Appeal court expected to rule if 150-year term is 'unreasonable'

By sentencing disgraced money manager Bernard Madoff to 150 years in prison, U.S. District Judge Denny Chin exceeded all expectations and raised an important legal question: was it reasonable?

For more than 20 years, federal judges in the United States had to follow strict sentencing guidelines that left little room to manoeuvre. That changed in 2005 with a Supreme Court ruling in a case called United States versus Booker. In its ruling the Supreme Court made the guidelines largely advisory and left it up to federal appeal courts to review sentences for "reasonableness."

Mr. Madoff is expected to appeal his sentence on those grounds and "this is one of those cases that's going to help define what 'reasonableness' really means," said Mark Osler, a former federal prosecutor who now teaches law at the Baylor University in Waco, Tex.

Reasonableness "is kind of a spongy standard, but the [appeal] court could make the determination that 150 years is unreasonable."

Prof. Osler called Judge Chin's sentence "pretty incredible" and said it could be viewed as vindictive.

"It's certainly well beyond what [Mr. Madoff's] natural life could possibly be and in that sense it's beyond simple punishment or incapacitation, it's message sending," he said. "If the court of appeal says this sentence was vindictive, does that make it unreasonable?"

In most corporate fraud cases, judges have imposed concurrent sentences for defendants facing multiple charges. That means the defendant serves the longest jail time imposed and the other sentences run concurrently. For example, Conrad Black was given a 6½-year sentence for one count of obstruction of justice and five years for each of three fraud charges. But the sentences are running concurrently meaning, barring a successful appeal, Lord Black will serve 6½ years in jail.

Mr. Madoff faced 11 counts and Judge Chin made his sentence consecutive, meaning all of the jail time was added up.

"It's a big step to go to consecutive sentencing," said John Coffee, a law professor at Columbia University who specializes in white-collar crime.

"We're beginning to see judges test the guidelines more and more and deviate farther and farther. This is probably a record deviation."

Like many other legal experts, Prof. Coffee expected Mr. Madoff to receive a sentence closer to 30 years. That is comparable to penalties in other recent corporate fraud cases including Bernard Ebbers, the former WorldCom Inc. chief executive who received a 25-year sentence, and Adelphia Communications Corp. founder John Rigas, who is serving 12 years.

"What we're seeing is a growing tendency for judges to regain complete discretion and go back to old fashion individualized sentencing," said Prof. Coffee. "And, I think that's a little dangerous because you'll get high disparities. Judges don't, down deep, agree or they don't start with the same basing point about what an average sentence is."

U.S. Attorney-General Eric Holder has expressed concern about the potential for disparities in sentencing. In a recent speech, Mr. Holder said his department is watching to "assess whether current sentencing practices show an increase in unwarranted sentencing disparities based upon regional differences or even differences in judicial philosophy among judges working in the same courthouse."

Mr. Holder noted that the point is not merely academic since the number of inmates in U.S. prisons has quadrupled since 1980. Jacob Frenkel, a former U.S. prosecutor who is now in private practice, said Judge Chin made it clear why he was imposing such a stiff sentence for Mr. Madoff.

"What Judge Chin was saying was that, advisory or not, the conduct here was just so beyond the pale, so egregious, that the guidelines do not even come close to attributing an appropriate sentence for what he characterized venal conduct," Mr. Frenkel said.