Icarus Descended

I got an e-mail today from the Senior Pastor at my church. It went something like this: " The Ken Lay story is a critical commentary on our times. And yet, we must remember that he had a family and that he was on the Board of Trustees at First United Methodist Church in Houston. I feel sorry for the minister that does his funeral. I will be praying for him."

That's a preacher for you. Trying to find something positive. Trying to cut an explosive issue down to size, maybe provide some context to it. They can't help it. It's what the good ones do.

After all, day in and day out, they listen to the bereaved, the lonely and the frightened of their respective flocks. And typically, the good minister/therapist/friend will attempt to provide reassurance by putting the problems of the troubled soul before him into a larger context. Sometimes when we are adrift, it helps to have someone around to remind us of the bigger picture. It helps when someone that cares for us reminds us that we are not unique in human history, that other folks have been in the same boat and have somehow made it to shore. We are creatures of the temporal. Most of our problems have short half-lives when viewed as part of the bigger picture.

But then again, most of us aren't Kenneth Lay.

Ken Lay's problems, at least his problems with the temporal authorities, ended when he died of a heart attack the other day. The embattled CEO of Enron was facing the almost certain prospect of spending the rest of his life in prison. Actually, that's not quite true. Typically most elderly or terminally ill patients are released before they die in Federal custody. You would not believe the paperwork otherwise.

The fact that Lay checked out prior to his sentencing reveals a quirk in the criminal law. Because he never got sentenced and/or because he did not have the opportunity to perfect an appeal (depending on who you talk to) it is as if the criminal charges never existed. Which means that the government will not be able to use the criminal forfeiture statutes to go seize his remaining assets for distribution to the many victims of the scam that was Enron. This, in turn, means that any claims against Lay will have to be made against his Estate. Not only that, but they won't be able to use the fact of his being found guilty as evidence in any subsequent proceeding since, technically speaking, he was never prosecuted.

This would have to be an exceedingly bitter pill for all the people that lost their life savings because of all of this. Indeed, there is much to this abrupt denouement that leaves one with more questions than answers. It does seem to be a fair statement to say that it just doesn't seem that justice has been done seeing as how no penalty was imposed upon him by the Judge. But while a perverse turn of events means that his assets cannot be seized, I believe that the people in the blogosphere who are outraged that Lay didn't live long enough to catch a bunch of jail time need to chill.

I believe that white collar criminals cost society a whole lot more in real dollar terms than drug dealers or violent offenders. They just aren't as scary looking on TV. Still, I think that a 30 year sentence for a 62 year old man who was absolutely no candidate for recidivism is ridiculous, sentencing guidelines or no. Better to hit him in the wallet. That will do society more good. Having said that, he would have had to do a substantial stretch. Every day the Lord sends they are packing off some 20 year old with an 11th grade education. Lay had every advantage in the world. Fairness would have demanded a just term of incarceration.

But all of this is exceedingly idle talk. None of that will happen. Ken Lay is dead. He belongs now to the business school textbooks and to a Probate Court somewhere.

So let's put on our preacher hats. How do we put such an amazing life into context? Where do we go from here?

We may say that, by all accounts, Ken Lay was a devoted family man. He loved, was loved and will be missed. It is likewise true that he was active in his church and he was widely perceived as kind and generous. His supporters will say that he was the victim of hyper-aggressive financial cowboys who kept him in the dark about their machinations. That was certainly his defense and he maintained his innocence until his last breath. His minister has said that Lay hoped to perform some sort of meaningful work for the good of others despite being incarcerated, that he felt he could still be of some use. This is certainly commendable.

But this is what else Ken Lay did. He flat-out lied about Enron's financial condition to the regulators, institutional investors and the shareholders after he first learned about Enron's problems. That's his story at least. In reality, what he had seen was the evidence that Andy Fastow and Jeff Skilling had cooked the books to a fair-the-well. Any, he lied. Maybe he believed he could pull the business out of the fire. But lie he did. And investors, many of them loyal Enron employees, held on to their shares of worthless Enron stock based upon Lay's misrepresentations, many of them to their financial ruin. And as if the Enron debacle were not a sufficient feather in his cap, Lay was also convicted of bank fraud in a separate criminal case involving his personal finances. He never faced the music on that one either.

Kenneth Lay is now beyond man's justice. Our human desire for vengeance and closure are irrelevant now. It is unseemly to wish for anything other than God's mercy upon him and for the peaceful repose of his soul. We have all done things that we hope nobody ever finds out about, although granted, not many of us were in charge of a company whose speculation on the energy markets caused rolling blackouts in California. The point is that we will all be on that other shore sooner than we can know. I don't know about you I will be in enough trouble based on my own misdeeds at that point. I won't need folks back home wishing me ill. I will need all the prayers I can get on that fateful day when my name is called. So will you. And so does Kenneth Lay. And so do all of Enron's victims.

Whether Ken Lay was a criminal or an idiot is irrelevant now. And that is all that there is left to say. It is a strange and hollow feeling. But that is all there is left to say.

A Program Note: "My Sunday Feeling" will not run this Sunday. I have a paid gig that is due on that day. Will check back with you next week!