There is Madness in the Madoff Punishment, Too

Are we looking here at a return to the kind of circus-like justice found in the Roman Colosseum two thousand years ago, designed as much to entertain as it was to penalize?

Many things come to mind with the sentencing in Manhattan federal court of Bernard Madoff for the almost incalculable fraud he inflicted upon so many victims. Unfortunately, what stands out most about yesterday’s courtroom drama is that the extravagance of the crime appears to have been surpassed only by the exaggeration of the punishment.

What U.S. District Judge Denny Chin handed down in the biggest Ponzi fraud in American history is neither an effective deterrent nor a measured response to the offense. Here is a case where not only does the punishment overshadow the crime, making Lady Justice seem like something of a carnival figure, but it will also undermine the need to take white collar misconduct and the culture that permits it more seriously.

A century-and-a-half in prison for a man in his seventies will not deter future offenders. What it will do is minimize by comparison the crimes of people like Bernie Ebbers, Dennis Kozlowksi and others who are serving 25-year terms for their frauds. That is a mistake. What has been created is a scenario where every new boardroom villain and Wall Street fraudster, no matter how atrocious their crimes, will be able to claim “at least I wasn’t as bad as Madoff,” and look for understanding from the courts and the public on that basis. And by any comparative conviction, they will be correct.

Few voices have been as demanding of reform or more alarmed about the state of ethics on Wall Street as those raised on these pages. The crimes Madoff committed, and the magnitude of the betrayal he mounted, are undeniably deserving of a sentence that will see him spend much of the rest of his life behind bars. But what does adding at least 125 years of imprisonment to a life that will never see them do for the fact, or appearance, of justice? Will they keep his embalmed body in his prison cell for a century longer? Does it bring more solace to his victims? Are we looking here at a return to the kind of circus-like justice found in the Roman Colosseum two thousand years ago, designed as much to entertain as it was to penalize? Excessive conduct in human behavior, however repulsive, cannot excuse the vice of excess in the administration of justice.

What the sentence does is give the false impression that the criminal justice system and securities regulators, like the SEC, who dropped the ball on the Madoff file and only re-discovered it after he confessed to his fraud, have really done something big about the problems of crime and greeed on Wall Street. They have not.

If Madoff is to be the benchmark by which future white collar crimes are to be judged, we are in serious trouble. We cannot permit other egregious offenders who bring down entire companies, wipe out thousands of jobs and injure millions of investors, to be viewed as petty thieves on the new Madoff scale. It is hard to make the case that Madoff’s misdeeds, monstrous though they may have been, were greater than the combined crimes of Bernie Ebbers (WorldCom), Jeffery Skilling (Enron), Dennis Koslowski (Tyco), Sanjay Kumar (Computer Associates) and Conrad Black (Hollinger). But on a punishment basis, that’s exactly what this sentence says.

The larger risk, too, is that the need to change the culture of Wall Street and those who skate close to the edge, will be obscured by the record-shattering nature of the sentence. Why the SEC did not do more to detect Madoff’s three-decade-long scam, even when presented with numerous clues, has never been adequately explained.  Nor has there been any serous 9/11 type commission to examine the causes and failures leading to the worst collapse of credit and financial confidence since the 1930s. At the rate things are moving, it may take a century-and-a-half before those issues are fully addressed. Mr. Madoff does not have 150 years to be punished, as society has indicated it prefers, but neither has society or its system of capitalism anything approaching that amount of time before they come to grips with how such things can occur and what needs to be done to raise the standards of ethics in the handling of other people’s money.

The court of public opinion needs to speak on that front with a force equal to what emanated from the Pearl Street courtroom yesterday.