Having spent a fairly good amount of time and energy deconstructing the Madoff case, and the respective positions of Madoff’s lawyer, Ike Sorkin, and AUSA Marc Litt for the government, it’s time to put my own butt on the line with how I would approach the sentence if Judge Denny Chin called for advice.  For the record, he has yet to do so, but the phone lines are open (call me anytime, DC).

The view from the Simple Justice bleachers is that there is little question, in fact no question whatsoever, that Madoff has caused monumental harm by his conduct, demonstrating almost no concern for the damage done to others in the process of creating and perpetuating a scheme that extended so far beyond mere financial gain that it’s truly impossible to imagine a person with the slightest concern for humanity to do so.  While his weapon was investment house statements rather than a gun or a bomb, it was used with the same lack of conscience that a mass murderer or terrorist might, although terrorists usually believe in something beyond themselves.  Bernie believed only in Bernie, and took no prisoners.

Thus, I can find absolutely no saving grace on behalf of Bernard Madoff.  It surprises me deeply that Sorkin didn’t offer any, no less a substantial, basis to show the good works that Madoff performed with the vast wealth he accumulated, to demonstrate the there was something beating in his chest.  I cannot assume it in the absence of evidence.  It similarly surprises me that Sorkin offered no explanation of how Bernie started down the road to perdition, how a small larcenous heart grew to a monstrosity. 

Had I been in Ike Sorkin’s (extremely well paid) shoes, my efforts would have been directed toward humanizing Bernie Madoff, showing the frailties that led an otherwise normal man to engage in conduct that was so terribly wrong, and how the “success” of his larceny fed upon itself in such a way that he couldn’t stop its momentum despite his desire to do so.  Bernie had enough, but couldn’t figure out how to slow down and ultimately conclude the scheme once it took on a life of its own.  But since Sorkin never made that argument, nor offered any evidence in support of it, I will not assume it either.

Clearly, the coverage of this case lends itself to a strong general deterrence argument.  But this is more limited than the government acknowledges.  If Bernie Ebbers’ 25 year sentence doesn’t serve to make the point that financial crimes are taken seriously and will result in far worse than the proverbial “slap on the wrist,” then this sentence isn’t going to do much to change the equation. 

Moreover, there’s a very real question in my mind as to the merit of the general deterrence prong itself.  It’s meant to affect the decision to engage in comparable criminal conduct, and in this particular case, it’s difficult to imagine that there will be any, no less many, who would have the ability to do anything comparable to Bernie Madoff.  Further, it’s fair to question whether the potential sentence has any impact on the decision to engage in a crime, that decision being far more likely made by the expectation of not being caught rather than what happens if and when caught.  While the law assumes that criminals engage in a cost/benefit analysis, my experience is that it just doesn’t work that way. 

That said, the bigger question posed by the sentence of Bernard Madoff is whether a sentence should be imposed that will offer him the potential of ever walking out of prison.  As Jeralyn Merritt astutely noted in one of my favorite concepts, they can’t sentence you to life plus cancer.  Madoff is 71 years old.  How long he will live is a known unknown, and it’s possible that he will not survive any sentence imposed.  If not, then the sentence becomes immaterial to the life of Bernie Madoff.

But it is possible that Madoff will live into his 90s, maybe even to 100.  No doubt his health care to date has been pretty darned good, and this may enable a longer life than most.  Coupled with the mechanics of  a federal sentence, with 57 days off per year for good behavior, plus eligibility for work release a year before his anticipated sentence expiration, plus the potential for time reductions for programs (though nothing comes to mind at the moment assuming he isn’t an alcoholic or drug abuser), it is conceivable that Bernie could one day breath free air despite his age and a severe sentence.  Even a sentence of 25 years could result in his release in 19 to 21 years from now, and it’s quite possible that a 92 year old Madoff will take that long limousine ride back to his Park Avenue digs.

And hence, the bottom line question: Should Madoff ever leave prison alive?

My answer comes down to the distinction between the nature of financial crime and physical harm.  There is, and there must be, a clear delineation between crimes that violate the physical integrity of another human being and crimes that reflect greed.  This is not meant to trivialize financial crimes or the harm suffered by the victims of a Madoff or a Bernie Ebbers, but to distinguish a rape or a murder from the theft of money without any act of violence. 

While greed is an ugly word, it is also one that can be used without stretch with many lawful and commonplace acts.  Greed on a grand scale can cause proportionately grand harm, all the while still being lawful.  We are awash with corporations cheating consumers out of their hard-earned funds by selling shoddy, deceptive merchandise, or charging improper or exorbitant fees, or taking advantage of market forces when it turns in their favor, and cause grave harm to many, all the while engaging in lawful, or at least not prosecutable, conduct. 

As painful as it may be to those victims of Bernard Madoff, similar pain is spread amongst millions of individuals across our nation from losses generated by overarching economic forces.  I reject the comparison to someone who has been raped, maimed or murdered.  It is not the same, and the treatment should not be deemed comparable.

I would impose a sentence of 360 months (30 years for those who aren’t used to the way federal sentences are imposed), resulting in a net sentence of approximately 25 years,    Madoff would likely be released from custody at the age of 96 years old, should he survive.  He could then experience his remaining years as his victims will, in poverty and misery at his own hand.  And if Madoff does not survive to reach his release date, so be it.