Madoff: What's the Right Penalty?


Amid a clamor for justice, Bernie Madoff's lawyers are trying to limit their client's punishment for what may be the largest financial fraud in history

It's the question of the moment for many: Is there any punishment severe enough to fit Bernard Madoff's crime? With the perpetrator of what may be the largest financial fraud in history due to plead guilty on Mar. 12 to 11 felonies in U.S. District Court in Manhattan, the issue of an appropriate penalty is about to move center stage. It's hardly surprising, given the magnitude of losses and number of lives shattered, that Madoff's victims have dreamed up all manner of punishments they would like visited upon him.

Nobel laureate Elie Wiesel, who saw his life savings vanish and whose charity lost $15 million as a result of the Ponzi scheme, recently told The New York Times that he wished Madoff would be confined to a solitary cell and forced to watch a continuous video of his victims for five years. Others have called, quite literally, for Madoff's head.

Such intense and public emotion certainly presents challenges to Madoff's lawyers as they try to limit the consequences to their client. "You hope, you expect, and you have faith that the sentencing judge is going to disregard the vitriol… and give a sentence [he] believes is fair," says Madoff's attorney, Ira Lee Sorkin, who himself has been excoriated for defending Madoff. More broadly, some worry that the ire directed at Madoff reflects a widespread antipathy towards business that could jeopardize the status of many executives. "When circumstances are so notorious, such as the situation we're in now with this financial crisis, they can result in criminal prosecutions that behave completely differently than any normal case," says Daniel Petrocelli, a lawyer at O'Melveny & Myers in Los Angeles who represented former Enron CEO Jeffrey Skilling. "The government can bring these cases simply because of bad business judgments or mistakes, and they can get convictions," he says.

Sentencing Likely Months after Plea

That is carrying over to sentences, as well. "For any kind of business crime, any kind of fraud, judges are much tougher on offenders at sentencing in an environment like this," says Alan Ellis, a San Francisco attorney who specializes in representing defendants during sentencing. "They sense the public outcry."

But Reid H. Weingarten, a defense lawyer at Steptoe & Johnson in Washington, D.C., says that shouldn't be too much of a factor. "I'm hopeful and expect that a federal district court will make a ruling on the merits, not based on there being a howling mob outside," he says. "You're in court, you're not in the French Revolution."

Madoff's sentencing will likely not occur until a few months after he has entered a plea. During that period, the government will prepare a detailed pre-sentencing memo chronicling his crimes, a process sure to be particularly complex in this case. At some point later this year, U.S. District Judge Denny Chin will hold a sentencing hearing. Federal guidelines, which are advisory only, will call for a life sentence based on the multibillion-dollar amount of Madoff's fraud and the number of victims. A 2004 federal law also gives those victims a right to submit filings in the case. Many are likely to appear and be heard at the hearing.

Skilling encountered victims after being convicted of fraud in the Enron case in 2006. It was "a surreal experience," Petrocelli says. "It was extremely disturbing to have people who have very strong feelings…approach a microphone within a few feet of your client and simply spew venom for several minutes with the blessing and imprimatur of the court." A federal appeals court ruled in January that Skilling, who was ordered to serve 24 years in prison, should be resentenced, possibly to a lower term. Currently in a low-security federal prison in Littleton, Colo., Skilling has asked the U.S. Supreme Court to review his conviction.

Medium Security is Likely

Where Madoff, who is 70, ends up incarcerated will be a decision for the federal Bureau of Prisons. Concerns among some people that he could end up in a cushy "Club Fed" are misplaced. Such comfy quarters, defense attorneys say, are a thing of the past—and to a great extent existed more in legend than in fact. At the same time, those hoping for Madoff to rot in a Devil's Island-like detention will also be disappointed.

Under Bureau of Prison guidelines, Madoff is likely to end up in a medium-security prison. That's more restrictive and regimented than a minimum- or low-security facility, but it's a far cry from a super-max lockup reserved for the nation's most dangerous inmates. Still, says Peter Henning, a criminal law professor at Wayne State University Law School, "it's no fun."

Orey covers corporations for BusinessWeek.

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