The headlines all say “Madoff Faces 150 Years.” He’s pleading to eleven counts. If the judge adds the maximum sentence for each count, yes, he could get 150 years. But don’t bet on it.

Since Bernard Madoff plead “open”, ie. there is no plea agreement, the final sentence will be up to the judge. But there are many issues which must be decided first. At the time of the plea, presumably today, the court will order a pre-sentencing report. The report will be extremely complicated and it will take several months to prepare. Lawyers for both sides will attempt to influence the probation department it its report. This is where his attorney, Ira Lee Sorkin will earn his keep. The Pre-sentencing Report will be based upon the Federal sentencing guidelines. The guidelines take into account, primarily, two types of information: the crime and the defendant’s criminal record. The crime is great, Madoff stole a lot of money and he lied all over the place. To my knowledge he does not have a criminal record so that will work for him, though the Pre-sentencing report may give him some points anyway since they may think he should have had a criminal record considering the length of time he ran his Ponzi scheme and the amount he stole.

He plead to the sheet, meaning every charge alleged in the criminal complain. The charges are, according to Assistant U. S. Attorney Marc Litt, “securities fraud, investment advisory fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings to the SEC and theft from an employee benefit plan.”

For the more significant charges the maximum sentence is 20 years. The judge could add them all up and sentence him to 150 years. But the more likely prospect, according to Peter J. Henning, a professor at Wayne State Law School in The Deal Professor is that Madoff will get 20 years on one count and the sentence on the other charges will run concurrent.He may get more or he may get less but he is unlikely to get 150 years, unless the judge is really mad or wants him to be the example of the century.

United States District Judges are pretty immune from public pressure. They have their jobs for life and they feel they don’t have to listen to anyone, that is unless they want a Supreme Court appointment. But U. S. District Judge Denny Chin has his hands full in this case. Come sentencing its going to take ever US Marshall in New York City and beyond to maintain decorum in the court room. There are going many, many victims of Madoff’s schemes in that court room and everyone of them is going to want to tell the judge how Madoff ruined his or her life. Even a U. S. District Judge has trouble ignoring that pressure.

Another way Madoff can reduce his sentence is by providing substantial assistance to the government. In other words he can snitch on others who participated in his scheme and help the Federal government prosecute them. He has shown no signs of helping the government and in fact he has said that he alone it to blame. But when you are facing 150 years . . . .the government has power.

And then again, for a man of 70 whether he gets 20 years or fifty years does not make much difference.