U.S. District Judge David Hittner on Tuesday approved a request by prosecutors to overturn a magistrate judge’s decision to allow Stanford freed on $500,000 bond pending his trial.

Prosecutors argue that Stanford’s international ties make him a serious flight risk. Stanford holds dual U.S. and Antiguan citizenship, has an international network of wealthy acquaintances who would help him and possibly access to vast wealth hidden around the world.

The absurdity of this line of argument is only trumped by its acceptance by Judge Hittner.  Stanford is a wealthy man.  Of course he’s got the wherewithal to flee.  But that bears no connection, and offers no evidence of, any intention or desire to flee.  Yet again, the theoretical subsumes reality, suggesting that any defendant with more than modest assets is, by definition, a flight risk and requires detention.  It’s crazy.

The touchstone for bond is whether any set of conditions will reasonably assure the defendant’s return to court.  Key to this determination is whether there is any basis in fact to suggest that a defendant has any intention of leaving the jurisdiction to avoid prosecution.  It’s not whether he can afford to run or has friends in other countries.  It’s whether there is any factual basis to believe he would do so. 

In the case of Allen Stanford, not only has there been no showing of any intent or desire to flee, but there has been an overwhelming showing that he will stay and fight.  Not overwhelming merely be dint of argument, but by facts.  The allegations of his running a Ponzi scheme, the crime du jour, was long known by all, and Allen Stanford was free to run off to any darn place he wanted, with his alleged hidden cache of “vast wealth” and his “international network of wealth acquaintances” to provide him aid and succor.  Yet he stayed. 

Before these allegations arose, Stanford lived outside the United States for 15 years.  Instead of ducking jurisdiction, he returned to the United States, established residence in Houston, and actually made himself available to the government for prosecution. 

He hired a lawyer.  He hired an exceptionally good lawyer.  This isn’t what you do when your intention is to flee; this is the action of a man who is preparing for a fight.  Stanford’s offer to surrender was ignored; he knew that the feds could knock on his door in the wee hours of the morning any time they wanted, and that he would have no advance notice of their arrival to decide to hop a plane to Antigua.  But he didn’t flinch.  He continued to live his life as before, readily available to government agents to pick him up at their leisure.  This too is the action of a man who is preparing to fight.

There is nothing more a person can do to prove, by virtue of his conduct, that he will not flee, but will stay and fight.  Nothing.

It’s not surprising that the government pursued an appeal of the magistrate’s decision to the district court judge.  They can’t stand it when they don’t get their way.  That Judge Hittner bought into it, however, is unfortunate.  He’s been a judge long enough to know better.  Much better. 

Aside from the big deal of another erroneous and baseless decision that deprives a man of his constitutional right to appropriate bail, it presents a scenario that suggests that there is nothing, absolutely nothing, that can be done by a defendant to demonstrate that he has no intention of fleeing when faced with a government determined to detain him no matter what. 

Bail is not punishment.  A defendant is not to be punished until after he’s convicted, no matter how disturbing that is to most Americans.  Given how Allen Stanford has conducted himself in the face of arrest and prosecution, his detention is a disgrace.  It doesn’t matter whether he’s “extraordinarily evil” (anticipate that I will be using this phrase with abandon for the foreseeable future); it only matters whether he will return to court.  Stanford has proven he will, and if we wish to pretend to be a nation of laws, not men, then he should be released.