Thursday, June 2, 2011
Dominique Strauss-Kahn is not accused of a white-collar crime, but he is a prototypical white-collar defendant – important, rich, and well-connected.
Strauss-Kahn, a French citizen accused of attempted rape and other crimes, was denied bail at his arraignment by a New York City lower court judge. A major justification was that France (like Germany, China, Japan, and many other nations) will not extradite its nationals. Subsequently, Strauss-Kahn’s experienced and able attorneys, desperate to get him released, proposed a highly onerous bail package, which a higher court judge accepted over the prosecutor’s strenuous objection. That bail package consists of a $1 million cash bond, an additional $5 million bond secured by a home owned by Strauss-Kahn’s wife, home confinement in New York City with an ankle bracelet, inside and outside video cameras, and even a 24/7 armed guard (Why armed? To shoot him if he tries to escape? To prevent the French foreign legion from freeing him?). These security measures reportedly will cost $200,000 a month. Strauss-Kahn, like all persons confined at home pre-trial, will receive no jail credit for his period of house arrest.
One wonders whether Strauss-Kahn’s bail conditions will become a prototype for bail conditions for major white-collar defendants, at least those with foreign or multi-national citizenship (an increasing number with the expansion of both the global economy and prosecutorial jurisdictional reach). The setting of bail is perhaps the most unguided and unpredictable of judicial decisions. Judges have wide discretion, amorphous standards, and, at least initially, generally little information about the case and the defendant. It is to be expected that judges will look for similar cases or similar defendants for a model. And, as recent history has shown, the most aggressive and/or harsh prosecutorial practices employed in the prosecution of violent and drug crimes (lengthy sentences, seizure of assets, restriction of counsel fees, eavesdropping and the like) soon work their way into the area of white-collar prosecution. If the Strauss-Kahn bail conditions become a standard, we can expect severe and restrictive home confinement bail conditions for white-collar defendants.