As a criminal defense attorney, I feel that it is important that I blog about the sentence that was handed down to Ponzi-schemer Bernard Madoff. You may have heard about him. He stole some money from some people, got caught, and got in a little trouble. Yesterday, at the age of 71, Bernie Madoff was sentenced to a prison sentence of 150 years for stealing about $13.2 billion.
Comparing sentences is tough because there are few crimes that match the pure financial destruction caused by Bernie Madoff's ponzi scheme. Of recent memory, Ken Lay of Enron died before he was sentenced, but Jeffrey Skilling, considered by some to be the mastermind behind the Enron fraud, was originally sentenced to 24 years in prison. In January of this year, an appeals court threw out the sentence and demanded Skilling be re-sentenced. He will likely get between 15 and 19 years. The Enron fraud, you will remember, caused investors to lose around $11 billion. Like with Madoff, people lost their savings, their pensions, their retirements.
As a general matter, I don't like trying to compare corporate crimes. I don't think it is useful. I don't think I have the ability to say that Madoff's crimes were "worse" than Enron's. Certainly they were more spectacular. Old people lost money because of Enron. Charities and schools lost money because of Enron. Ken Lay served on public boards the same as Madoff and abused the public trust the same as Madoff. So as a starting point, I am not sure that Madoff's 150 year sentence is fair considering Skilling's likely 15-19 year sentence. Skilling was sentenced to 24 years at the age of 53, meaning he would get out at 78 (likely younger because of the re-sentencing). If Madoff had been given the same sentence, he would have gotten out at about 95 (or likely around 91 with the re-sentencing). Either way, a 30 year sentence would have almost certainly ensured that Madoff died in prison.
The Skilling sentence is important for another reason. Judge Chin, who is a terrific Judge, as well as pundits have remarked that the sentence was necessary to deter future crimes. I think this is a bit of hyperbole and is really just meant to placate a rabid press and angry public. I have never once believed that prison sentences actually deter future crime. In fact, I often use this argument as an argument against the death penalty. Many supporters of the death penalty cite it as a deterrent to violent crime. However, statistics have shown that this not to be the case. Likewise, the draconian Rockefeller Drug Laws in New York State should have been a strong deterrent to New York's drug trade. Instead, you got incomprehensible sentences that filled our upstate jails with low-level street criminals. The Rockefeller Drug Laws did nothing to deter the drug trade, but did everything to support an Upstate New York economy dependent on the prison industrial complex to provide jobs.
Deterrence is not at the center of the Madoff sentence. At best it is tangential, at worst, it is imaginary. No, revenge is at the center of the Madoff sentence. There is no rehabilitative purpose for the 150 year sentence. It is purely punitive. Some will say Madoff cannot be rehabilitated. I am not sure I agree, but I am willing to concede the point. There are criminals who are beyond rehabilitation and they deserve to spend their lives in jail. However, once upon a time, prisons not only served the purpose of punishing people, but also attempted to rehabilitate them. Is Bernie Madoff really so bad that he can never be allowed into society again?
What does this sentence say about American values? People who commit Felony-murder, forcible rape, and various other violent crimes are often released back into society after serving lengthy sentences. However, take other people's money and you go to jail for 150 years. I am not some anti-money person. Like all the people who lost money to Bernie Madoff, I worked hard for my money and would be devastated, panicked and angry if it happened to me. But if I called for the sentence that Madoff got, if I called for his head, if I called for the pound of flesh that was given by the Court yesterday, I would be a hypocrite. After all, it was only money. Money. Rage, anger, vigilante justice. All over money.
I am not saying that I think Madoff should have gotten the 12 years that his attorney Ira Lee Sorkin was advocating. 12 years probably was too low. Madoff did not deserve the low end of the sentencing range for his crimes. However, I do think he deserved a sentence that, if he were a younger man, would have allowed him to see liberty again. I say this because I don't put much stock in deterrence and I don't believe that the punitive purposes of the criminal justice system should so outweigh rehabilitative purposes.
It is not my intent to justify the crimes of Bernie Madoff. His crimes were awful and he certainly reaped devastation on many of his victims. However, I am worried about what this case says about American values. I am worried about what this case says about the justice system and I am worried about what this case does to the future of high profile criminal defense work. The well-known maxim is that hard cases make bad law. That is what happened here. The rabid press got their prey, an angry public got their pound of flesh, and an upstate New York jail will likely get one more downstate prisoner. But one year later, when the press has moved on to the next sex scandal, and the public has moved on to the next outrage, the only lasting affect of the Madoff sentence will be that bad law was made yesterday.
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