Tuesday, June 30, 2009
The Madoff Sentence
Bernie Madoff, perhaps the greatest financial shyster of our time, was sentenced to 150 years yesterday. As the judge made clear, this was a "message-sending" sentence which far exceeded Madoff's natural life.
Was it justified?
As a scholar of sentencing, I usually look to the traditional goals of punishment, incapacitation, deterrence, and rehabilitation. A sentence like this, because it is so much longer than the period of time Madoff will live, does not serve the goals of rehabilitation or incapacitation any more than a 20-year sentence would (keeping in mind that there is no parole in the federal system). As for punishment, it may in a vague way serve a purpose, in that there is a humiliating aspect to such a long sentence. Perhaps the only real justification for a 150-year sentence is to deter others. It might serve this goal because it has been so widely reported, and utilizes such an extreme figure.
Still, if the Madoof sentence is justified for deterrence purposes, is that the best way to deter white-collar crime? I would argue that it isn't. The better way to deter others in his position would be to impoverish Madoff's family, arrest him publicly, and televise the conditions of his confinement. All that, and a 20-year-sentence, would make the kind of statement Rudy Giuliani did when he busted inside traders by making them do the perp walk out of their office past horrified colleagues as news cameras rolled.
Vindictiveness is not a valid sentencing goal, and neither is "setting a benchmark" in the absence of mandatory guidelines. Above all else, sentencing should be a firm consideration of the convicted individual, and in this sentencing the judge seemed more directed to the cameras and others than the felon before him.
Was it justified?
As a scholar of sentencing, I usually look to the traditional goals of punishment, incapacitation, deterrence, and rehabilitation. A sentence like this, because it is so much longer than the period of time Madoff will live, does not serve the goals of rehabilitation or incapacitation any more than a 20-year sentence would (keeping in mind that there is no parole in the federal system). As for punishment, it may in a vague way serve a purpose, in that there is a humiliating aspect to such a long sentence. Perhaps the only real justification for a 150-year sentence is to deter others. It might serve this goal because it has been so widely reported, and utilizes such an extreme figure.
Still, if the Madoof sentence is justified for deterrence purposes, is that the best way to deter white-collar crime? I would argue that it isn't. The better way to deter others in his position would be to impoverish Madoff's family, arrest him publicly, and televise the conditions of his confinement. All that, and a 20-year-sentence, would make the kind of statement Rudy Giuliani did when he busted inside traders by making them do the perp walk out of their office past horrified colleagues as news cameras rolled.
Vindictiveness is not a valid sentencing goal, and neither is "setting a benchmark" in the absence of mandatory guidelines. Above all else, sentencing should be a firm consideration of the convicted individual, and in this sentencing the judge seemed more directed to the cameras and others than the felon before him.
Comments:
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Prof. Osler,
Agree with your thoughts. And I've read some similar thoughts elsewhere on the internet. The larger point you make is important. But I fear not too many others will attempt to make this argument for fear it comes off sympathetic to Madoff. Well done.
Agree with your thoughts. And I've read some similar thoughts elsewhere on the internet. The larger point you make is important. But I fear not too many others will attempt to make this argument for fear it comes off sympathetic to Madoff. Well done.
# posted by 
: 12:36 PM
: 12:36 PM
I think Bernie Madoff (with the money) belongs in jail. Are they not allowed to sentence someone with a 'for the remainder of their natural life' clause? Sentencing someone to 150 years even if they are 25 sounds silly as well. Not putting him at 'Club Fed' will also send a message. This was more than white collar crime. The 'perp' walk has a minimal impact.
As for restitution, perhaps they should make him day trade from his jail cell and turn the profits over to those he bilked.
Now interestingly, I heard today that people who were Madoff investors at one point and then moved their money elsewhere can be subject to forfeiture of some of this money.
Investing in the market - even through a hedge found carries risk (just like playing the slots in Vegas). If you don't understand that going in then you have no business putting all you eggs in one basket.
Madoff carries the blame and so should those who 'sold'/convinced these people to drop all their money into his hands. I haven't read anything about these people yet.
I think I'll go bury some of my money in the woods now.
As for restitution, perhaps they should make him day trade from his jail cell and turn the profits over to those he bilked.
Now interestingly, I heard today that people who were Madoff investors at one point and then moved their money elsewhere can be subject to forfeiture of some of this money.
Investing in the market - even through a hedge found carries risk (just like playing the slots in Vegas). If you don't understand that going in then you have no business putting all you eggs in one basket.
Madoff carries the blame and so should those who 'sold'/convinced these people to drop all their money into his hands. I haven't read anything about these people yet.
I think I'll go bury some of my money in the woods now.
While in theory I agree with your idea about deterrence, I have a bit of an issue with the public arrest, namely that you're publicly portraying someone (intentionally or unintentionally) as guilty who hasn't been convicted. Especially in a high-profile case, it makes it that much more difficult to find an impartial jury, having seen the defendant's face blasted all over the tv being handcuffed and put in a patrol car. I think the deterrence should come from the fines imposed and closer regulation, but I'm not quite ready to embrace public humiliation just yet. But that's just me.
I agree with Justin. Also, I don't think it is right to go after the family. I thought in your book that you were opposed to the two sons being executed for the deeds of their father, going after the family would be very similar. It is one thing to take property gained by illegal acts; however, it is another thing to actually go after the family just to make a point. Going after family isn't furthering the interests of justice, it is just being a prick.
-Brennan
-Brennan
# posted by : 2:52 PM
: 2:52 PM
One last thing, isn't vindictiveness basically the same thing as public humiliation? At least a judge trying to send a message with a sentence already has a person that has plead or been found guilty. Humiliation before any adjudication of guilt is just cruel. If the person is found not guilty, how do you correct the harm that you did to that person's life? Will the media and prosecutors work just as hard to clear the person's name? I doubt it. Even if they do, the harm has already been done and that person found not guilty has a reputation that will always be tarnished.
-Brennan
-Brennan
# posted by : 2:57 PM
: 2:57 PM
Well said, Prof. Osler.
I especially want to associate myself with this statement:
Vindictiveness is not a valid sentencing goal...
I especially want to associate myself with this statement:
Vindictiveness is not a valid sentencing goal...
I have no problem with the 150-year sentence. And no, I am not a lawyer, so I don't know the "rules" for sentencing. I speak solely as a lay person, one who thinks that a guy who was that greedy and horrible deserves the max.
But I agree with you 100% that they should strip all his family's assets, too. His wife's PR statement the other day was so, so bogus...
But I agree with you 100% that they should strip all his family's assets, too. His wife's PR statement the other day was so, so bogus...
Gulags. Gotta use Montana for something.
On a more serious note, I'd have given him 20 years, restitution and make him do a primetime interview explaining exactly what he did, his motivations, and how it hurt the people he defrauded.
On a more serious note, I'd have given him 20 years, restitution and make him do a primetime interview explaining exactly what he did, his motivations, and how it hurt the people he defrauded.
I still want to know what they are doing to the people who hooked people into the scheme. Bernie, set up the Ponzi scheme, but he didn't personally convince all these people to let him manage his money (some - yes). There are more guilty parties to this scheme that in my mind carry a lot of blame and I assure you they were paid handsomely for their efforts. After all it is Wall Street.
I love the idea of making him trade stocks in the pen to earn the money back! That is a GREAT idea!!!!
I don't think ANYONE did their job well in this case. Certainly not the guy himself, nor the investors who blindly put ALL of their money with "Uncle Bernie," nor the people who supposedly policed him over and over and found nothing, nor the government who was supposed to be monitoring it, nor the SIPC or whatever thing that lady was talking about on Charlie Rose last night about the govt dept who is supposed to pay investors back once the fraud is discovered, nor the judge who sentenced the guy to a sentence five times longer than he may actually live.
As for who else was involved I don't think they are really done with that part yet. Maybe THEN they will get it right.
I don't think ANYONE did their job well in this case. Certainly not the guy himself, nor the investors who blindly put ALL of their money with "Uncle Bernie," nor the people who supposedly policed him over and over and found nothing, nor the government who was supposed to be monitoring it, nor the SIPC or whatever thing that lady was talking about on Charlie Rose last night about the govt dept who is supposed to pay investors back once the fraud is discovered, nor the judge who sentenced the guy to a sentence five times longer than he may actually live.
As for who else was involved I don't think they are really done with that part yet. Maybe THEN they will get it right.
Vindictiveness is not a valid sentencing goal...
I disagree.
At the time of his arrest, Madoff had over 60 Billion dollars of innocent victims' money embezzled and, at the time of his sentencing, the wind-up trustee for his company has only recovered 1.2 Billion. Madoff is 70 years old, has lived a posh lifestyle by swindling others, and has ruined thousands of lives.
By definition, vindictive means intending to cause anguish or hurt. Madoff acted with that intent and the sentence imposed upon him will serve as a statement for other Ponzi-artists just like him. I think the message sent with a 150 year sentence is a more powerful deterrence than forcing a CEO to do a walk of shame down his office hallway while colleagues gasp. Ask any 81 year old grandma who has had her life savings taken by Madoff and is receiving welfare whether vindictiveness is a valid sentencing goal.
I disagree.
At the time of his arrest, Madoff had over 60 Billion dollars of innocent victims' money embezzled and, at the time of his sentencing, the wind-up trustee for his company has only recovered 1.2 Billion. Madoff is 70 years old, has lived a posh lifestyle by swindling others, and has ruined thousands of lives.
By definition, vindictive means intending to cause anguish or hurt. Madoff acted with that intent and the sentence imposed upon him will serve as a statement for other Ponzi-artists just like him. I think the message sent with a 150 year sentence is a more powerful deterrence than forcing a CEO to do a walk of shame down his office hallway while colleagues gasp. Ask any 81 year old grandma who has had her life savings taken by Madoff and is receiving welfare whether vindictiveness is a valid sentencing goal.
The problem with the perp walk is that it is done before there is a conviction. Is it really just or wise to disgrace citizens before they've had their day in court?
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# posted by : 6:43 PM
: 6:43 PM << Home
