150 Years is Too Much for Madoff
Published June 30, 2009 @ 03:55PM PT
A federal judge yesterday sentenced Bernie Madoff to 150 years in prison for running the biggest Ponzi scheme in history and essentially stealing billions of dollars from thousands of people. Judge Denny Chin called Madoff’s crimes “extraordinarily evil” and said he chose the maximum possible sentence for symbolic reasons. Madoff deserves to go to prison for his crimes – but his sentence symbolizes little more than an inconsistent and broken criminal justice system. Let me explain why.
Chin cited three reasons for this lengthy sentence – deterrence, retribution, and a measure of justice for the victims. I’ll take those in order:
Deterrence: It’s important that white collar criminals know they can’t get away with their crimes. Madoff got away with it for far too long, and there was never any doubt if caught he’d get a long sentence. Investing in a stronger SEC is better deterrence than handing down nonsensical sentences.
Deterrence makes no sense once the sentence exceeds a person’s lifetime. Madoff’s Ponzi scheme was doomed to fail eventually, it was brazen and incredibly arrogant – I don’t think he was gambling on a short sentence. He was just crazy and thought somehow he would get away with it.
Retribution: I’ve argued here before that retribution shouldn’t have a place in our justice system at all. It’s not eye-for-an-eye, it’s about keeping the public safe and rehabilitating people who have committed crimes.
Justice for the victims: I agree that Madoff deserved a long sentence, but the suffering of victims doesn’t diminish at an inverse rate to the length of the sentence.
There are no cases that compare with the scale of Madoff’s fraud, but some come close. Jeffrey Skilling masterminded an enormous – and evil – fraud at Enron and was sentenced to 25 years. The usually strict federal probation office recommended 50 years for Madoff. He’s 71 years old and not likely to live another 25. A sentence to match Skilling’s would have been completely appropriate.
Ellen Podgor asked this morning on the White Collar Crime Prof Blog what symbolism Chin was shooting for, and pointed out the damage sentences like this can do to our trust in courts.
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?
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."
Madoff’s sentence, one of the most watched in recent memory, underlines our system’s focus on vengeance and retribution over fairness and justice. For the system to improve, we must move away from a sentencing structure aimed at punishment and toward one that values prevention and rehabilitation.
It was very unlikely that Bernie Madoff would ever walk free again, and I’m fine with that. He knowingly stole from thousands of people and organizations – including the rich, the poor and charitable groups – and he did it for three decades without flinching. But a “symbolic” sentence is a mistake and it’s a step backwards for criminal justice reform.
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Matt has worked and volunteered in various capacities in criminal justice reform for several years. When he's not blogging, he works as the Online Communications Manager at the Innocence Project. Views expressed here are Matt's, and don't represent the positions of the Innocence Project.
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What's one of the AA's 12 Step directives? - Face the people you've wronged and apologize?
Wonder how long that would take.
Posted by Oceania OZ on 06/30/2009 @ 09:57PM PT
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It would take a while to face all of his victims, but his statement in public court is a start. From NYT:
"I am responsible for a great deal of suffering and pain. I understand that," (Madoff said in court.)
At the end of his personal statement, Mr. Madoff abruptly turned to face the courtroom crowd....
"I am sorry," he said, and abruptly added: "I know that doesn't help you."
Posted by Matt Kelley on 07/01/2009 @ 05:02AM PT
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Madoff hurt lots of innocent people.I think his rehabilitation should include making amends to each person that he hurt.
Lynn Rosen
Posted by Lynn Rosen on 07/01/2009 @ 05:13AM PT
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I agree with this idea but... unfortunately at the rate of pay he will recieve in prison he cannot possibly re-pay this debt to those he stole from. After the lawyers get done with the distribution of his ill gotten gains, possibly 5% of the people will recieve partial recompensation. His "darling wife" who pleads she knew nothing, has a retirement package worth 2 million. How do you make amends to people who you have completely ruined their future financial stability?
Borrow from the government?
No bank would loan him money, no mortgage company will give him a house loan, and certainly no loan shark would have ever loaned him money because they have rates of return that parallel his promises to his "clients and friends".
So, instead, we send him to prison, where we, the taxpayers, support his declining health at the rate of 25-32,000 a year, provide him a bed, food, and entertainment (TV, MOVIES) for the remaining portion of his life. He is free of all life obligations other than tending his "job" in prison. His apologies mean absolutely nothing to anyone. Assuming this man lives 10 years, we have spent a minimum 250,000 of our hard earned dollars supporting him.
This ideal of rehabilitation that everyone speaks of is illusory. It does not happen. Prisoners either grow out of their criminality, or they don't. Period. There are good machines, and there are bad machines.
"Bad machines are taken away, re-arranged in every way."
Madoff will not be rehabilitated, and if he is, he will never see another day as a free man. Our choice to imprison him, where he will earn no income, and repay no-one, for 150 years is ridiculous. Our economy is in enough dis-array as it is, we did not need another non-violent prisoner to support with our failed "lock-em up" policy.
Posted by mark schmanke on 07/09/2009 @ 04:31AM PT
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What kind of "rehabilitation" do you suggest for Madoff? The only thing in need rehabilitating is the financial condition of the victims.
Posted by paris vega on 06/30/2009 @ 10:40PM PT
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It seems clear that even a shorter sentence would have meant life in prison, but I would still suggest that his skills be put to productive use in prison. He could teach financial literacy to fellow inmates. (Assuming he still knows how the market works outside of his imaginery Ponzi trades)
Posted by Matt Kelley on 07/01/2009 @ 05:07AM PT
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I really do not agree in this case. See my other comment below. Maddoff needs to be rehabilitated first under heavy psychiatriac evaluation before giving financial advice to anyone. For someone to have so much disregard for so many other people's well-being is evidence enough that he cannot think outside his own ego. He is completely unsympathetic and has apologized only because he was caught. He was having an affair with other people's money. Thousands of people.
Posted by Michelina Docimo on 07/01/2009 @ 06:37PM PT
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Good comment Matt and the original article makes good points. I am still trying to come to grips with just how much responsibility the government has in this case insofar as every one of the agenciesthat are supposed to protect investors failed. If Madoff is deserving of such punishment, and I agree that it is overkill in the sense that it exceeds his lifetime, then what is the punishment for those in government this allowed this to go on. Are any of them being called to task? Maybe with all of the "bailouts" the government is funding, these investors, and I am not one of them, should get some consideration. Most are ordinary people who trust that our market regulators are doing their jobs.
On a side note, I have had several people say to me recently, "I'll bet you wouldn't let the "Second Chance Act For Non Violent First Time Offenders",H.R. 1529 apply to Madoff. My answer is "Of course I would, read the bill." If he meets all of the requirements of his sentence, serves the 150 years, pays all fines, pays all restitution, every dime, then I would most certainly allow him to, per the bill, "Petition the Court for Consideration." The legislation is not a free ride, only an avenue to request consideration. I'll leave it to the readers to decide such a request from Mr. Madoff should be answered.
Posted by Thomas Kinney on 07/01/2009 @ 06:54PM PT
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Are you suggesting that he train Madoff clones in prison ?
The problem is that there are too many Madoff's out there who are operating without regulation....
Posted by jowey styxx on 07/02/2009 @ 04:29PM PT
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"Justice for the victims: I agree that Madoff deserved a long sentence, but the suffering of victims doesn't diminish at an inverse rate to the length of the sentence."
I know that technically this is true, but I think many victims believe that justice is served (somewhat) by this outsized sentence. It may be because we equate justice w/an eye-for-an-eye in our society. I'm just saying that even though most if asked would talk about how their lives are ruined, they might also add that this sentence helps a bit. I think we have a lot of work to do to distinguish vengeance and punishment from justice.
Posted by Leigh Graham on 07/01/2009 @ 05:28AM PT
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I hear you and you make important and intelligent points but I disagree with you on the judge's actions
The length of this sentence is a statement to the greater world about how serious this crime is and how little sympathy will be offered to others who do likewise-- it's not about Madoff.
So, in an imperfect world, the deterrence is not for Madoff but for others who may be tempted to slipping down the road of fast and loose financial shenanigans because the SEC is snoozing and arrogantly thinking they're smart enough to make it all work out in the end. And no, it will never stop these people entirely because as you said they are delusionsal, but ANY deterrence this judge may offer up is helpful and necessary albeit imperfect. This judgement and penalty was necessary to make this long overdue point.
Yes, of course, regulation would be a far better deterrent. Yes, the "oh, you're putting too many restrictions on business" small government whiners screwed us all. And yes, I'm sure if the judge could throw the incompetent people from the SEC in jail for abject incompetence I bet he would too. (kidding for dramatic effect. They just should be fired.) (See 60 Minutes story about how people have been tipping them off for almost a decade!)
But, in the final analysis this is the only tool in his toolbox and as the only competent person in this drama, he is using it. I'm glad SOMEONE is doing their job, even if it's too little too late by the time it all goes to court.
Posted by Linda Christopher on 07/01/2009 @ 09:30AM PT
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It's about time some comments on this page made a little sense. As far as deterrance, I explained in a recent post why the death penalty is not a deterrent for murder. It's because many murders are crimes of passion. Madoff's crimes were crimes of premeditation. These crimes can be deterred by strict sentences in some cases because of the thought process involved.
Posted by Dennis G. on 07/01/2009 @ 09:55AM PT
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The man has RUINED many people's lives (not ALL were wealthy, and many lost entire nesteggs . . . some were even driven to the despair of suicide).
This country is becoming too soft -- 0n its expectations of its leaders, and sympathies for privileged, but nonetheless, criminal, greedy, capitalistic parasites.
Posted by Just *C* on 07/01/2009 @ 04:21PM PT
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I tend to be "liberal" when it comes to criminal justice. I do not support the death penalty and am a proponent for rehabilitation programs. Madoff's extraordinary hubris and criminal dealings robbed thousands of personal life savings and charitable organizations around the world of financial stability. His scheme did not affect just one person - it created a dominoe downfall of community on a global scale - affecting orphanages, schools, hospitals, philanthropic institutions, and other non-profits. Madoff's ponzi scheme is historic and I think the symbolic punishment of 150 years fits the crime in this case. It would be a great human spirit to say - let him volunteer in the poorest, most afflicted HIV area of Africa (for example). But is this man capable of reason? compassion? empathy? common sense? Human rights, yes - letting the inmates run the asylum, no. Should we be more lenient because it is a white collar crime? Would it have made a difference if Madoff was younger? Maybe. All I can liken Maddoff to is Shakespeare's character Shylock of the Merchant of Venice (ironically also Jewish). The 150 years is like a "pound of flesh" but even if Maddoff were to be released into society, he would be an outcast because he is even despised by his own.
Posted by Michelina Docimo on 07/01/2009 @ 06:30PM PT
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That would be interesting solution - make him a prisoner of a poor village somewhere. They would get funding for incarcerating him. If he disappears then when caught another villiage gets the opportunity.
Given incentive he might actually help in such an environment....
Posted by jowey styxx on 07/02/2009 @ 04:36PM PT
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First of all the only justice in this case could come behind a civil case with a judges decision resulting in financial rewards for the victims..any chance of this goes out the window with a prison sentence as Madoffs ability to earn money at all will be eliminated....thus, no one will ever recieve financial compensation which is truely in order here....as far as rehabilitation, why even discuss it? A system that incarcerates a person for their lifetime makes a bold statement that that person can not be rehabilitated remember! It was not long ago that we reserved lifetime sentences for murderers and heineous crimes like serial rape! There is no rehab for a lifer...just death! How the hell can we be so arrogant as a population! To pass judgement on our fellow men and women the way we do...I will never understand it....look, I am someone who is stupified on a regular basis by these white-collar criminals getting away with what they get away with! I would be thrilled to see justice rear its head in their lives like it does in the lives of us poor folks, but incarceration is not justice! Very few people in my opinion acctually deserve a lifetime of punishment....we are human! We make mistakes! Sometimes huge mistakes that adversely affect the lives of people around us! Our penal system is just that! A huge mistake that adversely affects the lives of innocent people around it....all iam saying is 2 wrongs dont make a right! Right?
Posted by Bryan Malmstrom on 07/08/2009 @ 06:13PM PT
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OMG, somneone here actually has thought this through.
Posted by mark schmanke on 07/09/2009 @ 04:35AM PT
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