Sentencing date for Bernie Madoff is fast approaching, and the United States Attorney for the Southern District of New York has submitted statements from 113 victims of his fraud.  The statements consist of letters and emails, some straightforward and some in multiple parts, with varying requests and copies to Senators. 

One email, from a fellow named Ed Hamilton, is only copied to the judge, but directed at Ira Lee Sorkin, Madoff’s lawyer, offering an argument about how Madoff’s crimes pale in comparison to those perpetrated by the government by suckering in the public to invest in a corrupt system, supported by media silence.  It can be found at page 33 of the submission, and was copied to everyone from the President to the WSJ Law Blog.

For the most part, they tend to follow a familiar formula.  The writers are in their twilight years.  Their savings disappeared in an instant.  Their lives, their plans, their goals, turned upside down.  They express their anger, horror, misery at being left destitute despite a lifetime of work and saving.  The vast majority of writers aren’t celebrities or fabulously wealthy, but our next door neighbors who worked hard, saved and invested. 

Many end up invested with Madoff through a variety of feeder funds.  These people neither expected nor received irresponsible returns.  Some explained that they were getting 6% or 9% returns, meaning that the good people with whom they thought they were investing were taking the difference between Bernie’s promises and the victim’s single digits.  While a few had large positions and endowed medical schools, most had rather modest investments.  The vast majority had their entire life savings invested.

There a bunch of letters from people who have formed a group called the Ponzi Victims Coalition, apparently believing that they can carry greater weight through numbers.  They are sought to obtain ancillary relief from the Senate Finance Committee for Madoff victims, via the IRS and SIPC, with some success.  The government included copies of their letters to the Senate in the package.

In Exhibit B are the requests to speak at the time of sentence.  These are people who believe that their personal knowledge, experience, rhetorical skills, will have be especially persuasive.  Some are willing to travel across the country to have their say. 

There is one theme that pervades the letters.  They believe that Bernie Madoff’s open plea is part of some shifty scheme to beat the system, to gain sympathy for himself and his family, and to trick the court into imposing a lenient sentence.  They are scared that Bernie’s going to pull off one last scam.  They want him in prison forever.  They want him to die there.

The letters are very personal, many providing financial and health details that really shouldn’t be broadcast on the internet.  They are filled with the anger and frustration of real people.  And strangely, they are remarkably pedestrian.  They are victims of crime, economic circumstances, the many maladies that ordinary people suffer.  Each victim, standing alone, sounds very much like the victim of any crime, suffering the consequences and seeing their plight as the most horrible thing that can happen to a person.

Having read these letters and email, what’s a judge to do?

Clearly, these letters serve a critical cathartic need for many victims.  To the extent that they allow the victims to feel that they are participating in the process, their voices heard, their circumstances considered, their anger released, these letters and emails serve a valuable purpose. 

Whether you feel sorry for the victims or see them as complicit in Madoff’s crimes, as greedy people seeking to cash in on the scheme for their own ends, isn’t relevant.  The letters tell the story of normal people, who have suffered greatly as a result of Madoff.  Even if they are less than pure, the consequences have dwarfed by a huge magnitude whatever guilt one imputes to them.  And for many, the letters make clear that they had no responsibility whatsoever.  They received no disproportionate returns and never knew that their money ended up invested with Madoff.

But there is nothing in these letters that Judge Chin didn’t already know.  In spades.

Many of the letters suggest that Madoff is a murderer, for having murdered the dreams and efforts that the victims accumulated over a lifetime.  They write that he murdered the futures of children and grandchildren, who expected their college tuitions to be paid.  They want Bernie Madoff to be sentenced as a murderer. 

Such exaggerations struck me in the opposite way from that intended.  It reminded me that Madoff was not a murderer, and that his victims lost only money, not lives or loved ones.  Ask the family of a murder victim whether it’s the same, and they will no doubt be happy to explain the difference between the loss of money and the loss of a child or a father.

Another thing that struck me was the expectation that their financial futures were secure, until Madoff came along to change everything.  This came across poorly because of the times, an economy that has ruined many lives, depleted savings and rendered well-intended people destitute.  There are many in similar situations as the Madoff victims, but with no face to stare at and hate. 

It’s not that Madoff’s victims haven’t suffered, but that they aren’t alone in their suffering.  It’s not like the rest of America is having a party.  Financial suffering is pervasive; the Madoff victims have someone to blame while the rest have angst with no particular villain.

But I don’t imagine that any of this will change Judge Denny Chin’s mind when it comes time to impose sentence.  Bernie Madoff will go to prison and will, in all likelihood, die in prison.  It’s inconceivable that he or Sorkin would believe otherwise.  The magnitude of the offense, combined with his age, presents few other options. 

It’s impossible to explain what sentence billions of dollars of loss by fraud should merit under 18 USC 3553(a).  There’s simply no calculus that has a grounded basis.  But to the extent that it must reflect a degree of seriousness that exceeds the sentences imposed and upheld on others who engaged in large scale fraud, it will likely exceed any life expectancy Bernie might have.  And Judge Chin cannot impose life plus cancer, so the pleas that the judge make Madoff suffer like they do will never be adequately fulfilled.

But the letter and emails helped these individuals to release their feelings of anger and frustration.  They served their purpose.