an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Something about Bernie Madoff calls to mind Dante, but what is it? Perhaps there’s a temptation to imagine the worst of all punishments, and Dante’s Inferno offers some colorful suggestions. For me, the Madoff-Dante connection arose in a somewhat different context—a recent paper on the often inconsistent ways in which the criminal law defines and punishes violence (early draft here). Violent crime is sometimes treated as an ideal type—the very model of what should be criminalized and punished. It’s certainly the case that crimes that cause physical injury tend to carry greater sentences than do fraud or property crimes. But according to Dante, those who commit fraud are more evil, and punished more severely in hell, than those who inflict physical violence.
Of all malicious act abhorr’d in Heaven, The end is injury; and all such end Either by force or fraud works other’s woe. But fraud, because man’s peculiar evil, To God is more displeasing; and beneath The fraudulent are therefore doom’d to endure Severer pang.*
Apparently, at least one of Madoff’s victims felt the same way.
At Madoff’s sentencing hearing today, Burt Ross invoked Dante as he asked the judge to sentence Madoff to prison for the rest of his life.
[Dante] placed the perpetrators of fraud in the lowest depths of hell, even below those who had committed violent acts. And those who betrayed their benefactors were the worst sinners of all, so in the three mouths of Satan struggle Judas for betraying Jesus Christ and Brutus and Cassius for betraying Julius Caesar.
... We urge your Honor to commit Madoff to prison for the remainder of his natural life, and when he leaves this earth virtually unmourned, may Satan grow a fourth mouth, where Bernard L. Madoff deserves to spend the rest of eternity.
I couldn’t say whether Madoff deserves his own mouth of Satan. His announced sentence of 150 years is a severe one. As Doug Berman notes, the difference between a 30-year sentence and a 150-year sentence may mean little to the 71-year-old Madoff, but the long sentence is important as a benchmark that may affect future sentencing for fraud offenses. Perhaps fury at Madoff and other fraudsters will simply lead us to ratchet up white-collar sentences to match the punishments imposed for violent and drug offenses. It would be a shame, though, if we used Dante only to conjure ever “severer pangs” to inflict on Madoff. The Divine Comedy invites us to consider the nature and comparative evil of types of human wrongdoing; it tries to articulate what makes violence, or fraud, so bad.
That sort of question is worth asking. As the scope of the criminal law and the scale of imprisonment has expanded, so too has the concept of violence. As I show in my paper, we don’t limit the term violence to physical injury anymore; instead, the word is becoming a repository for all we find repulsive, transgressive, or simply sufficiently annoying. Paradoxically, all the talk about violent crime has not produced sufficient critical analysis of what we classify as violent. Maybe Dante can help.
*Canto XI, from Henry F. Cary’s translation, available here.