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Unpublished Paper
CONDITIONAL RELEASE UNDER THE BAIL REFORM ACT: THE SOLUTION TO PRETRIAL DETENTION FOR ‘ECONOMIC HARM’
(2014)
  • Edward C Nazzaro, Mr.
Abstract
This comment examines whether the language of the Federal Bail Statute and the threat of ‘economic harm’ is sufficient to take away the freedom of an accused person awaiting trial. The introduction discusses Bernard ‘Bernie’ Madoff and the conditions of pretrial release used by United States Magistrate Judges to allow Madoff to remain free until conviction. After introducing this concept with a high-profile defendant, the comment provides an overview of the Bail Reform Act and how it was changed in 1984 to include ‘danger’ as a relevant factor in pretrial detention matters, adding to the preexisting power to detain defendants as a risk of flight. From the background, the comment moves to an interpretation of danger and the scope that was intended when the Act was changed by analyzing the legislative history from the United States Senate as a guide. The comment then discusses recent case law that studies the power judges wield under the Act to impose conditions of release to prevent this perceived danger. After this initial analysis, the comment further examines the decision to release Madoff in United States v. Madoff and how this was correct, even when dealing with the potential for substantial losses to victims attempting to recover lost investments. This comment concludes by explaining why economic harm should rarely, if ever, be found to warrant pretrial detention, and that judges in the federal system should be wary of attempts to read language into laws broader than was intended. As an alternative solution to the use of extensive conditions that might prove unaffordable for a defendant, this comment suggests the United States, rather than paying the cost to jail an accused person, cover the cost of any conditions the court finds are reasonably necessary in an effort to address the disparity between wealthy and indigent defendants.
Publication Date
2014
Citation Information
Edward C Nazzaro. "CONDITIONAL RELEASE UNDER THE BAIL REFORM ACT: THE SOLUTION TO PRETRIAL DETENTION FOR ‘ECONOMIC HARM’" (2014)
Available at: http://works.bepress.com/edward_c_nazzaro/1/