Why The Madoff Sentence is Too Long

Why The Madoff Sentence is Too Long

June 30, 2009
Originally published in The National Review Online

Bernard Madoff is an evil con man. He should spend the nearly all the rest of his miserable life in prison. But the 150-year sentence he received is too long. In fact, the something close to 12-year sentence his defense attorney recommended is pretty reasonable.

Let’s begin with the basics. Penologists typically see three purposes for putting people in prison: Protection of society, deterrence, and punishment. Putting Madoff in prison, of course, does nothing to protect society. He harmed people through the bloodless act of stealing their money. So long as he doesn’t start an investment firm — something that’s not going to happen — he’s no threat to society. Deterring future cons along the same lines as Madoff’s, of course, provides a pretty good reason to imprison Madoff. But a longer sentence seems unlikely to change the deterrence factor very much. No high-living investment manager wants to spend any time in prison and the certainty of any sentence for fraud provides sufficient deterrence. Nearly all sophisticated white-collar criminals operate on the basis that they are too smart to get caught. Finally, one can turn to punishment. And Madoff deserves that. But even a 12-year sentence is a pretty severe punishment. His life expectancy is 13 years and the rigors of prison life — particularly for a man used to living at the height of luxury — hardly seem likely to extend that. Even with the shortest sentence on the table, in short, Madoff would probably die in prison anyway. The sentence length he received is little more than a bit of judicial showmanship. It has no useful purpose.

Finally, Madoff also displays many of the factors that tend to reduce individuals’ sentence length. He had strong ties to his community, a previously clean criminal record, and an apparently strong family life. An ordinary defendant would likely be able to use these factors to argue for a reduced sentence. In fact, federal probation administrators recommended “only” 50 years for Madoff. There’s no single correct number for Madoff’s sentence length, but the 150-year sentence he received is very likely too long.