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08.14.19 | Blog Posts

All Defendants Are Created Equal Under The Bail Reform Act – or Are They?

The Insider: White Collar Defense and Securities Enforcement

On August 1, 2019, the Second Circuit Court of Appeals jumped into the fray of what has been a growing debate about the right under the federal Bail Reform Act for individuals facing indictment to create conditions for release that only the wealthiest of defendants can even contemplate, including paying for their own home detention service. In a highly unusual opinion, in the case of United States v. Boustani, the Circuit held that the Bail Reform Act “does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails.” Although the Second Circuit’s “all created equal” pronouncement may be laudable, it is inconsistent with the plain meaning of the Act and unnecessary given the facts of Boustani. As I explain in my prior blog post, “Too Rich to Bail?,” the Bail Reform Act requires that, in each case, courts conduct an individualized assessment of the charges against the defendant as well as the weight of the evidence and the defendant’s underlying history and circumstances, to determine whether any conditions exist that would assure the defendant’s appearance in court. Thus, the Act is inequitable by its very terms. This blog discusses the Circuit’s Boustani opinion and whether the Circuit, in reaching the issue of equitable treatment, misconstrued the Act’s text. [...]

All Defendants Are Created Equal Under The Bail Reform Act – or Are They?