June 26, 2009
Any sentencing predictions or prognostications before Monday's Madoff mania?
Infamous ponzi schemer Bernie Madoff is scheduled to be sentenced this coming Monday, and so a slow summer friday presents a great opportunity for sentencing predictions and prognostications before the Madoff mania. Helpfully, this Bloomberg piece, headlined "Madoff’s Failure to Name Accomplices Cripples His Leniency Bid," gets the ball rolling effectively. Here is how the lengthy piece begins:
Bernard Madoff’s bid for a 12-year sentence will probably be stymied by his failure to tell U.S. government investigators about those who may have helped him defraud investors of as much as $65 billion. Madoff faces as many as 150 years in jail when he comes before U.S. District Judge Denny Chin in Manhattan on June 29 for sentencing. Probation officials have recommended Madoff spend the rest of his life in prison. Instead, Madoff asked Chin last week for a sentence that’s half that meted out to the convicted chief executives of Enron Corp. and WorldCom Inc.
Since his Dec. 11 arrest, Madoff, 71, has insisted he acted alone in the largest-ever Ponzi scheme. He took sole responsibility for the fraud when U.S. agents arrested him in December and in his March 12 guilty plea. In a letter this week to Chin, Madoff’s attorney, Ira Sorkin, argued his client has told investigators about his assets and how he duped regulators. Sorkin said nothing about Madoff’s accomplices.
White-collar defense lawyers such as George Jackson, a former federal prosecutor now at Bryan Cave LLP in Chicago, said the judge will be deterred by Madoff’s silence on this issue as he weighs the ex-money manager’s request. “If he did cooperate, he would open himself up to the possibility of a sentence that would give him a ray of hope of having freedom at some point,” said Jackson, who isn’t involved in the case. If silent, said, Jackson, “The judge could say, ‘I have not heard who you operated with, and it’s clear to me that you operated with someone.’”
I share the instincts of this commentator, and that's why I have set in my own mind 25 years in prison as the over-under for Monday's festivities. I think Judge Chin will prefer to impose a number of years rather than a life term, but the scope of the fraud and Madoff's extreme culpability leads me to assume that the number of years selected will be quite large.
Some related Madoff sentencing posts:
- Madoff asking for a 12-year prison sentence
- Why Bernie Madoff won't get a record white-collar sentence
- "Will Madoff ever leave prison alive?"
- Running the federal sentencing guideline numbers for Bernie Madoff
- "Death penalty for white-collar criminals?"
- "Madoff's $lick Try"
- "Madoff Mercy: How long should the Ponzi schemer go to prison for?"
- White-collar fraud meets technocorrections for Bernie Madoff
- Notable criminal justice echoes of the Madoff mess
- FSR issue focused on white-collar sentencing
UPDATE: A review of the Government's sentencing memorandum and also the thoughtful comments below have led me to revise my over-under for Madoff's sentencing term. I am now thinking that 40 or 50 years might be a more appropriate over-under. (I am also now wondering if there is any actually betting on this event going on in the UK.)
June 26, 2009 at 11:25 AM | Permalink
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If 25 years is the over/under, then I am taking the over. I think he's likely to see something more like 50 years, or more. He seems to me just so much more culpable than Bernie Ebbers or Jeff Skilling, both of whom got sentences around the quarter-century mark.
I should add that I think the Ebbers & Skilling sentences were about two to three times longer than necessary to fulfill the legitimate objectives of sentencing, even assuming they were guilty, which is far from clear. But the system we have is unduly harsh against white-collar criminals, and if we're handicapping the outcome, we need to do so against that backgrop. If you assume that Ebbers deserved 25 years, I cannot see how Madoff gets less than 50.
In any case, I expect him to receive a sentence much longer than his life expectancy.
Posted by: Marc Shepherd | Jun 26, 2009 11:43:43 AM
I would be far more sympathetic to this argument if the feds could put forward some actual ... you know .. evidence that he had accomplices. So far all we have is "it's so big he had to have them." A better line of attack would be how much assistance he has or has not given describing what he actually did, tracing the money etc. I've seen conflicting reports on that front so don't feel competent making a judgement on it.
Given sentencing disparity issues and how reluctant judges have appeared to be regarding extreme white collar offenses I'm not going to be surprised if the sentence comes in under 15 years.
Posted by: Soronel Haetir | Jun 26, 2009 11:52:49 AM
Although I think his claims to have acted alone do not past the laugh test, there is an even more serious issue.
The reality is that he admits this scheme has been going on for decades, which means that every time he accepted a new investor, he committed a new crime. Every time he sent out a statement, he committed a new crime. Every time he remitted funds, he committed a new crime. He was accepting and actively soliciting funds as recently as late last year—clearly knowing that those funds could not be paid back. And he did it for years.
My understanding too, is that he has not been particularly helpful in terms of just helping the feds to unravel the details, to understand exactly how the scheme was perpetuated and where the money went. That will hurt him.
Posted by: Marc Shepherd | Jun 26, 2009 1:15:22 PM
It will be high. Given Madoff's age, a 15-year sentence might as well be 50, so the judge will not hesitate to go with 50. Federal judges don't have to worry about their jobs, but neither are they insensitive to public criticism. Can you imagine the outrage if Madoff gets off lightly? Not gonna happen.
Posted by: CN | Jun 26, 2009 1:29:16 PM
It's must be nice to condemn people so easily with a laugh, Marc. Does it make you feel powerful. Fortunately, there are people who actually want evidence before hanging people. Don't let your envy of Madoff get the best of you.
Posted by: Daniel | Jun 26, 2009 2:01:16 PM
Daniel's hyperbolic reaction also doesn't pass the laugh test.
Posted by: Hang Em High | Jun 26, 2009 2:14:47 PM
Sorry, Daniel, you lost me. This guy was the most prolific thief in history. He pleaded guilty, so his culpability is not in question. Am I missing something here?
Posted by: Marc Shepherd | Jun 26, 2009 2:16:16 PM
Marc: Who says he was the "most prolific" or "in history"? He pled guilty, but not to your hyperbole. Sentencing for "culpability?" You must be one of those sentencing-for-
Posted by: FluffyRoss | Jun 26, 2009 2:55:22 PM
I for one don't want to pay to keep Madoff in a federal prison for the rest of his life... Room, Board, Guards, Medical Care, it all adds up VERY quickly. Sure, the mob wants vengence, but that shouldn't be what our criminal justice system is about.
I vote he is made to work at a menial job, a minimum of 40 hours a week, for the rest of his life, paying what little he makes to restitution. Better then wasting all our money on wasteful vengence.
Posted by: Monty | Jun 26, 2009 2:59:19 PM
Who says he was the "most prolific" or "in history"? He pled guilty, but not to your hyperbole. Sentencing for "culpability?"
Go back and read the statement he gave when he pleaded guilty, and let me know how many more egregious examples you can think of.
You must be one of those sentencing-for-enhancement proponents.
If you read what I said upthread, you'll note that I argued that Skilling and Ebbers were sentenced two to three times beyond what they deserved, even assuming that they were guilty (both denied it).
But the crimes to which Madoff has already confessed carry a maximum of 150 years. He has asked for a sentence of just 12. Even if you ignore uncharged conduct, and consider only what he publicly admitted to, how can you get to 12?
Posted by: Marc Shepherd | Jun 26, 2009 3:19:44 PM
Michigan, where I practice, takes the approach that a sentence other than "life" must allow the defendant a "reasonable opportunity" to meet the parole board. However, the case law holds that a defendant has a "reasonable" chance to meet the parole board, even if the first parole board hearing won't occur until the defendant is 93 years old. I know Federal and state sentences aren't the same, but I'd bet on 25 years, with 15%, or 3.75 years off for good behavior, amking him eligible for release at 93 or thereabouts.
Posted by: Greg Jones | Jun 26, 2009 3:20:09 PM
I'm willing to bet that the judge imposes a high sentence for two reasons:
1) To satisfy the public, because whether anyone likes it a not, it's clearly a mob vengeance mentality with Maddoff and he has without doubt masterminded the largest ponzi scheme in history, and
2) He will suggest to Bernie although the sentence is staggering that perhaps if he is willing to cooperate with investigators in discovering the others involved that he could receive a reduction that may let him step outside of a prison again in his lifetime.
Posted by: bernie | Jun 26, 2009 4:19:29 PM
Since 50 years is a life sentence already, I imagine Chin will sentence him to a higher number -- 75 or 100 years -- or just life. Anything over 15 years is a life sentence in any event. This is a huge case -- the amount of money, the number & type of victims (including many charities), the length of time it went on, etc. It calls for a response & a number greater than 25 or 50.
Posted by: Jeff | Jun 26, 2009 5:49:16 PM
Mr. Madoff's wife made an agreement with the prosecutors today to forfeit $80,000,000.00 in cash. She is to keep only 2.5 million. This was probably done looking forward to Monday.
Posted by: beth | Jun 26, 2009 10:25:07 PM
I agree with much of what Mark Shepard said, especially the part about the system being unduly harsh on white-collar defendants (virtually all of whom are treated like Al Capone from the moment they're targeted).
Nonetheless, Madoff caused enormous pain and even my bleeding heart can't muster much sympathy for him.
I do worry to some extent about the folks who worked with Madoff, many of whom are probably being brutalized by the system as we speculate about Madoff's sentence.
I'd like to believe if I, as a highly paid Madoff staffer, had discovered his misdeeds I would have quit or possibly even snitched.
But humans are delusional and adept at rationalizing almost anything... particularly when their livelihoods are at stake.
And even the existence of a draconian system fashioned to placate folks like "Hang 'em High" isn't capable of detering even otherwise honest people from keeping the paychecks coming.
Posted by: John K | Jun 27, 2009 12:46:56 PM
The magnitude of his crimes are virtually unprecedented, and his lifespan is quite short, so in truth I think that almost all of these discussions are academic. The question then becomes, if a 13 year sentence is functionally the same as a 150 year sentence, it seems you can basically buy some deterrent value with very little personal cost. Now that said, I think the judge will be sensitive to seeming absurd or seeming to overtly pander, so my guess is he'll impose a sentence consistent with Madoff being a young guy. Say something around 600 months (or 50 years) Maybe a touch more. If there were a betting pool, I'd put my money on 56 years.
Posted by: David Feige | Jun 27, 2009 3:39:33 PM
Posted by: Stanley Feldman | Jun 28, 2009 12:45:09 PM