Anthony Barkow talks to Time about judge's decision not to revoke bail in Madoff case

In a Q&A with Time, Anthony Barkow, executive director of the Law School’s Center on the Administration of Criminal Law, said he was surprised that U.S. Magistrate Judge Ronald Ellis ’75 declined a request by prosecutors to jail Bernard Madoff after it was discovered that the former investment advisor accused of operating a $50 billion Ponzi scheme sent over a million dollars in jewelry to relatives in the past few weeks.

“The government had brought to the attention of the judge direct disobeyance of a court order, albeit in a related civil case, and that to me is convincing evidence that the defendant poses a serious risk of flight,” Barkow said. “If I was the judge I think I would have detained him.”

Barkow, who spent 12 years as a federal prosecutor, said that the judge probably allowed Madoff to remain on bail because he is on 24-hour house arrest with an electronic bracelet and round-the-clock monitoring of his building by a security firm.

“That’s as strict as you can get without detention. Also, the terms of the bail in the civil case, not the criminal case, prohibited Madoff from moving assets. Monday’s bail hearing pertained to the criminal case.”

Barkow acknowledged that when it comes to bail, white collar defendants are treated differently than perpetrators of other crimes, with about 75 percent of white collar defendants free on bail compared to about 50 percent for other crimes, according to Department of Justice statistics.

“Part of the reason is that in fraud cases the presumption of the law is in favor of release,” he said. “When it comes to violent crimes, it is in favor of detention. But there is also just the lens through which society views wealthy people, and the reality that wealthy people have deeper ties to the community. They also have the ability to tap into more resources, like perhaps better representation. So there are legal differences and real world practical differences between the situations of white collar defendants and street criminals and the statistics reflect that.”

When asked about the next stage in the Madoff case and prosecutors’ delay in presenting the case to a grand jury, “the most interesting question is who else, if anyone is going to be charged,” Barkow said. “They undoubtedly are looking into other people, and I’m sure they are planning to use their extra time to investigate others connected to Madoff and the fraud.”