Monday, June 29, 2009

Madoff's Sentence - "Symbolic" of What?

Clearly Madoff's sentence is "symbolic."  It symbolizes an incredibly long sentence being given to a white collar offender, something that has happened in the past but is not common, and hardly ever to this extent for a white collar individual.  (see here

But should a sentence be for a "symbolic" purpose? Clearly Madoff cannot serve 150 years in prison.  And there are many others in the system who have likewise received sentences beyond their lifetimes - usually, however, we see such cases in the drug or violent crime realms. 

But one wonders if sentences that exceed a person's lifetime are realistic and add credibility to our sentencing system.  When the system allows and sometimes encourages a judge to issue a sentence that can never be served, does it defeat the validity of the sentencing structure?  General deterrence is a valid punishment theory and sending a message to the community that criminal conduct will not be tolerated is likewise admirable.  Some may see denunciation as an important aspect of correcting future criminal conduct.   And clearly 18 USC 3553 provides that the sentence should "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." But all that said, should an individual - no matter how guilty and how extraordinarily evil - be given a sentence that is beyond the person's lifetime for "symbolic" purposes? 

I keep thinking about the initial purposes of the sentencing guidelines where it states that " [t]he Act's basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system.  To achieve this end, Congress first sought honesty in sentencing." (emphasis added). It states later, "[h]onesty is easy to achieve: the abolition of parole makes the sentence imposed by the court the sentence the offender will serve less approximately fifteen percent for good behavior."  But in the back of my mind I keep wondering if Congress really achieves "honesty in sentencing" when it allows an individual to receive a sentence that exceeds the person's lifetime.

See Mike Pesca, NPR, Judge Sentences Madoff to 150 YearsAndrew Cohen, Courtwatch CBS News Blog, 150-Year Madoff Sentence Is "Symbolic"


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I think this is a difficult question. Symbols do matter. But who is the real object of the symbol? If the object of the symbol is the guilty party, then I don't think symbolic sentences can be justified. If the object of the symbol is the public at large, then I think the deterrent affect of symbols is rather dubious. On the other hand, if you believe that the point of the symbol is to reinforce social norms via contrast effects or make the community and/or the victims feel better about themselves (that is to say, the law seen as an extension of sociology or medicine) then the symbolic affect of long sentences can be justified.

Posted by: Daniel | Jun 30, 2009 8:01:52 AM

Mr Madoff made many extremely wealthy people virtually poor overnight. Thus he virturally destroyed the lives of many, many people in a way that few, if any, other white collar criminals could or ever have. Most people would never be able to build up enough confidence in other people and over so long a time span, to have access to that much money, and that much -of- other people's money, let alone take advantage of that confidence in the way that Madoff could and did. He marks the extreme, the absolute worst of white collar crime by which all others will be judged for a very long time. The worst sentence imaginable for the worst crime imaginable. "Symbolic", yes. But "Deserving"? Count me as a yes on that too.

Posted by: Tom Cole | Jul 7, 2009 11:05:44 AM

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