Eleven years ago, in the wake of the financial crisis, Bernie Madoff’s Ponzi scheme was revealed, leading to a crushing loss of $17 billion to investors. Philanthropies shuttered; people’s lifetime savings and college funds were wiped out; and two investors, and one of Mr. Madoff’s sons, committed suicide.
Recently, Mr. Madoff re-entered the news, as he filed for compassionate release from federal prison. He is entering the final stages of kidney disease and has less than 18 months to live. The Bureau of Prisons denied his petition, as it does to 94 percent of those filed by incarcerated people. But the reforms provided in the First Step Act of 2018 allow him to file an appeal with the sentencing court.
Even some who claim to detest the ravages of mass incarceration argue that Mr. Madoff should be denied compassionate release. He is as close to the financial equivalent of a serial killer as one might encounter. Still, there is a good argument to be made for compassionate release. It has little to do with Bernie Madoff, though, and how we feel about his horrendous actions.
If our societal goal is to reduce incarceration, we are going to have to confront the inconvenient truth that retribution cannot be our only penological aim, and justice for victims has to be much more extensive than the incarceration of those who have caused them harm. We desperately need to shift our cultural impulse to punish harshly and degradingly, and for long periods.
The visceral, retributive reactions to Mr. Madoff’s petition, including from liberals who claim to want to end mass incarceration, reveal the obstacles to transformational criminal justice reform. The truth is, there is only a small number of entirely “sympathetic” people in prisons who could be released without any scruples by the public or affront to their victims. Those incarcerated for violent offenses compose a vast majority of our prison population, in spite of a false narrative that most people are in there for nonviolent drug offenses. The pain and harm experienced by their victims is real, and that’s also true for Mr. Madoff’s victims. But criminal justice policy cannot be constructed in response to our feelings about individual, high-profile cases — the so-called worst of the worst.
This “worst of the worst” argument, for example, has long undergirded the death penalty, which still stands in 30 states despite its racial and class biases and other flaws that have led hundreds of innocent people to death row. It is also part of why the Democratic presidential candidates, with the exception of Bernie Sanders, don’t support the enfranchisement of those in prison. But creating a separate category for Mr. Madoff, sex offenders or those “others” in the criminal justice system will not help end mass incarceration. There will always be another high-profile case that can impede the implementation of more humane policies.
Those on the left who press for criminal justice reform emphasize “empathy” in their attempts to reframe the conversation about people who have committed crimes. Conservatives use the word “redemption.” These words carry a profound responsibility: What do they mean for sympathetic and unsympathetic prisoners? There are 200,000 people over the age of 55 incarcerated in the United States. The question of compassionate release for Mr. Madoff affects not only him but these others and their victims as well.
Mr. Madoff lost both his sons while incarcerated (one died of cancer) and was unable to attend their funerals; is a social pariah, almost universally condemned; and has spent 11 years in federal prison. This is not to say he deserves sympathy, but he has been punished. In Norway, where Anders Breivik was sentenced to 21 years in prison for a horrific mass murder, 11 years would be considered harsh enough. Our American punitiveness has distorted our sense of what is an adequate sentence for serious offenses.
When considering compassionate release, we also have to ask: Has the person been rehabilitated? Does the punishment serve legitimate penological objectives (like deterrence and public safety) other than retribution? (Something to consider, for instance: The number of Ponzi schemes prosecuted went up, not down after Mr. Madoff’s incarceration.)
Criminal justice reform will fall far short of the dramatic institutional changes needed if the dominant impulse continues to be retribution, and if high-profile cases continue to drive policy. Compassionate release for those who are aging, terminally ill and dying should be assumed after they’ve served at least 10 years. It was the offenders’ worst impulses that led them to commit their crimes. Our justice system should appeal to our higher ethical ambitions.
Colleen P. Eren (@Dr_CPEren) is an associate professor of sociology and criminal justice at William Paterson University and the author of “Bernie Madoff and the Crisis: The Public Trial of Capitalism.”
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