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Dec 18, 2008 
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Bernard Madoff apparently stole huge amounts of money in a Ponzi scheme that will have dramatic impact on many individuals and entities, and may even be of sufficient scope to have a perceptible impact on the economy at large. Today United States District Court Judge Gabriel Gorenstein reversed a magistrate judge's order detaining him before trial without bail, and set bail:
Federal District Judge Gabriel Gorenstein said Madoff, 70, must wear electronic monitoring, observe a 7 p.m-to-9 a.m. curfew and restrict his travel as conditions of his $10 million bail. He and wife Ruth were told to surrender their passports, and they put up their apartment, as well as homes in Montauk, Long Island, and Palm Beach, Fla., to guarantee the bail.
At The Corner, from which outrage occasionally emerges, I saw this:
A Despicable Decision [Larry Kudlow]
It was Federal District Judge Gabriel Gorenstein who released big-time, $50 billion scam-artist/fraud/crook Bernard Madoff. He is the one who did it. This ruling allows Madoff to stay out of jail, even though he couldn’t meet the original bail conditions that he provide four co-signers to his $10 million bond.
Write Judge Gorenstein. E-mail him. Call his office. (Contact info here.) Let him know what a terrible injustice he has done to every law-abiding citizen in this country, not to speak of the victims of this incredible fraud.
It is an outrage to me that Madoff is sitting back home in his $7 million Park Avenue pad after what he did to this country. What a joke. It is a complete and utter outrage.
Absent from Mr. Kudlow's outrage is any analysis of whether Judge Gorenstein's bail order comported with the rule of law.
In fact, it does. Bail decisions for people charged in federal court are governed by the Bail Reform Act of 1984. That statute is codified at 18 U.S.C. section 3141 et seq. The Bail Reform act requires federal courts to release criminal defendants on his or her own recognizance — or an unsecured appearance bond (basically, their own signature promising to appear, secured by their promise to pay money if they do not) unless the court finds that won't ensure that the person will appear and won't be a danger to the community. 18 U.S.C. section 3142(b) provides, in relevant part:
The judicial officer shall order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person not commit a Federal, State, or local crime during the period of release and subject to the condition that the person cooperate in the collection of a DNA sample from the person if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.
Otherwise, the court must release the defendant on a bond with conditions, unless the court finds that no combination of conditions (like bail amount, posting property, house arrest with electronic monitoring, surrender of passports, etc.) will ensure that the defendant will appear for trial and will not pose a danger to the community. Only then — if flight risk and danger cannot be addressed by conditions of release — may the judge detain the defendant before trial:
If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.
Now, it may be possible to criticize Judge Gorenstein's decision on the grounds that no combination of conditions can possibly assure that Madoff will show up for trial. I didn't see the evidence offered a the hearing, or read the Pretrial Services report, so I don't know. One might even argue that Madoff will be a continuing financial danger to the community, and that danger can't be addressed by conditions — though given the publicity about his scam, this seems unlikely. Those would be rational, law-based arguments.
But the argument that his release is outrageous because his crime is so heinous is an argument based on emotion, not law. The nature of the offense charged and the weight of the evidence are factors under 18 U.S.C. section 3142(g) in determining whether conditions can assure a defendant's appearance, but they are not the only factors.
Don't like it? Think that the law ought to permit detention of people accused of horrible crimes without reference to flight risk or danger to the community? Take it up with Congress. By releasing Madoff on strict conditions based on a flight risk analysis, the judge is applying the rule of law. Calling for people to telephone and email the judge to vent outrage based on a visceral disagreement with the release is the equivalent of encouraging people to vent their rage because the accused is being given a jury trial, or because the sentence permitted by the statute is not long enough, or because the elements of the crime as defined by the statute are insufficiently "tough." It's a permissible call for people to exercise their free speech rights, but it is also a naked appeal to anger at the expense of the rule of law. It's regrettable.
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