Bernie Madoff is trying to strike a plea bargain. The U.S. Attorney's office shouldn't let him.
Reports indicate that Madoff's guilty plea could come as early as next week. While the image of this modern-day Ponzi sitting in jail will warm many hearts, Madoff should not be given the privilege of a plea bargain. For the good of the American people, Madoff's victims, and the American financial regulatory system, Madoff should be tried in open court.
A public criminal proceeding is the only way to develop a complete record of the largest financial fraud in history. If Madoff cuts a deal, there will be no opportunity to cross examine him, to subpoena documents, and to carry out the careful and meticulous process that a public criminal prosecution will necessarily entail. Already, there is controversy over the extent of Madoff's fraud (amazingly, he may have overstated how much money he stole - some people just don't learn). To get the facts, we need a public prosecution. Private civil litigants lack the incentives to create the complete record the U.S. Attorneys would produce, and will likely settle their suits out of court.
Furthermore, a plea deal potentially allows Madoff to derail further criminal investigation. With the lead figure busted, there will be little momentum for going after those who aided and abetted his scheme. However, a criminal prosecution will more likely follow leads to establish a complete case against all who helped Madoff's fraud.
Criminal prosecution will also benefit Madoff's victims by developing a public record which will facilitate their advancement of their civil claims.
Most important, a public prosecution of Madoff will help restore confidence in the financial regulatory system. The image of Madoff cutting a deal with the government is likely to go over about as well as Alberto Gonzales at an ACLU rally. Criminal prosecutions don't merely mete out justice to the accused; they also provide an opportunity to reaffirm the values embodied in the laws being enforced. Closed door dealings between lawyers do not reaffirm our faith, or the world's faith, like an open day in court. Moreover, America deserves to know how our regulatory system broke down so severely in Madoff's case. This issue is effectively swept under the table by a plea bargain.
As for Madoff himself, the Supreme Court has stated that "there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial." Weatherford v. Bursey 429 U.S. 545 (1977). The only real cost is the government resources involved in a trial. In this historically important case, the benefits from the sunlight of prosecution outweigh the burdens imposed on the government.
Madoff is, no doubt, hoping to take one last page from Charles Ponzi's book. In 1920, Ponzi managed to settle his federal charges by pleading guilty to a single count of mail fraud, for which he served a scant two and one-half years. Moreover, there were no major institutional changes made to the financial regulatory system, which post-Ponzi kept humming along until its disastrous nosedive nine years later.
This time, let's not make the same mistake. Bernie Madoff's case cries out for public prosecution.