One of the most commonly misunderstood aspects of criminal law is the purpose of setting bail in criminal cases. The purpose of requiring bail money is to ensure that the accused comes back to court. Period. It is not meant to be punitive. The defendant who has posted his money (or home, or stock, or some other thing of value) has an incentive to return for future court appearances, lest he lose the money if he skips town. And no matter how horrific the alleged crime, the defendant who has posted bail (in the amount deemed appropriate by the court) has every right to remain at liberty- you know, that whole presumption of innocence thang.
Among those who don’t seem to understand this is CNN’s Campbell Brown, who complains here that Bernard Madoff’s bail should be revoked, basically because he is a bad guy. While there may well be valid reasons for revoking Madoff’s bail- such as violating the conditions previously set by the court – Brown is clearly clueless in making this argument:
Letting him serve his time at home for this long has been bad enough. To let him live in his luxury digs while he awaits trial would be a disgrace.
“Serve his time”? Is she unaware that at this point he has not been convicted of a crime?
One thing a court may consider in setting bail is how easy it would be for the defendant to flee the jurisdiction. Which brings me to a very interesting case currently pending in Iowa. Rabbi Aaron Rubashkin was the head of AgriProcessors, the largest kosher meatpacking plant in America. However, Rubashkin was arrested earlier this year after an immigration raid revealed hundreds of illegal and underage workers were employed at the plant. He also faces bank fraud charges.
At a hearing in November, Rubashkin was denied the chance to post bail after, among other arguments, the prosecutor argued that Rubashkin was a flight risk on the grounds that since Rubashkin is Jewish, he has the right under the Law of Return to seek citizenship in Israel. Taken to its logical end, this would mean no Jewish defendant should ever have the chance to post bail. Again, as with Madoff there may well be other valid reasons to deny Rubashkin bail. Yet at least according to this article, the judge cited this as one of the reasons for keeping Rubashkin locked up.