A Philosopher's Blog

Should Madoff Be in Jail?

Posted in Ethics, Law by Michael LaBossiere on January 12, 2009

CNN’s Cafferty recently raised the question of whether Madoff should be in jail pending his trial. Madoff, once considered a financial wizard, has been accused of stealing approximately $50 billion from his investors. Rather than being locked up in jail, he is currently out on bail and residing in his $7 million apartment in Manhattan. He is under house arrest; but a man could probably not find a better “jail.”

Cafferty notes that people who commit relatively minor offenses (such as selling modest amounts of marijuana) are often locked up until their trials and seems displeased that Madoff seems to be enjoying special treatment.

Of course, Madoff has yet to be found guilty and he did make bail. As such, it would seem that he has the right to remain in his house and not be locked up. After all, it can be argued that a person should be allowed to post bail provided that they are not a flight risk (that is, they are not likely to run away) and that they do not present an ongoing danger to the community. If someone is likely to simply flee before the trial, then they should be kept in jail to prevent that. If someone presents a danger to the community, then they should obviously not be allowed to roam free.

While it is appealing to see Madoff locked away, it is hardly just to punish someone before they are found guilty. Of course, one might point out, people are locked up before their trials quite often. Hence,  it would hardly be unusual for this to occur. However, let us argue from the standpoint of what would be just.

As noted above, he has yet to be found guilty. He also does not seem to be a serious flight risk-his infamy would make it rather difficult for him to sneak away. Also he still seems to have considerable wealth (at the very least his apartment) and he would put that at risk by fleeing. This is not to say that he would not flee-just that there are reasonable grounds to think that he will not.

Of course, there is now a reasonable concern that Madoff might use his relative freedom to harm the community further. To be specific, the prosecution has accused Madoff of sending millions of dollars worth of jewelry to friends and relatives. The intent of this act would seem to be to keep those assets safe from any legal action that might be taken against Madoff. If he is engaging in such activity, then it would seem that he is still harming the community. After all, this sort of action would seem to be on par with trying to conceal stolen goods to prevent their being recovered. While Madoff might legitimately own the jewelry, it seems reasonable that his personal wealth should be subject to seizure should he be found guilty of the crimes for which he stands accused. As such, if it is likely that he will continue to try to wrongfully protect his assets, then he should be jailed to prevent that from occurring-or at least to make the show that an attempt is being made.