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Legal Commentary

: Prawfs

Haberman et al on Madoff

By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel

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Clyde Haberman, who writes the NYC column for the NYTimes, has a reaction piece in today's Times about the 150 year sentence for Madoff. He surveys views from a bunch of prawfs, including me. Needless to say, most of my reactions were unprintable and not consistent with family-friendly content, so they were left on the editing room floor... :-)

The piece appears after the jump. Feel free to weigh in with your tempered views in the comments on Madoff's sentence--or his wife's non-sentence...

July 3, 2009

NYC

Is 150 Years Appropriate, or Just Silly?

By CLYDE HABERMAN

Sholam Weiss, a son of Brooklyn, was a crook. By all accounts, he was also a rather unpleasant man, hardly the sort to inspire compassion. A federal judge in Florida certainly had no sympathy for him after he was found guilty of a fraud that drained hundreds of millions of dollars from an insurance company and caused its collapse.

In February 2000, the judge piled up dozens of criminal counts against Mr. Weiss, one on top of another. Thus did she create what is thought to be the longest federal prison sentence ever imposed: 845 years. Mr. Weiss?s projected release date is Nov. 23, 2754. This is only a guess, but he is not likely to make it.

So did the judge, Patricia C. Fawsett, show admirable toughness with a notorious offender? Or was an 845-year sentence simply silly, inviting disrespect for the legal system?

For that matter, what about a sentence of 150 years? It, too, can never be fully served. The reference, of course, is to the century and a half in prison to which Bernard L. Madoff was condemned this week by a federal judge in Manhattan, Denny Chin.

James A. Cohen, a Fordham University law professor, is among those who have a problem with sentences that are on their face impossible. ?It prompts in some people a lack of respect for the system,? Professor Cohen said. ?Somebody has to be asking, ?What is that about? What are we really thinking?? ?

?It?s putting out something that is obviously false and fake to everybody,? he added, ?and why are we doing that??

Obviously, his is not a universally shared opinion. A more popular view is probably that 150 years in prison is too good for the likes of Mr. Madoff. That is reflected in victims? comments and in the ?boil him in oil? tone of much of the news coverage.

But at some point the Madoff case may be examined with more dispassion. Any analysis would have to include the reasonableness of the sentence ordered by Judge Chin, a widely admired jurist. Acknowledging the symbolic nature of those 150 years, the judge cited a need for deterrence, retribution and justice for the victims.

Deterrence, however, is often an elusive goal. It is mentioned by some as a reason, for example, to preserve capital punishment. Yet the Death Penalty Information Center in Washington, analyzing federal crime statistics, has found that the 10 states with the highest murder rates all have capital punishment on their books. Among the 10 states with the lowest murder rates, 6 get by without the death penalty.

With financial crime, are we to take as a given that a grifter will be deterred by sentences that, besides being unrealistic, seem to wander all over the lot? Mr. Weiss got 845 years for ripping off a few hundred million dollars. Mr. Madoff got a mere 150 years for a swindle put at $65 billion. What gives?

The dollar value is ?a dangerous factor to focus on in many cases,? said Dan Markel, a law professor at Florida State University. ?It introduces a variable that is highly contingent on luck and fortuity to drive sentences,? he said, and it may steer the courts away from ?considered assessments? of blame and punishment.

RETRIBUTION? Mr. Madoff is 71. The odds are against his making it to 100. A 30-year sentence would have provided the same degree of retribution as one of 150 years.

As for the victims? desires, there can be a fine line between justice and pandering. Douglas A. Berman, an expert on sentencing law at Ohio State University, expressed concern about ?a tone and culture that says, ?Hey, if the victims are really ticked, let?s give them their due.? ?

That said, Professor Berman saw good reason to throw not just the book at Mr. Madoff but the entire library. ?This is a blood lust,? he said, ?but it?s a setting in which if ever a blood lust was justified, this was it.? He added, ?This truly is, for lack of a better term, the Adolf Hitler of white-collar crime.?

Stephen Gillers, who teaches legal ethics at New York University, also puts Mr. Madoff in a criminal class of his own, one that justifies a maximum sentence. With those 150 years, Mr. Madoff is not merely being punished, Professor Gillers said. He is being banished, even in death.

To Professor Gillers, it?s no longer about Bernard Madoff, or even concepts like retribution and deterrence. ?We?re making a statement to ourselves about the kind of people we are,? he said, ?and what we will not accept.?

Full post as published by Prawfs on July 03, 2009 (boomark / email).