Harvard University, Journal on Legislation:

Extraordinary Conditions of Release Under the Bail Reform Act
JONATHAN ZWEIG

Bernard Madoff and Marc Dreier, two prominent white-collar criminal defendants, were recently released on bail pending trial in the Southern District of New York. Each remained free on bail for several months before eventually being sent to prison. In both cases, the court set bail amounts in the millions of dollars and imposed numerous additional conditions of release, including home detention enforced by security guards, twenty-four-hour video monitoring, screening of visitors, limitations on communications, and the requirement that the defendants or their families bear the considerable expense of these conditions. The court imposed these terms of release pursuant to the Bail Reform Act of 1984, which mandates that courts release defendants before trial subject to “the least restrictive” set of conditions that “will reasonably assure the appearance of the person as required and the safety of any other person and the community.” Under the Bail Reform Act, a court will only detain a defendant if no set of available conditions will reasonably preserve the safety of the community and prevent the defendant from fleeing.

The Madoff and Dreier courts interpreted the Bail Reform Act (and, in Dreier, the Constitution) to require them to permit the defendants to transform their own residences into the equivalent of private jails, at their own expense, in lieu of pretrial detention. Such a requirement goes far beyond the “fundamental tradition in this country . . . that one charged with a crime is not, in ordinary circumstances, imprisoned until after a judgment of guilt.” Rather, this amounts to a special privilege for defendants who have access to substantial financial resources. When wealthy defendants pose a flight risk or danger to the community, they may avoid pretrial detention by paying for extensive conditions of release. By contrast, defendants who pose equivalent risks, but who cannot afford to pay for extraordinary terms of in-home detention, are detained in conditions that are often worse than those in which convicted criminals are held. Judge Rakoff noted in Dreier that unequal access to bail conditions based on wealth exposes a “serious flaw in our system,” but he felt constrained by the Bail Reform Act and the Constitution to release Dreier on the conditions noted above.

The Constitution, however, does not allow for this inequality muchless mandate it. A criminal defendant does not have a Fifth or Eighth Amendment right to pretrial release on any conditions that he can finance to the contrary, taking into account an arrestee’s access to funds to pay for bail conditions violates the Equal Protection Clause because it conditions access to a fundamental right pretrial release on the basis of wealth.

Nor does the Bail Reform Act, considered as a whole, mandate this inequality, though this is a somewhat uncertain matter of statutory interpretation. In any event, Congress should amend the Bail Reform Act to make clear that courts are not required to grant defendants extraordinary bail conditions simply because they can afford to pay for them. In doing so, Congress would bring the operation of the Bail Reform Act into compliance with the Equal Protection Clause.

This Note will consider the unequal availability of bail conditions, as highlighted by the Madoff and Dreier cases. Part II argues that although pretrial release is a fundamental right, neither the Constitution nor the Bail Reform Act requires that defendants be released on any conceivable set of conditions that they can finance. Part III argues that restricting the fundamental right to pretrial release on the basis of a defendant’s ability to pay for bail conditions violates the Equal Protection Clause. Part III also distinguishes the non-financial conditions of bail discussed in this Note from bail bonds. Finally, Part IV offers policy recommendations that address the problem of unequal access to bail conditions.