June 29, 2009
"Extraordinarily Evil"
Posted by Jayne Barnard

A few more thoughts about the Madoff sentencing this morning.  At 9:56, Bernie Madoff entered the courtroom looking like an old, old man.  He actually seemed to be doddering in.  When the hearing was completed, he gave a brisk nod to his lawyer, Ira Sorkin, then smartly walked -- very business-like -- out of the courtroom.  He actually seemed transformed.  Maybe it is some perverse source of relief to know that you're going away forever and ever instead of just forever.

For the victims, though, there was little euphoria.  Only a few people in the courtroom shouted when the sentence was announced.  Judge Chin had discouraged the allocutors from complaining about the SEC or the SIPC trustee.("This is not the time to criticize the government.")  He also made clear he had no authority to sentence Madoff to a particularly odious prison. 

There was talk, of course, about Madoff's marriage.  One victim said "I have a marriage made in heaven.  You have a marriage made in hell."  No, said Madoff, "I lied to my wife ... and she still stands by me."  You think she is "silent and not sympathetic.  That's not true." "

The most powerful voice in the room was that of Judge Denny Chin in a closely-scripted but emotionally resonant ruling.  He cited the many middle-class victims of Madoff's fraud -- a theme deftly created by the U.S. Attorney's Office.  He recounted the story of a widow who had gone to Madoff's office to thank him for protecting her family's weatlh.  "You're safe," Madoff assured her.   Judge Chin noted the many decisions victims had made -- sometimes for decades -- based on their mistaken belief in Bernie Madoff.   

I was present in the courtroom primarily to observe the victim allocution.  Some of the allocutors could be faulted for being a little star-struck ("when I was being interviewed by Katie Couric.....") but all of them were candid, poetic, and powerful advocates for their position. No one's time was wasted by listening to 45 minutes of victim allocution. 

In the end, Judge Chin rejected Sorkin's suggesion that there was "something absurd" about a 150-year sentence.  Not in this case.  Not for a crime as "extraordinarily evil" as this one.

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Comments (11)

1. Posted by Ron Colombo on June 29, 2009 @ 14:08 | Permalink

At the risk of being tarred and feathered, am I the only one who is struck by the term "extraordinarily evil" as applied to the Madoff fraud?

I happen to think that there are many things in the world today that are truly "extraordinarily evil": the 9/11 attacks; the beheading of Nick Berg; genocide; murder; child abuse; rape.

But stealing someone's nest egg -- even stealing a lot of people's nest eggs -- just doesn't seem to rise to that same level.

Madoff's actions were certainly very bad -- yes, even "evil." But "extraordinarily evil"? To me, that's hyperbole.

Perhaps my sensitivity here is due to a fear that, as a culture, we've largely lost a sense of what is truly evil. And I don't think that referring to Madoff's crimes as "extraordinarily evil" helps matters. It blurs some important distinctions - distinctions such as the value of human life, and human dignity, on one hand, versus the value of material things and goods on the other hand.


2. Posted by Christine on June 29, 2009 @ 14:53 | Permalink

Ron, I think you have a great point. I wrote a short essay two years ago comparing the depletion of retirement accounts as our biggest nightmare to what has historically been our greatest fear: murder, as exemplified in the random murders in In Cold Blood. Now, our greatest fear is that we will outlive our savings, and our "castle" has become our retirement accounts. We pass laws creating special sanctions, not for breaking into residences after dark with intent to commit crime, but for financial frauds that affect a lot of people and a lot of money.

Madoff's ability to smile as he stole all of his friends' and friends of friends' money seems to reflect that on the inside he is evil, and perhaps his coldness to the fate of others would have also caused him to be neutral as to the value of human life. But yes, his actions should not be put on par with other human tragedies spawned by other evil persons.


3. Posted by Jake on June 29, 2009 @ 19:04 | Permalink

Relativist nonsense.

In a society in which financial security is paramount (whether that should be so is beside the immediate point), robbing other people of their financial security is extraordinarily evil.

The 150-year sentence is symbolic, nothing more, given Madoff's age. And it is a worthy symbol.


4. Posted by Jayne Barnard on June 29, 2009 @ 19:19 | Permalink

So, if I punch an old man in the face, I am evil. But if I steal an old man's money and make him sick with worry about how he will pay the rent and buy food and agonize about whether his grandchildren will still love him if he can't pay their tuition, that's not so bad? The loss of money is not just about the money -- it's also the about the loss of trust in others, loss of hope and, often, loss of companionship. Not because their friends leave the victims but because the victims leave their friends, often in shame. Someone who knowingly exposes his victims to this kind of damage is every bit as bad as a mugger. Maybe even worse.


5. Posted by Ron Colombo on June 29, 2009 @ 20:20 | Permalink

Jayne, of course it's quite bad to steal someone's life savings. Madoff deserves his 150 years - I'm not quibbling with that. A special corner of Hell is probably reserved just for him. That said, I'd reserve the label "extraordinarily evil" for something worse than crimes against property.

I could not agree with Christine more: we've elevated our bank accounts and possessions to a level of unmatched importance. Are there not more important things in life, such that the label "extraordinarily evil" would simply not apply to a financial fraud, regardless of its magnitude?

I guess the fact that, to many at least, Madoff's crimes rank among the very worst crimes conceivable is the hallmark of a thoroughly materialistic society (such as the 21st Century West).

In ages past, one response to this fraud would have been: "thank goodness it's only money - at least you still have your health." In ages still further past, one response would be: "Lay not up to yourselves treasures on earth: where the rust and moth consume, and where thieves break through and steal. But lay up to yourselves treasures in heaven: where neither the rust nor moth doth consume, and where thieves do not break through, nor steal." [Matthew 6:19-21]

I feel for Madoff's victims. (Heck, I get bent out of shape when the supermarket cashier fails to correctly count a 45 cent coupon to toward my purchases.) But I'd simply consider the kidnapping and rape of ONE single child so much more incredibly "evil" than the theft of any amount of money, that I could not bring myself to use the phrase "extraordinarily evil" to anything Madoff did. It's ballparks apart, in my humble opinion, from the types of acts that are truly "extraordinarily evil."


6. Posted by Jayne Barnard on June 30, 2009 @ 4:05 | Permalink

So, Ron -- you don't want to quibble about the 150 year sentence. Actually, I do. Now we disagree with each other on two separate issues. I think Madoff was extraordinarily evil and you do not. You think the 150-year sentence was appropriate and I do not.

Judge Chin suported his historic sentence by saying it provided retribution, deterrence, and some recognition for the victims' harms. Well, the Presentence Report, written by professionals, stated that a 50-year sentence would have been sufficient to achieve the judge's goals. Let's split the difference and say 100 years. Legitimate sentencing has to have some sense of proportionality, doesn't it? I would hope that sense of proportionality would include proportionality to the defendant's actual life. As much as I was happy to see Judge Chin lock Madoff up and throw away the key, I am still very uneasy about the 150 years.


7. Posted by Julian Velasco on June 30, 2009 @ 6:16 | Permalink

So, I have to disagree with my friend, Ron. I think the term "extraordinarily evil" is appropriate.

First, the crime is both evil and extraordinary.

Second, it is not "merely" a property crime. The victims are not limited to the super-rich, who will have to make do with two homes and three Mercedes as a result of the loss. It's also plenty of little people. Imagine how many people's lives are ruined -- retirees who won't have money for necessities much less healthcare -- and how many people won't be helped -- because charities are ruined or have to cut back. He is responsible for all the hardship he's caused including, to some extent at least, any deaths that result indirectly.

Third, I'm just not sure I would consider "the kidnapping and rape of ONE single child so much more incredibly 'evil' than the theft of any amount of money." Again, think of the indirect consequences of the theft. What if the money is stolen from a charity dedicated to the prevention of the kidnapping and rape of children and, as a result, the charity folds and kidnappings and rapes increase? Or if the money is stolen from a charity that feeds starving children in locations that no one else services, so that people die as a result?

I understand what Ron is trying to say. Property crimes and crimes against persons are different in kind. I agree. But I think too often we white collar folk find it easy to consider white collar crime as inherently less evil than blue collar crime. And sometimes, a crime that is in kind less evil can, by degree, become much worse. In my opinion, this is such a case.

Besides, unless a crime is extraordinarily evil, I don't think it's fair to say, as Ron does, that "A special corner of Hell is probably reserved just for him." I am much more willing to say that his crime is extraordinarily evil than to suggest that Madoff himself is.

FWIW.


8. Posted by Ron Colombo on June 30, 2009 @ 9:15 | Permalink

Julian's distinction is an important one, which I neglected to make - there is a difference between Madoff's actions (objectively speaking) and his own subjective moral culpability. And although I said that Madoff is "probably" a very wicked man / condemned for all eternity, unlike our past President, I don't have the power to look into his eyes and see the state of his soul.

Thanks to all for engaging me on this thread - it's been interesting, enlightening, and enjoyable (for me at least!).


9. Posted by Christine on June 30, 2009 @ 9:23 | Permalink

I hope others find this theoretical debate as interesting as I do. The common law obviously punished crimes against the person more harshly than crimes against property. Perhaps because when life was nasty, brutish and short, being maimed or killed (and leaving your family orphaned/widowed) was common and had dire collateral consequences. However, most life-giving wealth was either tied up in land (which is hard to steal) or in labor (which is stolen by crimes against a person). Now, in our service industry, most people's labor isn't tied to bodily integrity and medical technology can heal many more harms. Life insurance and health insurance is also prevalent. But, Madoff's crimes can destroy a family more completely than a crime against a person.


10. Posted by MDF on June 30, 2009 @ 17:33 | Permalink

Reminds me of Judge Whitey's opinion in "State v. Bender, et. al.: "The charge is bank robbery. Now, my caddie's chauffeur informs me that a bank is a place where people put money that isn't properly invested. Therefore, robbing a bank is tantamount to that most heinous of crimes, theft of money."

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