Presumed Innocent


Published February 11, 2009, issue of February 20, 2009.
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Just when it seemed that the shockwaves caused by Bernard Madoff’s alleged $50 billion fraud had subsided, came word of a new and much longer list released as part of his firm’s bankruptcy-court proceedings. Go, search it online. The famous names are there — Spielberg, Wiesel, Koufax, even a former Miss America, even Zsa Zsa Gabor! — and so are the banks, foundations, universities and hospitals that lost millions upon millions after investing with a man they thought they could trust.

There are also names of housewives and retirees, country clubs, a plumbers’ union and a Connecticut town’s pension fund, all listed (mystifyingly) in alphabetical order according to first name, an odd compendium of 21st-century victimization. The scope is stunning and infuriating, and once again leads us to the question that many have asked since this scandal burst wide open.

Why isn’t this man in jail?

Why, when he offered some sort of confession, is he allowed to luxuriate in his $7 million Manhattan apartment while awaiting trial?

The answer is that two different federal judges rejected the government’s arguments that Madoff ought to be jailed, ruling that he was neither a flight risk nor a danger to his community. He posted $10 million bail, surrendered his passport, is subject to round-the-clock security and the added precaution of having his mail screened after he sent more than $1 million worth of diamond-studded jewelry to friends and family. (A mistake, his lawyers agreed. All merchandise returned to sender.)

No matter how morally offensive this arrangement seems, Madoff must be presumed innocent until proven otherwise. The real civic shame is not that he is home. The shame is that so many other presumed-innocent men and women are not.

Across the country, 62% of those sitting in jail are awaiting trial — an increase from 50% just a decade earlier. Some are defendants deemed so dangerous that society is better off with them behind bars. But the majority are charged with misdemeanors, and are there not because they are dangerous, but because they couldn’t post bail. Not the multi-millions Madoff had to produce. Far, far smaller amounts that, if you are poor, may be much more difficult to find.

An excellent investigation published by City Limits in 2007 found that of the 13,000 people in a New York City jail on a typical day, more than 9,500 are awaiting trail, most because they couldn’t make bail. And half of those who don’t make bail are held on bails of less than $1,000.

“The court uses money to determine who stays in and who stays out,” says Timothy J. Murray, executive director of the nonprofit Pretrial Justice Institute. “The system inherently discriminates against those who don’t have money.”

The idea that liberty is not supposed to be predicated on the size of one’s bank account is as old as, well, the Eighth Amendment, which clearly states: “Excessive bail shall not be required, nor excessive fines imposed.” A justice system so intent on securing the rights of a Bernard Madoff ought to work just as hard to do the same for those with far fewer riches and, most assuredly, fewer victims.

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