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June 25, 2009

"Proposed cuts would allow a Madoff to avoid prison in California, Cooley says"

The title of this post is the heading from this notable posting in the Los Angeles Times blog discussing some of the reaction to some of the cuts proposed in California's new budget.  Here are a few more details:

Los Angeles County’s top prosecutor has warned that a budget proposal by Gov. Arnold Schwarzenegger would so weaken court sentencing guidelines that if a swindler such as Bernard Madoff were to be brought to justice in California he would not face state prison time.

In a letter obtained by The Times, District Attorney Steve Cooley has asked Schwarzenegger to abandon his proposal to change state sentencing guidelines so certain felonies such as fraud or grand theft, known in justice circles as "wobblers," would be prosecuted as misdemeanors.

Facing a $24-billion budget shortfall, Schwarzenegger has proposed the change in sentencing guidelines to save $1 billion over three years by shifting 23,000 criminals from state prisons to local jails and re-entry programs.

"If Bernie Madoff had committed his crime in California under the proposed statute, his … scam which has destroyed countless lives and fortunes, would have been a misdemeanor," Cooley wrote to the governor. "Such scams are commonplace in California."

June 25, 2009 at 05:46 PM | Permalink


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Three things on this. First, I'll bet the claim about Madoff is BS. There are no specifics in the post you linked to, it's just a DA grandstanding without supplying any substantive analysis. I SERIOUSLY doubt Schwarzenegger proposed reducing stealing $63 billion to a misdemeanor.

Second, that said, I'm not sure what good imprisoning Madoff does other than to satisfy a punitive impulse. He's certainly not a physical threat, and it's not like there's a risk anybody will ever trust him with their money again. I'd personally rather see him, e.g., scrubbing graffiti every day for the rest of his life so that his sentence a) benefits society and b) doesn't cost the taxpayers anymore than he already has. And I say this as somebody who just lost his job (with the Innocence Project of Texas) because the JEHT foundation went under which relied on Madoff's investment services. Revenge is for fools and suckers.

Finally, to the extent Schwarzenegger IS proposing reduced sentences (which is certainly the case), I thought this statement from a commenter on the Times blog summed up the issue perfectly for Californians:

"You have three choices:

1) Allow people to go free that you don't want to.
2) Pay for their sentences
3) Shut up."

Posted by: Gritsforbreakfast | Jun 25, 2009 6:53:56 PM

If Madoff were brought to justice in California, he would receive the exact same sentence -- federal law is the same in all 50 states. Somebody better tell Steve Cooley.

Posted by: CN | Jun 25, 2009 7:32:21 PM

"Wobblers"? Where did that come from? Is it a movie reference or something? It is not a useage I've heard nationally.

Posted by: ohwilleke | Jun 25, 2009 7:48:01 PM

Why should we trust DA's and ADA's with our liberty when they flat out lie to us?

California Penal Code:

186.11. (a) (1) Any person who commits two or more related felonies, a material element of which is fraud or embezzlement, which involve a pattern of related felony conduct, and the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than one hundred thousand dollars ($100,000), shall be punished, upon conviction of two or more felonies in a single criminal proceeding, in addition and consecutive to the punishment prescribed for the felony offenses of
which he or she has been convicted, by an additional term of imprisonment in the state prison as specified in paragraph (2) or (3). This enhancement shall be known as the aggravated white collar crime enhancement. The aggravated white collar crime enhancement shall only be imposed once in a single criminal proceeding. For purposes of this section, "pattern of related felony conduct" means engaging in at least two felonies that have the same or similar purpose, result, principals, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics, and that are not isolated events. For purposes of this section, "two or more related felonies" means felonies committed against two or more separate victims, or against the same victim on two or more separate occasions.

(2) If the pattern of related felony conduct involves the taking of, or results in the loss by another person or entity of, more than five hundred thousand dollars ($500,000), the additional term of punishment shall be two, three, or five years in the state prison.

Posted by: George | Jun 25, 2009 10:12:53 PM

I hope the prosecutor is just being deceitful (like most prosecutors, politicians, law enforcement, etc.), because it would be even worse if he was truly so ignorant as to suggest that Maddoff could somehow avoid jail time by having committed his crime in another state.

He is brought up on federal charges and would receive federal prison time in any state, and we are the suckers that are just going to pay for him to be warehoused until he dies.

Lying for political gain? I'm shocked.

Posted by: bernie | Jun 26, 2009 10:09:58 AM


They are a strange feature of California law. Many offenses have misdemeanor and felony offenses under the same statutory umbrella. That by itself is not terribly unusual but I have seen Bruce Cunningham claim that it can be decided by a judge later at sentencing for subsequent convictions whether any given defendant actually committed the felonious or misdemeanor offense but I am not sure that is correct.

Posted by: Soronel Haetir | Jun 26, 2009 11:10:33 AM

A “wobbler” is an offense that may be either a felony or a misdemeanor, but is assumed to be a felony unless, among other things, the state court issues a judgment sentencing the defendant to something less than a year in state prison or otherwise explicitly classifies the offense as a misdemeanor.

The prosecutor here is being hyperbolic.

Posted by: DEJ | Jun 26, 2009 1:53:21 PM

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