Friday, March 20, 2009

Madoff - Stay in Jail - Age Matters

The Second Circuit Court of Appeals issued a Summary Order finding that Bernie Madoff should remain in jail during the pending of his case before the court. The court notes that the "burden is on a defendant to demonstrate by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of others or the community."  The district court had found "that in light of the defendant's age (70) and the length of a potential sentence (150) years, he has an incentive to flee, and that because he has the means to do so, he presents a risk of flight, and therefore should not be released." (emphasis added)  The appellate court found that "[t]he defendant's age and his exposure to imprisonment are undisputed, and the court did not err in inferring an incentive to flee from these facts." (emphasis added) The Second Circuit upheld the district court's decision finding that the court did not err in "its assessment that the defendant has failed to show by clear and convincing evidence that he is not likely to flee."

Madoff is not a sympathetic character right now, and the applause he received from the courtroom audience, when ordered to jail, sent that message clearly (see here).  But all that said, it is interesting to see a court consider the age of the accused in a bail decision? If we said it was based on race or gender it would be subject to scrutiny.  And age, according to the Sentencing Guidelines "is not ordinarily relevant in determining whether a departure is warranted." It can be used if the accused "is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration." (5H1.1).  Is using age as a factor in a bail decision different?

See also Ashby Jones, WSJ Blog, Madoff to Stay Behind Bars Pending Sentencing


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