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July 6, 2009

Should we feel good or bad about feeling good about how bad Madoff got punished?

A helpful reader sent along this intriguing little piece discussing the virtues and vices of human instincts for imposing "altruistic punishment."  The piece is titled "Are humans cruel to be kind?" and here is a snippet: 

Our sense of fairness and our willingness to inflict damage on one another combine to encourage contributions to the common good and deter people from cheating.  Researchers call this altruistic punishment.  "But at the end of the day, it's still spite," says economist Benedikt Herrmann of the University of Nottingham, UK.  The benefits of this constructive spite might not be immediate, but they are real -- in the long run, we all benefit more if we can ensure others in society toe the line.

Our brains are certainly wired to respond positively to this constructive form of spite. Although we might lose out financially, scans show that a region called the striatum, which responds to rewarding experiences, lights up during altruistic punishment.  So, problem solved.  Spite is in our own best interests and our brains reward us for it, so we should welcome it, right?

Not quite.  The problem is that it's not only doing bad things to bad people that makes us feel good.  Recent studies have shown how the striatum responds in the same way to schadenfreude, when we take a morally dubious pleasure in others' misfortunes. Adolescent boys with aggressive conduct disorder show similar brain activity when they watch a video of someone hurting another person.

Sadism aside, it is easy to imagine why evolution might have wired us up like this, according to Hidehiko Takahashi of the National Institute of Radiological Sciences in Chiba, Japan, leader of the schadenfreude study.  "Altruistic punishment might bring an indirect benefit to us from society, and schadenfreude a direct benefit from a rival."  But it also suggests that the line between the cooperative and competitive prompts for spiteful behaviour is blurry and subjective.  If the prospect of bankrupting a few fat cats gives us a twinge of pleasure, it is hard to say whether that is because we believe they have robbed society, or because we are envious of their wealth and success and happy to see them toppled.

Though this article was published a few month ago, it is especially interesting to consider in the wake of last week's sentencing of Bernie Madoff.  Specifically, I wonder whether it is good or bad to feel good about the book getting thrown at Madoff.

Most recent Madoff sentencing posts:

UPDATE:  A commentor has suggested that "Frank Rich's column in the Sunday NYT was the best reflection of the Bernie Madoff sentence.  That column, headlined "Bernie Madoff Is No John Dillinger," can be accessed here and starts this way: 

The judge condemned Bernie Madoff’s crimes as “extraordinarily evil.” The New York Daily News, whose publisher was a Madoff victim, chose “The Pariah” as its front-page headline and promised that the dastardly villain would suffer “everlasting consumption in the jaws of the devil.” The Times declared that the Madoff case, by attaching a human face to a financial meltdown that produced fear, panic and loss, had “put an entire era on trial.”

But for all this rhetorical thunder, Madoff’s 150-year sentence still seemed an anticlimax, as if the trial of the century had ended without a verdict. There was no national catharsis. The news landed with something of a thud. On the most-watched network newscast, “NBC Nightly News,” it received second billing to Day Four of updates on Michael Jackson’s death.

July 6, 2009 at 09:45 AM | Permalink


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I think Frank Rich's column in the Sunday NYT was the best reflection of the Bernie Madoff sentence, and of the underlying reality of public opinion about it.

Posted by: FluffyRoss | Jul 6, 2009 11:04:18 AM

I hadn't read that article. I agree.

Posted by: Daniel | Jul 6, 2009 1:35:18 PM

For those who think Madoff’s sentence was too harsh, there’s one open question to which I would like an answer: if he didn’t deserve the max, then who would? If his acts aren’t enough to earn him the worst penalty the law permits, what more would he have needed to do to deserve it?

Posted by: Marc Shepherd | Jul 6, 2009 3:51:46 PM

Marc, I think you are coming at this from the wrong direction. Just because a crime has a maximum sentence doesn't mean that some defendant must necessarily deserve it. Federal sentencing is governed by the parsimony provision: all sentences must be sufficient but not greater than necessary to satisfy the aims of sentencing. So for any given crime, it's possible that the statutory max will ALWAYS be greater than necessary. (It's also possible that the statutory max might be INsufficient to satisfy the aims of sentencing, but that's a different ball of wax.)

There is a certain logic in thinking that a defendant who commits a crime in the worst way possible must necessarily deserve the maximum sentence possible for that crime. But 18 U.S.C. 3553 doesn't really allow for this conclusion.

Posted by: CN | Jul 6, 2009 4:16:20 PM

CN, I think you are misreading the parsimony provision, given that sentences even harsher than Madoff’s have been upheld on appeal. Mind you, I am not saying that the parsimony provision couldn’t be read as you suggest, only that it’s erroneous to state definitively that it doesn’t allow for my conclusion. Obviously there is at least one jurist, namely Judge Chin, who does believe that 150 years is consistent with the parsimony provision. Indeed, one gets the sense that he would have gone even higher if the law allowed it.

Posted by: Marc Shepherd | Jul 6, 2009 5:11:23 PM

Marc, I don't think either of us is misreading the parsimony provision. A "sufficient" sentence of course depends on the offender and the offense. My point was merely that the sentiment "If this defendant doesn't deserve the max, nobody does" is not a cognizable justification for a maximum sentence under 3553.

Posted by: CN | Jul 6, 2009 5:48:07 PM

Doug, thank you for this posting, but I really think you need to add the third paragraph to clarify the meaning of the headline for Rich's column:

Madoff, it turned out, was no Public Enemy No. 1 to rival John Dillinger, the Great Depression thug at the center of Hollywood’s timely release this holiday weekend, “Public Enemies.” In the context of our own Great Recession, Madoff’s old-fashioned Ponzi scheme was merely a one-off next to the esoteric (and often legal) heists by banks and bankers. They gamed the entire system, then took the money and ran before the bubble burst, sticking the rest of us with that fear, panic and loss.

Posted by: DCH | Jul 7, 2009 10:28:46 AM

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