Incorporating Mental Health Assessments of Future Dangerousness into Pretrial Detention Decisions: Clinical and Actuarial Assessments of the Risk of Dangerousness Posed by Individuals Can Play an Important Role in Improving Pretrial Detention Decisions Involving Criminal Defendants

Ellis, Andrew H., Developments in Mental Health Law

Introduction

State and federal legislatures have increasingly identified violent crime committed by defendants awaiting trial as a serious problem. In response, a multitude of pretrial detention procedures have been developed to preventively restrain defendants thought to pose a significant risk to the community. Yet this preventive detention is often criticized as an inappropriate exercise of government authority that echoes Orwellian themes of social control and that heralds the erosion of the presumption of innocence. Whatever the merits of these more esoteric considerations, pretrial detention does impose serious costs on both criminal defendants and society. (1) Thus, pretrial detention proceedings and the mechanisms employed need to be examined to determine whether they accurately predict which defendants will pose a serious danger to the community.

A History of Pretrial Detention Based Upon Predicted Dangerousness

The use of pretrial detention as a means of preventing crime and restraining criminal defendants thought to pose a danger to the community has grown steadily for the last forty years. The two driving influences behind this expansion can be traced back to the 1960s. First and foremost was the revolution in criminal procedure initiated by the Warren Court, which included placing limitations on the seizure of evidence, the obtaining of confessions, and the conduct of police lineups. The protections afforded criminal defendants by these procedural changes led many to conclude that the scales of justice were unfairly tipped against law enforcement officials because scrutiny tended to focus "more on the conduct of the police than on the conduct of the accused." (2) Furthermore, these changes were perceived to curtail prosecutorial effectiveness as they increased defendants' bargaining power during the plea negotiation process. (3) Accordingly, courts and legislators that harbored a distrust of the Warren Court's procedural reforms viewed pretrial detention as a necessary means to ensure some form of punishment for the "guilty", even if it came before an adjudication of guilt. (4)

The second influence, which was arguably an outgrowth of the first, was the bail reform movement of the 1960s. (5) Although its immediate goal was to decrease the size of bail that was needed for defendants to secure their liberty pending trial, it ultimately led to the increased use of pretrial detention. Decreasing the amount of bail that had to be posted did limit the detention of some defendants. However, because courts and legislators were ultimately spurred to create express statutory grounds authorizing detention of criminal defendants thought to be dangerous notwithstanding their ability to post bail, these relatively broad exceptions provided prosecutors with wide latitude for securing the pretrial detention of such defendants. (6)

Statutory Development of Pretrial Detention for Dangerousness. From the 1960s onward, the use of pretrial detention to restrain potentially dangerous criminal defendants rapidly expanded throughout the United States. Authorization to detain criminal defendants on grounds of alleged dangerousness was virtually non-existent prior to the Federal Bail Reform Act of 1966. (7) Yet, by 1978, twenty-three states along with the District of Columbia had adopted legislation permitting detention of a defendant on grounds of alleged dangerousness. (8) A mere six years later that number had grown to thirty-four states, the District of Columbia, and the federal government. (9)

The District of Columbia Bail Act of 1970. Typical of the initial wave of legislation is the statute governing bail practice enacted in 1970 by the District of Columbia. (10) The District of Columbia Bail Act of 1970 provides that "[t]he judicial officer shall order the detention of a person charged with an offense for a period of not more than 5 days ... if the judicial officer determines that the person charged with an offense ... [m]ay ... pose a danger to any other person or the community." (11)

A judicial hearing is then held in cases involving a crime of violence or a dangerous crime, or where there is a serious risk that the defendant will flee or attempt to obstruct justice. At this hearing, a judge must "determine whether any condition or combination of conditions [of release] will reasonably assure the appearance of the person as required and the safety of any other person and the community." (12) If the judge finds that there is clear and convincing evidence that no such conditions exist, the defendant can be ordered detained until trial. (13) The judge is to take into account the nature and circumstance of the offense charged, the weight of the evidence, the history and characteristics of the defendant (including the defendant's mental condition), and the nature and seriousness of the danger posed by the defendant to any member of the community if released. (14) In addition, if the judicial officer finds by a substantial probability that the defendant poses a risk to the integrity of the judicial proceeding, (15) or has committed a violent crime or a dangerous crime while armed or while on release pending trial for another offense, then there is created "a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community." (16)

The District of Columbia enactment does provide defendants with substantial procedural protections. For example, the detention hearing must "be held immediately upon the person's first appearance before the judicial officer." (17) Defendants' interests are further protected by a statutory right to be represented by counsel and the right of indigent defendants to have counsel provided for them. (18) Defendants are also expressly afforded the opportunity to testify on their own behalf, as well as to present and cross-examine witnesses and introduce other evidence to counter the government's case for detention. (19) Lastly, defendants who are found to pose a danger to the community are placed on an expedited trial schedule during which they must be indicted within 90 days and have their trial commence within 100 days. (20)

In addition, the government is constrained by the fact that the burden of proof needed to support pretrial detention is a relatively high one--clear and convincing evidence. (21) Furthermore, the prosecution is required to present evidence that there is a "substantial probability" that the defendant committed the crime charged. (22) The defendant is further protected from prosecutorial over-reaching by the availability of appeal from a detention order. (23) This right of appeal is enhanced by a requirement that the judge, when ordering detention, "[i]nclude written findings of fact and a written statement of the reasons for the detention." (24)

The Federal Bail Reform Act of 1984. The District of Columbia Bail Act of 1970 is not only typical of state bail practices that emerged in the 1970s and 1980s, it also served as the model for what are arguably the most influential pretrial detention provisions today regarding the dangerousness of defendants: the Federal Bail Reform Act of 1984.25 Indeed, the federal effort to give greater weight to considerations of defendant dangerousness in pretrial detention decisions was specifically intended to reflect the District of Columbia's bail practices. (26)

However, the Federal Bail Reform Act diverges from the District of Columbia Act model in that it expressly "makes protection of the public the pivotal factor in determining whether to release or detain federal defendants." (27) Release is not to be permitted if "release ... will endanger the safety of any other person or the community." (28) Furthermore, unlike the District of Columbia Act, a rebuttable presumption in favor of detention does not address whether conditions of release can not reasonably assure the appearance of the defendant at future proceedings, but focuses exclusively on whether the conditions of release cannot "reasonably assure the safety of any other person and the community." (29)

The Federal Bail Reform Act also differs in that it does not provide procedural protections to defendants similar to those of its District of Columbia predecessor. Under the federal system, prosecutors at the pretrial hearings may offer hearsay evidence of the defendant's prior crimes and thus avoid cross-examination. (30) The class of defendants subject to pretrial detention is also more expansive. The Federal Bail Reform Act permits a prosecutor to seek pretrial detention of a defendant in cases involving a "crime of violence," (31) which is defined as

   an offense that has [as] an element of
   the offense the use, attempted use, or
   threatened use of physical force against
   the person or property of another [or]
   any other offense that is a felony and
   that, by its nature, involves a substantial
   risk that physical force against the
   person or property of another may be
   used in the course of committing the
   offense. (32)

In addition, pretrial detention can be sought for any defendant charged with a felony who has been previously convicted of two or more federal or state "crimes of violence." (33)

The differences between the federal approach and that of the District of Columbia Act make clear that the Federal Bail Reform Act moves closer to a system of pure preventive detention. Indeed, unlike the District of …

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Publication information: Article title: Incorporating Mental Health Assessments of Future Dangerousness into Pretrial Detention Decisions: Clinical and Actuarial Assessments of the Risk of Dangerousness Posed by Individuals Can Play an Important Role in Improving Pretrial Detention Decisions Involving Criminal Defendants. Contributors: Ellis, Andrew H. - Author. Magazine title: Developments in Mental Health Law. Volume: 24. Issue: 1 Publication date: January 2005. Page number: 17+. © 2009 Institute of Law, Psychiatry & Public Policy. COPYRIGHT 2005 Gale Group.

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