Federal Sentencing Guidelines

One of my favorite side effects the internet is that sometimes you learn the most unlikely things. Usually, this is wikipedia’s fault. But not always.

Today it started with this Gothamist article about Bernie Madoff. I happened to follow a link from the article to a pdf describing his federal charges. On page 5 I found the following:

Because the offenses involved a loss amount of more then $400,000,000, the base offense level is increased by 30 levels.

I think, “30 levels? What the hell does that mean? That sounds like a lot! But then I guess he did get a pretty high score.”

Off to Google: ‘offense levels’
First Hit: An Overview of the Federal Sentencing Guidelines, a pdf training manual from the United States Sentencing Commission website

Closely paraphrased from the (really very readable for a goverment document) manual:

Sentencing guidelines take into account both the seriousness of the offense and the offender’s criminal history. The sentencing guidelines provide 43 levels of offense seriousness. The more serious the crime, the higher the offense level.

Offense levels are the government’s attempt to quantify the harm done by a criminal. That means you can take any two crimes, crunch some numbers, and figure out which one was more offensive to the federal government. They even take into account all kinds of factors. If it was a robbery, was a gun used? Five more levels! Seven if it got fired (although, if that bullet hits someone, that’s whole new crime). There’s a whole 600 page manual published every year that describes in great detail how to compute the offense level of any federal crime, including a wide variety of mitigating circumstances. That’s good to know. Pro tip: If you’re stealing money, make it way less than $400,000,000.

A quick stop at wikipedia reveals that the guidelines are “part of an overall federal sentencing reform package that took effect in the mid-1960s”, an effort to “alleviate sentencing disparities that research had indicated was prevalent in the existing sentencing system.” It actually sort of makes sense as of a way of trying to make the application of the law fair for everyone. Still, I can’t help but think of offense levels in terms of points a la Grand Theft Auto.

So back to Bernie Madoff. The good news for Bernie is that his other factor in sentencing, criminal history, is Category I (the lowest of six). Even better, because he plead guilty in a timely fashion, he gets a three level deduction. Also, in the afformentioned GTA, his ranking is something like super gangsta. That’s where his good news ends however.

The government is charging Madoff with 11 felonies, including four flavors of fraud (securities, investment advisor, mail, and wire), money laundering, perjury, and theft. All that, apparently, gives him a base offense level of 7. Then he gets 30 levels for loss of more than $400 million, 6 levels for having 250 or more victims, and 2 levels because the crime “involved sophisticated means” and a substantial part of the fraud “was committed from outside the United States.” For substantially endangering the “solvency or financial security of 100 or more victims”, he gets 4 more levels. Because he was an investment adviser at the time, and because he was the “organizer or leader” he gets a total of 8 more levels. All told, Bernie Madoff’s ponzi scheme earned him an (off the charts) offense level of 54.

Even for a Category I history, a level 54 offense carries a recommended sentence of life. Since none of his crimes actually have maximum terms of life imprisonment, this (thanks to more references to the big book) computes to a guideline sentence of 150 years.

Yep, that’s about right.