Madoff pleaded guilty in March 2009 to multiple charges in connection to his scheme – the largest Ponzi scheme in history – in which he scammed nearly 5,000 people out of more than $64 billion. He was sentenced in June of that year.
The 81-year-old has since spent just more than a decade behind bars and is currently serving the century-and-a-half-long sentence at a federal medical center in Butner, North Carolina. His release date is identified on the Bureau of Prisons website as Nov. 14, 2139.
But his Feb. 5 request to the court, made through his attorney and called a “Motion for Compassionate Release,” detailed what lawyers called change in circumstances.
"It was clear that Madoff’s 150-year prison sentence was symbolic for three reasons: retribution, deterrence, and for the victims,” the court papers state. “This Court must now consider whether keeping Madoff incarcerated, in light of his terminal kidney failure and a life expectancy of less than 18 months, is truly in furtherance of statutory sentencing goals and our society’s value and understanding of compassion.”
But former federal prosecutor and longtime attorney Robert Appleton, now a New York-based white-collar defense attorney, said having motions like Madoff's granted is “rare."
“The judge has a lot of discretion, which is pretty much unfettered… But they're also very difficult to get,” Appleton told FOX Business on Wednesday. “One of the things to keep in mind is that the Bureau of Prisons has very good medical facilities, medical care. They have certain facilities that treat or house gravely ill prisoners.”
Though doubtful, Appleton said, prosecutors could consent to the motion. Nonetheless, the government will file a response to the court, which will be followed by a hearing on the matter.
Appleton, who handled a “motion for compassionate release” while working as a federal prosecutor in Connecticut, said the court will take into account factors such as the length of Madoff’s sentence, the amount of time he has served, the extent of the crime and the imminence of his death.
“These things are typically done, if they're done at all, with prisoners facing two, three months of life," he said. "Eighteen months is – I have to look at the cases – but I can't think of a case where it's been granted with that much time remaining.”
The U.S. Bureau of Prisons previously rejected Madoff’s request, telling him on Dec. 5, 2019, that his early release would “minimize the severity of his offense.” Months earlier, in July, he filed papers asking President Donald Trump to shorten his prison sentence.
Prosecutors – who have not yet submitted a written response to the Feb. 5 motion – will also take into account the victims and the damage Madoff caused.
On Friday, prosecutors announced those who suffered financial losses in the scheme have until the end of February to submit emails to Judge Denny Chin through the prosecutor’s office.
If the judge were to ultimately grant Madoff’s request, he would “order supervised release and impose conditions,” Appleton said. If such were the case – if the terminally ill octogenarian were released early because of his health – what family does he have to turn to?
Madoff’s wife, Ruth Madoff, moved out of New York City and initially lived in Boca Raton, Florida, the New York Post’s Isabel Vincent reported in May 2017.
She was most recently reported to be living a quiet, private life in Connecticut. The Post described in detail how Ruth Madoff was virtually living in “exile” in Old Greenwich, where she moved in 2012.
Bernie Madoff’s sons, Mark and Andrew Madoff, worked as business and regulatory managers at Bernard Madoff’s private investment securities business. Both denied any involvement in their father's scheme and have since died in unrelated incidents.
Mark Madoff committed suicide in 2010, leaving behind his wife, Stephanie (Madoff) Mack and children. Mack owns a styling business and moved to Brooklyn in 2016, according to a 2017 New York Times report, which noted that Mack and Ruth Madoff were in contact regularly.
Andrew Madoff died in 2014 from cancer, leaving behind a fiancee, Catherine Hooper, and children. Hooper moved into a studio apartment in Manhattan after briefly moving to the Bahamas with her 12-year-old daughter, who was enrolled in a marine biology program, according to a 2017 profile in People.
Bernice Madoff's brother, Peter Madoff, was the convicted schemer's chief compliance officer who worked for the firm for 40 years, according to a Bloomberg report. Peter Madoff denied knowing anything about the massive scheme until its demise. He was sentenced to 10 years behind bars and is currently housed in a residential re-entry management program in Miami, Florida, as he awaits his August 2020 release, according to BOP inmate records.
Shana Madoff, Peter’s Madoff's daughter, also worked for the firm, where she served as a compliance officer and in-house counsel, according to the Bloomberg report. While she was initially sued for allegedly using client money to pay off credit card bills and other expenses, the suit was later dropped. She was not criminally charged.
She met Eric Swanson, an attorney for the Securities and Exchange Commission, during the investigation into her uncle’s scheme, according to the report. The pair later married.
The Associated Press and FOX Business' Suzanne O'Halloran contributed to this report.