As detailed
Comments
The reason B. Madoff pleaded guilty was _not_ to protect his family, contrary to the article final point. He wanted access to the federal prison system — as opposed to a state hell-hole.
Posted by: mptesq | Dec 13, 2010 2:58:41 PM
One other little thought. Would we have to know how Madoff (or Nadoff) felt about his son before deciding how to use the fact of his son’s suicide for punishment purposes? I think there was something written that Madoff and his son have not spoken in years; there are many parents who don’t care at all about their children. Would the judge have to inquire about whether, and to what extent, Madoff loves his son, before deciding whether she could use the son’s suicide as a mitigating factor in punishment?
Posted by: Marc DeGirolami | Dec 13, 2010 1:34:54 PM
For Doug: would it be appropriate in your hypo to punish Madoff more harshly if he had not experienced any severe personal hardship? Suppose he had no family, and therefore could not experience his family’s shame, let alone the terrible grief of his son’s suicide. Could the judge use that as a reason to make him suffer even more, to compensate for comparatively inadequate suffering (compared, that is, to people who do experience such personal suffering)?
Posted by: Marc DeGirolami | Dec 13, 2010 12:58:36 PM
I’d largely agree with Dan here, though I’d add a couple of points (that I don’t think he’d disagree with, though I don’t want to speak for him on it.) First, certain sorts of bad treatment and actions that are not now thought of formally as part of official punishment perhaps ought to be. I have in mind actual, known, prison conditions. When we sentence someone to prison, we are sentencing them to an actual place, and, the sophistical opinion of the Supreme Court aside, the conditions in the prison seem to me to be straight-forwardly part of the punishment. Secondly, while the negative effects of a punishment on people other than those punished are not, I think, properly thought of as part of the punishment itself, they probably ought to be taken into consideration when determining how to administer a punishment. (Dan and Ethan have written on this, of course, in relation to the family.)
As for the new hypothetical, it does seem to me that it would be inappropriate for the judge to change the sentence in that case, for just the reason Dan notes. We might think that the son killing himself is part of “cosmic justice” or some such thing (if we’re inclined to believe in such things, though I think we should not be) but that sort of thing isn’t properly taken into account when deciding legal matters, unless, perhaps, we have some sort of general rule allowing for leniency in similar cases more generally. Even then, it would be best to think of such a rule as an exercise in pity based on bad circumstances in general, and not one where we let “cosmic justice” or something like that lessen our actual punishments.
Posted by: Matt Lister | Dec 12, 2010 1:25:30 PM
You sound answer, Dan, feels too legalistic for my purposes here. So let me refine the hypo, with a slight twist of facts.
Imagine a Bernie Nadoff who commits only a $500,000 fraud, and his complicit son Mark Nadoff kills himself during the period between Nadoff’s guilty plea and his sentencing. Are you asserting that it would be philosophically inappropriate for the sentencing judges to feel a little extra compasion for Bernie Nadoff at sentencing and perhaps impose a sentence of only, say, 9 years of imprisonment when he had been previously thinking of giving Nadoff 10 years?
Posted by: Doug B. | Dec 12, 2010 12:04:48 PM
Any philosophically respectable definition of state punishment would exclude this sad turn of events as part of punishment. It’s not the authorized imposition of a deprivation meant to condemn a supposed crime. To invoke the term here otherwise creates multiple confusions and it is better simply to think of Madoff’s son’s tragic death as a suffering that he faces as a result of his apprehension. Don’t take my word for it though. Check out the discussion of punishment on the SEP by Bedau or Duff.
Posted by: Dan Markel | Dec 12, 2010 10:09:53 AM