NEW YORK – The public may be boiling with outrage that someone who allegedly staged the biggest financial fraud ever gets to sit comfortably at home as he awaits trial, not locked in a jail cell staring at the walls.

But incarcerating Bernard Madoff now is risky because it could cut off any hope of unraveling his $50 billion Ponzi scheme. That would be to the detriment of his victims who are trying to recover their lost cash.

Madoff, 70, has caused financial pain worldwide since his investment scam was revealed on Dec. 11. He told investigators that he duped clients for years by using new money to pay off old clients and create a mirage of consistent returns.

Some individuals can’t pay their bills, while retirees are going back to work or moving in with their children. Gone are charities dedicated to causes such as criminal justice, medical research and social services.

Madoff, meanwhile, sleeps in his own bed, watches his own TV and eats from his own refrigerator whenever he wants. This takes place in the confines of his $7 million New York penthouse in one of the most luxurious buildings in the city.

Even though Madoff had admitted to the scheme, prosecutors initially didn’t push for jail because Madoff didn’t seem to be a flight risk or a threat to the community. In fact, he put up $10 million in bail and was allowed to go home, only with a nighttime curfew.

About a week later, his bail conditions were tightened after he was unable to get two of the required four co-signers of his bond. As a result, a magistrate judge put him on home detention with electronic monitoring and a 24-hour security guard.

But in recent days, the prospects of Madoff going to jail before trial have been raised as prosecutors accused him of violating his bail conditions by mailing jewelry and watches worth more than $1 million to family and friends.

Just the possibility of Madoff heading to jail has won great support in the court of public opinion. Plenty of people – well beyond just his victims – want him to be behind bars.

But such emotional calls fail to consider what could happen to this case if he is put in a cellblock now. Legal experts say that may stop him going forward from giving up any clues about his path of destruction. Madoff’s pot of gold, if there is one, could be buried forever.

The second he enters jail, access to him for investigators becomes dramatically reduced and he will have no incentive to cooperate if he doesn’t believe it will benefit him, attorneys said.

That’s why we have to think about what’s the most important aspect in the Madoff case: Is it really about sending Madoff off to jail before his trial or getting defrauded investors at least some of their money back?

Sure, there is an outrageous aspect to the idea of him lolling around his house eating bonbons given what he’s done. But the thought of others having little or nothing to live on sounds far worse.


Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.