The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

To Send a Message

Posted by judicialethicsforum on Tuesday, June, 30, 2009

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 is understood to be able to take general deterrence into account in sentencing.  But it troubles me.

By: Monroe Freedman, Hofstra Law

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2 Responses to “To Send a Message”

  1. Andrew Kaufman said

    Cynthia Gray’s brief comment about Judge Sotomayor and Canon 2C’s prohibition against membership in organizations that practice invidious discrimination invites consideration of a subject with difficult interpretive and constitutional problems. For anyone who thinks it is easy to identify the organizations that judge may and may not join, I invite you to read a piece that I wrote a few years ago entitled: “Judicial Correctness Meets Constitutional Correctness: Canon 2C of the Code of Judicial Conduct,” 32 Hofstra L. Rev. 1293 (2004).
    Andrew Kaufman
    Professor of Law
    Harvard Law School

  2. Edward Moss said

    Reminiscent of “Maximum John” Sirica’s 1973 sentencing of the Watergate defendants. The following is from a Time Magazine article:

    Cannily, Sirica gave five of the other defendants ample reason to tell more about the Watergate affair by temporarily assigning them maximum sentences but promising to review those sentences after three months. He even held out the possibility of suspended sentences. The maximum sentences, up to 40 years in prison and $50,000 fines, were thus given provisionally to E. Howard Hunt Jr., a former White House aide, and four others: Bernard L. Barker, Eugenio R. Martinez, Frank A. Sturgis and Virgilio R. Gonzales.

    . . .

    Judge Sirica further underscored just how serious a crime he considered the Watergate espionage to be by sentencing the seventh conspirator, G. Gordon Liddy, who, like McCord, had pleaded innocent, to serve up to 20 years in prison and to pay a $40,000 fine. Liddy, who had worked with Hunt in the White House in trying to detect sources of news leaks, apparently got the stiff sentence—and no provision for its review—because he has not shown any sign that he could be persuaded to disclose more about the case. The Watergate crimes, said Sirica in sentencing, were “sordid, despicable and thoroughly reprehensible.”

    http://www.time.com/time/magazine/article/0,9171,907029-2,00.html

    Edward C. Moss
    District Court Judge
    17th Judicial District
    Colorado

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