Wednesday, June 24, 2009


Bernie Madoff has made his pitch.

Twelve years, Your Honor. Or if you won't go for that, fifteen to twenty. Oh, and don't listen to all that those victims said.

Madoff stole (there's no other word for it) some $50 billion dollars. That's staggering.

He took the life savings from who knows how many people. He destroyed retirement. He destroyed lives. Some of those people were wealthy. Others perhaps just comfortable. Regardless, they hurt.

He took money from foundations and major donors to charity, too. That means good causes (of every stripe and pretty much regardless of what you or I might think worthy) are hurting.

And he hurt the economy as a whole, at least to some extent, helping to deepen the economic turmoil of the last year. That means that, in some sense, we're all his victims.

How does one make an argument for something akin to leniency in the face of those facts and of the calls for Madoff's head. His lawyers wrote
We have read the unfortunate number of Victim Impact Statements and recognize that terrible losses have been suffered as a result of Mr. Madoff's conduct, and we have advised Mr. Madoff of their tenor and heart-wrenching stories of loss and deprivation. . . . Both he and his counsel acknwoledge the scope and magnitude of those losses and understand the victims' calls for reprisal. . . . Nevertheless, we believe that the unified tone of the victim statements suggest a desire for a type of mob vengence that, if countenanced here, would negate and render meaningless the role of the Court.
Victim's voices as the voice of the mob? Pay no attention to the voices behind the curtain? You gotta be kidding.

In fact, the law is all for judges listening to victims of crime and their representatives. The formal explanation is something like, "It's necessary to assess the specific harm caused in order to determine the appropriate sanction." There's a certain logic to that, but it only works when the specific harm can be quantified.

How much did he steal? How many people did he actually hurt? Put it into a grid and you have something like the basic idea behind the federal Sentencing Guidelines. The Guidelines also take into account things like the offender's criminal history and provide other aggravating and mitigating factors. They're a maze and something of a nightmare in practice, but as an idea - and especially when they are treated as the merely advisory aids to sentencing that they are now - they make sense.

But the judge doesn't need to hear from individual victims, say, those who want to vent or who are just especially articulate. And I don't think the judge should be permitted to. Sentencing should be about justice tempered with mercy. But neither of those things has much to do with the emotional responses, the feelings, of crime victims. And, certainly, neither has to do with prosecutors who see their jobs as being agents of the victims of crimes.

Criminal law is not about private wrongs. It's about public ones. The offender's behavior has harmed the body politic and the criminal case is the body politic's response.

The individual victims are something else. Tort law is designed to provide them with a means of seeking satisfaction. It's the mechanism for private wrongs.

I took off here from Bernie Madoff, but the same is true, maybe more typically, of street crime.

Prosecutors too often agree to reasonable plea offers only when victims approve, as if the prosecutors are the representatives of the victims, their lawyers. They listen and obey, too often, the demands of the media. They respond as if it is their job to make whole those who suffer - and as if they can. The truth is that they can't and they shouldn't.

It sounds harsh to say that victims should have no say in the world of criminal justice. But it's true.

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