Preventative Detention

2012-08-19 02:31:22

Traditionally, our system has recognized that an accused in a noncapital offense has a right to freedom before conviction so long as there is adequate assurance he will be available for trial and any subsequent Sentencing. This was based on the presumption of innocence, the Eighth Amendment proscription against excessive Bail, and the theory that an individual should not be punished for future acts. The exception to this was in the juvenile justice system where virtually all states had some provision for the pretrial preventative detention of juveniles. Many opponents of preventative detention have argued that any attempt to predict future violent or dangerous behavior is unreliable. However, the late 1970s and early 1980s saw a move on the part of several jurisdictions to allow pretrial detention to prevent crime and protect the public. This came to culmination in the form of a federal statute and two U.S. Supreme Court decisions.

The Federal Bail Reform Act of 1984 provides that, under specified circumstances, the accused may be detained following a hearing and written findings based on clear and convincing evidence that no other combination of conditions will reasonably assure the individual’s appearance at trial or the safety of others or the community. A hearing must be held if requested by the government in a case involving (1) a crime of violence; (2) a crime for which the maximum sentence is life imprisonment or death; (3) drug offenses with a maximum of ten years or greater; or (4) in any other felony if the accused was previously convicted of two or more of these offenses. In addition a hearing is required in cases where there is an allegation of a serious risk of flight, obstruction of justice, or intimidation of perspective witnesses or jurors.

In Schall v. Martin, 467 U.S. 253 (1984), Justice Rehnquist, writing for a six-to-three court, upheld the constitutionality of a New York statute allowing pretrial detention of juveniles in delinquency proceedings. Schall affirmed the applicability of due process to juvenile proceedings but stressed parens patriae interest in protecting the welfare of the child and the interests of the community. Central to the decision was the Court’s finding that the statute contained extensive due-process protections and that it was regulatory in nature, not punitive.

The Supreme Court addressed the issue of preventative detention in the adult criminal justice system three years later in United States v. Salerno, 481 U.S. 739 (1987). Again writing for a six-to-three majority, Chief Justice Rehnquist rejected a facial challenge that the Federal Bail Reform Act of 1984 violated the due process clause of the Fifth Amendment and the Eighth Amendment proscriptions against excessive Bail. The Court concluded that while pretrial punishment is unconstitutional, the due process clause does not bar all pretrial detention. In balancing the government’s regulatory interest in community safety and the individual’s liberty interest, the Court determined that Congress intended the statute to address a pressing societal problem, preventing danger to the community, and again held that the goal of the statute was regulatory in nature, not punishment.

Chief Justice Rehnquist concluded that the narrow focus of the statute, individuals charged with a specific category of serious offenses, and the safeguards built into the process (right to counsel, an adversary hearing, and proof by clear and convincing evidence) comported with substantive due process. With respect to the Eighth Amendment claim, the Court held the prohibition against excessive Bail was just that and did not prevent ‘‘the government from pursuing other admittedly compelling interests through regulation of pretrial release’’ subject to the limitation that the ‘‘conditions of release or detention not be ‘excessive’ in light of the perceived evil.’’


References and Further Reading

  • Alshuler, Albert W., Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process, Michigan Law Review 85 (1986): 510.
  • Fagan, Jeffrey, and Guggenheim, Martin, Preventive Detention and the Judicial Prediction of Dangerousness for Juveniles: A Natural Experiment, Journal of Criminal Law and Criminology 86 (1996): 415.
  • Miller, Marc, and Guggenheim, Martin, Pretrial Detention and Punishment, Minnesota Law Review 75(1990): 335.

Cases and Statues Cited

  • Schall v. Martin, 467 U.S. 253 (1984)
  • United States v. Salerno, 481 U.S. 739 (1987)
  • Federal Bail Reform Act of 1984, 18 U.S.C. }} 3141-3150 (2005)

See also Bail; Sentencing Reform Act