Keep Bernard Madoff Free!

Rarely has a jurist had a chance to make as many people happy as Ronald Ellis, the judge who next week will rule on the latest twist in the Bernard Madoff story: the prosecution's demand that he revoke Madoff's bail and send Madoff to jail. And rarely has the case against a white-collar criminal been more clear-cut and more likely to lead to prison. That's exactly the place where Madoff should go if justice is to be served.

Except he should go there only after he's actually been convicted.

This isn't exactly a popular view. When Madoff was arrested, he was initially offered a chance to post a $10 million bail bond but couldn't come up with four people in the world willing to co-sign it and put their own assets at risk if he decided to flee. So prosecutors agreed to an unusual arrangement involving home confinement, an ankle bracelet, and round-the-clock guards. The almost universal reaction to the conditions of Madoff's release on blogs and newspaper comment boards was to ask why the hell a rich guy like Madoff should get special breaks and stay in his multimillion-dollar apartment instead of getting locked up with other defendants who can't make bail in New York's notoriously violent Riker's Island jail.

 

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A much better question, though, is why anybody is thrown in prison before trial when we have cheaper, better, and nonpunitive ways of making sure they don't disappear. Yes, thanks to his money, Madoff has managed to stay out of jail while other federal defendants don't. But for anybody who's the least bit concerned about the rights of the accused, the way to make things fairer isn't to jail Madoff before trial but to stop automatically jailing everyone else.

Madoff's case is unusual because it started, essentially, with Madoff outing himself. It's pointless to talk about Madoff's "alleged" fraud, as news organizations generally do with cases yet to be tried, when the main allegations come from the man himself. Yet even in a case like this, we still consider trial to be a necessary step between arresting Madoff and sending him to prison—a point underlined by the fact that as yet the prosecutors have not gathered together enough of their case to bring an indictment.

The presumption that defendants should remain free until they are convicted is centuries old in English common law. The writers of the Constitution saw it as significant enough that they made a point of keeping judges and prosecutors from short-circuiting the trial system by prohibiting "excessive" bail. What will surprise many people now is that even the notion that someone was dangerous—a natural idea but one that stands uncomfortably with the presumption of innocence—was traditionally not enough to deny bail.

In the federal courts, the only purpose of bail was to prevent flight, until the passage of the Bail Reform Act of 1984. Part of a package of tough crime legislation, the 1984 law changed the calculus of the presumption of bail, weakening the presumption that people should not be jailed until conviction. (Capital cases have always been exempt from bail, creating an exception for the very worst crimes.) The bill added the amorphous standard of danger to the community as a determining factor in setting bail. On top of that, in the intervening years federal judges began confiscating bail bonds not only for actual flight but for all sorts of violations, making it harder for defendants to find bondsmen (who get paid 15 percent of the bail, which they keep whatever the outcome—a cruelty that's hard to miss) to put up collateral.