Will "Nobody. . . Ever Plead Guilty Again" After Madoff?

The WSJ Law Blog has an interesting post entitled "Nobody . . . Is Ever Going to Plead Guilty Again," which asks whether anyone will plead guilty again after the 150 year sentence handed down to Madoff today. As you recall, Madoff pleaded guilty to 11 criminal counts, including fraud, money laundering, perjury, false filing with the SEC, and other crimes. What incentives remain for others in similar situations to plead guilty?

It’s only been a few hours, but already people in the white-collar world are buzzing over 150 year the sentence imposed by Judge Chin.

First, a couple notes on the sentence: Typically in white-collar cases, judges impose a sentence equivalent to the maximum statutory punishment for the most serious criminal count to which a defendant pleads guilty. In Madoff’s case, that would have been a charge of securities fraud, which carries a statutory maximum of 20 years. But Chin said he would take penalties for all 11 criminal charges and have them run consecutively, rather than concurrently.

Judges also don’t typically depart so greatly from a recommended sentence provided to them by the U.S. Probation and Pretrial Services System, an agency that researches every convicted defendant and submits a presentence report to help guide the judge. In Madoff’s case, Judge Chin said the probation office recommended a 50-year sentence.

And what about the guilty plea itself? If Madoff thought he might get sympathy from the judge for pleading guilty, rather than forcing prosecutors to spend time and money proving their case, it didn’t work. Some white-collar lawyers read a lesson into that: “Nobody in Madoff’s position is ever going to plead guilty again,” says Christopher Clark, a former federal prosecutor who is now a defense lawyer at Dewey & LeBoeuf in New York. “What benefit did this guy get for pleading guilty?”

But other lawyers point that Madoff’s crime – and the devastation it wrought — was extreme. Also, the judge said he didn’t think Madoff was cooperative with authorities after his arrest; typically cooperation helps defendants score points.

John Coffee, a law professor at Columbia University, said the Madoff case might help criminal defendants take a harder look at the evidence early on. If they realize “that if the evidence is strong,” they should take a plea bargain on fewer counts so that if the various sentences for each count run consecutively, it won’t amount to life in
prison.

“The only way to avoid life sentences in highly publicized cases is to strike a deal in the plea-bargaining phase,” Coffee says. “Otherwise you are subject to extraordinarily high punishment.”