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June 29, 2009 12:57 PM

Madoff Sentence "Legally Suspect And Grossly Unfair"

Posted by Andrew Cohen
(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"


(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.
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by avoiceofreason100 September 15, 2009 1:15 PM EDT
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.
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by billcholee July 10, 2009 9:34 PM EDT
a bullet in the head is what a lot of people are thinking. isn't it??
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by j_mcdonald-2009 July 7, 2009 4:27 AM EDT
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.
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by tautomer July 6, 2009 10:56 AM EDT
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.
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by luke_4u July 2, 2009 7:23 PM EDT
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.
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by July 1, 2009 10:49 PM EDT
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.
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by DDictador1 July 2, 2009 4:17 PM EDT
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.
by John_Merritt July 1, 2009 2:51 PM EDT
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'?
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by Jmailloux July 1, 2009 2:12 AM EDT
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.
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by omnibus66 July 1, 2009 7:41 AM EDT
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.
by richnie July 1, 2009 1:45 AM EDT
Cohen is right. Bernie should have only got about 20-25 years - in the electric chair.
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by hego48 June 30, 2009 8:24 PM EDT
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.
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by formrusmcsgt June 30, 2009 8:10 PM EDT
Cohen's an idiot.

Madoff wouldn't have survived the 25-year sentence Cohen's calling for so what difference does it make how many years will be left unserved after Madoff's death?
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by DDictador1 June 30, 2009 4:26 PM EDT
I hope the author of this article wrote it to stir controversy because it is honestly one of the most nonsensical pieces I have read to date. That being said, I do not understand his argument against the LARGEST fraud in history, supposedly stemming from one person, receiving the LARGEST sentence...seems logical to me. The Madoff case far exceeds the legal monetary guidelines for any fraud by a single person in US history. Denny Chin was absolutely correct in sending a stern message to future fraudsters. I can't even believe the moron that wrote this article wouldn't embrace this message... this is America, let's put some real legal standards in place to prevent future frauds of this magnitude. Oh yeah, let's fire everyone at the SEC too- great preventative work this year!
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by tincup356 June 30, 2009 6:38 PM EDT
Bernie was not running the biggest fraud in the world,,,,,,that record goes to the United States government,,,,,have you never heard of Social security?,,,,,,It is the same type of fraud except,,,,it is much bigger than Bernie's scheme,,,,,,and it robs EVERYONE who works and pays in. Congress is full of greedy white collar suit and tie TREASONOUS scumbags,,,,BOTH parties.
by hankster81 June 30, 2009 4:12 PM EDT
Where does it say that prison sentences are not revenge, per se? Revenge is certainly a factor as is retribution. Madoff cannot be rehabilitated certainly, so the #1 motivator in this sentence is revenge closely followed by deterrence. 150 years in a case like this is permissible so what's the wrong in it given the gravity of this monstrous crime. The reasoning here is very intellectually lazy.
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by ABM_21 June 30, 2009 11:00 AM EDT
I see the reasoning behind your statement, but I disagree with them wholeheartedly. To hint that maybe a judge bowed to pressure in this particular case is absurd. Mr. Madoff schemed and lived off the money his clients gave him to invest for him. His was a reputation forged by deceit and lies. Not only did he bilk the people who gave him their money---in some cases, their life savings---to invest on their behalf, he actively recruited more victims. There is no sentence harsh enough in all of jurisprudence for Mr. Madoff. For some, 150 years may be too much. For me, it doesn't even come close enough to punishment for this guy...
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by davidvm--2008 June 30, 2009 9:56 AM EDT
All of the other sentences you specifically mention are for crimes that occurred over relatively short time frames (2-3 years) and involve far less money (even taken together).

These other criminals were also parts of larger groups that acted in concert - the Enron disaster could not have happened without complicity from several corporate officers and a well-known well-respected auditor.

In the Madoff case the fraud seems to have lasted 17 years, and while there was an auditor involved it was a single individual. Madoff basically committed his fraud on his own (although it could not have continued without the trust of those around him who chose not to verify anything he told them).

I think those factors - magnitude and length of the fraud and individual culpability - make this case unique and the sentence sound.
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by mmlissi237 June 29, 2009 11:27 PM EDT
Grossly unfair? When you consider all the people he stole from and all the years of hard work it took for these people to save their money it does not even compare to the sentence he received. He stole money some people took an entire lifetime to save...30, 40, 50 years of hard work gone. One poor man in his 90's has to work at a grocery store now because he has no money. Madoff and all of his accomplices (and you know he has them, he is not smart enough to do this alone be realistic)should rot in hell and suffer like many of his investors now have to do. That man makes me sick and I hope he is utterly miserable for the rest of his life.
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by hennighg June 29, 2009 7:49 PM EDT
Unfair? Well, then, why weren't those others given longer sentences? Madoff was eating haute cuisine on retired people's money. Some poor guy thought his retirement was set, but Madoff decided he needed tailor-made suits, instead. Unfair? Not hardly. This fall under the category of the justice system getting it RIGHT. Unfair? I can't believe this stupid boob SAID that!
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by jerryb2339 June 29, 2009 7:30 PM EDT
The writer is wrong to chastise the judge - for judging. The federal sentencing guidelines have proven to be mostly draconian - they were designed to make things "consistent" and "fair" and all they did was to do away with the judgement of a judge.

These guidelines have gradually disappeared as the courts have recognized that judges should be allowed to judge a defendant given the particular circumstances/facts in the particular case (that's why sometimes a better result is probation and sometimes a better result is 150 years).

That's what we expect our judges to do (and appeals courts are there to simmer down overzealous sentences) - so let the writer close his pie hole - and let the judiciary do what they know how to do - to judge fairly and in the context of the crime.
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by jerryb2339 June 29, 2009 7:25 PM EDT
The writer is absolutely wrong re the sentencing of Madoff. The Federal Sentencing Guidelines are draconian in that they dictate what a judge must use when sentencing criminals....these guidelines took away a judge's ability to JUDGE. The guidelines are gradually being phased out by judges who have enough tenure (and, therefore, guts) to step outside them - and become judges again.

This means judges SHOULD use their judgement when sentencing - and 150 years, as absurd as it may sound, is fair in some cases (this one) and unfair in others - just as probation is fair at times and not fair at other times.

So the writer here is completely wrong in chastising the judge....for JUDGING. Was the judge "spirited" or over-zealous in his judgement of Madoff? It's not for us to say - it is the prerogative of the judge.
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by rushlimpdrug June 29, 2009 7:11 PM EDT
Andrew Cohen is a jacka-ss.

On the other hand if Madoff were set free to walk the streets,
he wouldn't last very long walking by some of his victims.

I say free the b-astard and let him run a gauntlett.
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