Wednesday, July 1, 2009

Bernie Madoff and the Artful dodger


I was puzzled by the recent sentence of 150 years for the convicted swindler par excellence, Bernie Madoff. Puzzled not because he was found guilty but because of the harsh sentence.

The United States is a democratic country that has some of the finest lawmakers in the world..and yet 150 years? It sounds like something out of a Charles Dicken's novel when the Artful Dodger was sentenced to hard labour in Australia for pickpocketing.

Therein lies the similarity. Victorian England was outraged by pickpockets and the poor...or anyone or anything that could separate the middle and upper classes from their wealth. They were deemed unsavoury, irredeemable and sentenced to sentences like 150 years. Their crimes? Theft, fraud, all crimes of the economy. The murders did not receive such harsh treatment.

Our laws are linked to our property and our wealth and are designed to protect not so much us but our property. For example, I can call you names from my property and make your life fairly miserable as your neighbour with relative impunity. However, if I step onto your property...or violate your property rights then I can be charged. Our laws are designed to protect and preserve not individuals but rather their property, and this includes their money and investments.

So Bernie violated the cornerstone of our legal system. He took other people's money. Yet while the Artful Dodger stole from unsuspecting people, Madoff stole from people who in many ways were in on his scheme. He promised huge returns and people, greedy for gain, went along with it. It is akin to someone selling a HD Tv from the back of their car for a great price. Ask no questions.

The reason Madoffs co consipirators (notice how I do not say victims) were so angry was because they had been duped. They were angry at themselves and decided to ensure that Madoff paid the penalty for their stupidity and greed. The more clever the investor, the greater the outrage because they should have known better.

The question that needs to be asked is what is the function of sentencing in this case. In the case of the Artful Dodger, it is clear that he was a victim of Victorian sensibilities who had labelled him as trash. The sentencing was guided by the cries of the middle class who sensed a crime wave and wanted the 'riff raff' out of London. In this case, is it right that the sentencing process be guided by the anger of the victims? Is this not vigilantism? Do we risk losing the impartiality of the legal process when we pay heed to the furies?

I think we do.

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