The recent sanction of New Orleans Saints head coach Sean Payton by Commissioner Roger Goodell and the accompanying debate on the severity and harshness of his one-year suspension has significant parallels in the sentencing of criminal defendants in high profile cases. The one that comes immediately to mind is the sentencing of Bernie Madoff. The Honorable Denny Chin sentenced Madoff to 150 years in prison, certainly the longest sentence for fraud in the history of Federal court. Similar to Payton, there was no precedent for a sanction this severe.
In criminal justice lexicon, the term “Madoff sentence” has expanded in use. One often sees it in sentencing proceedings, where the government believes a defendant deserves a severe sentence, or if the defense attorney argues his case is not deserving of a “Madoff sentence”. These arguments are necessary because federal sentencing guidelines now routinely score fraud cases in the 360 months to life category because of enhancements.
One analogy in the Payton and Madoff cases was the spoken justification and rationale used by both Commissioner Goodell and Judge Chin for the dramatic sentences. Both unequivocally argued that the penalty was imposed for deterrent purposes—to send a message to others . While we all want to believe in the concept of deterrence, there is little if any research that says it is effective. In fact, in the criminal justice system research has consistently shown the opposite—that it is the certainty of punishment, not its length, which achieves the most effect.
Another interesting similarity in both cases centers on disparity. In the Madoff case, statistical information was presented to the Court showing average sentences in other major fraud cases. In Payton’s case, I can only assume that other suspensions were looked at. Yet in both cases, the penalty imposed far exceeded anything to date, or anything justifiable by hard data. It raises the question—could Madoff have been sentenced to a 40 or 50 year term, with the same effect of dying in prison? Or could Sean Payton have received a 6 game suspension, which would have been the longest in NFL history?
Having assisted attorneys in major fraud cases for almost 35 years, it is part of my responsibility to make sure the Court understands the totality of a person’s life, not just the incidents that resulted in the criminal violation. As he considers his appeal. it is my hope that Commissioner Goodell looks at the positive attributes of Sean Payton and the value he has brought to the game of football, and not just his infractions.