thoughts on politics

January 12, 2009

Good Newsweek piece on Bernard Madoff

Filed under: Uncategorized — Matt @ 12:49 am
Tags: , , , ,

Newsweek carried a thought-provoking column this weekend on whether Bernard Madoff should go to jail immediately.  I had read some incensed remarks wondering why he was allowed to spend his time before trial under “house arrest” in his apartment, and found myself in general agreement against this injustice.  But this essay in Newsweek by Mark Gimein changed my mind.  His main point, which the indignant wailers miss, is that Madoff hasn’t had his trial yet.  It’s not like he’s gone and “made-off” with his money, either (forgive me the pun).  Excerpts of the article:

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.

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…

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…

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.

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…

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.


December 20, 2008

this week’s newsweek: not so bad

Filed under: Uncategorized — Matt @ 11:37 pm
Tags: , , , ,

I’m back home for Christmas break, and used today to thumb through Newsweek.  Happily, this week’s cover story was much more relevant, well-researched, and necessary.  It tells the personal story of Thomas Tamm, the government official who first leaked to the press the existence of the NSA wiretapping/domestic spying program.  Since making his one stand before the US government, his life has become something of a maelstrom — his house has been raided, employment has been scarce, and he knows he’s under investigation at the highest levels of the FBI.  He could be arrested at any time, but as of yet has not been.  The costs of standing up to the government have been tremendous — not only to him, but to his family, friends, and other past associates.

Robert Samuelson, meanwhile, finally gives a sensible perspective in a mainstream outlet on what lobbying really is, and why it should not be looked down on in a democracy.

On the page facing his commentary, though, is an entirely wrong-headed piece by a former Clinton economic official.  The sub-headline about encapsulates the story.  It begins promisingly, saying, “World leaders have spent trillions on confused, inadequate rescue plans,” but from this reaches what seems to me the most bafflingly backwards of conclusions: “They need to spend more.”  Consider this in light of the story I just posted, and read the rest if you want.  We do not run the risk of inflation, we ensure it; it’s already happened.

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