I should point out too that his being able to pay them back with profit really had nothing to do with his original taking of money. It is tantamount to pure luck that he was able to, entirely separately from the fraud, recoup their losses. Had it not been for that separate channel of money available to him, he wouldn't have had the opportunity to undo the damage done by his harm. And THAT is why this is a punishable crime. If you stab someone and then treat the wound and it heals entirely - even if you find, say, a tumor while you're treating the wound and end up unintentionally saving the person's life, you have still committed the crime of assault. It was only by coincidence that you helped the person out after the crime was committed.
Yes, exactly. Look at Madoff. Early on, it's entirely possible that he could have gotten lucky trading and made the money back. That still doesn't change the fact that he committed fraud. If we only punish the people who lose money, we create a huge incentive for more fraud, because it encourages yet more "double or nothing" behavior on the part of people who screw up.
