Madoff and Victims’ Rights

There’s lots of news these days about the Bernie Madoff case.  Apparently, he’s going to plead guilty today, without a plea agreement, exposing himself to a virtually certain life sentence.  I wonder why he’s doing that.  An interesting article, available here, tries to figure out the angle, but comes up empty.  Could he have suddenly developed a conscience?  Does he just want to go on his own terms, and make one final splash?

Even more interesting to me is the attitude of some of his victims.  Remember, he’s pleading guilty as charged, to all counts, with no deal, with no concessions, with no promises of any kind from the government.  He’s likely to have his bail revoked, and he’ll die in prison.  But some of his victims, and some members of the news media, seem to think that he’s getting off easy.  For example, an attorney representing several victims said that his “clients are outraged by [Madoff’s] being able to escape with a guilty plea.”  (News article here.)  Logically, that’s nuts: a trial couldn’t come out any worse for Madoff than the plea he’s planning to enter, and it could come out better.  But it seems like the victims want to be heard, want to play a vital role in Madoff’s demise, and they seem to think that he’s depriving them of that.

He isn’t, though.  Under federal law, victims have “[t]he right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding,” 18 U.S.C. s. 3771(a)(4), as well as a number of other procedural rights.  There’s some dispute about whether Madoff’s victims are entitled to be heard at the guilty plea proceeding — since he’s pleading guilty to all charges, they can hardly object to the terms of the plea — but they can, and surely will, be heard at sentencing.  When I was defending federal criminal cases, “the victim wants to be heard at sentencing” was about the most ominous sentence I could hear, because the presence of a victim can move and motivate a judge in ways that even a capable prosecutor often cannot.

But this is a North Carolina blog, so let’s bring the discussion back to state law.  Our statutes also guarantee certain rights to crime victims.  See generally G.S. 15A-824 et seq. These rights include the right to be notified of court proceedings and the right, at sentencing, to “offer admissible evidence of the impact of the crime.”  G.S. 15A-833(a).  However, victims do not have the right to be heard at guilty plea hearings.  Instead, they are entitled to consult with the prosecutor about the disposition of the defendant’s case, including disposition by plea agreement.  See G.S. 15A-832(f).  That’s not quite the same thing, and I wonder if victims’ rights groups would like victims to have the opportunity to address the court before the court decides whether to accept a plea agreement.  Since Bernie Madoff’s victims want to be heard even when there is no plea agreement, I suspect I know the answer.

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