The ramifications of imposing a sentence of 150 years on Bernie Madoff are already rippling through the system. It’s as if judges and prosecutors have been freed from the chains of proportionality, not to mention incentives, and can now impose, or argue for the imposition, of punishment based upon unadulterated rhetoric.
“Extraordinarily evil.” Across the river in New Jersey, Glyn Richards was sentenced to 30 years on a plea of guilty for a $6 million scam. Judge Renée Marie Bumb explained:
“Extraordinarily evil.” Across the river in New Jersey, Glyn Richards was sentenced to 30 years on a plea of guilty for a $6 million scam. Judge Renée Marie Bumb explained:
“It doesn’t take a life – like a violent crime does, but it does destroy life,” Bumb said. “I think you are a con man. You have been and you always will be. I think you’ll be pulling a scam when you walk out the gates of prison.”
If it didn’t cause harm, it wouldn’t be a crime. So what does the empty rhetoric add to explain this vast upward departure to the guidelines? Is Richards “extraordinarily evil” too? What is ordinarily evil?
Cy Vance, Jr., running for the Democratic line for New York County District Attorney as Robert Morgenthau’s handpicked successor, applauded the Madoff sentence on twitter:
Cy Vance, Jr., running for the Democratic line for New York County District Attorney as Robert Morgenthau’s handpicked successor, applauded the Madoff sentence on twitter:
I believe the federal prosecutors have done an excellent job moving the Madoff case to a swift & just conclusion.
@CyVanceforDA Should economic crimes be dealt with more severely than violent crimes, such as rape and murder?
Uh oh. Cy responded :
Lacking any rational way to justify his position, Cy was left to dangle in the wind with a response that serious crime must be dealt with seriously. Seriously? As in, did he seriously write that?
Viewed in a vacuum, every crime is evil. Where the line between ordinarily and extraordinary evil falls can’t be discerned, but when prosecutors and judges view sentences divorced from all context and feel comfortable arguing for, and relying upon, hyperbolic rhetoric to justify the imposition of retribution, there is no longer any measure upon which to determine a sentence. It’s just numbers connected to adjectives and descriptions of pain and misery. There’s no denying that the victims suffered, but that offers nothing to explain why one sentence is more appropriate than another.
My question to Cy Vance was one of proportionality. As a matter of policy, is it his position that murders aren’t as bad as scams? If he wants to be the District Attorney, and his office will be prosecuting both, then his opinion matters. He dodged the question, poorly I might add. My purpose wasn’t to embarrass him, but since he raised the issue, the question flowed naturally.
There are sound policy reasons to have sentences that increase proportionately with the severity of the crime, and that a certain degree of leniency must be shown for acquiescence. I realize that most people aren’t wonky enough to care, and I realize that there are some insane jurisdictions with 3 Strike laws that put the guy smoking a blunt in prison for life, which makes every other sentence look ridiculously lenient. But we need to be intellectually on guard against one asinine law justifying a domino effect of irrational policy and arbitrary sentencing.
If the sentence to be imposed no longer appears to require a sound basis connected to the legitimate purpose for sentence, as was clearly the case in Bernie Madoff’s case since 18 USC 3553(a) requires that the sentence be “sufficient, but no more than necessary,” a requirement that was facially violated by sentencing a man to a term greater than his possible lifespan which by definition is “more than necessary,” we are freed from the constraints of proportionality and reason. And we have no basis remaining by which to measure a sentence, beyond “extraordinarily evil.”
I suppose that the defense can argue at sentence going forward that he’s just ordinarily evil? Is there any other limit to retribution? Or is it who uses the most convincing adjectives?
@ScottGreenfield Serious crime must be dealt with seriously & substantially whether it’s economic crime or a crime against a person.Caught by the rhetoric, Cy was left to scramble. You see, the New York County District Attorney, being the only local DA who has the actual Wall Street just a few blocks down from his office, white collar fraud prosecutions are handled with some regularity, hand in hand with the more typical crimes prosecuted in state court, like murder. But under New York law, the most severe sentence available for a person convicted of murder 2 is 25 years to life in prison. So how do you square the sentence available for murder with a fraud? Is murder not “extraordinarily evil?”
Lacking any rational way to justify his position, Cy was left to dangle in the wind with a response that serious crime must be dealt with seriously. Seriously? As in, did he seriously write that?
Viewed in a vacuum, every crime is evil. Where the line between ordinarily and extraordinary evil falls can’t be discerned, but when prosecutors and judges view sentences divorced from all context and feel comfortable arguing for, and relying upon, hyperbolic rhetoric to justify the imposition of retribution, there is no longer any measure upon which to determine a sentence. It’s just numbers connected to adjectives and descriptions of pain and misery. There’s no denying that the victims suffered, but that offers nothing to explain why one sentence is more appropriate than another.
My question to Cy Vance was one of proportionality. As a matter of policy, is it his position that murders aren’t as bad as scams? If he wants to be the District Attorney, and his office will be prosecuting both, then his opinion matters. He dodged the question, poorly I might add. My purpose wasn’t to embarrass him, but since he raised the issue, the question flowed naturally.
There are sound policy reasons to have sentences that increase proportionately with the severity of the crime, and that a certain degree of leniency must be shown for acquiescence. I realize that most people aren’t wonky enough to care, and I realize that there are some insane jurisdictions with 3 Strike laws that put the guy smoking a blunt in prison for life, which makes every other sentence look ridiculously lenient. But we need to be intellectually on guard against one asinine law justifying a domino effect of irrational policy and arbitrary sentencing.
If the sentence to be imposed no longer appears to require a sound basis connected to the legitimate purpose for sentence, as was clearly the case in Bernie Madoff’s case since 18 USC 3553(a) requires that the sentence be “sufficient, but no more than necessary,” a requirement that was facially violated by sentencing a man to a term greater than his possible lifespan which by definition is “more than necessary,” we are freed from the constraints of proportionality and reason. And we have no basis remaining by which to measure a sentence, beyond “extraordinarily evil.”
I suppose that the defense can argue at sentence going forward that he’s just ordinarily evil? Is there any other limit to retribution? Or is it who uses the most convincing adjectives?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I’ve always thought judges should be a lot more nuanced when they say something about the sentence they are handing down. There’s a big difference, for example, between a guy who robs a bank with a loaded gun and a guy who robs a bank with a fake gun. One of the real problems with having the victims have their say is that, gee, they were just as terrorized by the fake gun since they thought it was real, so what difference does it make?
Well maybe it makes no difference from the vitims’ point of view, but it’s still a big difference in the mind and character of the perpetrator.
In the end the guy who used the fake gun invariably gets the same moralistic and hyperbolic lecture from the judge at sentencing: you know, the words like “heinous”, “anti-social”, “reprehensible”, blah blah.
It wouldn’t hurt and might really help in the individual case if a judge made the relevant and significant distinction explicitly, noting that at least the fake gun guy wasn’t out to hurt anyone. But it never happens.
Human senses have a logarithmic response up to the point of saturation. Saturation can result in temporary or permanent blindness, deafness, loss of smell and damage or destruction of pain sensors.
It is not possible to measure the mental anguish of Madoff’s victims but it was probably also logarithmic and saturable. This suggests that retribution should also be logarithmic up to a maximum and then be constant mimicking saturation. If you look at normal sentencing practice the sentences for property crimes are quasi-logarithmic and a normal sentence for Madoff would be 30 to 50 years.
OTOH if the Madoff sentence were linear the rate would be about $2.6 billion per year or $85 per second and the corresponding sentence for a $10,000 larceny would be about 2 minutes.
I know that lawyers are not fond of logarithms so if I spoiled your lunch please accept my apologies.
Actually, John, I think your point is quite important, particularly for all those who substitue emotion (it’s soooo horrible) as the justification for the sentence rather than some legitimate, purposeful basis. Not that logarithmic is the solution, but it very clearly points out the problem and the fallacy of using emotion without any thought of proportionality.