One hundred and fifty years jail time for Bernard Madoff is a good thing.
To listen to the victims of his swindle, or read their words, is to appreciate the very far-reaching ways in which Madoff’s quiet crime has wreaked havoc on the lives of thousands of families.
Federal District Judge Denny Chin was absolutely right in denouncing Madoff’s crimes as “extraordinarily evil,” and giving him the maximum sentence. Punishment is no substitute for prevention, but the sentence provides a modicum of justice to the victims and will exert some modest deterrent effect against future potential swindlers.
The 150-year sentence is headline grabbing, but what should surprise us is not that Madoff got such a long sentence, but that other corporate criminals escape with light sentences or no criminal prosecution at all.
In August 2006, U.S. Federal District Court Judge Judith Kessler adjudged the leading tobacco companies to have engaged in a 50-year long conspiracy to deceive the public about the health risks of smoking and to addict children to tobacco. Millions in the United States — and many more around the world — have died as a result of this conspiracy. But you won’t find any tobacco executives in jail for this “extraordinary evil.”
Twenty-five years ago, poisonous gas escaped from a factory run by the chemical company Union Carbide in Bhopal, India. Many thousands died, many more were debilitated or badly injured, and the plant site remains polluted. Despite charges of culpable homicide, executives from Union Carbide (now merged into Dow Chemical) were never tried or sent to jail.*
In 1989, the Exxon Valdez hit a reef in Prince William Sound Alaska. Eleven million gallons of crude oil spilled onto 1,500 miles of Alaskan shoreline, killing birds and fish. The spill ruined the livelihoods of thousands of Native Americans, fishermen and others. The captain was convicted of a misdemeanor and sentenced to community service. Exxon pled guilty to misdemeanor violations of federal environmental laws. No executives went to jail.
Victims of horrendous human rights abuses and environmental destruction caused and abetted by oil companies operating in Burma (Unocal/Chevron), Nigeria (Shell and Chevron), Ecuador (Texaco/Chevron) and Indonesia (Exxon), among other places, have — with lawyers and international solidarity campaigns — waged heroic and increasingly successful efforts to obtain monetary compensation for the wrongs they have suffered. But there’s no prospect of CEO and executive perpetrators of those wrongs being criminally prosecuted.
For two decades, the multinational oil companies and the giant coal producers have engaged — and continue to engage — in a prolonged campaign to deny and discredit climate change science. In doing so, they have imperiled the planet and its people. Paul Krugman, properly, calls this treason against the planet. But while execution is the highest penalty for treason against country, treason against the planet won’t even get you the equivalent of a parking ticket.
What to make of the disparity between the appropriate sentencing for Bernard Madoff and the get-out-of-jail free approach for other leading corporate criminals and malefactors? There are a few lessons and conclusions.
First, the Madoff case differs from many of these other examples of corporate wrongdoing in that the individual perpetrator is so closely related to the victims. Although he was handling billions of dollars, Madoff had a skeleton staff, and he had personal connections with many of those he swindled. As a result, the victims and the public’s anger is visceral and very targeted — not directed at an amorphous giant corporation.
Second, Madoff’s victims have power. They have the ability to hire lawyers, and to organize for redress and retribution. Corporate crime victims in poor communities, or in poor countries, generally do not have this kind of power. Nor do those who will fall victim in the future to consequences of actions carried out today.
Third, and relatedly, the penalties for financial crimes are generally much stiffer than for other corporate crimes. The New York Times has an interesting feature comparing Madoff’s sentence to other white-collar, financial criminals, many of them convicted of Enron-era crimes; Madoff’s sentence is much longer, but the others received stiff penalties as well. By contrast, it is very rare to see a felony prosecution for corporate killings.
Finally, and most important, one of the signal powers of corporations is their ability to influence the law and culture so that their most heinous acts are not considered criminal. Knowingly addict millions of children to a deadly habit? Not a crime. Collaborate with military regimes and destroy lives and livelihoods in poor countries? Not a crime. Endanger the planet with greenhouse gas pollution — and then mobilize politically to block emergency efforts to save the earth? Not a crime.
The world is a little bit more just today, after the sentencing of Bernie Madoff. When other corporate culprits are sentenced comparably, the world will be a lot more just.
*Clarification: Executives from the U.S. parent company were charged in India, but never appeared, and are officially “absconders” from justice. Executives in India have been charged; their trial, which began in 1992, is ongoing.