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July 1, 2009

Should Bernie Madoff bother to appeal his sentence?

The question in the title of this post is prompted by this new article in USA Today, which is headlined "Appeal of Madoff's 150-year sentence wouldn't matter." Here is a big part of an effective article:

Bernard Madoff has potential legal grounds to appeal his 150-year prison sentence, but the chances are slim that he could avoid dying behind bars for bilking thousands of investors in a massive Ponzi scheme, sentencing experts said Tuesday.

Federal guidelines state that criminal penalties should be "sufficient but not greater than necessary" to reflect the seriousness of the offense, promote respect for the law, ensure just punishment and provide adequate deterrence of criminal conduct.

In imposing the maximum allowed sentence Monday, U.S. District Judge Denny Chin cited the "extraordinarily evil" nature of an at least $13 billion scam that victimized investors and institutions rich and poor, exacting "a staggering human toll."  The judge also cited deterrence, saying, "The symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct ... that they will be punished to the fullest extent of the law."

Madoff defense attorney Ira Lee Sorkin called the sentence "absurd" in an NBC Today show appearance Tuesday. "There's nothing in the sentencing guidelines that talks about making symbols of people," he said.  Sorkin said in a subsequent interview he had not decided whether to appeal.

Mark Allenbaugh, a former attorney for the U.S. Sentencing Commission, said if he represented Madoff he'd argue the penalty "was unreasonable on its face" because it was disproportionate to sentences in most other major white-collar-crime cases....

But a higher court would likely uphold the sentence, because Chin "spoke to the issues" in the guidelines, said Alan Ellis, a National Association of Criminal Defense Lawyers past president in California who specializes in federal sentencing and prison issues. "The sentence was designed to send a deterrence message around the world," said Ellis. "And it has."

But, if an appeals court ruled the term unreasonable, it would send Madoff, 71, back to Chin for re-sentencing.  Pointing to his age, the experts said even reducing his sentence to the 50 years recommended by probation officials would still represent a life term.  "There's a slim chance he'd win the battle," said Allenbaugh, "but he'd lose the war."

Most recent Madoff sentencing posts:

July 1, 2009 at 01:07 PM | Permalink

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Comments

Yes, he should fight it. (1) What does he have to lose. and (2) Symbol should be fought with symbols. Why give the government a symbolic victory, especially when that symbolic victory will be used against others in the future. Maybe by winning this case he'd actually do some good for once.

Posted by: Daniel | Jul 1, 2009 1:16:53 PM

The appeal would be as symbolic as the sentence was. Realistically, anything above 15–20 years is a de facto life sentence. If he manages to get his 150 reduced to 50, what has he achieved, exactly?

Although Judge Chin’s choice of words was poor, I am not aware of a fraud larger and of longer duration than Madoff’s, and I don’t believe there are any disputed facts as to what he did. If Madoff didn’t qualify for the max, the who would?

Posted by: Marc Shepherd | Jul 1, 2009 1:46:16 PM

Daniel --

"Why give the government a symbolic victory, especially when that symbolic victory will be used against others in the future. Maybe by winning this case he'd actually do some good for once."

Mr. Madoff's behavior does not inspire confidence that he cares a whit about unknown "others in the future." Indeed he cared nothing for people he knew in the present and toward whom he had a fiduciary duty. For that matter, the phrase "cared nothing" hardly captures it. It wasn't that he was merely indifferent; he spent years robbing his clients blind.

In addition, his winning an appeal is far from a sure thing, for the reasons Marc Shepherd notes. And if he loses, it could become a circuit-wide precedent that will not assist but damage future white collar defendants.

The basic reason for not appealling, though, is that, while as you correctly point out he has nothing to lose, he also has nothing to gain. There is no realistic chance that he will get a term on re-sentencing that would be anything other than a de facto life sentence.


Posted by: Bill Otis | Jul 1, 2009 2:31:31 PM

His best move right now, which he will surely not take, is to roll on everyone involved and try to get a Rule 35 out of the government. However, even that wouldn't lower the sentence to anything that doesn't have him die in prison.

Posted by: NYC Lawyer | Jul 1, 2009 2:47:49 PM

"The sentence was designed to send a deterrence message around the world," said Ellis. "And it has."

And no one ever operated a Ponzi Scheme again. The End.

What a nice story, all wrapped up in a bow like that!

NYC Lawyer: This guy had regulators in his pocket and half the NYC elite sniffing up his behind; I don't believe for a moment the US Attorney wants Madoff to "roll on everyone involved." They wanted an absurdist sentence so they could point to it like a trophy head on the wall, pretend everyone else involved will "learn a lesson," and wash their hands of it. I don't think they'd let him do that if he wanted to.

Posted by: Gritsforbreakfast | Jul 2, 2009 8:53:48 AM

Grits --

"And no one ever operated a Ponzi Scheme again. The End."

No sentence, harsh or lenient, has ever put an end to the category of crimes for which it was imposed. To disparage this sentence because it has not done what no sentence can do would not seem to advance the ball.

As to the belief that the US Attorney wants to cover things up -- impliedly to keep prying eyes away from his buddies in the Ruling Class -- I was wondering if you could set forth your specific factual basis for that view.

Posted by: Bill Otis | Jul 2, 2009 9:03:12 AM

If the district judge is ever nominated for a Circuit Judge position or some other position in government requiring Senate confirmation, this sentence should not be his trophy.

Posted by: mpb | Jul 2, 2009 11:20:53 AM

Bill, I don't think it "advances the ball" to pretend that Madoff's sentence was merely sufficient but not greater than necessary to achieve sentencing goals, particularly when even you seem to admit that the deterrence goal isn't one that's met by this or any other harsh sentence.

As for a "specific factual basis for [my] view" that the US Attorney isn't interested in co-conspirators: They sought a max sentence without using the usual tools (sentence reduction incentives) to get Madoff to "roll on everyone involved," as NYC Lawyer put it. Why not? It's a mystery, but my hunch is it's because they don't like where such investigative trails would inevitably lead. They prefer a storyline that provides closure with a nice, pretty bow around it - the Wall Street equivalent of the 'lone gunmen' theory - but I don't personally believe that scale of theft could have been accomplished that way.

Posted by: Gritsforbreakfast | Jul 2, 2009 4:34:58 PM

Grits --

"I don't think it 'advances the ball' to pretend that Madoff's sentence was merely sufficient but not greater than necessary to achieve sentencing goals, particularly when even you seem to admit that the deterrence goal isn't one that's met by this or any other harsh sentence."

Only I never said that deterrence is not met by this or any other harsh sentence. What I said (and you do not dispute) is that no sentence has ever ENTIRELY PUT AN END to the category of crimes for which it is imposed -- in other words, no sentence is a 100% deterrent to future criminals. But that is very different from saying that no deterrence whatever is accomplished by harsh sentences. You might disagree, but the great majority believes that serious sentencing has considerable deterrent value.

"As for a 'specific factual basis for [my] view' that the US Attorney isn't interested in co-conspirators: They sought a max sentence without using the usual tools (sentence reduction incentives) to get Madoff to 'roll on everyone involved,' as NYC Lawyer put it. Why not? It's a mystery, but my hunch is it's because they don't like where such investigative trails would inevitably lead. They prefer a storyline that provides closure with a nice, pretty bow around it - the Wall Street equivalent of the 'lone gunmen' theory - but I don't personally believe that scale of theft could have been accomplished that way."

A few points.

First, a "hunch" is not a specific factual basis, or a factual basis at all.

Second, when I was an AUSA, there were many defendants whose behavior was so shocking or abusive that the Office made no effort to obtain their assistance, believing that any assistance given would not warrant a reduction from the max. Although I do not know, my AUSA's experience tells me that this same thing could have happened with Madoff.

Third, it is a matter of speculation where "investigative trails" would have led. My understanding is that Madoff ran a tightly held business with a relatively few but quite rich clients. I don't know that that's a one-man enterprise, but it could be.

I also think that if one adopts the view, as you seem to, that the prosecutors involved are so sleazy, politically driven and professionally slipshod as to run the case simply for headlines, they had a better option than to seek 150 years. They could have sought, say, 100 years -- a nice round number -- and offered Madoff a 50 year reduction from what they otherwise could seek.

Getting a century of jailtime would do virtually every bit for the prosecutors, politics-wise, as getting 150.

Why you are so ready to ascribe unworthy motives to people you don't know and have never met? Wouldn't it be fairer to at least entertain the possibility that the prosecutors sought a mind-blowing sentence because it was a mind-blowing fraud?

Having said all this, I'll say this too: If it were me, I doubt I would have gone for 150 years. To me, a sentence like that is showboating. This was justifiably a place for the federal criminal justice system to make a statement about the rampant and disgusting dishonesty that in recent years has suffused white collar industries, most notably banks. But to seek a sentence the defendant cannot possibly serve out has the aroma, at least, of chest-thumping. Selling out to the defense bar so you can get a nice offer at three times your government salary in some cushy firm is no kind of behavior for an AUSA to be engaged in, but neither is putting on a display so you can feel like a red-hot when you look in the mirror.

Posted by: Bill Otis | Jul 3, 2009 1:29:18 PM

Bill, the original post suggested a deterrence aspect to the sentence and I was responding in that part to it, not you.

You're right, a sentence like this is "showboating." So we have prosecutors who even you grant are "showboating" and "chest thumping" for the media in ways which serve no identifiable deterrence goals (something else you apparently grant) and which fails to hold accountable others involved in the scam (even if it was closely controlled, IMO it's impossible he did it all alone.)

Also, I gave you my factual (if circumstantial) basis for my belief - the USA chose not to seek out co-conspirators (fact) and instead went for the max sentence (fact) with no opportunity to reduce the sentence by informing on others (fact). Why? You must admit this is an unusual pattern. Explain to me a public-safety based justification for that prosecutorial approach: I'd love to hear it. Until then, if it walks like a duck, quacks like a duck, etc. ...

Finally, you're the only one tossing around hot-button phrases like "prosecutors involved are ... sleazy, politically driven and professionally slipshod." At this point you're just making up sentiments nobody ever expressed and attributing them to me (i.e, debating a straw man). I'm generally happy to defend what I say but not just whatever snide smear you decide to trot out.

Posted by: Gritsforbreakfast | Jul 4, 2009 8:24:00 AM

Maddoff got that sentence not because he deserved it, but because he beat the rich wigs at their own game while he himself was not born with a silver spoon stuck...

Had he been wealthy and from a family with money, he would have done 15 years and off in 5 for good behavior--to be served at home.

Come on now. People are getting smarter and can see through the whole sham in the crooked system.

Posted by: Grateful | Jul 4, 2009 7:56:24 PM

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