Madoff's Sentence

His lawyer thinks 12 to 15 years is sufficient. I guess if there was no parole that would be a life sentence or very close. I think the harshest sentence that the law allows is what he should get on the slight chance that younger lying scumbags out there might decide its not worth it however small that chance is.

15 years would be about 1 year for each $4 billion that he defrauded.

I read a book review yesterday that had some thoughts on the purposes of criminal sentences that seem germane to this topic. The book is a collection of essays on the law, and one of the essays is an apparently famous one by a Harvard law professor named Henry M. Hart, Jr, written around 50 years ago. Hart made the point that the criminal justice system’s main purpose was not to punish criminals but to deter crime.

Regardless of his age, Madoff should get a severe sentence.

I think this is a really interesting topic. To me, sentencing should reflect a number of things:

Deterring crime by the same person by removing him from society,

Showing society’s disaproval of the cime (like Henry Hart above),

Deterring crimes by others by demonstrtaing penalties severe enough to make the crime not worth it,

Restitution of the victim.

For example, say a man killed his wife in a fit of rage. Even if it could be determined that he would not be likely to commit murder gain, there should be a lower limit on the penalty to show societies revulsion and deter others from commiting a similar crime.

The thing is (even not including Madoff’s age) I am not certain that 15 or 20 years is significantly more of a deterrent than 12. I can see life (or the equivalents - the 99 year type sentences) as being a different type of deterent - knowing you will never get out. But 12 years in prison as opposed to 15? Both are long enough such that they seem like an eternity from the beginning. Both are long enough such that the individual’s life is fundamentally different when they emerge, and certainly not for the better.

I don’t know what the appropriate sentence is here. But I always find it amazing (not accusing you of this here, obviously) when people look at sentences of 5, 8, 12 years as being in some way “light.”

He could be sentenced to up to 150 years. So, he should be, even though he’ll only live though a tiny portion. This is the deterrent factor.

If deterrence is your aim, do you think the type of person likely to commit high level investment fraud is going to be significantly more deterred by the possibility of a 150 year sentence as opposed to a 12 year one?

I mean it is possible, I just don’t think it likely.

Shouldn’t high level investment fraud be viewed- and treated- as theft?

Yes it should. But people are saying that for the reason of deterence, the penalty is higher. Therefore it is reasonable to ask what deterent effect a higher sentence will have.

I’m not arguing necessarily that Madoff should not get 150 years. I just don’t think it will deter more Madoffs, or indeed more thieves, any more than if he gets 12 years.

It’s theft on huge scale. In China he would have been executed quickly.

If harsh sentencing doesn’t have a deterrent effect then that says to me that white collar criminals are no smarter than the guy that breaks into your car to steal a GPS.

Not necessarily. It is saying that there is no significant qualitative difference between the deterrent of facing 12 or 20 years of hard time.

And I think that is probably true for this type of offender. It is possible for other types of offenders, the deterrence aspect will differ.

“That dude Madoff stole 80 million bucks, and only got 15 years? I might as well steal that car over there- it’s only worth a few thousand. Hell, they’ll probably let me out in a month.”

I’m not sure if a harsher sentence would deter future white collar criminals, but it sure makes other crimes seem disproportionately punished. And, of course, there’s the whole “rich white guy gets off easy” perception.

I don’t think that is the thought process a person goes through when determining whether to steal a car. I’d need to see some evidence to suggest it. Most I have seen indicates that the chances of getting caught/convicted play a more significant role.

In particular, if the length of the sentence only is considered, don’t you think the car thief, who is in all likelihood more likely to know other car thieves than multi-million dollar fraudsters, is more probably going to consider the punishment meted out to multiple other car thieves than to a person who is unknown?

Different argument, and one I have a lot of sympathy for. But the fairness argument isn’t the deterrence one.

Well it should.

If I were an investment banker contemplating an illegal scheme that could net me billions with the downside of maybe getting caught and going to jail for 12 years (maybe out earlier on parole) I may very well think it is a chance worth taking.

As with most things it is a risk versus reward calculation. The rewards in this case are rather spectacular and I do not see 12 years in Club Fed being all that much of a down side in comparison.

Now, make it life without possibility of parole at this level and you get to spend that time in a prison where violent criminals go and I bet you would see people think a lot longer and harder before embarking on a shady investment scheme.

I think the second part - the prison is much more important than the first. Treating Madoff as an every day thief is much more significant in my mind. It’s not so much the length of the sentence, as where it is served.

I think you are wrong. These guys are all pretty smart and hard working and are not choosing between commiting a crime or living in poverty. They are choosing between commiting a crime to become ultra rich or staying honest and living in relative affluence.

I used to deal with ethically challenged bankers on a daily basis and sometimes the only thing that would make them back away from overly aggressive transactions is to point out that it would expose to the risk of serious jail time.

I have often thought that while the death penalty might not have a deterrant effect on crimes of passion, etc., it would amost certainly have an effect on white collar crime.

If we are going to effectively sentence Madoff to life anyway, we should just go ahead and sentence him to life plus 600 years and send a message.

Some of these guys have a dollar figure in their head for which they would be willing to serve 5 or 10 years in jail. There is no dollar figure for which these guys would serve a life sentence, not when they can life a long happy life earning 7 figure salaries.

I think there is a problem with treating white collar crime as simple theft. We frequently distinguish between larceny and grand larceny, why should the grading stop at a $5000. Why shouldn’t there be more severe punishment for a $1,000,000 or for $1,000,000,000?

You could be right. I’ve worked in that industry before, and I don’t get that feeling personally, but it is possible. I’d like to see if any research work has been done on deterrence for white collar criminals before changing my mind.

Spending 150 years in jail for 65,000,000,000 dollars pays $14 per second, 'round the clock. I’d take some of that action.

Not all, tho…

How about hard labor?