July 04, 2009
The Sentencing Escalator
Posted by Jayne Barnard

So, before leaving the country, I’ve been pondering my queasiness with 150-year prison sentences. I have no problem with an effective life sentence or even a longer-than-life sentence, but these blockbuster sentences somehow seem just wrong. I tried to figure out just what the problem is, when I realized that the 150-year sentence in the Bernie Madoff case is an artifact of the charges levied against Madoff by the U.S. Attorney. Recall that the government charged, and Madoff pleaded guilty to, 11 counts of criminal behavior with a collective maximum sentence of 150 years. Those charges and that maximum were the basis for the sentence Judge Denny Chin ordered.

But consider this: J. Allen Stanford, another Ponzi schemer, was just charged with 21 counts of criminal behavior with a collective maximum sentence of 250 years.

Now, if the judge in Stanford’s case were to impose the statutory maximum would it make any sense? 150 years for a $60 billion Ponzi scheme that lasted decades and swept up thousands of victims (Madoff); 250 years for a $6 billion Ponzi scheme that lasted just a few years and ensnared far fewer victims (Stanford)?

You can see the problem: the U.S. Attorney can (and frequently does) manipulate the sanction options available to the sentencing judge just by piling on causes of action. The U.S. Attorney’s office in Houston took some time and exercised some care in making the charging decision in Stanford (whom they expected to plead not guilty). Presumably, with a few more weeks and a more combative defendant, the U.S. Attorney’s office in the Southern District of New York could have come up with more charges and therefore sought many more years in their indictment of Bernie Madoff.

One can easily see a sanctions arms race among districts and increasing sentencing disparities of the sort the Sentencing Guidelines were intended to curb.

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