Should Bernie Madoff remain free?

By Conor Clarke

Bernie Madoff appears in court this morning, where, according to the judge's brief, two questions will be answered. The first is how he pleads. (And unless his lawyers are trying a surprising and highly counterintuitive strategy, everyone knows the answer to that one: he will plead guilty.) But the second question seems like it's still up in the air: will Madoff remain free until his sentencing?


Madoff has been free since his arrest on December 11 because he's been presumed innocent. (And because he paid $10 million in bail.) But the burden of proof shifts to Madoff once he's pled guilty. If he is to remain free until sentencing, his lawyers must convince the judge that he needs time to "put his affairs in order."

I have been trying to imagine how such an argument might work, and I can't. Madoff has been out of jail for exactly three months since his arrest. I'm guessing he did not realize he was guilty only a few days ago. If that's the case, doesn't it seem like he's had plenty of time to put his affairs in order?

Update: Madoff pled guilty and had his bail revoked, which makes perfect sense to me. Well-deserved all round. He heads off to jail.

On the other hand, the judge's explanation for revoking bail -- "He has incentive to flee, he has the means to flee, and thus he presents the risk of flight" -- does not make immediate sense. My understanding is that Madoff was under constant supervision, so the risk and means of flight do not seem like they increase appreciably when he's under house arrest, as compared to when he's in jail. Perhaps they imagine a Mission Impossible-style breakout from a man in his 70's.

More importantly, I don't really see how his incentive to flee is any higher today than it was yesterday. He knew he was guilty -- and knew that he would plea guilty -- on both days. And his knowledge of the sentence, which hasn't yet been issued, remains exactly the same. The only thing that's changed is that there's much more attention on him today, which seems like it would reduce his ability to flee.

This article available online at:

http://www.theatlantic.com/politics/archive/2009/03/should-bernie-madoff-remain-free/1456/