Preventive Detention Approved

Article excerpt

United States v. Salerno,--U.S.--, 55 U.S.L.W. 4663 (May 26, 1987).

Arrestees may be detained prior to trial under the authority of section 3142(e) of the Bail Reform Act (Act) of 1984 on the grounds that they pose a threat to the safety of individuals or the community, ruled the United States Supreme Court in United States v. Salerno,--U.S.--, 55 U.S.L.W. 4663 (May 26, 1987). The Court found that the Act, which applies only to those charged with a narrow category of serious crimes, constitutes a very limited exception to the prevailing tradition against detention before trial.

Anthony Salerno and Vincent Cafaro were detained under section 3142(e) of the Act after they were arrested and indicted on numerous criminal charges, including 35 Racketeer Influenced and Corrupt Organizations Act (RICO) violations. A hearing was held, pursuant to the government's arraignment motion seeking the continued detention of the two men, at which the government presented detailed evidence of their involvement in violent activities to support their illegal enterprises. The district court concluded that the government had established, by clear and convincing evidence, that no conditions of release could assure the safety of the community or any person, and granted the detention motion.

Upon appeal, the United States Court of Appeals for the Second Circuit agreed with Salerno's claim that the Bail Reform Act is facially unconstitutional in that it permits pretrial detention based only on the possibility that arrestees may commit future crimes. According to the Second Circuit, since our criminal justice system holds persons accountable only for their past activities, due process "prohibits the total deprivation of liberty simply as a means of preventing future crimes." The United States Supreme Court granted certiorari to resolve the conflict among the courts of appeals regarding the validity of the Act and reversed the Second Circuit decision by holding the Act to be constitutional.

In response to Salerno's claim that the Act violated substantive due process under the fifth amendment because pretrial detention constitutes "impermissible punishment before trial," the Supreme Court held that, based on legislative history, the Act was intended to impose a permissible regulatory restriction on the libery interest. In enacting the Bail Reform Act, Congress was attempting to prevent danger to society, which is "a legitimate regulatory goal," rather than to punish dangerous persons. The Act limits pretrial detention to use only in those cases involving the most serious crimes and provides a wide range of procedural safeguards to protect the detainees.

Salerno also challenged pretrial detention under the Act on the basis that his liberty interest under the due process clause outweighed the government's interest in detaining him. The Court rejected this argument, noting its previous decisions involving civil commitment and juvenile detention which upheld the government's authority to detain persons prior to or even during a criminal trial, restricting their liberty interest, when there was a strong government interest in preserving the community safety. The Court observed that the Act was intended to promote strong government interest in preventing crime by focusing on persons arrested for certain very serious offenses since, after arrest, these individuals most likely would pose the greatest danger to the community. …