In United States v. Boustani, No. 19-1018-cr (2d Cir. Aug. 1, 2019), the Second 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.”
Boustani was charged with conspiring to commit wire fraud, securities fraud, and money laundering. He sought bail, proposing conditions that included home confinement under the supervision of private armed security guards, to be paid for by him. The district court denied bail, finding Boustani to pose a risk of flight based on the seriousness of the charges, the lengthy potential sentence, the strength of the evidence, and the defendant’s personal characteristics, which included his “substantial financial resources.” The court also found that no set of conditions would reasonably assure the defendant’s appearances in court. Judge Kuntz specifically noted that releasing Boustani to “a privately funded jail would lead to disparate treatment” between him and his co-defendants, who lacked Boustani’s financial resources.
The Circuit affirmed, holding that, while defendants should not be denied bail because of their wealth, nor should they be granted bail because of their wealth. In the Court’s words: “To interpret the Bail Reform Act as requiring district courts to permit wealthy defendants to employ privately funded armed guards where an otherwise similarly situated defendant without means would be detained would violate [a] core principle” of fairness: the law protects “the interests of rich and poor criminals in equal scale, and its hand extends as far to each.”
That said, the Court reiterated that granting bail subject to a private-security condition may be appropriate where the defendant is deemed to be a flight risk primarily because of his wealth. “In other words, a defendant may be released on such condition only where, but for his wealth, he would not have been detained.”