I asked Colin why Madoff was given 150 years. To lawyers in England & Wales, given the life expectancy of a human, this seems a rather unusual sentencing style.
Colin Samuels: A view on Madoff
Infamy or Praise
It might be best to start this response with a few numbers. Convicted Ponzi schemer Bernard Madoff is a spry seventy-one years young. He has just been sentenced to 150 years in a federal prison. Although our federal prisons do not offer parole as such, Señor Swindle is eligible for a sentence reduction of fifteen percent if he behaves himself. Essentially, if he doesn’t riot, shiv anyone, or mix colors and whites in the prison laundry, he’ll save himself twenty-three years in the funhouse. Thus, if he’s patient, he’ll be a free man sometime around his 198th birthday.
Will he make it out in time to celebrate his bicentennial? According to the CIA’s World Factbook, the average life expectancy for an adult American man is approximately 75.65 years. Many pessimists have seized on this tidbit of information and concluded that Madoff’s sentence means that he will never live to be released from prison. It’s not like the CIA has ever been wrong about anything before, right? It should be noted, however, that these life expectancy statistics are for an average man and, as Judge Denny Chin noted in his sentencing remarks, Madoff is an extraordinary person. Let’s dig a bit deeper and consider survival probability statistics as well. According to these numbers, it seems that as an American man aged seventy-one years, Madoff has a 46.7% chance of seeing his eightieth birthday and a 16.0% chance of making it to ninety. Most importantly, though, he has a 1.5% chance of living beyond 100 years old. Scoff if you will, but I think a 1.5% chance of making it to one’s 198th birthday is nothing to sneeze at.
Assuming for purposes of our discussion that Judge Chin does not share my optimistic nature and expects that Madoff will not survive his sentence, what might have prompted his decision? 150 years was the maximum sentence for the counts to which Madoff pleaded guilty, but as federal sentencing expert Alan Ellis commented, “150 was the statutory maximum. It’s the kind of sentence the media puts into its stories because it sounds good… but rarely get handed down.” The U.S. Probation and Pretrial Services System considered the admitted facts and mitigating factors in Madoff’s case and recommended a sentence of fifty years. Such a sentence wouldn’t have seemed out-of-step with other high-profile white collar crimes in recent years. Worldcom’s Bernard Ebbers received twenty-five years; Enron’s Jeff Skilling received twenty-four years; Adelphia’s John Rigas was sentenced to twelve years. Thus, although Madoff’s sentence was apparently calculated in accordance with the sentencing guidelines, albeit with consecutive rather than concurrent sentences imposed, Judge Chin’s decision seems like a departure from general norms.
In his sentencing remarks, he described Madoff’s crime as “unprecedented”, “staggering”, and “extraordinarily evil”, a phrase which was widely-quoted and commented-upon. Even viewed as an unprecedented, staggering, and extraordinarily evil crime, however, was the sentence a proper one? As is often the case in legal matters, the answer is “it depends.” What will likely be dispositive of the issue on appeal is whether the sentence was calculated within the sentencing guidelines. Owing to a 2005 Supreme Court ruling, the sentencing guidelines are advisory for, but not binding upon, federal judges. If his sentence were supported by the facts of the case and not otherwise prohibited by other applicable laws, Judge Chin had some latitude in crafting a sentence outside these guidelines. Notwithstanding, perhaps to strengthen the ruling’s chances on appeal, Chin seems to have taken some care in adhering to the guidelines, at least as he interpreted them. Although I’ve seen little discussion of this, a report in The Wall Street Journal noted, “Interestingly, Judge Chin said that the pre-sentence report for Madoff, completed by the U.S. Probation and Pretrial Services System, erred when it said that the maximum prison sentence under the federal sentencing guidelines was life imprisonment. He said no count to which Mr. Madoff pleaded guilty carried a maximum sentence of life imprisonment. Thus, the maximum guidelines sentence could be determined by adding up the maximum penalties for all counts, or 150 years.” If Madoff appeals this issue, a determination that the judge’s interpretation was correct would likely end the matter; even if his sentence is determined to depart from the guidelines, it might still be upheld. Title 18 of the United States Code describes in section 3553(a) the factors a court must consider in imposing sentences: “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” (Emphasis added.) That paragraph describes four objectives; very broadly, these are to punish criminal conduct, to deter others from committing similar crimes, to prevent recidivism, and to rehabilitate:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
Most would agree that a life sentence (twenty to thirty years or so, for those who didn’t buy into my extraordinary Madoff lifespan arguments above) would accomplish the punishment, recidivism, and (to the extent an old dog can learn new tricks) rehabilitation objectives as well as a sentence of 150 years likely will. As such, on these points at least, one would be hard-pressed to explain why the extra century or so is “not greater than necessary”. One might argue that a life sentence doesn’t adequately “reflect the seriousness” of this unprecedented crime or that a term of around twice a human lifetime for a man who’s already into his seventies is “just punishment”, but I think there are stronger arguments to make in defense of Judge Chin’s decision. I think that the sentence is justifiable if it affords a superior deterrent for future Madoffs than would a single life sentence.
That focus on deterrence has been noted by many observers. Judge Chin emphasized the scale and nature of Madoff’s crimes: “Here the message must be sent that Mr. Madoff’s crimes were extraordinarily evil.” Others have inferred a clear message of another sort, one directed at others who would commit similar crimes. Professor Douglas Berman wrote that:
[T]hough the choice of this magic sentencing number of 150 years — as opposed to 30 years or 50 years or 100 years — really means very little to Bernie Madoff, it could end up meaning a lot to the government and to some future defendants as a new white-collar sentencing benchmark. Before Madoff, defendants like Ebbers and Jeff Skilling and others prominent white-collar defendants who were sentenced to around 25 years often served as the functional benchmark for sentencing debates for corporate fraudsters. In more than a few prominent white-collar cases, both the feds and defense attorneys would often compare and contrast the defendant to be sentenced to Ebbers and Skilling and the sentences they were given. Now, the most prominent benchmark will be Madoff and the number 150.
Defense attorney Scott Greenfield questioned whether the severity of the sentence diminishes some of its perceived deterrent effect: “Will this really serve as a deterrence, going as far over the top as it did?” He further suggested that it would ultimately be counterproductive in prosecuting those criminals who remain undeterred:
To the extent that there is any lesson to be learned from the Madoff case, it’s all negative. If someone’s about to rat you out for scamming a few billion, you might as well murder them since they can’t give you life plus cancer. And if you get caught, you might as well fight with everything you’ve got, as hard as you can, no matter what, as you won’t get the slightest consideration for doing the right thing. And while the going is good, hide as much cash as you can where the government won’t find it so you can afford a lawyer with a better strategy than [Madoff attorney Ira] Sorkin.
Defense attorney Christopher Clark shared Greenfield’s assessment, concluding, “Nobody in Madoff’s position is ever going to plead guilty again. What benefit did this guy get for pleading guilty?” I’m troubled by the prospect that by making the consequences of conviction more extreme and deterring an untold number of frauds, we’re also increasing the likelihood that some of those who are not deterred will fight their prosecutions all the more and perhaps in some cases prevail. Trade-offs and unintended consequences abound in the law generally and in criminal law particularly. I suspect that both prosecutors and defense counsel soon will adjust to the new reality established in the Madoff case. Plea bargaining will continue as before, but with prosecutors wielding a somewhat bigger stick in negotiations. Defense attorneys whose clients do not plead guilty will, eventually, be able to argue for proportionally-lower sentences where their clients’ crimes do not rise to the level of Madoff’s infamy. On this latter point, I disagree with those who have suggested that Madoff’s sentence has destroyed the concept of proportionality in sentencing. I think that this sentence has thrown things into chaos temporarily and it will certainly set a higher sentencing benchmark for white collar defendants (both of which should probably worry Sir Allen Stanford right about now), but the system will adjust.
Proportionality will again prevail, with Madoff rather than Ebbers and Skilling at the top of the index, unless and until someone else commits a crime which is “extraordinarily evil” even in comparison to Madoff’s. After all, the justice system managed to right itself after Sholam Weiss, Keith Pound, and Norman Schmidt were sentenced (Weiss and Pound in 2000; Schmidt in 2008). Who are Weiss, Pound, and Schmidt you ask? The three are convicted white collar felons, each of whom was sentenced to prison terms well in excess of Madoff’s. Weiss and Schmidt are currently serving their respective 845-year and 330-year sentences; Pound didn’t quite make it to the CIA’s average life expectancy and thus failed to complete his 740-year sentence. For those who think that guilty pleas will become a thing of the past, Stanford Financial Group’s CFO, James Davis, disagrees. The day after Madoff was sentenced, he agreed to plead guilty for his part in Stanford’s alleged Ponzi scheme and “will continue to cooperate with the investigation and ‘assist the prosecution’s attempts to find the billions that Stanford sent to Switzerland and other banks in Europe.'”
Although much of the discussion has been about the length of Madoff’s sentence or its proportionality to those handed down to Ebbers, Skilling, Rigas, et al., I think that Judge Chin’s conspicuous use of victim statements during the sentencing will also have a lasting effect. Professor Paul Radvany observed that, “By giving this sentence (the judge) tried to send a clear message to victims he heard their pleas for justice.” Those pleas were particularly loud in this case (in a letter to the judge, Sorkin, Madoff’s attorney alluded to “mob vengeance”), but I think that going forward the victims of egregious financial crimes will be better heard and will have a greater impact on sentencing. Some of the victim statements at Madoff’s sentencing sought the proverbial pound of flesh; Madoff was called a “monster” and a “low life”. “May God spare you no mercy,” said one victim; “I hope his sentence is long enough so that his jail cell will become his coffin,” said another. In addition to hearing several statements in court, the judge noted that he had received more than 100 letters from victims, including an elderly widow who had been personally reassured by Madoff that her “money is safe with me.” Jayne Bernard wrote that, “Judge Chin rejected defense arguments that a 150-year sentence could only be justified by some sense of ‘mob vengeance.’ Rather, he said, ‘symbolism is important’ It is important for purposes of retribution, deterrence, and also to recognize the suffering of victims. ‘The fraud here was staggering.'” Madoff’s fraud is atypical in some ways, but it is not fundamentally unique; there will likely be other financial crimes where victim statements could inform a judge’s sentencing decision. Following the Madoff sentencing, Professor John Coffee was interviewed by The Wall Street Journal:
In the Madoff case, listening to such appeals was probably justified, one experts [sic] says. “I would think in general, fairly little weight should be given to claims of victims,” says John Coffee, a law professor at Columbia University who specializes in white-collar crime. “In the Enron and WorldCom scandals, there were very dispersed losses visited upon shareholders,” many of whom were institutional or diversified investors. However, in the Madoff case, taking victims’ stories into account “makes much more sense. This is the unique case where extraordinary losses were visited upon identifiable people who each suffered life-changing losses,” Coffee said. Also, he says, unlike many other crimes, the victims’ pain was “foreseeable to the defendant, who knew that their life savings were sooner or later going to be lost.”
While high-profile financial crimes have certainly been prosecuted before and the current worldwide economic crisis has raised public consciousness of these issues, Madoff’s crimes, perpetrated against many middle-class savers and pensioners with whom we are able to identify, has brought these concerns into sharper focus for many of us. A public reassessment of the relative harms caused by financial crimes is underway. When it comes to crimes against individuals, the armed robbery will always be treated more harshly than the con or fraud. However severe violent crime can be for individual victims, though, violence is inherently personal or local and the effects of such crimes is terrible in degree but limited in scope. Financial crimes like those perpetrated by Madoff and other white collar criminals is certainly less severe than violent crime, but because these are widespread, even global, thousands of small injuries creates a tremendous cumulative harm and the most notable crimes can create incredible economic disruptions. Yes, violent crimes are more harmful than non-violent financial crimes, but the latter are not without harm; the public’s concept of “justice” demands that severe financial crimes be treated severely. “Jake”, a commenter at The Conglomerate, a legal blog, wrote:
In a society in which financial security is paramount (whether that should be so is beside the immediate point), robbing other people of their financial security is extraordinarily evil. The 150-year sentence is symbolic, nothing more, given Madoff’s age. And it is a worthy symbol.
In reply, Jayne Barnard agreed:
So, if I punch an old man in the face, I am evil. But if I steal an old man’s money and make him sick with worry about how he will pay the rent and buy food and agonize about whether his grandchildren will still love him if he can’t pay their tuition, that’s not so bad? The loss of money is not just about the money — it’s also the about the loss of trust in others, loss of hope and, often, loss of companionship. Not because their friends leave the victims but because the victims leave their friends, often in shame. Someone who knowingly exposes his victims to this kind of damage is every bit as bad as a mugger.
If the only meaningful change which comes from this increased awareness and appreciation of the effects of financial crime is that outraged victims will harangue judges into meting-out longer and longer sentences for every garden-variety fraud, I for one will be disappointed. It’s a possibility, certainly. As Alan Ellis, quoted above, noted, “A judge never wants to get written up in the papers as being lenient. Merciful, maybe, but not lenient.” I’d like to see enhanced penalties for financial crimes and increased parity in sentencing between small-scale violent crimes and large-scale property crimes. Perhaps prosecutors will take to heart the public’s concerns and when plea bargaining with white collar financial criminals, will focus on trading sentence reductions for meaningful loss recovery for victims as often as they trade for trial avoidance or cooperation with ongoing investigations. Former Securities and Exchange Commission enforcement counsel Bruce Carton suggested an approach which I think is worth exploring:
Madoff’s fraud has reportedly caused a loss of over $13 billion, only $1 billion of which has been recovered. Let’s see: $12 billion in outstanding losses and a 150 year sentence. How about we give him a decade off for every $916 million he helps prosecutors recover. If they recovered the full $12 billion, that would take roughly 131 years off of his sentence, leaving him with 19 to serve. He’d walk out of prison a 90-year-old man. Change the math to make it a 100-year-old-man if you prefer, but you get the idea.
One can hope, at least.
With that, I’ll conclude my blathering and return to shooting Indians from the back of a covered wagon or calling the feather in my cap “macaroni” or whatever it is that you lot think we Americans do when you’re not paying attention.
By Mike SP
7th July 2009
There are many sentencing theory and other issues raised here and I would state at once that while I am interested in criminal law I have no expertise in the subject and nor, obviously, did I teach it.
1. Madoff pleaded guilty, saving the state a great deal of cost and effort and, just as important, obviated the need for victims to give evidence and, thereby, adding to their loss and burden. No account appears to have been given for the plea – perhaps a minor technical point in this case?
2. Interestingly none of the victims, nor anyone else, stepped forward to give a character reference – of some, but limited, value in other cases in mitigation. This is hardly surprising in this case.
3. Clearly, the state, through the judiciary, is sending out a firm message that corporate fraudsters will get little mercy. Madoff’s crimes caused serious financial hardship. Although many of his victims were rich, attracting little sympathy from some sections of the public, others have suffered very real hardship and their savings have been stripped from them.
4. The key question and one yet to be answered is – how did Madoff manage to go undetected for so long? Why was the regulatory regime so lax as to allow such a massive fraud to go undetected? We have the same regulatory issues here in the UK – and questions here are being asked about how our banks behaved on sub-prime and other high risk investment strategies.
5. We are seeing some evidence that the banking world is returning to old ways, that lessons have not been learned, and that there may be a return to business as usual when the dust has settled and the economy improves. Of course the press will move on, as will the bloggers and other commentators, but will the new regulatory regime be robust enough to detect fraud and will even a 150 year sentence be sufficient.
It seems to my untutored eye that a sentence of 30 or 150 years to an experienced businessman or woman is much the same – prison is a calculated risk for serious fraudsters. Will what is in effect no more of a whole life sentence than 30 years in your system for a 40-55 year old fraudster be any more of a deterrent? I understand that your prisons do not have a formal parole system – but there is time off for good behaviour.
I also understand that your prisons are rather more severe places for residents than ours are reputed to be. It is unlikely that Madoff will ever be free of the fear of retribution from within the prison population and, therefore, it may be that he will need to be in a maximum security facility?
Detection, to my eye, is going to be more important in the long term than deterrence. It was ever thus, they say, with armed robbery in the old days in Britain – and Ponzi and other serious frauds are but the modern equivalent of robbery. Retribution is a major factor also in this case – rather similar to revenge in our own Ronnie Biggs Great Train Robbery case. Our Lord Chancellor and Secretary of State for Justice, Jack Straw, has just turned down Ronnie Bigg’s parole application. Biggs is 85, seriously ill, and is unlikely to pose a threat to the population if set free. It is likely he will die in prison. Biggs, however, has some support from members of the public in the Uk for release and some, myself included, feel that Straw has made the wrong decision on parole here.
5. I can’t quite see you on the back of a wagon firing a gun – but do let me know if you take this pastime up!
As Madoff was given the maximum possible sentence under the sentencing guidelines, it can be stated as a fact that he received no credit for his decision to plead guilty. As you point out, at the very least he saved the not insignificant cost of his trial. Moreover, although the evidence against him was, by most accounts, pretty damning, the burden of proof remained on the prosecution and Madoff relieved them of that burden with his plea. I wouldn’t say that this is a minor technical point, however; understanding why he received no time off his sentence will be critical for defense attorneys, if one assumes that other federal judges will follow Judge Chin’s lead and approach sentencing in other major fraud cases consistently (something they are not obliged to do). It may be that the amounts lost in Madoff’s scheme, the length of time he deceived his investors, and the other circumstances of his case have resulted in an aberrant sentence. Perhaps in time we will come to see it as an outlier rather than a new standard-setter, but I’d bet not.
In my earlier comments, I had touched on one point of disagreement between Judge Chin and the pre-sentence report prepared by the U.S. Probation and Pretrial Services System. Chin had indicated that no count for which Madoff had entered a guilty plea carried a life sentence and that the cumulative total of guidelines sentences was 150 years (the sentence he imposed). Although this discrepancy might have provided something for Madoff to argue on appeal, it’s a moot point now. This morning, Madoff’s attorney, Ira Sorkin, has advised various media outlets, without further comment, that Madoff will not appeal his sentence. That decision is a somewhat unsurprising one, as Chin’s decision was at the extreme end of the sentencing guidelines but not in excess of them. The judge briefly remarked on that during some prepared remarks before a U.S. Sentencing Commission conference this morning:
In the days since, the sentence has been dissected and debated, both in the popular press and the academic media. The discussion has been healthy: What are the goals of punishment? Did the sentence further those goals? Should helping victims heal be a goal of punishment? Is a financial crime such as securities fraud really “evil?” Is there any point to a sentence of years far longer than a defendant is expected to live? Is such a sentence merely pandering to the public? We are here today, of course, not to take on these questions, but to discuss the Sentencing Guidelines. But the Madoff case underscores how difficult sentencing can be.
With his guilt established by his own plea, his sentence within guidelines, and even a relatively short sentence unlikely to see him released from prison during his lifetime, a Madoff appeal might have resolved some of our arguments concerning the propriety of his sentence, but probably would have done him no real good.
I’ve had some concerns about the unintended side effects of giving Madoff the maximum sentence despite his guilty plea. While a maximum sentence will deter less committed fraudsters, there will undoubtedly be others who are not deterred. Madoff’s sentence is counterproductive to the extent that it causes some of them to commit more and more egregious crimes (figuring, as criminal defense attorney Scott Greenfield so memorably put it, “they can’t give you life plus cancer”) or makes convictions much more costly or uncertain if they no longer have any incentive to plead guilty. I’ve expressed some confidence that the system will adjust as it has in the past, but the fact is that I’m just guessing as much as everyone else.
In this case, Judge Chin gave the prosecution the sentence it asked for; if they had asked for a lesser sentence, might Madoff have received it? It’s been a mystery to pretty much everyone outside the Madoff inner circle why he entered the guilty plea without some sort of deal in place concerning sentencing recommendations or reductions in the counts charged. Perhaps he guessed that even without a prosecution recommendation, the judge would look favorably on the plea or would be receptive to the assertions made by Madoff’s counsel that he had cooperated with investigators since his arrest. If so, he gambled and lost. I suspect that other defendants will not make the same choice, but will instead try to guarantee some reward for any guilty plea, though prosecutors may be emboldened by this sentence not to give up too much in such negotiations. Perhaps it’s been overstated in the press accounts or has been misperceived by the public, but there are many who see much plea bargaining as largely akin to a scoundrel’s insincere “deathbed confession”. After committing a number of crimes and causing untold misery, defendants “cooperate with investigators” and agree to plead out, thereby saving prosecutors a few sleepless nights; in exchange, they get substantial amounts of time taken from the established sentences for their crimes. I for one hope that one effect of the Madoff sentence will be to require more substantial cooperation and recovery for victims before any meaningful sentence reduction is offered.
We should know more about the “Madoff effect” in the coming weeks and months, as fraud defendants Marc Dreier and Allen Stanford are sentenced and tried respectively. Dreier’s attorneys have requested a 12½-year sentence, prompting former SEC enforcement counsel Bruce Carton to caution, “Be careful asking for 12 Years… the last guy who did that got 150 years.” Prosecutors in the Dreir case have requested a 145-year sentence. Scott Greenfield commented that Dreier will now be sentenced on the “Bernie Scale”:
Clearly, the stage is set. As the dollars get bigger, the sentences get longer, until we’ve reached the point of absurdity. Welcome to absurdity.
It’s not like the government lacks any sense of proportionality. After all, they took 5 years off of Bernie’s sentence to reflect the fact that Dreier only stole $400 million rather than $12 billion, ignoring that the former is a minute fraction of the latter. The problem, it would appear, isn’t that the sentence urged by the government for Dreier is too high, but that the Bernie Bar is still set too low.
There is no doubt that Marc Dreier is going to get slammed by Judge Rakoff at sentence, and Shargel as much as concedes this point up front. Then again, it would be offensive and foolish for him to do otherwise. But how much of a slamming does a financial crime, even a huge one, deserve for the legitimate purpose of sentence? It’s impossible to say anymore, after the 150 years given Madoff on an open plea. Nothing makes sense. The incentive structures mean nothing anymore. The distinction between violent and white collar crime is gone. The notion that there is some benefit to not doing ever greater harm has been lost.
It seems safe to suggest that Sir Allen and his attorneys will be very interested to learn Mr. Dreier’s fate next Monday.
Finally, regarding Madoff’s prison selection, you’re correct that the choices are not good ones from his perspective. His will not be a “country club prison” or “Club Fed” existence like that experienced by some earlier white collar criminals. Instead, under established policies, the length of his sentence alone would guarantee Madoff a sojourn in a maximum-security facility. Further, owing to his notoriety, he might be seen as a likely target for prison violence. Federal sentencing expert Alan Ellis speculated that that risk might prompt prison officials to recommend that he be kept in a Special Housing Unit (“SHU”), in isolation from other prisoners at least for the foreseeable short-term. Others have suggested that to secure him properly, he might be assigned to the U.S. Penitentiary Administrative Maximum Facility (ADX) “Supermax” prison. That facility, which is essentially an all-SHU facility, is where the most dangerous and tightly-controlled federal prisoners are held (current inmates include such convicted domestic and international terrorists as “Unabomber” Theodore Kaczynski, 9/11 conspirator Zacarias Moussaoui, Oklahoma City bombing conspirator Terry Nichols, and Olympic Park bomber Eric Rudolph).