Justice Kennedy Condemns Harsh Federal Sentences

An unlikely advocate has urged the federal government to take a long look at revising America’s approach to criminal sentencing — and especially incarceration. In a blistering speech to the American Bar Association in August 2003, conservative Supreme Court Justice Anthony Kennedy lashed out at America’s obsession with locking up non-violent offenders and tossing away the key:

Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale. The nationwide inmate population today is about 2.1 million people. In California, even as we meet, this State alone keeps over 160,000 persons behind bars. In countries such as England, Italy, France and Germany, the incarceration rate is about 1 in 1,000 persons. In the United States it is about 1 in 143.

We must confront another reality. Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.

While economic costs, defined in simple dollar terms, are secondary to human costs, they do illustrate the scale of the criminal justice system. The cost of housing, feeding and caring for the inmate population in the United States is over 40 billion dollars per year. In the State of California alone, the cost of maintaining each inmate in the correctional system is about $26,000 per year. And despite the high expenditures in prison, there remain urgent, unmet needs in the prison system.

It is no secret why this has happened. Since about the mid-1970s, Congress and the state legislatures have routinely stiffened the criminal codes, mandating generally longer sentences and reduced opportunities for parole. (The federal system abolished parole entirely, meaning that an unreasonably harsh sentence can almost never be corrected afterwards.) The trend is less pronounced at the state level, because states usually need to raise taxes to build new prisons. Indeed, as states face decreasing tax revenues in light of sluggish or negative job growth, many are enacting shorter sentences as a way of reducing correctional budgets.

The federal government faces no such constraints. Its capacity to rack up deficits is essentially limitless, and the Justice Department budget — staggering though it is — pales to other budget-busters like defense and entitlements. It’s therefore not surprising that, where the same crime can be prosecuted at either federal or state level, the federal sentence is nearly always higher. It is usually a lot higher. Justice Kennedy again:

Consider this case: A young man with no previous serious offense is stopped on the George Washington Memorial Parkway near Washington D. C. by United States Park Police. He is stopped for not wearing a seatbelt. A search of the car follows and leads to the discovery of just over 5 grams of crack cocaine in the trunk. The young man is indicted in federal court. He faces a mandatory minimum sentence of five years. If he had taken an exit and left the federal road, his sentence likely would have been measured in terms of months, not years.

It is difficult to fathom the public policy benefit of locking up a kid for five years, with no possibility of parole, when his offense is one he has inflicted upon himself. Mind you, I’m not suggesting that the kid deserves any awards for screwing up his life with drugs, but screwing up his life with prison is not any improvement. Justice Kennedy continues:

United States Marshals can recount the experience of leading a young man away from his family to begin serving his term. His mother says, “How long will my boy be gone?” They say “Ten years” or “15 years.” Ladies and gentlemen, I submit to you that a 20-year-old does not know how long ten or fifteen years is. One day in prison is longer than almost any day you and I have had to endure. Alexander Solzhenitsyn describes just one day in prison in the literary classic “One Day in the Life of Ivan Denisovich.” Ivan Denisovich had a ten-year sentence. At one point he multiplies the long days in these long years by ten. Here is his final reflection: “The end of an unclouded day. Almost a happy one. Just one of the three thousand six hundred and fifty-three days of his sentence, from bell to bell. The extra three were for leap years.”

Under the federal mandatory minimum statutes a sentence can be mitigated by a prosecutorial decision not to charge certain counts. There is debate about this, but in my view a transfer of sentencing discretion from a judge to an Assistant U. S. Attorney, often not much older than the defendant, is misguided. Often these attorneys try in good faith to be fair in the exercise of discretion. The policy, nonetheless, gives the decision to an assistant prosecutor not trained in the exercise of discretion and takes discretion from the trial judge. The trial judge is the one actor in the system most experienced with exercising discretion in a transparent, open, and reasoned way. Most of the sentencing discretion should be with the judge, not the prosecutors.

Professor James Whitman considers some of these matters in his recent book Harsh Justice. He argues that one explanation for severe sentences is the coalescence of two views coming from different parts of the political spectrum. One view warns against being soft on crime; the other urges a rigid, egalitarian approach to sentence uniformity. Both views agree on severe sentences, and both agree on mandatory minimum sentences. Whatever the explanation, it is my hope that after those with experience and expertise in the criminal justice system study the matter, this Association will say to the Congress of the United States: “Please do not say in cases like these the offender must serve five or ten years. Please do not use our courts but then say the judge is incapable of judging. Please, Senators and Representatives, repeal federal mandatory minimums.”

Justice Kennedy’s point is that, while drugs may indeed ruin lives, ten or fifteen-year sentences imposed upon twenty-year-olds accomplish much the same thing—at government expense. Somebody locked up for that long has virtually no chance of ever becoming a productive member of society, once the most productive years of his early adulthood are taken away.

One could write all day about the inequities in the federal system. The ABA report that Justice Kennedy’s speech spawned elaborates:

Aside from the fact that mandatory minimums are inconsistent with the notion that sentences should consider all of the relevant circumstances of an offense and offender, they tend to shift sentencing discretion away from courts to prosecutors. Prosecutors do not charge all defendants who are eligible for mandatory minimum sentences with crimes triggering those sentences. If the prosecutor charges a crime carrying a mandatory minimum sentence, the judge has no discretion in most jurisdictions to impose a lower sentence. If the prosecutor chooses not to charge a crime carrying a mandatory minimum sentence, the normal sentencing rules apply. Although prosecutors have discretion throughout the criminal justice system not to charge offenses that could be charged and thereby to affect sentences, their discretion is pronounced in the case of mandatory minimums because of the inability of judges to depart downward.

The report continues:

Federal drug sentences also illustrate some of the possible effects of mandatory minimums on racial disparity. When compared either to state sentences or to other federal sentences, federal drug sentences are emphatically longer. For example, in 2000, the average imposed felony drug trafficking sentence in state courts was 35 months, while the average imposed federal drug trafficking sentence was 75 months. In 2001, the average federal drug trafficking sentence was 72.7 months, the average federal manslaughter sentence was 34.3 months, the average assault sentence as 37.7 months, and the average sexual abuse sentence was 65.2 months.

These lengthy sentences largely result from the impact of the Anti-Drug Abuse Act of 1986 (ADAA). The ADAA created a system of quantity-based mandatory minimum sentences for federal drug offenses that increased sentences for drug offenses beyond the prevailing norms for all offenders. Its differential treatment of crack and powder cocaine has resulted in greatly increased sentences for African-American drug offenders.

The Act set forth different quantity-based mandatory minimum sentences for crack and powder cocaine, with crack cocaine disfavored by a 100-to-1 ratio when compared to powder cocaine. Thus, it takes 100 times the amount of powder cocaine to trigger the same five-year and ten-year mandatory minimum sentences as for crack cocaine. The Act does three other things: (1) It triggers the mandatory minimums for very small quantities of crack — five grams for a mandatory five-year sentence and 500 generates a ten-year term. (2) It makes crack one of only two drugs for which possession is a felony. (3) It prescribes crack as the only drug that triggers a mandatory minimum sentence for mere possession.

The overwhelming majority of crack defendants are African-American, while the overwhelming majority of powder cocaine defendants are white or Hispanic. In 1992, 91.4% of crack offenders were African-American, and in 2000 84.7% were African-American.

There aren’t many ways to escape a mandatory minimum, but one of them is to provide “substantial assistance in the investigation or prosecution of another person who has committed an offense.” There are many problems in the administration of this superficially wise provision of the law. Only the government can petition the sentencing judge for a “substantial assistance” departure, and jurisdictions vary widely in the kind of assistance they’ll accept as “substantial.” Moreover, as many have noted, this provision is biased in favor of an offender who’s part of a conspiracy, and who’s sufficiently entangled in that conspiracy to implicate many others. Individual offenders and low-level conspirators — those who would seem to have offended least — typically have no substantial assistance to provide, and therefore cannot escape mandatory minimums.

When a conservative like Justice Kennedy says it’s time to reform federal sentencing laws, he deserves to be taken seriously. There’s as yet no evidence that a majority of congress is prepared to agree with him.

Federal Criminal Sentences in Limbo

The Federal criminal sentencing process is in turmoil. It’s all because of a U. S. Supreme Court decision issued in June, Blakely vs. Washington. It now appears all-but-certain that the Federal sentencing guidelines, which are nearly twenty years old, are unconstitutional.

Here’s the background:

Until 1984, Federal judges had wide discretion to decide punishments. There were some Federal crimes for which the sentencing range was anything from probation to life in prison. Crimes with ranges of zero to ten or zero to twenty were quite common. Naturally, there was significant disparity between sentences. Defendants who committed seemingly identical crimes were received vastly different punishments, depending on which judge they were lucky (or unlucky) enough to get.

The pre-1984 scheme also allowed for parole. So, if a defendant was sentenced to ten years in prison, a parole officer would later recommend how much time he really served, based on his behavior in prison and a guess about his state of rehabilitation. In a way, it was really the parole officer, not the judge, who eventually decided the length of the sentence.

For many years, Congress had wrestled with revising the criminal code to provide for more determinate sentences. Ultimately, the task proved too daunting, and Congress instead passed the Sentencing Reform Act of 1984 (“SRA”). The SRA punted the responsibility for reforming Federal sentencing to a newly minted Sentencing Commission. The Commission was tasked with designing prescriptive guidelines that would leave the judge very little room for discretion. The Act also abolished parole, although it did allow time off for good behavior. Nevertheless, under the Act, defendants were assured of serving at least 85% of their sentences.

The Sentencing Commission’s guidelines are a mind-boggling collection of formulas that run longer than a small town telephone directory. Based on myriad characteristics of the offense and the offender, the judge is given a narrow “guideline range” in which to sentence the defendant. A typical guideline range is something like 120 to 150 months (10 to 12 1/2 years) in prison. The judge can depart from this range if there are mitigating or aggravating factors in the case that the guidelines didn’t cover. Given the level of detail embedded in the guidelines calculation, this rarely happens.

Some people argued at the time that Congress had exceeded its authority in enacting the SRA. The argument was that only Congress can pass laws deciding what the punishment will be for specific crimes — it can’t delegate this authority to an unelected Commission. However, the Supreme Court ruled 8-1 that the SRA was a constitutionally permissible delegation of legislative power. Justice Scalia dissented, calling the Commission a “junior-varsity Congress.”

Applying the guidelines is no easy task. I recently highlighted the peculiar fate of Jamie Olis, who was convicted of accounting fraud at the energy firm Dynegy. For the fraud itself, Olis’s sentence would have been about 1-2 years. But the guidelines called for an “enhancement” based on the amount of money investors had lost because of the fraud. The probation office argued that Olis was entirely responsible for the $100 million that a California retirement plan had lost on Dynegy stock over 2001-2002 — ignoring other factors that had battered the market that year (the 9/11 attacks; the broad collapse of energy stocks generally; the Enron scandal; Dynegy’s failed bid for Enron; and so forth). Crediting Olis with a $100 million loss increased his sentence to a range of 24-30 years. Accepting the probation office’s recital of the facts, the judge then sentenced Olis to 24 years in prison, the bottom end of the permitted range.

We should pause to emphasize that, while the judge in Olis’s case had no discretion to depart from the guideline range, he had absolute discretion to determine the amount of the fraud, which in turned determined the applicable guideline. Unfortunately, many Federal judges these days do as Olis’s judge did: they accept the probation office’s assumed facts, even when those facts are vigorously disputed by the defendant and were never found by a jury.

For several years, the Supreme Court has been wrestling with modern sentencing regimes that expose a defendant to long prison terms, based on the judge determining the existence of various “sentencing factors.” The burden of proof for a sentencing factor is usually a lot lower than the burden of proof for guilt. In the Federal system, sentencing factors need only be demonstrated by a “preponderance of the evidence.” As the Jamie Olis case shows, sometimes judges give short shrift even to that low standard.

The Federal sentencing regime was thrown into disarray in June, when the Supreme Court decided a case called Blakely vs. Washington. Ralph Blakely had pleaded guilty to kidnapping his estranged wife. Washington state law called for a sentence of 49 to 53 months. However, Washington’s criminal code calls for an enhanced sentence in cases where the defendant acted with “deliberate cruelty.” Finding that Blakely had done so, the judge sentenced him to 90 months in prison. The Supreme Court reversed, because Blakely’s sentence depended on an extra finding of fact (deliberate cruelty) that the defendant had not admitted. The Court said that any fact increasing the minimum sentence must either be admitted by the defendant or found beyond a reasonable doubt by a jury.

The critical point is that Washington’s sentencing system is virtually indistinguishable from the Federal system created by the Sentencing Reform Act of 1984. In Blakely, the Court wrote in a footnote, “The Federal Guidelines are not before us, and we express no opinion on them.” However, this is typical of the Supreme Court, which seldom rules on more than is necessary to decide the case before it. Anyone could see that, by the logic employed in Blakely, the Federal guidelines could not survive intact.

Sure enough, within weeks, several Federal Courts of Appeals had ruled the Federal guidelines unconstitutional, by the same rationale the Court had employed in Blakely. An even larger number of trial courts had done so. Several of these cases are already on the Supreme Court’s doorstep, with motions urging the Court to expedite consideration. It seems virtually certain that the Court will agree to do so.

Predicting how the Supreme Court will rule is always tricky, but almost no one expects the Court to find the Federal guidelines entirely Constitutional. The system is just too similar to the one the Court tossed out in Blakely. The more difficult question is what to do about it — which lawyers refer to as the “severability issue.” In short: are the guidelines that pass constitutional muster “severable” from those that do not?

The problem is that Congress clearly intended the guidelines to be used in all Federal criminal cases. What kind of strange system would we have, if they applied in some cases, but not in others? On the other hand, if the Supreme Court tosses out the entire Sentencing Reform Act, federal sentencing would return to the indeterminate scheme as it existed in 1984. Yet, that scheme assumed the existence of parole, which is no longer available under Federal law. So it is indeed a quagmire.

Blakely, like so many cases at the Supreme Court these days, was decided by a 5-4 margin. However, the division was not the Court’s usual conservative-liberal split. Instead, the two most conservative Justices, Scalia and Thomas, were joined by three of the most liberal, Stevens, Souter, and Ginsburg. Justice O’Connor, who is seldom on the losing side of a case, said of the case that, “It looks like a No. 10 earthquake to me.” And in a rare public show of frustration for a Justice, she said she was “disgusted in how we dealt with it.”

A wide range of judges and legal experts consider the twenty-year-old Federal guidelines a noble failure. They are too inflexible, too draconian, and too unfair. The current Congress, however, has done nothing to fix them. A Supreme Court ruling applying Blakely case to the Federal system would force Congress to try again.

Martha and her Tasteful Orange Jumpsuit

Last week, domestic diva Martha Stewart was sentenced to five months in prison, plus five months’ home confinement, plus a fine of $30,000, for lying to Federal authorities about her sale of ImClone stock. Stewart has vowed to appeal her conviction, but I haven’t found a single independent legal commentator who thinks she has a credible shot at winning. Judge Cederbaum has allowed her to remain at large until the appeal is concluded, for while her chances may be slim, the appeal would be essentially meaningless if she were forced to serve her full sentence before it is heard.

Stewart is not a very sympathetic figure. After her sentence was handed down, she gave an interview in which she compared herself to Nelson Mandela. Given that Mandela was imprisoned for twenty-seven years on trumped-up political charges, it is hard to see how anybody could find such a comparison even remotely appropriate. Stewart also continues to insist that her case was “a small personal matter.” I have a feeling that Judge Cederbaum might have been a tad less generous had these comments been made before the sentencing.

At the same time, while I am repulsed by Stewart’s arrogance and lack of contrition, I think Cederbaum’s sentence — the minimum allowed by law — was appropriate. Stewart was convicted of violating 18 U.S.C Section 1001, which provides:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully - (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both.

This section of the United States Code was originally designed to punish liars who obstruct Federal investigations. But increasingly, the government uses Section 1001 to manufacture crimes when they know the defendant did something wrong, but they don’t exactly have a case they can put to a jury.

If you’re a prosecutor or FBI agent, the formula is simple enough. Just get the suspect to lie about a question to which the government already knows the answer. The suspect can then be prosecuted for that lie, even though the underlying offense can’t be proven beyond a reasonable doubt.

If the government asks the right questions, prosecutors can manufacture as many counts of lying as they want. The suspect doesn’t need to be under oath, and the interviewer doesn’t even need to keep accurate notes of precisely what was said. And remember, each lie carries a sentence up to five years in prison. Without much trouble, the government can easily rack up an indictment that threatens decades in prison, without even charging the underlying crime that they were originally investigating.

This is precisely what happened in Stewart’s case. The government eventually concluded that it could not prove the underlying offense — insider trading — beyond a reasonble doubt. But they did catch her lying, and those lies could be prosecuted as independent offenses. (The government also alleged other “collateral crimes,” of which Stewart was not convicted.)

Now, I don’t have any sympathy for Stewart’s lies. The government did not entrap her. While the law does not require the government to tell the people they interview that lying is a crime, Stewart was certainly sophisticated enough to know this without being told. There is also ample evidence that she did lie. But in the grand scheme, her lies were victimless, as the government already knew the answers to the questions it was asking.

In context, therefore, I think that Stewart truly deserved to be sentenced at the lower end of the Federal guideline range, which is precisely what Judge Cederbaum did. Even five months in the Federal pen will be a harrowing experience for Stewart, who has also seen her personal wealth and reputation dramatically reduced as a result of this affair. Her well-publicized fall from grace offers a sufficient deterrent to others who may find themselves faced with a Federal investigation. You can always take the Fifth, but if you submit to questions, your answers had better be true.

Sentencing Mayhem in Dynegy Case

On Thursday, a Federal judge sentenced former Dynegy accountant Jamie Olis to 24 years in prison for mis-classifying a loan as recurring income. Prosecutors said that Olis and his colleagues knew their accounting was improper, and that they concocted the scheme to artificially inflate Dynegy's stock price.

The sentence was one of the harshest ever handed down for a white collar crime. Most observers agree it is far too harsh. Olis had no prior criminal record. Unlike more highly publicized defendants from Enron, WorldCom, Adelphia, or Tyco, he did not commit the fraud to line his own pockets. He also wasn't a CEO, or even a CFO; he was just a mid-level executive in the accounting department.

Now, I don't mean to minimize the seriousness of Olis's fraud. Olis knew that he was violating accounting rules, and he did it to mislead investors about Dynegy's true financial condition. But at 24 years, Olis's sentence was more serious than a rapist or a bank robber would face. And we're not exactly soft on rapes and robberies these days. Twenty-four years is probably, by a factor of ten, more excessive than necessary to meet the public's legitimate penological interest in deterring crime and meting out punishment.

As a point of comparison, Andrew Fastow, who presided over a virtual crime wave at Enron and lined his pockets with tens of millions of dollars, is expected to be sentenced to just ten years. In the 1980s, junk bond king Michael Milken served under two years for a long-running fraud that ran into the multi-billions. I wouldn't say that Milken got off easy. He was also fined something like $500 million and banned from his profession for life.

In contrast, Olis's crime seems almost petty. He caused a single $300 million loan to be wrongly booked as income. Yes, of course it was wrong, but Olis's one-time accounting trick was comparatively small beans. Is this isolated mistake, willful and fraudulent though it was, sufficient justification for locking up Olis, 38, until he is a senior citizen? (Under the Federal system, which has no parole, Olis must serve at least 85%, or 20 1/2 years, of his 24-year sentence.)

Olis ran afoul of several pernicious trends over the last several decades that have turned criminal sentences into a Draconian farce. First, he had the poor judgment to reject a plea bargain. (His two fellow-conspirators pleaded guilty to reduced charges, and are expected to be sentenced to under five years apiece.) Given that the jury took only about two hours to return a verdict against Olis, this was evidently not a close case. Olis's decision to take his chances has cost him dearly. Nowadays, the difference in the consequences between a plea bargain and a jury verdict are so vast that even those who sincerely believe they are innocent are routinely advised by their lawyers to plead guilty. The risk they face is just too great. One must question the competence of Olis's representation, in that his lawyer rested without calling a single witness.

Second, the Federal laws that govern white collar crime allow prosecutors to stack up the counts, so that one crime becomes half-a-dozen. Olis was convicted of conspiracy, securities fraud, mail fraud, and three counts of wire fraud. This is despite the fact that he, in fact, committed only one actual crime. Yet, Federal law allows prosecutors to charge Olis for planning the fraud (conspiracy), committing it (securities fraud), sending a letter (mail fraud), and using a phone, fax, or e-mail (wire fraud).

As the old saying goes about white collar crime, it's impossible to commit just one. Prosecutors routinely play this game, expecting to bully defendants into pleading the case down to just one count. But when they don't reach a deal, the defendant finds himself facing multiple charges for what is actually just one crime. Here again, Olis would have been better off committing a murder, which is a much more serious offense, but one that doesn't offer prosecutors the opportunity to pile on.

Third, Congress about twenty years ago revoked most of trial judges' traditional discretion to match sentences to offenders, transferring it instead to the U. S. Sentencing Commission, a blue-ribbon panel of bureaucrats that developed reams of mathematical sentencing formulas that judges were required to follow more-or-less robotically. Judges were allowed to deviate from the Commission's formulaic guidelines only in limited circumstances. Judicial discretion has become even more limited recently, thanks to further Congressional action that even Chief Justice William Rehnquist, not exactly known as a coddler of criminals, decried as overly harsh. Judges now routinely announce their displeasure with the sentences the Commission's formulas saddle them with, as did the judge in Olis's case.

And fourth, in the wake of the Enron scandal, the Sentencing Commission tweaked its formulas to make the sentences in cases like Olis's dependent on the amount of money investors lost. The guidelines changed after Olis committed his crime, but before he was charged. Under a Constitutional loophole that the Supreme Court has endorsed, this ex post facto change is perfectly legal, because Olis's sentence was still within the range Congress had prescribed, even though no one before Olis ever would have faced it.

Well, it turns out that the California Retirement System says it lost more than $100 million as a result of Olis's fraud, because it bought at the top and sold right after the story broke. This makes Olis a criminal kingpin under the Commission's guidelines, and elevates his sentence from the roughly 1-2 years he would have faced previously, to a range of 24-30 years. The judge sentenced him to the minimum the Commission's guidelines allowed.

There are all kinds of pernicious evils here. Olis should reasonably have been expected to know that his accounting was improper. But he could not have known how many shares a particular investor owned, at what price they had bought, or under what conditions they would sell. He cannot have known how his fraud, if it became known, would affect the stock price. In any event, the plunge in Dynegy stock clearly was influenced by many factors well outside of Olis's control.

A murderer knows that he has killed, and a robber knows that he has stolen. But the Sentencing Commission's guidelines force the judge to punish Olis for market factors that he cannot possibly have been expected to foresee.

A few years back, there was a spate of highly publicized car-jackings. Congress, eager to show that it was alive to the crisis, passed a law making it a Federal offense to commit a car-jacking across state lines. The law was utterly unnecessary. Car-jacking was already a serious crime in all fifty states. No one suggested that car-jacking was going unpunished, or under-punished. It was just a publicity stunt, to demonstrate to constituents that Congress was "doing something" about the problem. It was, as one writer put it, therapeutic legislation, that is, legislation that doesn't solve an actual problem, but makes people feel safer.

The Sentencing Commission's reaction to the Enron-era scandals was similarly therapeutic. It was meant to make the public "feel good" that "something was being done" about securities fraud. But it was utterly unnecessary, and probably an over-reaction in the heat of a highly charged political environment. Even before these revisions, Federal law treated securities fraud as a very serious offense, as it should.

The latest sentencing rules have managed to turn Olis into a very sympathetic and tragic felon. He should, of course, pay a just price for his crime. But this mid-level executive who poses no future threat to anyone will be a senior citizen before he gets out of prison. His infant daughter will not know her father before she is an adult.

If all of this isn't enough, Federal law allows the government to file criminal and civil charges simultaneously against the same defendant, for the same crime. Naturally, they did so against Olis. The civil case is punitive in all but name only, flagrantly violating the Constitution's double jeopardy clause. For some reason, the Supreme Court has fallen for this trick. It allows the government to go after Olis twice for the same offense, but because it's branded a civil case, the burden of proof is much lower.

So while Olis spends a majority of the rest of his life in prison, his legal troubles are far from over. To the extent his fraud produced ill-gotten gains, there's little he can do to enjoy them in the slammer. The brunt of the feds' pursuit will fall disproportionately on his innocent family. It's an outcome that would make you happy if you're the sort who rooted for Inspector Javert in Les Miserables.