Victims had inflated role in Madoff’s sentence

Last week, Bernard Madoff was sentenced to 150 years in prison for a massive investment fraud, estimated by prosecutors at $171 billion. According to the Wall Street Journal, U.S. District Court Judge Denny Chin was moved by the 113 written victim impact statements filed with the court, as well as the nine victims who appeared in court to describe the devastating consequences of Madoff’s diabolic financial scheme.

A little more than five years ago Madoff’s victims would not have had the opportunity to address the court. Prior to 2004 only a victim “of a crime of violence or sexual abuse” had the right to appear before the court at sentencing and address the crime’s impact.

In 2004, Congress passed the Crime Victims Rights Act (CVRA). The CVRA expanded the right to be heard to “any person directly or proximately harmed as a result of the commission of a federal crime.” The CVRA was written intentionally broad in order to afford all victims of federal crimes an opportunity to address the court in person.

Prescient argument

During the legislative debate regarding CVRA, Sen. Orin Hatch, R-Utah, made a prescient argument regarding the arbitrary nature of the law as it existed at the time. Hatch argued, “Consider, for example, the relative losses of two victims. First, consider the plight of an elderly woman who is victimized by a fraudulent investment scheme and loses her life’s savings. Second, think of a college student who happens to take a punch during a bar fight which leaves him with a black eye for a couple of days. I do not believe it to be clear that one of these victims is more deserving of protection than the other.”

In 2005, a U.S. District Court in Utah found, “the CVRA provides victims the right to reasonably be heard at any public proceeding involving release, plea, or sentencing. This provision is intended to allow crime victims to directly address the court in person ... to the extent the victim has the right to independently address the court, the victim acts as an independent participant in the proceedings.” The CVRA has been applauded as a tool to provide equal participation for victims in the federal criminal court system.

At the age of 71 any sentence for Madoff in excess of 20 years was essentially a life sentence. The federal probation department recommended 50 years in prison. Madoff’s attorney asked for 12 years. He told Judge Chin that the victims were looking for a “type of mob vengeance.” He urged the judge to hand down a sentence “proportionate” to the crime.

Judge Chin essentially ignored the argument made on behalf of Madoff. On the other hand, Time.com reported that the judge was “particularly moved by one victim’s statement that described how Madoff assured a woman, whose husband had recently died, that her money was safe and encouraged her to invest more within weeks of the scandal being exposed, even though he knew it was all a fraud.”

Madoff will most certainly appeal his sentence, and it is likely that his sentence will be reduced. That is not to say that Madoff’s conduct is any less egregious or that the fraud he perpetrated did not have a devastating effect on thousands of investors and the people who sought help and support from the numerous charities he defrauded.

Raw emotion

The CVRA was not created to exact revenge or to cow tail to the anger and resentment of the victims of crime. The justice system is about more than vengeance. A judge should not bow to public sentiment. In this case, it appears that Judge Chin abandoned the core principles of the federal sentencing guidelines and was swept away by the raw emotion that comes with the agony of irreparable hardship.

In the long run, Judge Chin’s sentence may do more to portray “victim impact” as vicarious vigilantism than equal participation in the search for justice.

X Matthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com.