Wednesday, March 11, 2009

Madoff -- A Prediction -- Death Benefits

As Bernie Madoff prepares to plead guilty to 11 charges that will earn him a sentence of as much as 150 years, he's undoubtedly thinking of the one option that will allow him to avoid prison. There is a way he can get himself off the hook and spare his family a future of endless law enforcement inquiries. He is likely to exploit the Ken Lay option. Death before the final step in the criminal process. Death before he's sent to prison for the remainder of his life. Suicide.

Ken Lay did it, even though it was unintentional. Nevertheless, his demise may well present an interesting choice for aging criminals unsuited to an empty life in tight quarters. There are family benefits too. Death ended the criminal proceedings against him and allowed his family an exemption from further governmental investigation efforts.

Lay died while vacationing in Colorado on July 5, 2006, about three and a half months before his scheduled October 23 sentencing. Preliminary autopsy reports state he died of a heart attack caused by coronary artery disease. As a result of his death, on October 17, 2006 the federal district court judge who presided over the case vacated Lay's conviction.

Bernie may well understand the benefits of dying before he allocutes and exposes his family to endless government intrusion. What else would an exposed Ponzi Schemer do? Without his plea of guilty, the legal dynamics are thrown entirely out of whack. Will he do it? It appears he's taken the government into his confidence, as Ponzi Schemers always do. Investigators, however, have yet to say they think they've found the trail to all the missing money. In true Ponzi fashion, it was most likely distributed to investors who thought they were getting the returns of Madoff's investing brilliance.

I think he's leading investigators on a merry chase, allowing them to think he's revealed all there is to reveal. However, after he jumps from his penthouse window, consumes the entire contents of his medicine cabinet, or shoots himself, investigators will discover the long list of red herrings he's planted. Last laugh goes to Bernie as he "shorts" the prosecutors one convict.

Madoff jail won't be as bad as "Shawshank," expert says

Ensconced in his $7 million home, Bernard Madoff, the accused Ponzi swindler, is probably wondering what type of prison awaits him.

Madoff, who allegedly stole billions through his investment firm, could face a 150-year sentence if convicted in Federal Court in Manhattan on Thursday. He is expected to plead guilty to 11 criminal counts, according to one of his lawyers, Ira Lee Sorkin.

Madoff has managed to avoid jail so far, thanks to the $10 million bail that he posted. Since his December arrest, he has remained with his wife under house arrest in their luxurious Manhattan residence.

But he won't be able to dodge the slammer for much longer, assuming he pleads guilty, and it's unlikely the 70-year-old man will ever be free again.

Madoff may ask the court to be placed in a prison of his choosing and the court can then forward this request to the federal Bureau of Prisons.

The bureau "ultimately decides where the inmate [is incarcerated]," said bureau spokeswoman Felicia Ponce. "We take into consideration judicial recommendations, but they're not binding."

Despite his white-collar status and non-violent history, Madoff won't be whiling away his days in some cushy "Club Fed" type of prison.

Ponce said the bureau weighs the "seriousness of the offense, the expected length of incarceration, any history of escapes and violence" as well as the age of the inmate and "security needs." The bureau tries to incarcerate inmates within 500 miles of their homes, she said.

Madoff's lawyer, Sorkin, wouldn't provide any details of his client's preferences. "There are many different facilities in many different places," he said.

No such thing as Club Fed

Ponce, of the Bureau of Prisons, dismissed the Club Fed institution as a "myth."

Ed Bales, managing director of Federal Prison Consultants, which prepares inmates for prison life, said that "Club Fed" facilities used to exist in such places as Nellis Federal Prison Camp near Las Vegas. He said these types of facilities were also located in Florida and Pennsylvania. They provided more freedom and better accommodations to inmates than the typical prisons, but were shut down several years ago.

Larry Levine, another prison consultant and former inmate, wrote on his Web site about the experience of being transferred from Nellis when it shut down in 2005 to a "real" prison near El Paso, Texas, replete with "warring gang members" and other violent offenders.

"The Nellis inmates were shell-shocked into the real world of federal prison," wrote Levine. "Gone were their cushy days of being in a camp."

White collar crooks: You never know where you'll go

Nowadays, all types of prisons await white collar offenders. Martha Stewart, the domestic diva convicted of insider trading in 2004, served her five-month sentence at Alderson Federal Prison Camp in West Virginia, a minimum-security women's prison known as "Camp Cupcake."

At the other end of the spectrum, former Tyco Chief Executive Dennis Kozlowski, who was convicted in a state court and sentenced to up 25 years for grand larceny, was sent to a rougher, medium-security state prison in upstate New York. In a 2007 letter to Fortune, he wrote, "[Prison] is the most difficult of all difficult places to be."

Bales, of Federal Prison Consultants, said his newly convicted clients typically expect the worst, their nightmares of prison rape fueled by television shows like "Oz" and movies like "The Shawshank Redemption." But once they end up behind bars, some inmates are pleasantly surprised to find that it's not as dangerous as they'd thought, he said.

"They're scared out of their minds," said Bales. "They think they're going to get jumped in the shower. But once they hear what they're really like, they calm down a bit."

Fairton is the fairest

The best possible facility is the so-called prison camp, where there are "no murderers or rapists" and "no bars on the walls," said Bales. But he added that a lengthy sentence such as Madoff's might bar him from such a desirable facility.

Instead, Madoff might be eligible for a low-security prison, which isn't as bad as medium-security, but it's still a prison.

"In low security, you have some violence, you may have some low-level Mafia type figures, you may have some people who have been involved in child porn," he said. "[Madoff] may be facing that type of scenario."

The best possible low-security federal prison where Madoff could conceivably land is in Fairton, N.J., said Bales. That's the current residence of Sanjay Kumar, former Chief Executive of Computer Associates, serving a 12-year sentence for fraud and obstruction of justice.

"It's one of the best places to do your time," said Bales. "They send a lot of senators there and attorneys."

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