Should Jeffrey Epstein have been granted bail? The question nags as the pedophile is paddled across the River Styx. The judge’s decision to deny the billionaire bail was intended to ensure that he would be present for a trial next year in federal court. It didn’t, however, work. His apparent suicide leaves his alleged victims furious. America’s top law enforcement official is appalled.
So might it have been wiser — more prudent — to have granted Epstein the bail he sought? We ask not because we have any sympathy for his cause. We’ve defended a lot of unpopular defendants since the flag of the Sun was first flown in 1833, but Epstein wasn’t — and isn’t — one of them. We do not suggest he was being wrongly pursued. He fails to evoke our sympathy.
Our sympathy is, however, evoked by the Bill of Rights. Our fingers have been worn to the editorial knuckles tapping out an exegesis on this parchment. The word “bail” appears in it but once. Feature, though, the bluntness with which the Eighth Amendment marks the right: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Contrast that language with the letter of July 11 to The Honorable Richard Berman, the judge sitting in United States v. Epstein. It’s the letter in which one of Epstein’s lawyers, Reid Weingarten, outlined “grounds entitling” Epstein “to pretrial release.” It proposed 14 conditions to “guarantee his appearance and abate any conceivable danger he’s claimed to present.”
It starts with home detention in Epstein’s Manhattan mansion “with permission to leave only for medical appointments as approved by Pretrial Services.” It offered surveillance cameras at the front and rear entrances. It proposed “electronic monitoring with a Global Positioning System” that, unlike the old radio bracelets, tracks the wearer in real time.
Epstein also offered not to seek a new passport. He would consent to extradition from “any country.” He would waive “all rights against such extradition.” The letter proposed a personal bond in an amount set by the court. It would be secured by Epstein’s $77 million Manhattan townhouse and his private plane, which Epstein would “deregister or otherwise ground.”
Jeffrey Epstein’s brother, Mark, the letter proposed, would “serve as a co-surety of the bond,” to be also secured by Mark Epstein’s home in West Palm Beach. A friend, David Mitchell, would pledge some of his investment interests. The letter proposed to “demobilize, ground, and/or deregister” all Jeffrey Epstein’s vehicles “or any other means of transportation in the New York area.”
Plus, no person would “enter the residence, other than Mr. Epstein and his attorneys, without prior approval.” Epstein would “report daily by telephone to Pretrial Services (or on any other schedule the Court wanted).” The letter proposed that one or more trustees would be appointed “to live in Mr. Epstein’s residence and report any violation to Pretrial Services and/or the Court.”
One might be tempted to ask what further the court could demand without the bail being constitutionally “excessive.” Yet the government opposed bail anyhow. It argued that Epstein just could not meet his “burden” of “overcoming the presumption that there is no combination of conditions that would reasonably assure his continued appearance in this case.”
Neither, it turns out, could the government. Michael Daly of the Daily Beast has a devastating column on the safeguards the government was supposed to provide to someone in Epstein’s predicament. On suicide watch, someone is supposed to be with him at all times. There are rules for taking a prisoner off suicide watch. None prevented Epstein from being left alone to look after himself.
No wonder Attorney General Barr is appalled. There’s no guarantee that Epstein wouldn’t have committed suicide, if that’s what it was, had he been granted the bail he sought. We only know that the government’s solution failed to guarantee that he would show. We can’t help but wonder whether the government would have brushed aside the Eighth Amendment if its officers had to put up their homes.
Image: Drawing by Elliott Banfield, courtesy of the artist.