I think Eli Lehrer is a bit too quick in his assessment that the 150-year sentence announced for Bernie Madoff today is too long. I think Lehrer overlooks three points.
First, he writes that Madoff’s sentence does not carry any significant deterrent value because “the certainty of any sentence for fraud provides sufficient deterrence.” But there is no certainty that swindlers will be caught, and in fact many of them die comfortably in their beds. From the perspective of calculating risk, which is not an uncommon habit among Madoff’s class of sophisticated perpetrators of financial fraud, the deterrent value of a potential punishment is measured by the likely penalty, multiplied by the likelihood of getting caught. It’s hard to know exactly how this calculation actually plays into the decisionmaking processes of real people, but it’s far from clear that there is no difference in deterrent effect between a potential life sentence and the chance of a mere twelve years behind bars.
Second, Lehrer asserts that 150 years is excessive from the point of view of retributive punishment, because Madoff will likely die in prison anyway. But it seems that there is a categorical difference between knowing you will die in prison, and retaining the hope of getting out if you can survive a twelve-year sentence. You might not think Madoff deserves to have all hope of freedom extinguished, but it seems this disagreement probably just reduces down to conflicting, irreconcilable intuitions.
Finally, in dismissing the “judicial showmanship” of the sentence, Lehrer forgets about the important symbolic role of the criminal-justice system in publicly condemning the evil acts of criminals and reaffirming the proper worth and dignity of their victims. As the sentencing judge wrote: “Here the message must be sent that Mr. Madoff’s crimes were extraordinarily evil and that this kind of manipulation of the system is not just a bloodless crime that takes place on paper, but one instead that takes a staggering toll.” Given the deliberate, sustained, and cold-blooded nature of his crimes, it seems to me that Madoff has surrendered any claim on our mercy he may have had.