Legal Commentary

Happy July, everyone.  Thanks to Bernie Madoff, it's been an interesting week for those of us who think about white-collar crime.  I can't possibly add to Jayne Barnard's play-by-play account of Bernard Madoff's sentencing proceeding, but I do have my own thoughts about the supposed deterrent value of his150 year term of imprisonment.

Madoff's attorney, Ike Sorkin, had previously argued for a sentence of 12 years' imprisonment, which Sorkin contended constituted Madoff's life expectancy (Madoff is 71 years old) minus one year. (Sorkin was using data drawn from the Social Security Administration).  Even assuming Sorkin's prediction of how long Madoff would live is correct, the problem with life expectancy sentences is that they lack expressive value. We tend to use prison sentences as a shorthand for moral culpability and societal disgust. "Expectancy" based sentences, calibrated to the particular defendant's circumstances, undermine our ability to rely on those shorthands.  And for a guy like Madoff, "12 years" sounds awfully tame. 

Moreover, as Doug Berman explained, even if Judge Denny Chin had sentenced Madoff to something like 20 years' imprisonment (which presumably would have lasted the remainder of Madoff's life), it would have set a new ceiling for future white collar sentences.  Defendants who caused merely hundreds of millions of dollars in fraud losses (rather than Madoff's billions) would have been able to argue that they should receive significantly lower terms of imprisonment.  I'm not sure this is right - if Chin explicitly had said that the 20 years' was intended to exceed Madoff's life expectancy, government prosecutors would have been able to reject later attempts to use the "20" as a ceiling or anchor for sentencing.  Nevertheless, you can see the problem with life-expectancy sentences: they can be easily manipulated by later defendants who seek to make false comparisons.

At the same time, I don't think Judge Chin's 150 year sentence raised the ceiling all that much for "typical" white collar or corporate fraudsters.  150 years is a fanciful number, and Madoff's fraud is an outrageous, once-in-a-lifetime (one hopes) case.  Madoff's sentence may therefore be seen by most future courts as simply an outlier, only to be mentioned in passing, whereas 20-25 year terms of imprisonment will continue to remain the standard "frame" with which sentencing courts approach large-scale criminal frauds.