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July 3, 2009

"Is 150 Years Appropriate, or Just Silly?"

The question in the title of this post is the headline of this effective column in the New York Times.  The piece quotes lots of academics in an effort to help answer the question (including me), but I am even more eager to hear from readers of this blog.

Most recent Madoff sentencing posts:

UPDATE: For additional takes on this question, one can now check out this blog-friendly column at the New York Times, headlined "Weekend Opinionator: Did Madoff Get More Than He Deserved?".  The column quotes lots of Madoff-sentencing reaction around the blogosphere, and here is how the column gets started:

On Saturday America turns 233 years old, but the first chance Bernie Madoff will have to celebrate the Fourth of July as a free man will be the nation’s 383rd birthday.  Before you enjoy any schadenfreude, however, remember that you and I are no more likely to make that party than he is.  We will, however, have more room to roam in the interim.

July 3, 2009 at 09:02 AM | Permalink


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Really Doug, you had to Godwin the article. Really? That's quite funny.

Posted by: Daniel | Jul 3, 2009 9:42:18 AM

Silly, very silly. I'm with SC on this one, 1-d.

And since he plead guilty there isn't even really a need for him to get a normal appeals cycle.

Posted by: Soronel Haetir | Jul 3, 2009 9:42:55 AM

As a court appointed defender, I have a client sentenced to 241 years where only one person was hurt and he recovered. I don't know what "message" was being sent, but it was just plain ridiculous. I used arguments from this blog but wrathful vengeance overcame reason. I still don't understand what gives a prosecutor the right to say "this person has forfeited his right to live in society".

Posted by: Kathy Goudy | Jul 3, 2009 10:16:36 AM

I suspect, based on very little empirical evidence (though there might be studies), that significant prison sentences can serve as a deterrent to white collar crime where they really don't to street crime (about which I have somewhat more empirical evidence). But sentences that cannot be served seem silly rather than forceful. A formal sentence of life might be more meaningful than any absurd number of years could be. If it required rewriting the statutes, though, I'd be wary, since once Congress gets at that, they're liable to wreak all sorts of havoc. And I don't have much faith in the Sentencing Commission, either.

Posted by: Jeff Gamso | Jul 3, 2009 10:17:18 AM

What is silly is to expect there will be general deterrence when there were multiple investigations that revealed fraudulent practices and the investigations were ignored. The research indicates that general deterrence is most effective when there is a high probability of detection and prosecution.

Posted by: John Neff | Jul 3, 2009 10:50:37 AM

OK. I'll play ball. ANY sentence greater than 30 years, is itself insane, unless accompanied by the possibility of parole at that date or earlier. A parole review should automatically take place of anyone held at age 65, with the likelihood of release (under licence until the normal length of parole or sentence expires) unless prison record or psychological review indicates genuine grounds for concern regarding a physical threat to society. Mentally ill or mentally disabled inmates should be transferred to appropriate facilities and their condition regularly monitored and treated where possible. Family or voluntary sector support should be organized for all those released at age 65 or older, unless chronic illness is a factor, when additional state support should be given if needed.
The reality is that a 30 year sentence is a mind numbing one for most people, who then are in danger of becoming so institutionalized that they have little chance of survival without considerable support. But at least it provides hope of a free life for a few years (America IS supposed to be the "land of the free"!). Life expectancy of African Americans is 73.3 compared with 77.9 for whites. For African-American males, it is even shorter: 69.8.
In answer to the question - of course a sentence of 150 years is stupid beyond words.

Posted by: peter | Jul 3, 2009 10:54:29 AM

Interesting article, but I have one big complaint: its cite of the DPIC statistic. I'm not challenging the numerical accuracy of it, namely that low-murder states are often those without the death penalty. But the casual treatment of causation drives me crazy, for two reasons.

1. The comparison is not non-DP states to DP states, but whether the murder rate in a given state would change with a change in its DP status.

2. The DP is so rarely used that its correlation with murder tells us almost nothing about deterrence in general.

I'm not trying to argue for or against the DP as a normative matter, or for or against deterrence as an positive matter. I just get really annoyed by such inept discussions of causation. Deterrence is a highly complex and important issue, and casual-to-the-point-of-being-deceptive-without-being-factually-wrong analyses like that throw-away paragraph only muddy the waters. I'm disappointed, though not surprised.

Posted by: John | Jul 3, 2009 11:06:37 AM

SH: It is really, 1,2...2000,D. At $13 Billion, Madoff made off with the economic value of 2000 economic persons, assuming a value of $6 million each, per the economists (really should be the objective $2 million each, reflecting real salaries, not subjective valuations of life by workers themselves).
I hate to agree with Dan. Arguments ad Hitlerium, ad Stalinum, ad Talibanum bring a question of exaggeration onto the utterer. Also, because many Madoff victims were Jewish, any remote reference to the Holocaust in this context may disconcert some of them. This is a big crime, but not that big. For the offspring of the survivors, such comparisons may cause unnecessary discomfort.

[Feel free to criticize me for hypocrisy. I remind everyone that the Holocaust was unlawful in Germany. The Nazi judiciary did a legal realism number on the law to allow it, going "beyond the writing." The writing was "too confining" and needed adaptation to "evolving values" in their "Living Constitution," or, better yet, their "Invisible constitution."


Our judicial criminality is smaller but is in the same category of size, 1 million plus viable baby, third trimester abortions. We should not get too smug about our moral superiority. Nor is this an argument ad Hitlerium. There was a direct spawning of both legal realism/Nazi judiciary from a single mother, the Free Law Movement of Germany, with Cardozo getting training from a leader of the movement. There was no acknowledged father, making both movements bastards.]
I am curious. I have never met anyone who has ever seen their statements accurately reflected in a news story. There are two groups with lower moral standing than the lawyer, convicted felons and journalists. The journalists even have a code of conduct. Pretty funny given the bias in our news.


Posted by: Supremacy Claus | Jul 3, 2009 11:10:06 AM

He should have gotten at least some symbolic reduction because he turned himself in and cooperated to some extent. In the future, high profile white collar criminals will be dis-incentivized to cooperate. White collar clients can be very well informed, and I expect that many will rationalize that cooperation gets you the maximum sentence. So there may be general deterrence, but only against cooperative behavior.

Given the man is 70-something, I don't see the objection to giving him 40 years or so. Anything above that is just meaningless lawyer points for prosecutors.

Posted by: jamal | Jul 3, 2009 11:15:53 AM

The article misses the point and so does Doug's Hitler reference. We should try a sort of Standford Prison Experiment and let all the victims who clapped at the sentence be Madoff's prison guards. They could pay for the honor and it would help the government recoup some of the costs of trial.

What do you suppose would happen? Here is a hint of the American landscape: 800 at San Quentin quarantined for swine flu. Read the comments. Many Americans have no qualms about using germ warfare in the war against crime and, as Professor Gillers says, we are "making a statement to ourselves about the kind of people we are.”

Posted by: George | Jul 3, 2009 12:08:57 PM

It's the same mentality as with this case from 2007 - anyone remember it?
Tight-Lipped 'Granny' Dies in Prison

Both certainly do make a statement, not only to ourselves, but to the world about the kind of people we are.

Posted by: peter | Jul 3, 2009 12:33:06 PM

150 years is more than silly, it's stupid and mockery of justice. Sentencing law should be changed to state that a person must stay in prison until the day he dies rather than some ridiculous 150 year ruling.

WTF lives 150 years?

Posted by: Grateful | Jul 4, 2009 7:52:19 PM

Is there a sentence sillier than life plus twenty?

Posted by: beth | Jul 5, 2009 12:45:13 AM

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