To Send a Message

Not lawyers' ethics, but morality.

I'm interested in whether others share my (and Kant's) concern with sentencing Madoff to the max in order to "send a message," as Judge Chin said.

Without doing any research on it, my recollection is that a prosecutor isn't supposed to say that in closing argument, but that a judge can take general deterrence into account in sentencing.  But it troubles me.

Comments

[john steele]

Monroe,

It's also my understanding that with the exception of summation during a punitive damages phase, a "send a message" summation is somewhere between problematic and forbidden. When I hear that rhetoric, I get worried that there may be some substituting of the accused for some larger social issue. In the case of Madoff, however, I believe that his sentence was fully justified.

[Monroe Freedman]

John,

I'm not questioning the sentence, which can be justified on a number of grounds. What I have difficulty with is using (or treating) a person -- even a person who is guilty of a crime -- as a means to an end rather than as an end in himself.

[Alice Woolley]

Monroe,

I had a few thoughts on this. The first is to say that my basic philosophical position would be the same as yours - the idea of a criminal sentence as being only properly determined by the measure of what constitutes a just sanction for this actus reus/mens rea. However, I think that one has to be somewhat cautious about that as one moves away from the criminal context and into a more straightforwardly regulatory model. Let's say, for example, that one wanted to incent lawyers to act in a certain way - to provide written retainer agreements to clients, for example. And one said "any lawyer who fails to have a written retainer agreement signed prior to the commencement of acting cannot, absent emergent circumstances, bill for time spent prior to the signing of the retainer agreement". That may, in fact, be a sanction designed to have a broader societal effect, rather than being a just outcome for a wrongdoer, but I don't think there would be anything problematic about that.

This isn't necessarily inconsistent with what you are saying, but it was what I thought of after reading it.

As a footnote I would add that from my Canadian perspective the sentence seems ridiculous. But our penal system is so different as to be wholly non-comparable.

[Patrick S. O'Donnell]

I haven’t read exactly what the judge had to say but I’d be surprised—and alarmed—if the *sole* rationale for the lengthy sentence was “to send a message.” I suspect rather that this was simply an additional reason or even a by-product of the sentence itself.

Nonetheless, let’s assume that Judge Chin in fact invoked this by way of an explanation or legal justification. In that case it could indeed be seen as entailing or invoking “general deterrence” (in both its negative—to intimidate or coerce people into compliance—and positive—reinforcement of norms against criminal behavior—forms). Typically, however, such deterrence goals are not the sole legal rationale for punishment but are instead part and partial of “social protectionist” theory generally, which of course is unabashedly utilitarian or consequentialist in justification and includes not only general and special deterrence but also such practices and goals as “isolation” and “rehabilitation.” Nonetheless, if Judge Chin’s remark is simply about sending a message of “general deterrence” and perhaps even additional symbolic or expressivist messages regarding crime and punishment, we’re still stuck with consequentialist punishment theory and thus the Kantian concern is wholly appropriate.

On the other hand, let’s assume our judge has retributivist purposes or Kantian reasons behind the sentence and, at the same time or in addition, utters the remark in question. Should we still have a Kantian-motivated concern? I don’t think so. First, the concern in question is owing to Kant’s “second formula” of the moral law, namely, The Formula of Humanity as an End in Itself (FH): “So act that you use humanity, whether in your own person or that of another, always at the same time as an end, never merely as a means.” It’s the final and qualifying clause that I want to highlight: “As H.J. Paton long ago pointed out, this does not forbid us to use a person (whether ourselves or another) as a means to our ends. It forbids only *omitting* to treat a person ‘*at the same time* as an end.’ In fact, according to Kant’s conception of an ideal ‘realm of ends,’ moral laws ‘have as their purpose just the relation of [rational] beings to one another as ends and means.’ Thus to be a member of a realm of ends you must be a means to the ends of other rational beings (just as they have to be means to your ends).” (Allen Wood)

In other words, I would think Monroe would be concerned with the length of the sentence if in fact it was justified largely or solely by way of a consequentialist theory of punishment, something that might be inferred from the remark in question, provided nothing else was said by way of explaining the length of the sentence. All the same, if we assume a retributivist theory alongside the aforementioned comment from the judge in which he endeavors to communicate the symbolic significance of or an expressivist message about crime and punishment, or that attempts simply to acknowledge or sanction the larger community’s feelings about same, or that views the uncommon length of a sentence as sending, in addition, a message of general deterrence, then Kantian motivated concerns would appear unnecessary or inappropriate, for while the remark from the judge involves seeing Madoff as a means to other ends, the latter's rational nature, intrinsic dignity or unique self-worth is nevertheless respected, provided the principal rationale for punishment is not utilitarian or consequentialist but retributivist (or Kantian).

And yet, perhaps the locus of Kantian concern should be directed to the intended recipients of the judge’s remark and not Madoff himself. In that case, our rational agency is not being respected insofar as we are not being given novel reasons for obeying the law, doing the right thing and so forth, nor are already existing reasons being perhaps articulated in a new way so as to rationally persuade us as to what is legal and right, rather, the remark seems intended to intimidate, threaten, or coerce potential law-breakers into compliance, thereby trumping the (rational) reasons we may already possess for obeying the law (i.e., we're being treated as merely as means to deterrence or social protectionist ends).

[Joe]

Well, the man stole potentially billions of dollars from so many people. Prison may be the safest place for him right now. I think if he somehow were released into the general public, someone would get to him.

[john steele]

The punishment meted out to Madoff was, imo, appropriate. I don't think that "sending a signal" is always problematic, but for me it's a danger signal that perhaps we are seeing the pathological side of expressive punishment. As I wrote in a law review article . . .

*****

I want to search for the source of expressive punishment. Some scholars have suggested where to look.

Durkheim noted that “[w]hen we demand the repression of a crime, it is not because we are seeking a personal vengeance, but rather vengeance for something sacred which we vaguely feel is more or less outside and above us. . . . . Very often we represent it [the ‘something sacred’] to ourselves in the form of one or several concrete beings: ancestors, or a divinity. This is why penal law is not only of essentially religious origin, but continues always to bear a certain stamp of religiosity.” The idea that the sacred may be a source of expressive punishment has been suggested by Kathryn Preyer. In analyzing the function of shaming punishments, she notes that they allowed for the “release of communal aggression, revenge, or tension,” and that the “entertainment aspect” of such punishments “was perhaps beneficial to community needs in deeply psychological ways well beyond shame and deterrence of the individual.” She offers her “fanciful” speculation that perhaps those punishments “suggest milder parallels with ritual sacrifice or even torture in other societies.” Similarly, when Feinberg wanted to conjure up a vision of denunciatory punishment that might not require hard treatment to be effective, he indulged in what he felt was “perhaps [an] idle fantasy” and invoked the notion of “an elaborate public ritual, exploiting the most trust-worthy devices of religion and mystery, music and drama, to express in the most solemn way the community’s condemnation.” H.L.A. Hart drew a less tentative and more disturbing conclusion. He declared the infliction of punishment on human beings for denunciatory purposes—“the infliction of punishment as a symbol or expression of moral condemnation”—to be a principle that “belong[s] to the pre-history of morality and to be quite hostile to its general spirit,” and he warned that “[t]he idea that we may punish offenders against a moral code, not to prevent harm or suffering or even the repetition of the offense but simply as a means of venting or emphatically expressing moral condemnation, is uncomfortably close to human sacrifice as an expression of religious worship.”

[Monroe Freedman]

Three hypotheticals:

1) Joe Nobody is arrested for driving while under the influence. He has no record. He pleads guilty. The case is not publicized. He appears in court and, pursuant to the general practice in that jurisdiction, he is given points on his driving license and a stern warning that a further offense will result in a month in jail.

2) Cecil Celebrity, a well-know actor, is arrested in the same jurisdiction for driving while under the influence. He has no record. He pleads guilty. The case is publicized in tabloids and on television. His license is suspended for three months, and he is sentenced to serve three days in jail. In passing sentence, the judge explains that she is doing so in order to send a message to the community that drunk driving will not be tolerated.

3) Andrew Wendel, a well-know ethics professor and moral philosopher, is arrested in the same jurisdicion for driving while under the influence. He has no record. He pleads guilty. The case is publicized in college and law school newspapers and on law-related blogs. His license is suspended for three months, and he is sentenced to serve three days in jail. In passing sentence, the judge notes the irony that the defendant is an ethicist and explains that she is doing so in order to send a message to the community that moral hypocrisy will not be tolerated.

[Thalia]

I'm surprised to see so many people suggest that 150 years is a "reasonable" sentence for a 70 year old man. The odds that he will survive to serve 10% of that sentence is slim, the odds that he will server more than 20% is nil. It's life without the possibility of parole (which is justified) but writ large for effect.

[Paula Gordon, paralegal]

The prohibition on prosecutors to not use the phrase "send a message" has to do with giving the defendant a fair trial, free of bias. When the prosecutor calls on the jury to send a message that behavior like the defendant's won't be tolerated, he or she is asking the jury to base their decision on extraneous considerations. See, e.g., Anderson v. State, 1987 WL 44963 at *1 (Del. Supr.) (noting that it was “impermissible for the prosecutor to direct the jury’s attention from the specific issue of a defendant’s guilt or innocence by dwelling on the interests of the community at large and the societal consequences of the verdict”); University of Delaware v. Munson, 316 A.2d 206, 208 (Del. 1974) (“The jury is not to be concerned with making policy. It is to apply the law to the facts as it finds them, and argument of this character can only distract the jury from its task.”).

This prohibition probably also applies to bench trials, but I don't think it would require a reversal unless the prosecutor called on the judge to "send a message" and the judge commented, "Yeah, you're right -- a conviction *would* send a message."

I don't think that this rule applies in sentencing, though. Punishments, after all, are devised by legislature and publicized in order to send a cautionary message to potential offenders.

[Monroe Freedman]

To say that the legislature intended sentencing to send a message involves two fallacies. (1) It begs the question in the classic sense of assuming the conclusion (i.e., that that is, in fact, the intended policy, as distinguished, say, from specific deterrence). (2) It assumes also that because that's the legislative intention, it's right as a matter of morality (i.e., that which is, is right)