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Man's Peculiar Evil

By Jack M. Balkin

Something about Bernie Madoff calls to mind Dante, but what is it? Perhaps there?s a temptation to imagine the worst of all punishments, and Dante?s Inferno offers some colorful suggestions. For me, the Madoff-Dante connection arose in a somewhat different context?a recent paper on the often inconsistent ways in which the criminal law defines and punishes violence (early draft here). Violent crime is sometimes treated as an ideal type?the very model of what should be criminalized and punished. It?s certainly the case that crimes that cause physical injury tend to carry greater sentences than do fraud or property crimes. But according to Dante, those who commit fraud are more evil, and punished more severely in hell, than those who inflict physical violence.

Of all malicious act abhorr?d in Heaven,
The end is injury; and all such end
Either by force or fraud works other?s woe.
But fraud, because man?s peculiar evil,
To God is more displeasing; and beneath
The fraudulent are therefore doom?d to endure
Severer pang.*

Apparently, at least one of Madoff?s victims felt the same way.

At Madoff?s sentencing hearing today, Burt Ross invoked Dante as he asked the judge to sentence Madoff to prison for the rest of his life.

[Dante] placed the perpetrators of fraud in the lowest depths of hell, even below those who had committed violent acts. And those who betrayed their benefactors were the worst sinners of all, so in the three mouths of Satan struggle Judas for betraying Jesus Christ and Brutus and Cassius for betraying Julius Caesar.

... We urge your Honor to commit Madoff to prison for the remainder of his natural life, and when he leaves this earth virtually unmourned, may Satan grow a fourth mouth, where Bernard L. Madoff deserves to spend the rest of eternity.

I couldn?t say whether Madoff deserves his own mouth of Satan. His announced sentence of 150 years is a severe one. As Doug Berman notes, the difference between a 30-year sentence and a 150-year sentence may mean little to the 71-year-old Madoff, but the long sentence is important as a benchmark that may affect future sentencing for fraud offenses. Perhaps fury at Madoff and other fraudsters will simply lead us to ratchet up white-collar sentences to match the punishments imposed for violent and drug offenses. It would be a shame, though, if we used Dante only to conjure ever ?severer pangs? to inflict on Madoff. The Divine Comedy invites us to consider the nature and comparative evil of types of human wrongdoing; it tries to articulate what makes violence, or fraud, so bad.

That sort of question is worth asking. As the scope of the criminal law and the scale of imprisonment has expanded, so too has the concept of violence. As I show in my paper, we don?t limit the term violence to physical injury anymore; instead, the word is becoming a repository for all we find repulsive, transgressive, or simply sufficiently annoying. Paradoxically, all the talk about violent crime has not produced sufficient critical analysis of what we classify as violent. Maybe Dante can help.

*Canto XI, from Henry F. Cary?s translation, available here.

Full post as published by Balkinization on June 29, 2009 (boomark / email).