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Bail for White-Collar Defendants

By Jefferson M. Gray

In the May 2009 issue of this newsletter, Steven F. Reich and Arunabha Bhoumik discussed the government's failure to persuade a district judge to jail Bernard Madoff pending trial so that he couldn't deplete assets, as well as the court's requirement that Madoff's wife hire private around-the-clock security to ensure that Madoff didn't flee. (“Pre-Trial Detention and White-Collar Defendants,” May 2009, page 1; http://www.ljnonline.com/issues/ljn_buscrimes/16_9/news/ 152029-1.html.)

Beyond these two unusual aspects, however, the Madoff detention litigation has revived longstanding questions about whether pretrial detention can ever be based solely on economic dangerousness. This issue has caused confusion throughout the quarter-century since the Bail Reform Act of 1984 (BRA) took effect. And given that Eric Holder, the new Attorney General, plans to allocate additional resources to investigating white-collar crime, prosecutors and defense counsel may square off frequently over this question in the years to come.

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