Madoff Sentence "Legally Suspect And Grossly Unfair"

(AP Photo/Christine Cornell)

I think the 150-year sentence handed down to Bernard Madoff today is legally suspect and grossly unfair when compared to the other sentences handed out to other major corporate fraud figures recently. I think it was the judicial equivalent of a cheap shot, offered by a gutless, intellectually lazy judge who had the luxury of having an angry mob on his side and the knowledge that Madoff already had conceded the case and the notion that he would die in prison.

As a practical matter, whether Madoff got 150 years or 100 years or 50 years or 25 years is of no moment—he'll die in prison. But as a legal matter, there is a great deal of difference between an unsustainable sentence like this one and a reasoned one, like the 50 years that probation officials had suggested. If the sentence is appealed, I suspect a great many appeals court judges would reject it and order a lesser sentence.

None of this condones what Madoff did or the harm he caused to victims all over the world. Madoff is an all-time white-collar crook who really does deserve never again to breathe free air.

But our justice system is not built upon revenge or a thirst for disproportionate punishment. Some murderers get a fraction of the sentence Madoff received today. Worldcom's Bernie Ebbers got 25 years. Enron's Jeffrey Skilling got 24 years. Sam Israel got 20 years. Refco's Philip Bennet got 16 years.

Our sentencing laws are not based upon emotion, or upon what the victims might have done with the money they lost, or upon how famous and powerful they are. I could care less about what happens to Madoff. But we all lose when our judges lose sight of bedrock sentencing principles and instead make easy and popular choices.

More from Cohen: 150-Year Madoff Sentence Is "Symbolic"

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(CBS)

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

[avoiceofreason100]

Guys, I wonder how many of the people who responded to this articals are Christians? I wonder how many of them have ever had the experience of being charged and going through the US federal criminal justice machine?

I have witnessed that every day, people are needlessly and wastefully sent to federal jail, when we live in a day and an age where technology provides so many other alternatives to jailing people.

I say save the jail cell for people who are a threat to society. Madoff poses no threat to either you your I or anyone anymore. If we put him in jail, then we (the tax payers) are now going to shell out another $32k per year in order to house and feed this guy until he dies. Perhaps a better alternative would be to make someone like Madoff do something that he has not appeared to do for most of his life,.. work. Make him work to pay people back. As a Christian, I have to follow what Christ says and offer forgiveness. Having seen the US justice system at work, one thing I know to be true, is that you and I will never know the exact details of what really happened in his case, and as such, we can't make an objective judgment.

What we can do, is give Madoff the benifit of the doubt that perhaps there is something inside of himself that compelled him to surrender and not fight. And whether that is the case or not, he should be given a chance to spend the rest of his days working to pay people off at a real job and at least be given the opportunity to come right spiritually before he dies. You would want the same chance if it where you son or daughter that did what he did.

We have a real problem in this country of making people so wrong so that we can forget and justify the wrong and complacency that we all do that exists in our own lives.

Without even examining your religious beliefs, or your care about the fact that Madoff is still a human being, consider the foolish economic policy of jailing so many people needlessly when alternative sentences may be more cost effective, appropriate and human for us all.

The US has the highest incarceration rate in the world, more people in prison here then in China, and we still have Madoff's. The status quo and prison for these kinds of criminals just doesn't work. The only possibility that exists is some other form of punishment.

I think that the author of this article must have spent a lot of time actually at the unjustness of sentencing in this country for him to make this enlightened point. Listen from logic to what he's saying and not from your own heart that bleeds from your own hurt.

Make Madoff work for us.

[billcholee]

a bullet in the head is what a lot of people are thinking. isn't it??

[j_mcdonald-2009]

I agree that the sentence was ridiculous. If a person can get 10 years in prison for stealing $5,000, then an equitable sentence for stealing $50,000,000,000 would be about 100 million years. Now THAT would be a reasonable sentence.

[tautomer]

Madoff's sentence would have been far lighter had he told authorities WHERE the money went and aided in its recovery. He didn't.

Madoff may be in a bind here because large sums of that money likely went to Media Support of Obama's and other Dems 2004 and 2008 Campaigns. If Bernie were to divulge that he would have gotten a lighter sentence but would have been a dead man.

[luke_4u]

Whoops, hold on there a minute rainbow. Bernie may very well have stolen millions or billions, or whatever it was, but there were no "victims" and there were no "innocent" people. The people that you want to describe as "victims", and as "innocent" brought all this on themselves with their GREED and love of money. Had they not been so damned greedy, their money would still be in their bank accounts. These people gambled away their money and lost, the same as if they went to Reno and gambled it all away there. I'm not trying to say that Bernie didn't do anything wrong, but he didn't do anymore than they let him do. Have you ever heard the old saying, "a fool and his money are soon parted" ? Well it's a true saying, and people would be wise to remember it. If you're the "greedy" low life sort and you're trying to get something for nothing, it serves you right to get burnt. I say free Bernie, he's smarter than all of us ! I see in the news that the scuzbucket feds kicked Ruth out of her home today, what a low life cheap shot. She's probably too much of a lady to do it, but she should've spit in their eye on her way out.

[hagardner]

Mr. Cohen is absolutely correct. This is America. When our judges give in to mob rule whether its on the right side or not, we all lose. A reasonable and fair sentence would have been 25-50 years based upon other sentences for similar crimes. If less people would be ruled by their emotions, this would be a far better country and we would all be served better.

[DDictador1]

As to which similar crimes are you referring? Oh right, all the other 50B+ Ponzi schemes? This is by far the largest Ponzi scheme. Maybe if you said, "oh so and so stole 60B and only got 25 years in jail," then maybe your argument would make sense. Right now, I'm not really following your point. I don't really want to hear about the Mob because we are talking about a Ponzi scheme...try to stay on track.

[John_Merritt]

Andrew, the only reason you may be upset is you probably lost a bet to one of your colleagues and now have to pay up. Anybody who deliberately, intentionally, (redundant), aggregiously, maliciously, and with EVIL intentions deserves to get that and more. What he did to these people was unconscionable. While Madoff and his friends lived high off the hog form 20 years, now others are going to have to suffer for that long if not more. The only question I have is 'where did that money really go, and whose cause did it support'?

[Jmailloux]

What this man did was not a crime of a 150 year prison sentence. I feel sorry for this man yes what he did was wrong, but we have much greater problems in our world today than a man who committed a crime to make money. Give him a sentence of a bank robber not a murderer.

[omnibus66]

The base federal sentencing guideline for bank robbery is 20 years. That is, 20 years per bank. So if you use the average amount of about $25,000 loss per bank robbery (federal statistic), Madoff robbed the equivalent of several hundred thousand banks. Given that, his sentence was rather light.

[richnie]

Cohen is right. Bernie should have only got about 20-25 years - in the electric chair.

[hego48]

Shalom Weiss, Keith Pound and Norman Schmidt were sentenced to 845, 740 and 330 years respectively. They may have been in other states but they still dwarf Madoffs sentance. I would presume Mr Cohen knew off these cases but chose to ignore them. Why?. Presumably because they did not fit in with his argument that poor Bernie was being victimised. Given that in the United States you can be sentenced to life imprisonment for stealing cookies, golf clubs or 9 videotapes I fail to see why Bernie Madoff requires our sympathies. Despite Mr Cohens protestations to the contrary it smacks to me of an attitude that white collar crime is somehow not that bad, a victimless crime so to speak.

As an aside, you may or may not agree with the concept or administration of Social Security but it is not a Ponzi Scheme. I say this because an essential element of a Ponzi Scheme is that no one knows that new money is being used to pay existing investors. By definition, The fact that tinpot knows this contradicts his assertions.