Eleven years ago, in the aftermath of the financial crisis, Bernie Madoff’s Ponzi scheme was exposed, resulting in an overwhelming loss of $ 17 billion for investors. Philanthropy closed the people’s savings and college funds; two investors and one of Mr. Madoff’s sons committed suicide.
Recently, Mr. Madoff returned to the news, applying for his release from the federal prison. He enters the final stages of kidney disease and has less than 18 months to live. The prison office denied his appeal, as do 94 percent of those submitted by prisoners. However, the reforms stipulated in the First Step Law of 2018 allow him to submit an appeal to the sentencing court.
Even some who claim to hate the scourge of mass incarceration argue that Mr. Madoff should be denied his release. It is close to the financial equivalent of a serial killer as one might encounter. Still, there is a good argument to be made for clemency release. It has nothing to do with Bernie Madoff, and how we feel about his heinous acts.
If our societal goal is to reduce imprisonment, then we will have to face the disturbing truth that punishment cannot be our only punitive goal, and justice for victims must be more comprehensive than imprisonment for those who have caused harm. We urgently need to transform our cultural impulse for cruel, degrading, and prolonged punishment.
Rapid and partial reactions to Mr. Madoff’s petition, including from liberals who claim they want to end collective imprisonment, reveal obstacles to transforming transformative criminal justice. The truth is that there are only a small number of completely “sympathetic” people in prisons who can be released without any public disruption or offending their victims. Detainees for violent crimes make up a large majority of the prison population, although there is a false narrative that most people are there for non-violent drug crimes. The pain and harm suffered by their victims is real, and this is also true for the victims of Mr. Madoff. But criminal justice policy cannot be built in response to our feelings about individual cases, which are known as “the worst of the worst cases”.
This “worst of the worst” argument, for example, has long been subjected to the death penalty, which remains in 30 states despite its racial, class and other faults that led to hundreds of innocent people to be executed. It is also part of the reason why the Democratic presidential candidates, with the exception of Bernie Sanders, do not support granting voting rights to those in prison. But creating a separate class for Mr. Madoff, sex offenders, or “others” in the criminal justice system will not help end the mass prison. There will always be another prominent case that could impede the implementation of more humane policies.
Those on the left who are demanding criminal justice reform emphasize “sympathy” in their attempts to rewrite dialogue about people who have committed crimes. Conservatives use the word “redemption.” These words bear a deep responsibility: What do they mean for sympathetic and unsympathetic prisoners? There are 200,000 people over the age of 55 imprisoned in the United States. The issue of the clemency release of Mr. Madoff not only affects him but also those others and their victims.
Mr. Madoff lost both of his children while in prison (one of them died of cancer) and was unable to attend their funerals; he is a social outcast, almost universally condemned; and he spent 11 years in the federal prison. This does not mean that he deserves sympathy, but he was punished. In Norway, where Anders Breivik has been sentenced to 21 years in prison for a horrific mass murder, she will be considered 11 years cruel enough. Our American punishment has tarnished our sense of what is an appropriate judgment for serious crimes.
When thinking about euthanasia, we also have to ask: Was the person rehabilitated? Does the punishment serve legitimate punitive objectives (such as deterrence and public safety) other than punishment? (There is something to consider, for example: The number of Ponzi’s plans that have been prosecuted has increased, and not after Mr. Madoff’s arrest.)
Criminal justice reform will be much less than the dramatic institutional changes needed if the overriding motivation remains punishment, and if prominent issues continue to advance policy. Emotional release should be assumed for those suffering from aging, acute illness and death after they have spent at least 10 years. It was the worst motives of the perpetrators that led them to commit their crimes. Our judicial system should appeal to our higher moral aspirations.