Madoff Case: Act Gives Fraud Victims a Voice

JAYNE BARNARD Guest Columnist WILLIAMSBURG On Monday in a crowded courtroom in New York City, nine citizens stood up and told the story of how Bernard Madoff had hurt them and their families. Judge Denny Chin listened respectfully to those sto ries and recited some of them back as he entered the historic 150-year sentence.

Some of the victims' comments were almost literary ("Last year, my mother died. Now I don't have my mother or my money.")

Other comments were furious and mean. ("Your sons despise you." "[You] are an evil lowlife." "My husband [a doctor] saved someone's life so Bernie Madoff could buy his wife another Cartier watch.")

Still, the nine victims who spoke, and the scores of others in the courtroom, had a powerful impact on the judge. In entering the sentence, he re-told the story of one victim, a recent widow, who had gone to Madoff's office to thank him for looking out for her family's funds. "You're safe," Madoff assured her.

Judge Chin also noted the thousands of "life decisions" -- about retirement, college savings, health care for parents, and where and how to live -- victims had made in reliance on Bernie Madoff.

VICTIM IMPACT statements are not new news. Courts for years have received correspondence from angry victims, as well as letters praising the defendant from family members and friends.

But is has only been since 2004 that federal judges have been required to hear the voices of fraud victims in open court. That year, the Crime Victims Rights Act was enacted into law. That law, among other provisions, guarantees the right of victims of all federal crimes to be heard at sentencing (a process known as victim allocution). Before 2004, allocution was only available to victims of violent crimes.

Passage of the act did not come easily. Defense lawyers complained that victim allocution was just a way for prosecutors to manipulate judges to impose longer sentences, based on emotion. Judges complained that listening to victims takes time, and is often messy. Victims are amateurs, after all.

Even prosecutors complained that having to corral witnesses and prepare them to give their statements in court would be costly. They didn't have the resources to do this job wisely and doing it badly might further harm victims, whose confidence in the government was already battered.

The dignified and moving presentations of the Madoff victims on Monday, however, demonstrate why victim allocution is a good idea and why Congress was right to require it. There really is no difference between fraud victimization and violent crime.

BEING A FRAUD victim -- like being an assault victim -- is a life-transforming experience. It can lead to suicide and often accelerates illness and death.

At a minimum, being defrauded brings on fear, shame, and anxiety. As one of Madoff's victims said, "I calculate again and again how long it is I can hold out." Another young woman said that "for the first time in my life, I'm very, very frightened about my future."

In Madoff's case, these stories can be multiplied thousands of times. In other cases, the witness list may be short. Not every victim wants to testify. One victim I talked to on Monday told me, "I didn't need to [make a statement]. Others did."

No one who was in Judge Chin's courtroom on Monday could doubt the wisdom -- or the impact -- of allowing Bernard Madoff's victims to be heard. (Their presentations took less than an hour. The sentencing itself took less than 15 minutes.)

By allowing fraud victims the right of allocution -- to speak out in open court not only to the judge but directly to Madoff -- the Crime Victims Rights Act provided an important moment of clarity not just for the victims who spoke but for all the victims of Madoff's crimes.

And, possibly, for Bernie Madoff himself. --- Jayne Barnard is a professor of law at William & Mary Law School in Williamsburg. Contact her at .