Madoff’s Turn

Having heard what the victims had to say, Dickstein Shapiro’s Ike Sorkin has now laid out Bernie Madoff’s argument for sentence.  In an 11 page sentencing letter, Sorkin makes his pitch:


We seek neither mercy nor sympathy. Respectfully, we seek the justice and objectivity that have been — and we hope always will be — the bedrock of our criminal justice system.

Awkward.  Not that it doesn’t use nice sounding words, but that Sorkin starts out with the same argument that could well be used by the government in seeking an assurance that Bernie never breathes free air again.  That’s one of the fundamental problems in using the broad brush “truth and justice” rhetoric that some advocate.  They are merely matters of perspective, and are just as easily argued in favor of severity and leniency.

Sorkin then seeks to undermine the impact of the victims.


Both [Madoff] and his counsel acknowledge the scope and magnitude of those losses and understand the victims’ calls for reprisal . . . Nevertheless, we believe that the unified tone of the victim statements suggests a desire for a type of mob vengeance that, if countenanced here, would negate and render meaningless the role of the Court.

Clearly, Sorkin sought to diminish the emotional appeal of the victims’ letters and emails, but I’ve got no idea what he’s trying to suggest by arguing that if Judge Denny Chin considers the pleas of the victims, it would “negate and render meaningless” his role as judge.  It seems to mean that Judge Chin shouldn’t rubber stamp the victims demands for blood, but does Sorkin really contend that Judge Chin abdicate his duty and let the victims dictate sentence?  

That’s rather insulting to the judge, and certainly not to be expected of Judge Chin, who is fully capable of reading the victims’ letters, giving them appropriate weight and fulfilling his responsibility independently.  Moreover, while the victims’ letter share a sense of anger and outrage, they do not smack of mob vengeance, but of many, many victims, all of whom suffered greatly at the hands of the defendant.  While it’s appropriate for Sorkin to address them, this smacks of an effort to trivialize the impact on the victims, almost ridicule their pleas for justice (see how that word comes up again?).  It’s a bit unseemly to attack the victims.

Finally, Sorkin comes to the part where he offers some mitigation in favor of the defendant, a critical argument for sentencing purposes.


Affording due consideration to Mr. Madoff’s voluntary surrender, full acceptance of responsibility, meaningful cooperation efforts and in light of the non-violent nature of the offense, Mr. Madoff should be sentenced to a term of years short of effective life imprisonment. Mr. Madoff is currently 71 years old and has an approximate life expectancy of 13 years. A prison term of 12 years — just short of an effective life sentence — will sufficiently address the goals of deterrence, protecting the public, and promoting respect for the law without being “greater than necessary” to achieve them.

After all the speculation about what Bernie Madoff had up his sleeve when he copped an open plea, we now have the answer.  Not much.  There’s no neat trick involved, no twist of the guidelines or legal ploy.  The strategy was nothing more than making the best possible lemonade out of 50 billion lemons.

This is Madoff’s primary sentencing position, no doubt offered with little expectation that it will capture the judge’s sensibilities under §3553(a).  The argument is to sentence Madoff to life minus 1 year, his best case scenario.  The life part is based on actuarial life expectancy, not a guarantee that he will die in 13 years.  It might be more persuasive if Sorkin could offer the court an assurance, because 83 years of age might well be his actuarial life expectancy but we all know that Bernie could have plenty of good years after that. 

The real reason for this argument is to set up the “fallback” position:


Alternatively, we respectfully submit that a 15 to 20 year prison term will effectively achieve the stated goals of §3553(a) without disproportionately punishing Mr. Madoff. Indeed, such a range will appropriately eliminate concerns for disparate treatment among similarly situated non-violent offenders.

The primary and secondary positions are facially inconsistent, which Sorkin obviously knows, as will Judge Chin.  If the former satisfies §3553(a), then the latter must by definition be excessive.  But the argument for a 12 year sentence is made for rejection, to make the more harsh, 15 to 20 year sentence, more palatable.  Sorkin recognizes that whatever sentence he requests, it will be deemed far too lenient by the victims and likely the public, and Judge Chin will realize that the general deterrent purpose of sentence will not be satisfied by an overwhelming public reaction that Madoff got away with “murder”.  This sentence is all about general deterrence.

For this reason, Sorkin has put in some effort to establish the average range of sentences imposed on large scale fraud defendants.


Significantly, for fraud-related cases between 1999 and 2008 in which a defendant was assigned a guideline range of life imprisonment, did not receive a downward departure pursuant to Sentencing Guidelines §5k1.1, and plead guilty, the average sentence imposed was 184 months, or approximately 15.3 years. . . . Because the majority of these cases involved loss figures in excess of $400,000,000 — as does Mr. Madoff’s case — we respectfully urge this Court to impose a sentence on Mr. Madoff that reflects a just degree of proportionality.

This is a rather tricky statement in many respects.  Initially, the sentencing structure under the guidelines changed dramatically in 2003 in response to the perceived lenient guidelines sentences for massive frauds in such cases as Enron’s Jeffrey Skilling and Worldcom’s Bernie Ebbers.  If one was to change the equation by limiting the statistics to frauds over $400,000,000 post 2003, it might reveal a very different picture.  And, of course, $400 million is the maximum amount under the fraud table of the guidelines.  It must have seemed like a lot of loss at the time, but that was before Madoff’s case.  Who knew that the guidelines needed to go well into the billions?

But this Bloomberg story makes the point quite clearly:


Ebbers is serving 25 years in prison and Rigas 12. Ex-Enron Corp. Chief Executive Officer Jeffrey Skilling was sentenced to 24 years. A federal appeals court has ordered that he be resentenced.

Bernie Madoff isn’t your average white collar fraudster.  He was always better before, and he’s still better.  He wins the prize for the greatest loss ever, no matter how hard Sorkin seeks to reduce his client to merely the “mean”.  As he pleads for proportionality, it’s this very concept that makes his argument collapse around him.  Proportionality demands that the sentence imposed on Madoff dwarf those imposed on the closest comparables by the magnitude of the loss he caused.  It’s hard to ignore the fact that no one, but no one, caused as much loss as Bernie.


It’s unlikely Madoff will receive the requested sentence, Anthony Sabino, a business-law professor at St. John’s University in New York, said today in an interview. Sorkin advanced the best arguments he could, Sabino said.
This is a peculiar statement, and one with which I am not inclined to agree.  It’s not that Ike Sorkin did a lousy job of it, but the arguments on behalf of Madoff are, given the financial resources he had available, relatively tepid.  Maybe the thought was that there really wasn’t anything particularly effective that could be said, since this isn’t exactly a case that’s flying under the radar and everyone has a thought on the subject. 

But if that was the theory, then perhaps Sorkin should have gone for broke.  After all, that’s how Madoff left his victims. 

2 thoughts on “Madoff’s Turn

  1. Packratt

    Weeeelll… I used to think that the system was supposed to mete out sentences that were comparable to the extent of harm done by the crime.

    Of course, if that were the case, there would be a lot of police officers who had prison sentences that were a lot longer than people who are busted for pot.

    Shows what I know.

  2. van

    scales of justice are blind…judge only can decide what punishment, if any he gets. if he is stripped of his fortunes, what will he do if he does get to go free? this is what bothers me because someone, namely US citizens, will have to support him for the duration of his life. did anyone make any money from this guy’s scheme? if this happened, then wouldn’t they be criminals also?

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