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Tuesday, December 23, 2008

Gershon, Antigone, Madoff, and Punishing Family Status

First, since the following is apropos the lure of family ties, let me begin by extending congratulations and mazel tov to co-author/co-blogger Ethan Leib and his family on the birth of a baby boy yesterday morning. Gershon: welcome to the burgeoning Prawfs family!

Second, as acknowledged yesterday, I have been an intolerably bad blogger the last few months. While still under the deluge of edits on various projects, I hope the situation will improve soon, and in the meantime, I wanted to quickly draw attention to one aspect of the Bernie Madoff scandal that's been of particular interest to me: the fact that he was turned in by his sons. There's still some question as to whether Madoff's Ponzi scheme was truly a work of solo endeavor, or whether he had to bring in others to help swindle so many of so much. Some folks might believe that the sons had to be involved also despite their involvement in facilitating the apprehension of their father. But according to a recent news account having to do with whether Madoff acted alone:

Investigators were also expected to look at the potential involvement of several Madoff relatives who worked for his firm, including his brother, two sons and others who worked for his various business entities. His wife has also come under scrutiny. To date, however, they also have not been formally accused of any wrongdoingThe law firm representing Madoff's sons, Andrew and Marc, released a statement saying they first learned of the fraud just days ago, when their father tearfully confessed, and immediately turned him in. The two are said to have worked predominantly in another division of their father's company, not in the secretive unit that handled investor money.

The story of Madoff's arrest intersects with some of the issues that motivated the project I'm doing with Ethan Leib and Jennifer Collins on the criminal justice system and the quirky role that family status plays in it.* When I initially started thinking about this topic some three or four years ago, it was largely through the prism of what I thought of as the Antigone problem: the conflict citizens (like Madoff's sons) have between loyalty to family members and duties to the state. As Ethan and Jennifer came aboard the project, we realized in concert that the site of conflict between family and criminal justice was more complex and layered than just the classic Antigone problem, and from that realization, we changed our focus over time to study the various ways the criminal justice system distributes both benefits and burdens to defendants based on their family status or family ties and responsibilities. The Antigone problem, crudely reflected in a way by the Madoff fraud bust, sort of fell away from being our sole object of study, and in fact, virtually recedes from focus other than playing a role in motivating dramatic interest in the connection between family, crime, and punishment.

In any event, I can now report that Punishing Family Status (PFS), the second part of our efforts which studies and proposes reforms to the burdens placed on defendants on account of family status, is now available in final form on SSRN and on Westlaw. (I've also just received my offprints; if you'd like a hard copy, please email me your mailing address, especially if you didn't receive my last batch of offprints.) PFS is the basis of a mini-symposium in the Boston University Law Review's December 2008 issue. The issue (and the offprint) includes a set of fascinating responses by our own Rick Hills and Michael O'Hear, and a reply by us. Btw, make sure you check out the BU LR December 2008 issue so you can also see Carissa Hessick's very interesting piece, which looks at the role of prior good acts in sentencing  -- more on that in another post perhaps.

*We just received the book proofs for this project, which comes out in a few months; you can pre-order it here at Amazon.


Posted by Administrators on December 23, 2008 at 03:48 PM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink


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In response to Carissa Hessick's article, I wonder if the difference between prior bad acts and prior good acts is explained by information asymmetry. It is hard to know a person's prior bad acts, but very easy to know of their prior good acts. If the two are treated equally, the information asymmetry creates an unequal playing field.

To take the first part of the picture first, in most cases a sentencing court really don't know a person's prior bad acts. Most crimes are not detected or not prosecuted, so in most cases a person's past convictions will only scratch the surface of the bad stuff that they actually did. And defendants have no reasons to incriminate themselves and let on about the other bad stuff they did that never led to a conviction. On the other hand, a defendant does have every incentive to make sure the court knows about their prior good acts, however defined. If a court wants to know what good things a defendant has done, the defendant's attorney will make sure that the court knows all about it.

If you treat the two equally, the court will generally get a pretty uneven picture: It will get all the good but little of the bad. I wonder if courts treat the two unequally in part to balance things out in light of the information asymmetry, at least in a rough sort of way.

Importantly, if you had the resources to investigate ever single case and get a real sense of a person in each sentencing, you might end up with a different rule. Indeed, that would seem to be the case in the one setting in criminal law that generally does have those resources: In capital cases, the law requires a consideration of both the aggravating and mitigating circumstances during the sentencing phase.

Posted by: Orin Kerr | Dec 23, 2008 10:19:02 PM

Would it matter if they had been encouraged by their father to turn him in? I imagine the following scenario: the father knows that he is done for, but wants to shield his sons as much as possible. (I am not presupposing that the sons are or are not involved. Even if they are innocent, Madoff might want to minimize the burden they must inevitably bear in being investigated, as well as the chance of a wrongful conviction.) He therefore directs his sons to turn him in and cooperate in the feds' investigation of him, to prove their good faith. In this case, then, their cooperation in notifying the authorities is actually consistent with the familial relationship, rather than in conflict with it.

Posted by: Andrew | Dec 23, 2008 7:49:16 PM

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