From the New York Times Citydesk :
The government has recommended that a federal judge in Manhattan impose a 145-year sentence on Marc S. Dreier, the prominent New York lawyer who has pleaded guilty to a fraud scheme that bilked hedge funds and other investors out of at least $400 million.
In seeking some measure of leniency we appeal not to sympathy but to reason. We request a sentence that is both rational and proportionate. As colossal frauds capture national headlines, sentences for while collar offenders must not become disproportionately long. In many ways, the goals of sentencing as embodied in 18 U.S.C. 3553 (a) have suffered collateral damage in the war on white collar crime.
And how does the government explain its 145 year sentence?
There are thousands of lawyers in this and other jurisdictions, who are surrounded by the wealth and lifestyles of the clients they serve. Imposing a long term of imprisonment in this case will serve to deter other lawyers who are tempted to steal, cheat or otherwise dishonor their profession to achieve personal wealth.
But to make matters more clear, lest their be any confusion on where the bar now stands, see footnote number 4 to the government’s memo:
In any event, recent, long-lasting and substantial fraud cases prosecuted in this District – for example, Bernard Madoff (150 years), Bernard Ebbers (WorldCom; 25 years), John and Timothy Rigas (Adelphia; 12 and 17 years, respectively, on re-sentencing), Phillip Bennett (Refco; 16 years), and Samuel Israel (Bayou; 20 years) – support a lengthy sentence in this case.
Clearly, the stage is set. As the dollars get bigger, the sentences get longer, until we’ve reached the point of absurdity. Welcome to absurdity.
It’s not like the government lacks any sense of proportionality. After all, they took 5 years off of Bernie’s sentence to reflect the fact that Dreier only stole $400 million rather than $12 billion, ignoring that the former is a minute fraction of the latter. The problem, it would appear, isn’t that the sentence urged by the government for Dreier is too high, but that the Bernie Bar is still set too low.
There is no doubt that Marc Dreier is going to get slammed by Judge Rakoff at sentence, and Shargel as much as concedes this point up front. Then again, it would be offensive and foolish for him to do otherwise. But how much of a slamming does a financial crime, even a huge one, deserve for the legitimate purpose of sentence? It’s impossible to say anymore, after the 150 years given Madoff on an open plea. Nothing makes sense. The incentive structures mean nothing anymore. The distinction between violent and white collar crime is gone. The notion that there is some benefit to not doing ever greater harm has been lost.
At what point does a white collar defendant say to himself, I’m getting my lifetime plus a few others if they catch me, so there’s no reason to constrain myself at all anymore?
In the early years of this Century, people were outraged that huge financial crimes were being perpetrated and the offenders were getting what was perceived as a slap on the wrist. The government responded by multiplying the sentences to meet the public’s demand for retribution. Okay, we got that.
But as with so many reactions to public outrage, it’s overshot the mark until it reaches the point of total irrationality. This happened with Madoff, the only potential saving grace being that Madoff was supposed to be a one-off case, never again to be repeated. It didn’t take long to put that myth to rest.
Welcome to the Bernie Scale. How many lifetimes will it take before the craziness stops.
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Great post. You have probably already seen this, but if you havent, Colin Samuel and Mike Semple at Unsilent Partners.
I am stunned that Dreier’s lawyers asked for a ridiculously short sentence. In Madoff’s case, I would guess that the request for 12 years angered the judge enough to lean towards the Full Bernie.
It’s also tough to weigh a multiple decade sentence against a “less young” defendant. Twenty years is long for a member of the slackoise, but is essentially a life sentence for Madoff or Dreier.
What do you expect when you put Charon and Colin, two of the funniest guys in the blawgosphere, in the same room.
In Madoff’s case, I believe Sorkin’s 12 year request was just to soften up his secondary request for 20 years. It obviously backfired, but I think that’s what he had in mind.
As for Gerry Shargel, I really don’t know how he arrived at his 10-12 1/2 request. But Dreier at 59 isn’t Madoff at 71 either. Granted, 20 years is forever to a kid, but if Dreier got 20, less good time, he would be eligible for work release in about 15 years, at age 74. broke and broken. Is this not good enough? Would this not deter a would-be Dreier?
I still think my suggestion for Bernie’s sentence was more appropriate for the public’s desire – release him in central park
Better still, Palm Beach.