by Professor Douglas A. Berman, Sentencing Law and Policy blog (sentencing.typepad.com)

The New York Times has this notable new opinion piece authored by Colleen Eren headlined "Let Bernie Madoff, and Many More, Out of Prison: Compassionate release has to apply to unsympathetic prisoners, if we mean what we say about ending mass incarceration."  I think the spirit of this piece is quite sound, but I am not entirely sold on all of its particulars.  Here are excerpts (with a few lines emphasized for comments to follow):

“Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison. He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people. But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.

Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release. He is as close to the financial equivalent of a serial killer as one might encounter. Still, there is a good argument to be made for compassionate release. It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.

If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm. We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.

The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform. The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims. Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses. The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims. But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst. 

This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row. It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison. But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration. There will always be another high-profile case that can impede the implementation of more humane policies.

Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.” These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners? There are 200,000 people over the age of 55 incarcerated in the United States. The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.

Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison. This is not to say he deserves sympathy, but he has been punished. In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough. Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.

When considering compassionate release, we also have to ask: Has the person been rehabilitated? Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution? (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)

Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy. Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years. It was the offenders’ worst impulses that led them to commit their crimes. Our justice system should appeal to our higher ethical ambitions.”

I agree fully that “retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm.” I also agree fully that criminal justice policy should not “be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst” and that we should be troubled if “high-profile cases continue to drive policy.” And whether a person has been rehabilitated also seem to me to be an important consideration here. But I am not sure granting compassionate relief to Bernie Madoff furthers these interests, and I worry it could undermine them.

For starters, it is critical at this stage to realize that we are not really dealing with a “policy” matter, as the FIRST STEP Act altered the policy for compassionate relief and did so in a way that included Bernie Madoff and all other federal prisoners. Though the FIRST STEP Act has some “worst of the worst” carve-outs in other parts of the Act, but its new process for pursuing compassionate relief applies to all federal prisoners (which is one reason I think it is such an important and valuable part of the Act). In other words, in this context there is no need to worry about creating any “separate category for Mr. Madoff, sex offenders or those ‘others’ in the criminal justice system.” If a federal judge decided to deny Madoff compassionate relief, after considering all the facts of Madoff’s case and all the factors of 3553(a), that judge will be adjudicating and resolving a single case, not creating any broad “criminal justice policy.”

As to the facts of Madoff's case, I have seen little evidence that Madoff has been truly remorseful or rehabilitated.  In fact, this 2016 ABC News article reports that "Madoff has done little to express his remorse or regret to the estimated 20,000 investors in his scheme, many of whom lost their life savings in the $64 billion fraud.  Other than a brief reference to his victims during his sentencing hearing, Madoff has spent a lot of his time behind bars in an effort to rehabilitate his own image and actually shift the blame to the investors for expecting unrealistic returns which he claims is why he set up his fraud."   And though surely Madoff's victims may not speak in one voice on these matters, I suspect many are open to a vision of "justice ... much more extensive than the incarceration," but are concerned that they have not seen any other form of extensive justice achieved here (though a whole lot of assets have been recovered after a decade of work).  Madoff not only committed arguably the worst white-collar offense in US history, but it seems he has not really done all that much to try to make amends.

Though I may be getting too nitpicky here, I wanted to comment on this piece because I found one particular sentence to be particularly disturbing: "The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims."  The truth is, there are tens of thousands, probably hundreds of thousands, of entirely "sympathetic" people in US prisons who could be released without any scruples by the public or affront to their victims.  Just a quick look at "The Whole Pie" of incarceration shows over 275,000 persons imprisoned for drug offenses and another 200,000 in for "public order" offenses.  Not all of these the underlying crimes were victimless, but even if only one of every ten of these prisoners are "sympathetic," that still gets us to nearly 50,000 sympathetic prisons to consider for release.  Mass incarceration is so very troubling in part because there really are quite a large number of sympathetic cases, and I am particularly eager for there to be continued efforts to give voice to, and get relief for, the huge number of sympathetic folks wasting time (and taxpayer resources) in unduly lengthy prison terms.

This piece rightly notes “there are 200,000 people over the age of 55 incarcerated in the United States” and it is rightly concerned that “compassionate release for Mr. Madoff affects not only him but these others and their victims as well.” But these data and my fears tethered to Madoff’s failure to demonstrate remorse run the argument the other way in my view: though I hope there would not be a backlash were Madoff to receive compassionate relief, I worry he could become the poster child for restricting this important relief mechanism for tens of thousands of other prisoners who would seem a lot more sympathetic. That said, I do like imagining a (realistic?) future in which a decision to release Madoff prompts many more federal judges to grant compassionate release to many more federal prisoners. 

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Douglas A. Berman holds the Newton D. Baker-Baker & Hostetler Chair in Law and is the Drug Enforcement and Policy Center Director at The Ohio State University Moritz College of Law.

This article was originally published February 17, 2020, on the Sentencing Law and Policy blog (sentencing.typepad.com), an Affiliate of the Law Professor Blogs Network; reprinted with permission. Copyright, Douglas A. Berman