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 . …