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December 12, 2010

Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's "punishment"?

As detailed in this ABC News piece, which is headlined "Madoff Son Found Dead On 2nd Anniversary of Dad's Arrest," one of the sons of Bernie Madoff took his own life last night.  Here are the basic details:

Two years to the day, and almost the precise hour and minute, of his father's arrest by the FBI, Mark Madoff, son of the disgraced Ponzi schemer Bernard Madoff, was found hanged inside his Manhattan apartment, an apparent suicide according to police.

Madoff had reportedly learned in the last week that he faced possible criminal charges in both London and New York.

Madoff left behind several emails, including one to his wife, Stephanie, telling her that he loved her, but no explanation of why he chose to take his life.  "I love you," the email said. "... send someone to take care of Nick."

In a separate email to his lawyer Martin Flumenbaum, Mark Madoff wrote, "No one wants to hear the truth take care of my family," according to law enforcement sources.  He also sent one to his wife and to his father-in-law asking that someone come to get the couple's two-year-old child.

Upon receiving the emails, which were written in the early morning hours after 4 a.m., Stephanie, who reportedly was in Florida with at least one of the couple's other children, contacted her father.  He came to the apartment and found his son-in-law hanged in the living room around 7:30 a.m. Saturday, police said.  The two-year-old was sleeping peacefully in a bedroom nearby, police sources said.

Madoff had used a black dog leash to hang himself, police said.  His labradoodle, Grouper, was found nearby unharmed. 

"At about 7:30 this morning police responded to 158 Mercer Street," said New York City police commissioner Ray Kelly. "Mark Madoff was found hanging from a pipe in the living room of the apartment. Mr. Madoff apparently left some email notes. There was no note at the scene, but [he] communicated with members of the family."...

According to sources close to the family no one could have seen the suicide coming, although Madoff, 46, had been distraught, felt unemployable, and was sure that he would never be able to extricate himself from the thickets of notoriety....

Madoff and his children were being sued for all of their wealth and he faced the prospect of criminal prosecution in two countries.

I am never quite sure how to respond emotionally or intellectually to a high-profile suicide of someone I have never known.  But I am sure that this sad additional chapter of the saga surrounding Bernie Madoff's spectacular crimes prompts a number of questions for the sentencing scholar in me.

One theoretical question appears in the title of this post, and I especially mean for the question to prompt some reflection on the relationship between personal pain and the concept of punishment.  The connection between pain and punishment is getting lots of scholarly attention lately, and the fact that Bernie Madoff must be experiencing personal pain as a result of his son's suicide leads me to wonder if this event might be thought of as another part of his punishment.

A related practical question concerns whether Bernie Madoff now regrets having pleaded guilty.  At the time of his guilty plea, the only significant benefit Bernie seemed to garner was the chance to try to protect his family from some of the fall-out from his crime.  But the suicide of his son suggests that Bernie's efforts to shield his family were not especially successful.

Cross-posted at Prawfs

December 12, 2010 at 08:45 AM | Permalink

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"Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's 'punishment'?"

No.

Those who claim you can never get a straight yes-or-no answer from a lawyer, please take note.

Posted by: Kent Scheidegger | Dec 12, 2010 11:41:37 AM

The colateral damage to the loved ones and families of defendants and inmates is always part of the punishment. Law enforcement and prosecutors are quite aware of this side effect of prosecution and punishment.

There is a standard answer given by law enforcement and and prosecutors - "Prisoners were not thinking of the consequences of their actions when they committed the crime."

In other words, the consequences are not consequences for the prisoners as they do not think of their families. This neatly keeps the personal pain of the families from being part of the punishment of the defendant or the inmate.

When you are targeted for prosecution there is no way to shield your family from danger. Families will most certainly always be negatively impacted financially. The emotional toll of children losing a parent, encountering social stigma etc are a given.

Posted by: beth | Dec 12, 2010 11:55:51 AM

"Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's 'punishment'?"

The question presumes that BM cares about his son like most normal, non-sociopathic parents would and that MM's death actually caused the father pain.

Based on what little I know, BM is largely responsible for his son's death. MM's death feels more like an aggravating factor than anything else.

Posted by: Stanley Feldman | Dec 12, 2010 12:25:49 PM

It is the discovery and publication of the father's massive dishonesty, and not the (earned) conviction or sentence for it, that accounts for the shame and disgrace family members feel.

The problem here, as usual, was not the behavior of the system. It was Bernie Madoff's behavior. When he spent years cheating people who trusted him so that he could live better than a king -- leaving them with little or nothing of what they thought was their savings -- did he think it would bring honor to his kids?

Posted by: Bill Otis | Dec 12, 2010 3:14:30 PM

To beth: So do you not think that Bernie Madoff should have been "targeted for prosecution"?

Posted by: Domino | Dec 12, 2010 5:27:15 PM

Most catastrophic events result from a convergence of factors. The person most responsible for this suicide is the victim. No one else had any duty to prevent it, outside of a moral one. He inflicted the pain on his father and family. If he was innocent, then the lawyers filing false claims contributed to his distress, which is a factor in this suicide. The lawyers had a duty to not file false or weak claims. That he was thin skinned(as in thin skull), should not matter for their liability.

Posted by: Supremacy Claus | Dec 12, 2010 5:37:02 PM

Domino - Yes, of course I do.

I was simply commenting on why many do not think that pain and suffering of families increases the penalty for the defendant.

Posted by: beth | Dec 12, 2010 10:06:17 PM

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