Judge Explains 150-Year Sentence for MadoffAlumnus Hon. Denny Chin '78 in The NYTimes, June 28, 2011
By BENJAMIN WEISER
With the sentencing of Bernard L. Madoff only a week away, Judge Denny Chin received a letter from Mr. Madoff’s lawyer asking for a prison term substantially below the 150-year maximum.
The lawyer, Ira Lee Sorkin, listed several reasons, including Mr. Madoff’s confessing to his sons, knowing he would be turned in; his “full acceptance” of responsibility for his crimes; and his efforts to assist in the recovery of lost assets.
Citing data that showed Mr. Madoff, who was then 71, could expect to live about 13 more years, Mr. Sorkin asked for a term of 12 years — “just short of an effective life sentence,” as he put it — suggesting that Mr. Madoff might be allowed a year of freedom before he died. Mr. Sorkin also proposed another option: 15 to 20 years.
Judge Chin says he understood Mr. Sorkin’s goal. “It’s a fair argument that you want to give someone some possibility of seeing the light of day,” the judge said in a recent interview, “so that they have some hope, and something to live for.”
“And,” he added, “that was one of the struggles in Madoff.”
Judge Chin said he quickly rejected the idea of a 12-year sentence for Mr. Madoff, but pondered whether 20 to 25 years might be acceptable. He ultimately concluded that even that “would have been just way too low.”
“In the end, I just thought he didn’t deserve it,” he said. “The benefits of giving him hope were far outweighed by all of the other considerations.”
Judge Chin would impose a term of 150 years on Mr. Madoff, perhaps the most stunning and widely discussed sentencing in the history of American white-collar crime. In doing so, he seemed to find a way to translate society’s rage into a number.
Two years later, his recollections resurrect all the anger, shock and confusion that surrounded Mr. Madoff’s crimes, and provide a rare peek at the excruciating pressure faced by a judge who had to balance the law, the public’s emotions and his own deeply held beliefs while meting out a sentence that was just and satisfied the court’s need to send a message.
Judge Chin agreed to an extensive series of interviews as part of a broader look into his sentencings in Federal District Court in Manhattan, which will appear in a later article. “Most judges will tell you that sentencing is the most difficult thing we do,” he said.
Mr. Madoff, who was also interviewed, offered his first comments about the judge and the sentence, which occurred two years ago on Wednesday.
Speaking by phone from federal prison in Butner, N.C., Mr. Madoff said he believed that Judge Chin went along with “the mob psychology of the time.”
“Explain to me who else has received a sentence like that,” Mr. Madoff said. “I mean, serial killers get a death sentence, but that’s virtually what he gave me.”
“I’m surprised Chin didn’t suggest stoning in the public square,” he added.
Judge Chin, 57, said he learned he had received the Madoff case from his staff as he entered his chambers on March 6, 2009, after a court proceeding.
He had also received an e-mail that day from Gabriel W. Gorenstein, a magistrate judge who had reached into the wooden wheel that is used to randomly assign cases in the courthouse and selected an envelope that contained Judge Chin’s name.
“Just thought I’d give you the heads up,” Judge Gorenstein wrote.
“Thanks (I guess) for spinning the wheel in my favor!” Judge Chin wrote back.
Judge Chin also learned that day that Mr. Madoff would plead guilty to all 11 counts against him, including fraud, money laundering and perjury.
A few days before the sentencing, Judge Chin’s law clerks and interns joined him for their weekly lunch around a large wooden table in his chambers.
“I said to my interns, ‘What do you think?’ ” he recalled. Two interns, both law students, suggested a term of 75 years, but when the judge asked them why, he said, they had trouble articulating their reasons.
“I said, ‘So basically you’re splitting the baby?’ ” the judge remembered. “And they kind of looked at each other and said yes.” They agreed that it was probably not the best thing to do, he said.
Although the judge did not tell his staff his own views that day, he made it clear that he would not choose a term arbitrarily, nor would he compromise with a number halfway between zero and 150 years.
Judge Chin noted in the interviews that 20 or 25 years would have effectively been a life sentence for Mr. Madoff, and any additional years would have been purely symbolic. Yet symbolism was important, he said, given the enormity of Mr. Madoff’s crimes.
“Splitting the baby, to me, was sending the wrong message,” he said. “Often that’s the easy way out, but as we know from the old parable, that wasn’t the right thing to do.”
The judge reflected on the fraud’s unprecedented scale, its duration over two decades and its thousands of victims. At that point, the judge said, symbolism “carried more weight.”
He began to consider how to articulate the message he wanted to send. The court’s probation department had recommended a 50-year term, while the government had requested 150 years.
He said he struggled to find the right number — “the just sentence,” as he described it.
Another dilemma, he said, rested in the fact that because none of the counts against Mr. Madoff carried a sentence of life imprisonment (indeed, none carried more than 20 years), he could not impose a conventional life sentence.
Instead, he was required to stack the maximum sentences for each count — they totaled 150 years — to calculate a recommended sentence under the federal advisory guidelines. He was not bound by that figure, and he considered going beneath it, he said.
But he decided that 150 years would send a loud, decisive message. He felt that Mr. Madoff’s “conduct was so egregious,” he said, “that I should do everything I possibly could to punish him.”
Moreover, any sentence of less than 150 years could be seen as showing him mercy.
“Frankly, that was not the message I wanted to be sent,” the judge said.
Weighing Victim E-Mails
Typing on a computer in chambers, and on a laptop at home, Judge Chin continued preparing a draft of the statement that he would read in court.
On the Sunday before sentencing, the judge returned to the roughly 450 e-mails and letters that had come from victims. He took notes and sketched out themes as he went, with a view toward working them into his draft:
“Not just the wealthy or institutional clients.”
“Middle-class folks, elderly, retirees.”
“Not just money: It reaches to the core and affects your general faith in humanity, our government and basic trust in our financial system.”
“The loss of dignity, the loss of freedom from financial worry.”
Judge Chin said he was particularly moved by an account of a man who had invested his life savings with Mr. Madoff, then died of a heart attack two weeks later. The man’s widow had met with Mr. Madoff, who had put his arm around her and told her not to worry, that her money was safe with him.
“She eventually gave him her own pension, 401(k) funds,” Judge Chin wrote in his notes. He would include the story in his draft.
He also wrote that he had received no letters on Mr. Madoff’s behalf: “The absence of such support is telling.”
The judge, explaining why he had rejected the defense’s request for a substantially shorter sentence, provided two reasons why the symbolism of a much longer term was important: to send the “strongest possible message” of deterrence, and to help the victims heal.
He also responded to the assertion in Mr. Sorkin’s letter that the “unified tone” of the victims’ statements suggested a desire for “a type of mob vengeance” that would seemingly negate the judge’s role.
“I do not agree,” Judge Chin wrote about the victims. “Rather, they are doing what they are supposed to be doing — placing their trust in our system of justice.”
But as he finished for the night, he said, he felt vaguely unsatisfied with the draft, which he saved on his computer at 9:29 p.m. “I was still struggling with the reasoning,” he recalled.
He decided to review it again the following day. He knew he would be arriving at work early. A former law clerk had e-mailed him to say that more than a dozen television trucks were already lined up near the courthouse.
By the time Judge Chin entered his chambers the morning of Monday, June 29, he had decided what his draft was missing, he said. In explaining how the 150-year sentence was symbolically important, he had neglected to include a third, crucial reason: retribution.
“A defendant should get his just deserts,” he remembered thinking.
He had an intern quickly research relevant cases; he reviewed them and began writing, adding about 100 words to the draft.
He recalled that as he had thought about Mr. Madoff’s conduct, two words came to mind: “extraordinarily evil.”
He put them in his draft.
“One of the traditional notions of punishment,” he wrote, “is that an offender should be punished in proportion to his blameworthiness.” Mr. Madoff’s crimes were “extraordinarily evil,” he added.
In a society governed by the rule of law, he wrote, the message had to be sent that Mr. Madoff would “get what he deserves,” and would be “punished according to his moral culpability.”
He saved the document at 9:12 a.m., printed it and soon headed for the 10 a.m. hearing which, because of the expected crowds, would be held in the court’s expansive ceremonial courtroom.
As Judge Chin listened from the bench, nine of Mr. Madoff’s victims described the devastation he had caused in their lives. Mr. Madoff rose and offered a lengthy apology, saying he felt “horrible guilt.” He turned to face the victims, and apologized again.
To Judge Chin, Mr. Madoff seemed sad, almost as if he were grieving. “But I did not believe he was genuinely remorseful,” he recalled.
Judge Chin then began reading his statement from the bench, adding a few phrases to acknowledge what he had seen and heard in court that morning.
He cited Mr. Madoff’s victims — “individuals from all walks of life” — and told the story of the widow who had been reassured by Mr. Madoff. “Now, all the money is gone,” the judge said.
Judge Chin read his passage on retribution, which, after the length of the sentence itself, appeared to have the greatest impact. In the headlines and news accounts that followed, the words “extraordinarily evil” seemed to be everywhere.