Last March, 70-year-old Bernie Madoff pleaded guilty to 11 criminal counts for orchestrating a massive $65-billion Ponzi scheme. His max sentence: 150 years. What will be his sentence? This is the $65-billion question. Much of the discussion has centered around what would be a fitting punishment for Madoff. Many of Madoff’s investors were non-profits who could be characterized as victims of affinity fraud. Indeed, he was labeled by one writer as the “enemy of the Jewish people.”

Some, as Slate writer Harlan J. Protass, and law professor and blogger Douglas A. Berman, have taken this opportunity to highlight the shortcomings of federal sentencing guidelines. Protass suggests Madoff, like other white collar criminals charged in federal court, may deserve some sympathy as white collar criminals sometimes receive sentences which are disproportionate to the crime. Others, as New York Times writer Ralph Blumenthal, have discussed Madoff’s proposed location in Dante’s Inferno and the nine circles of hell.

Being buried in a pit of ice amongst the company of Judas and tormented by Lucifer himself may seem a bit harsh for a man who was a financial swindler and for a large part swindled other wealthy people. Yet, it is not unreasonable to call for Madoff to be severely punished. Madoff deserves to be severely punished. In terms of culpability, Madoff knew what he was doing. He was well-versed in the financial market and investment arena, having previously served as non-executive chairman of the NASDAQ Stock Market. He intended his actions and their subsequent consequences – after all, this was a Ponzi scheme. One does not accidentally pay “profit” returns to investors that are in fact funded by their own money.  And the end result which was Madoff’s own financial gain – similarly was very much intended. Indeed, Madoff allegedly acknowledged to his sons that what he was running was in fact, “one big lie.”

On the other hand, locally in Southern California this week a man was recommended to die for a crime in which he may not have intended the actual consequences of his actions. After deliberating for about a day in the penalty phase, a jury recommended Raymond Oyler be sentenced to death for setting the Esperanza fires in 2006 which eventually killed five firefighters. Arguably, Oyler was interested in setting fires, not in causing the tragic deaths of five dead firefighters, ages ranging from 20 to 43. According to the testimony at trial, the five firefighters were killed as they tried to defend a house whose residents had already been evacuated. A “burn-over” occurred during the operation in which flames, fueled by high winds, shot up the hillside and quickly engulfed the victims. Now Oyler faces the death penalty.

Similarly, consider the case of Juan Manuel Alvarez, who was convicted last year of 11 counts of first-degree murder for parking his SUV on Metrolink tracks near Glendale in 2005 and causing a train crash. Alvarez testified that he did not intend on killing anyone but himself, yet changed his mind at the last second but was unable to dislodge his vehicle from the tracks. A Metrolink passenger train slammed into the car and collided with a parked train before smashing head-on into another oncoming commuter train. Alvarez was fortunate in that while prosecutors sought the death penalty, he ultimately received 11 life sentences.

So, what is really fair? An unnamed deputy public defender, perhaps jaded by years of practice after witnessing too many life tragedies, attempted to put it in all perspective:

Why not extend the death penalty to financial crimes?  I’m sure there would be popular support for it.  I think executing Bernie Madoff would be a real statement about our society’s values.  Personally, I think Madoff deserves to die way more than most of our guys. Is it worse to take a few billion that one life?  A dead person’s whole life is only worth a couple lousy million in a wrongful death suit. Why isn’t Bernie Madoff seen as a mass murderer of sorts? In terms of moral culpability, he’s way worse than our guys. Why not sell the right to kill him and have the money distributed to his victims?

This may sound sensationalistic and callous, and at the very least, shocking, but it rings partially true. In terms of a money figure, a wrongful death suit is far less “valuable” than one in which the victim has survived. And Bernie Madoff’s billion-dollar rip-off certainly devastated countless individuals and families.

And what about individual moral culpability? Most criminals and convicts outside the white-collar world are themselves products of child abuse, drug addiction and poverty. According to a report released in 2006 by the watchdog group Human Rights Watch, more than half of all prison and state inmates report mental health problems, and the rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent). These are the members of American society who have the heaviest
deck stacked against them.

Bernie Madoff, on the other hand, graduated from college, owned homes in Manhattan, Montauk, Palm Beach, Florida and France and was reportedly worth up to $126 million along with his wife. Madoff had options available that the majority of Americans do not. Madoff had no good excuse.

So back to the $65-billion question: what will happen to Bernie Madoff? The world will find out in one month at sentencing  on June 29, 2009. What should happen to him? That is truly the difficult question and perhaps one with no certain answer  – other than that any resolution should not include the above suggestion by the world-weary deputy public defender.

Bernie Madoff photo by AP. Esperanza fire by Kyle Galloway. Both photos licensed under Creative Commons.