Monday, June 29, 2009

Commentary on Madoff Sentence

150 years (see here) - more than a lifetime is the sentence given to Bernie Madoff by Hon. Denny Chin.  It was clear that the 12 years requested by defense counsel would never be a reality, and it was also clear that Madoff would likely spend the rest of his life in prison. But a sentence of 150 years sends a forceful message that white collar offenders can and will be punished harshly for fraud. Some interesting points about the sentencing -

  • The NYTimes reports (here) that "Judge Chin pointed out that no friends, family or other supporters had submitted any letters on Mr. Madoff's behalf, attesting to the strength of his character or good deeds he had done." - Some white collar cases will have numerous letters showing the good qualities, charity work, and other deeds of the offender.  But the usual letter-writers were the victims in this case.  It is therefore not surprising that there would be none to present to the court.
  • Madoff was given no credit for his remorse and no credit for pleading. He saved the taxpayers the cost of a trial, and clearly spared everyone the pain and time of making the government prove the case against him. The penalty of going to trial was imposed in this case, despite the fact that a trial did not happen.
  • Giving Madoff the maximum sentence is not a punishment based upon rehabilitation or specific deterrence. Being 71 years  and being given a prison sentence of 150 years leaves little chance that he will ever exit prison a free man.  This is clearly a punishment grounded in retribution. From a general deterrence standpoint, a much lesser punishment could have been used for sending the message that this conduct will not be tolerated. 
  • Madoff was different from the usual white collar offender (see here), and that needed to be factored into the sentence, as Judge Chin did. 
  • But the remaining question still stands - how could this fraud have gone on unnoticed for so long, and why did it take government authorities 20 years to finally do something about it.


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My thinking was that the sentence would have been fifty years, and I was happily surprised that the probation office agreed with me. With respect (real respect, not the sneering "all due respect" kind), I think Judge Chin allowed his emotions to get away from him. Given the vast numbers of victim impact statements that must have come into the court, it is completely understandable how that might happen. On the other hand, the dispassionate administration of justice is one fundamental reason we have tenure during good behavior for the Art. III judiciary. I also have to admit to a bit of resistance any time a governmental official speaks of "sending a message," that might color my own thinking about the sentence.

The problem is that if defendant appeals this sentence, what would the defendant claim? That the principle of parsimony requires that he might, perhaps, see the light of day? That the probation office's recommendation establishes the possibility of unreasonableness, even though defendant is not much more likely to live to 121 than he is to live to 221. Any appellate claims as to the sentence will labor under a tremendous burden.

Posted by: Edmund Unneland | Jun 29, 2009 10:47:55 AM

Of the classic purposes of sentencing, I would cite only "denunciation," not even retribution, as potentially explaining (and even then, probably not justifying) this sentence.

Posted by: Peter G | Jun 29, 2009 11:42:17 AM

Perhaps the judge is sending a signal to not yet indicted co-conspirators.

Posted by: hvs | Jun 29, 2009 5:36:18 PM

I think the judge's reason is most curious because it doesn't fit easily within any of the major theories or crime and punishment. If you read his comments, he claims he imposed such a long sentence in order to "help with the healing of the victims."

Most curious.

Posted by: Daniel | Jun 29, 2009 9:39:56 PM

I don't find the judge's imposition of a long sentence to help with the healing of the victims curious at all. Despite the best efforts of prosecutors and victims rights statutes, these people have been treated like "wall flowers" throughout this process. Sometimes the mere acknowledgement of the effect the criminal act has had on the victim may be all these people may get. It's not like Mr. Madoff was exactly cooperating with any of the efforts as far as restitution and additional investigative efforts are concerned.

Posted by: Ken | Jun 30, 2009 7:30:41 AM

I'm sure Madoff is banking on the government going broke long before his sentence becomes draconian, compelling his release. But seriously, I don't think this was a Ponzi scheme. I think money was stolen, but that was a coverup for an unrelated money operation, probably with government support or knowledge. When the heat finally came down the operation shut down and Madoff scurried off to prison to blow off the heat. Rest assured he won't sing there either.

Posted by: willis | Jun 30, 2009 8:56:42 AM

He will not live 12 years in jail let alone 50, with old age on top of that his dead so why not throw the book at him.

Posted by: michael | Jul 9, 2009 11:29:19 PM

Thank you for your post

Posted by: michael | Jul 9, 2009 11:30:04 PM

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