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Sunday, December 12, 2010

Is it fair (or of any use) to describe Mark Madoff's suicide as part of his dad Bernie's "punishment"?

As detailed in this ABC News piece, which is headlined "Madoff Son Found Dead On 2nd Anniversary of Dad's Arrest," one of the sons of Bernie Madoff took his own life last night.  Here are the basic details:

Two years to the day, and almost the precise hour and minute, of his father's arrest by the FBI, Mark Madoff, son of the disgraced Ponzi schemer Bernard Madoff, was found hanged inside his Manhattan apartment, an apparent suicide according to police.

Madoff had reportedly learned in the last week that he faced possible criminal charges in both London and New York.

Madoff left behind several emails, including one to his wife, Stephanie, telling her that he loved her, but no explanation of why he chose to take his life.  "I love you," the email said. "... send someone to take care of Nick."

In a separate email to his lawyer Martin Flumenbaum, Mark Madoff wrote, "No one wants to hear the truth take care of my family," according to law enforcement sources.  He also sent one to his wife and to his father-in-law asking that someone come to get the couple's two-year-old child.

Upon receiving the emails, which were written in the early morning hours after 4 a.m., Stephanie, who reportedly was in Florida with at least one of the couple's other children, contacted her father.  He came to the apartment and found his son-in-law hanged in the living room around 7:30 a.m. Saturday, police said. The two-year-old was sleeping peacefully in a bedroom nearby, police sources said.

Madoff had used a black dog leash to hang himself, police said.  His labradoodle, Grouper, was found nearby unharmed.

"At about 7:30 this morning police responded to 158 Mercer Street," said New York City police commissioner Ray Kelly. "Mark Madoff was found hanging from a pipe in the living room of the apartment. Mr. Madoff apparently left some email notes. There was no note at the scene, but [he] communicated with members of the family."...

According to sources close to the family no one could have seen the suicide coming, although Madoff, 46, had been distraught, felt unemployable, and was sure that he would never be able to extricate himself from the thickets of notoriety....

Madoff and his children were being sued for all of their wealth and he faced the prospect of criminal prosecution in two countries.

I am never quite sure how to respond emotionally or intellectually to a high-profile suicide of someone I have never known.  But I am sure that this sad additional chapter of the saga surrounding Bernie Madoff's spectacular crimes prompts a number of questions for the sentencing scholar in me.

One theoretical question appears in the title of this post, and I especially mean for the question to prompt some reflection on the relationship between personal pain and the concept of punishment. The connection between pain and punishment is getting lots of scholarly attention lately, and the fact that Bernie Madoff must be experiencing personal pain as a result of his son's suicide leads me to wonder if this event might be thought of as another part of his punishment.

A related practical question concerns whether Bernie Madoff now regrets having pleaded guilty. At the time of his guilty plea, the only significant benefit Bernie seemed to garner was the chance to try to protect his family from some of the fall-out from his crime. But the suicide of his son suggests that Bernie's efforts to shield his family were not especially successful.

Cross-posted at SL&P

Posted by Douglas A. Berman on December 12, 2010 at 08:40 AM in Criminal Law, Current Affairs | Permalink


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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

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