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June 28, 2011

Judge Denny Chin and Bernie Madoff talk about a sentence of 150 years

The New York Times has this fascinating new lengthy article about the famous sentencing of an infamous white-collar offender.  The piece is headlined "Judge Explains 150-Year Sentence for Madoff, and here is how it starts:

With the sentencing of Bernard L. Madoff only a week away, Judge Denny Chin received a letter from Mr. Madoff’s lawyer asking for a prison term substantially below the 150-year maximum.  The lawyer, Ira Lee Sorkin, listed several reasons, including Mr. Madoff’s confessing to his sons, knowing he would be turned in; his “full acceptance” of responsibility for his crimes; and his efforts to assist in the recovery of lost assets.

Citing data that showed Mr. Madoff, who was then 71, could expect to live about 13 more years, Mr. Sorkin asked for a term of 12 years — “just short of an effective life sentence,” as he put it — suggesting that Mr. Madoff might be allowed a year of freedom before he died. Mr. Sorkin also proposed another option: 15 to 20 years.

Judge Chin says he understood Mr. Sorkin’s goal.  “It’s a fair argument that you want to give someone some possibility of seeing the light of day,” the judge said, “so that they have some hope, and something to live for. And,” he added, “that was one of the struggles in Madoff.”  

Judge Chin said he quickly rejected the idea of a 12-year sentence for Mr. Madoff, but pondered whether 20 to 25 years might be acceptable.  The judge ultimately concluded that even that “would have been just way too low.”

“In the end, I just thought he didn’t deserve it,” he said. “The benefits of giving him hope were far outweighed by all of the other considerations.”

Judge Chin would impose a term of 150 years on Mr. Madoff, perhaps the most stunning and widely discussed sentencing in the history of American white-collar crime.  In doing so, he seemed to find a way to translate society’s rage into a number.

Two years later, Judge Chin’s recollections resurrect all the anger, shock and confusion that surrounded Mr. Madoff’s crimes, and provide a rare peek at the excruciating pressure faced by a judge who had to balance the law, the public’s emotions and his own deeply held beliefs while meting out a sentence that was just and satisfied the court’s need to send a message.

Judge Chin agreed to an extensive series of interviews as part of a broader look into his sentencings in Federal District Court in Manhattan, which will appear in a later article. “Most judges will tell you sentencing is the most difficult thing we do,” he said.

The New York Times also interviewed Mr. Madoff, who offered his first comments about the judge and the sentence, which will have occurred two years ago on Wednesday.  Mr. Madoff, speaking by phone from federal prison in Butner, N.C., said he believed that Judge Chin went along with “the mob psychology of the time.”

“Explain to me who else has received a sentence like that,” Mr. Madoff said.  “I mean, serial killers get a death sentence, but that’s virtually what he gave me.  I’m surprised Chin didn’t suggest stoning in the public square,” he added.

This piece has a lot more quotes from Judge Chin, and this companion piecehas more interesting quotes from Madoff.  Here is an excerpt from that piece: 

Bernard L. Madoff remains upset that Judge Denny Chin did not give him a shorter term, which might have allowed him the chance someday to regain his freedom, even as a very old man.... “[Q]uite frankly, there’s a big difference with dying in prison, you know, and dying outside with your family.”

Judge Chin has said in recent interviews that he considered a sentence that might have allowed Mr. Madoff to be freed when he is in his 90s.  But he concluded that Mr. Madoff simply did not deserve it, and in court called his conduct “extraordinarily evil.”

Mr. Madoff, in a recent series of interviews and e-mails, took issue with the judge’s description. To characterize him as “this monster and this evil person,” he said, “I just think that was totally unrealistic and unfair.”

“In my mind, Chin was anything but fair, with zero understanding of the industry,” Mr. Madoff added.  He said the judge had made him “the human piñata of Wall Street,” while financial firms and government officials “walk away free.”

“Remember,” he said, “they caused the recession, not me.”...

He said he had pleaded guilty to spare his family the trauma and expense of a trial.  Did he expect a long sentence?  Yes, he said. “But, did I think it was going to be 150 years?  No.”

June 28, 2011 at 11:11 AM | Permalink

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Comments


Anyone who thinks that the functional-lifetime sentence this person received was an over-the-top symbolic gesture should read this individual's comments, which tend to suggest strongly that the judge pegged him correctly.

"To characterize him as 'this monster and this evil person,' he said, 'I just think that was totally unrealistic and unfair.'"

Wonder what characterization this individual would regard as "realistic and fair" for a person who, confronted with a grieving widow who, having lost her husband two weeks earlier, comforts her and tells her that everything is going to be okay, as he accepts her life savings, 401(k) plan funds, etc. (on top of everything her late husband had previously invested) into what he obviously knows is a pyramid scheme. This guy ruined a lot of peoples' lives, and he had to know what he was doing when he did it.

Posted by: guest | Jun 28, 2011 12:11:28 PM

150 years represents fictional severity of sentencing. Because the law is an empirical practice on the body, anything fictional brings opprobrium on it. Such opprobrium is important, because disrespect and lack of credibility encourage crime. If the judge had made a claim a cream helped to grow hair, Consumer Protection would take him to court and get him to stop, even press charges for consumer fraud. I am thinking of requesting a Judicial Review Board investigation of this brazen exaggeration in sentencing, and its bad faith motivation.

Posted by: Supremacy Claus | Jun 28, 2011 2:56:22 PM

In addition to what guest has said, I would note that Mr. Madoff is the last person to be mouthing off about the faults of others. At least Madoff did something (quite a bit, actually) to deserve getting hammered. What did his victims do, other than fall for his entreaties to "trust me"?

Posted by: Bill Otis | Jun 28, 2011 3:40:26 PM

@Bill: Well, there is the standard blame-the-victim con man's defense (which some commenters to the NY Times article have taken to extremes) that the victims aren't free from blame or fault because they should have known that it was too good to be true.

As for me, I've never understood why "should have figured it might be good to be true" answers the problem that the con man *actually* knew as a matter of fact that it wasn't true.

Posted by: guest | Jun 28, 2011 5:05:02 PM

He got 150 years because he stole from so many rich people. Steal from poor people and you get 5 years.

Posted by: anon2 | Jun 28, 2011 5:18:20 PM

@ anon2:

I guess you didn't read the publicly-available sample of victim-impact letters the judge received before sentencing. Not that it would have made what this individual did remotely acceptable had all of his victims been "rich," many of his victims were not rich. In fact, he made a number of people who invested with him decidedly un-rich, and left at least some downright impecunious.

[One very strange, yet very confident-sounding, commenter on the NY Times website seems to be suggesting that "many" people consider this individual to be some sort of Robin Hood figure -- presumably because he stole from the rich. I can't imagine that anyone, much less "many," people think this. I assume that you don't think this.]

In any case, I take it you're not taking issue with the proposition that this individual ruined many, many peoples' lives, but are simply suggesting that the arm of the law doesn't comes down less hard on other wrongdoers?

Posted by: guest | Jun 28, 2011 6:14:29 PM

anon2 --

"He got 150 years because he stole from so many rich people. Steal from poor people and you get 5 years."

Actually, a common complaint against the DP is that it's imposed on some guy who knocks over some scruffy 7-11 and gets $35. I believe the DP is ordinarily thought to exceed in severity any term of years.

Nor, even if what you claim were true, it would not in any way refute my point that Madoff has less than no standing to complain about the alleged misbehavior of other people.

Posted by: Bill Otis | Jun 28, 2011 6:51:37 PM

guest --

There are several levels of mind-boggling irony in the fact that so much of defense work lies in trying to protray the client as a "victim" of some sort -- just as Madoff now claims that the victim is, after all, the one who really should get the blame!

Posted by: Bill Otis | Jun 28, 2011 6:57:01 PM

@ Bill:

Not sure I see the irony. Both schools of thought minimize the culpability, or relative culpability, of the defendant for intentional criminal acts that hurt other people by asserting that others, e.g., society at large, the victims of the con, are also culpable. Indeed, some of the commenters on the NY Times website are actually asserting that the people this individual fleeced were "equally culpable." I don't pretend to understand the argument that they are "equally culpable."

Posted by: guest | Jun 28, 2011 8:24:55 PM

guest --

Here's how I see it. In many if not most sentencings, the defendant tries to turn himself into a victim (of some concocted sydrome or a lousy Head Start program or too many twinkies, etc.), thus to palm himself off as having less culpability.

Now, we see defendant Madoff alleging that it's precisely the VICTIMS who are culpable, since they were stupid enough to believe him.

Ahhhh, the varied uses of victimhood! You just have to love the imagination of criminal defense.

Posted by: Bill Otis | Jun 28, 2011 10:35:51 PM

Yes, fair and honest Judges go through excruciation during the penalty/sentencing phase of the proceedings. Also, I have noticed that they are also humans, subject to errors and omissions. In addition to that, almost all of them have somebody convicted (the proverbial black sheep) in their family/extended family. (Come to think of it, there are almost 30 million felons, ex-felons, probationers, et al. in the US; that is a whopping 10%.) Ultimately, however, Judge Chin succumbed to the hysteria and sentenced Madoff to 150 years.

What I really think that convicted white-collar defendants should get is what hits them the most in their pocketbooks. They should be forced to pay back the monies that were wrongfully obtained. This way, everyone could be “made whole.” Yes, I do realize that the fulfillment of this seemingly noble goal may not happen in many cases, but it will at least make the defendants realize that they have the Damocles’ sword hanging over their head and they, I believe, would be more productive (and not to mention the reduced costs to the government). You see, by sending these defendants to prison for 5, 10, 20, or even 30 years, everyone knows that they are not going to pay back the victims. Most of these defendants literally hide their money, or cut deals with the prosecution to let them keep the money, with the hope that once they get out, they would be able to “enjoy” life again. (Of course, there are exceptions to every position.) A better way, in my opinion, to enforce money judgments by civil penalties and forfeiture actions. In Madoff’s particular case, he could not have done all this fraud on this massive a scale without external help (read: banks, PE firms, investment banks, etc.). There are civil RICO provisions to get the money back for these alleged victims from these coconspirators, even if the defendants are allegedly pauperized during the proceedings. Criminal restitution statutes are sheer farce and they look fantastic on paper, but enforcing them is whole different ball of wax. Defendants have and do use numerous “legal” loopholes to get around these restrictions. Just incarcerating these guys (for however long) does not make any economic sense at all.

Posted by: John Marshall | Jun 28, 2011 11:35:46 PM

How many years do you give our elected representatives when we find out that SS, Medicare and Obamacare are a Ponzi Scheme?

Posted by: albeed | Jun 28, 2011 11:51:01 PM

Albeed:

Well, what are you trying to tell us? That ouur elected officials are crooks?! How dare you? Come on, that cannot be further from the truth. They are the epitome of fairness, honesty, and integrity. Seriously, I hear you, buddy! Our whole country's economic engine seems to be running on a Ponzi scheme. However, the Government does not have such quotidian worries as balancing the budget; you cannot spend more than what you make; you have to live withing your emans; you cannot mess with your neighbors; etc. Or does it? The better question may be: Should it?

Posted by: John Marshall | Jun 29, 2011 12:10:39 AM

Judge Chin should be given ten days in a maximum security prison but housed in general population.

I use the word "given". That is often the word employed when someone is sentenced to a term in a prison.

Posted by: pbastian | Jun 29, 2011 1:07:00 AM

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