cross posted at www.angryyoungdem.vox.com
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 resentenced. 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 resentencing). If Madoff had been giving the same sentence, he would have gotten out at about 95 (or likely around 91 with the resentencing). 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, as a liberal, I often use this argument as an argument against the death penalty. Many supporters of the death penalty cite it as a deterent 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 deterent to New York'd 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.
Deterence 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 served 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 devestated, paniced 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 hypocrit. After all, it was only money. Money. Rage, anger, vigalante 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 setence 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 deterence and I don't believe that the punitive purposes of the criminal justice system should so outweigh rehabilitative purposes. But I also say this because once arrested, Madoff did everything right. He turned himself in. He admitted his crimes. He showed remorse He cooperated with government and saved them the massive expense of a trial. These are all factors that a Court is supposed to look at in determining a sentence. Indeed, these are the very factors that the government often uses to induce the accussed to plead guilty. Plea early, cooperate, show remorse and you get the best chance to get a lengthy sentence. Make the government work for it, and you can gaurentee that are going to seek the highest sentence.
What will the criminal defense attorney do the next time this type of case comes up? Bernie Madoff got zero benefit from pleading guilty. He had the means and the lawyers to make this thing last years. Even if eventually convicted, his resources certainly would have kept him out of prison for a few years while this case rambled on. Plus, if we know anything about the government, but really about defense work in general, cases can get screwed up pretty easily. Just ask former Senator Ted Stevens. The message sent by this sentence is fight at all costs. If 150 years is the precendent for this type of crime, even after pleading guilty early and cooperating with the government, there seems to be no reason for a criminal defense lawyer to advise his client to do so. I will let my client fight for the next 3 years, take his chances on the trial getting screwed up, and let him wear his ankle bracelet while he dines at Cipriani's.
It is not my intent to justify the crimes of Bernie Madoff. His crimes were awful and he certainly reaped devestation 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. Whether I am lambasted and ridiculed for speaking out against the Madoff sentence, 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.