Keep Bernard Madoff Free!

Where once it was rare for defendants to be imprisoned because they could not make bail, it is now absolutely routine. In 2005, "the most recent year for which statistics are available from the Justice Department, only 34 percent of federal defendants were released before trial. Just to underline the math here, that means two-thirds of people charged with crimes in federal court stayed in jail until their trial. And this is happening despite the fact that electronic monitoring can make a criminal's flight vastly more difficult than it would have been in the past.

Given those numbers, you don't exactly have to be on the extreme fringe of criminal-coddling liberals to think that the right to bail has turned into an occasional privilege. Far from it: A bill to liberalize bail—or, in the words of the legislation itself, "to restore bail bonds to their historical origin as a means solely to ensure the defendant's physical presence before a court"—has come up in Congress several times. The latest version, the Bail Bond Fairness Act of 2007, passed the House but died in the Senate—though its Senate sponsors included Joe Biden, the incoming vice president; Arlen Specter, the ranking Republican on the judiciary committee; and the famous bleeding-heart, South Carolina liberal Lindsey Graham.

Which brings us back to Madoff. The specific accusation against Madoff is that he violated a condition of bail by disposing of his property—jewelry, watches, and some sentimental objects that he sent to his family. Unquestionably, some of them were valuable. The claim of the prosecution was that he was trying to hide his assets. If so, he chose a stunning way to do it, sending an odd mix of items, from mittens to diamonds, to a whole batch of relations—including his sons, who, you will recall, were the ones to go to the police in the first place. Madoff himself then told his own lawyers about the jewelry, and he told them to get it back.

Madoff's lawyers say he didn't think the restriction on disposing of assets applied to his personal items. Sound stupid? Yes. But then, trying to get rid of his assets in a way that was almost certain to be discovered and then telling his lawyers about it is equally stupid. Whether it's more likely that he really didn't understand or that he reconsidered you can judge for yourself; it's hard to choose the more likely of two idiotic options. But the prosecutors' claim is, at very best, that he considered and then changed his mind about giving away valuables that may or may not be subject to forfeiture if he's convicted. And, in addition, prosecutors point out that Madoff, before he was arrested, had planned to cash checks worth over $100 million. Which, of course, we knew already—it's why he's got electronic monitors and round-the-clock guards.

The real issue is that Madoff, who initially seemed to be cooperating with prosecutors, isn't any longer. So imprisoning Madoff gives prosecutors the ability to coerce him into pleading guilty quickly. Meanwhile, the prosecutors themselves are about to miss the deadline to file an indictment to get the case going and will ask for an extension. Federal prosecutors now boast a 90 percent conviction rate, thanks in part to the very effective strategy of lengthy imprisonment without bail-precisely the prosecutorial strategy that the Constitutional prohibition on excessive bail was designed to thwart.

Those who imagine that revoking Madoff's bail now will somehow strike a blow for equality later have it backward. Sure, it would hurt Madoff. But the high profile precedent and the howls of satisfaction at Madoff getting his comeuppance will yield to the reality that its most severe effect will not be on those who are well-lawyered and well-connected but on those who are not. To keep Madoff electronically monitored in his home opens the door for much less well-connected people to ask, with absolute justice, why they should not have the same right as well.

The answer is that they should. For Judge Ellis to refuse to revoke Madoff's bail would send a clear signal that the purpose of keeping people in jail before trial should not be to punish and intimidate, no matter how likely it seems that they will be convicted in the end. Madoff's fancy apartment is undoubtedly as gilded a cage as there can be. But it is a cage nonetheless. For someone who has not yet been convicted of a crime, that in itself is more than enough and easily as much as the law should require.

© 2009