150 Years is Too Much for Madoff

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.