。）根据使用评分系统的联邦审判指导标准，以斯基林的罪行和背景计算，为36级。雷克法官给“升”了4级，理由是危害“金融机构”的安全与健康。这一激进的判决将安然的雇员退休金计划定义为一个“金融机构”，评分由此提高至40级，量刑年限292-365个月。雷克判定斯基林入狱24年零4个月，这样的刑期处于量刑下限。

    Last week brought reports of a deal to chop as much as a decade off the prison term of Jeff Skilling, the former Enron CEO and convicted fraudster. But the real reason for the dramatic sentence reduction is different than some of the media coverage has suggested.

    Skilling's unusually stiff sentence -- exceeded in the pantheon of white-collar crime only by WorldCom's Bernie Ebbers -- could be cut from 24 years and four months to as little as 14 years if the agreement is approved by Houston federal judge Sim Lake, who presided over Skilling's criminal trial back in 2006. (At the time, Fortune called the trial "a milestone in American business history.")

    With credit for good time and a drug and alcohol program, Skilling, who is 59 and has served six years already, could get another two and a half years off, freeing him from prison by his mid-60s. The deal will also release more than $40 million in assets seized from Skilling, to be distributed to Enron's financial victims, and will require him to abandon his appeals.

    The bulk of the proposed sentence reduction, however, results not from last week's negotiated agreement between the government and defense lawyers, but from a 2009 decision by the Fifth Circuit Court of Appeals.

    Knowing the real story eliminates the prospect that the defense had some powerful new card to play, such as prosecutorial misconduct -- and suggests that it was instead simply a matter of both sides seeking closure.

    "Today's agreement will put an end to the legal battles surrounding this case," a Justice Department spokesman said in a statement. "Mr. Skilling will no longer be permitted to challenge his conviction for one of the most notorious frauds in American history, and victims of his crime will finally receive more than $40 million in restitution they are owed."

    During the time Skilling has been in prison (he's now incarcerated at a low-security facility outside Denver), both his parents and the youngest of his three children have died. Even if he gets out in the minimum time possible, he will have served twice as long as any other Enron defendant. (Ranking second is former Enron CFO Andy Fastow, who was released after about five years in prison.)

    In a statement, Skilling's lead defense attorney, Daniel Petrocelli, said the proposed agreement "brings certainty and finality to a long, painful process … Jeff will at least have the chance to get back a meaningful part of his life."

    "This is all about finality," says Houston lawyer Phil Hilder, a former federal prosecutor who has represented several Enron clients, including Sherron Watkins. "There comes a point of diminishing returns."

    Here's what happened. Skilling was originally convicted in May 2006, after a four-month trial. (Former Enron chairman Kenneth Lay was also convicted, but died of a heart attack six weeks later.) Under federal sentencing guidelines, which use a points system, Skilling's offenses and background put him at a level 36. Judge Lake added a four-level "enhancement" for jeopardizing the safety and soundness of a "financial institution." This aggressive ruling -- which defined Enron's employee retirement plans as a "financial institution" -- boosted his level to 40, with a range of 292 to 365 months. Lake's sentence of 24 years and four months was at the minimum of that guideline.