1.) United States v. Salerno (U.S. 1987)
a.) Facts:
Salerno and a co-Δ were charged with RICO violations. At arraignment,
Govn moved for preventive detention of the Δ’s under the Bail Reform Act
of 1984. The Bail Reform Act (BRA) permits a federal judge to order the
pretrial detention of indicted defendants if, after a hearing, the govn
proves through clear and convincing evidence (CCE) that “no condition
or combination of conditions will reasonably assure the appearance of
the person as required and the safety of any other person and the
community.” The govn offered evidence showing that Salerno was the boss
of a large organized crime family and that his co-Δ was a captain.
Witnesses testified that Salerno was personally involved in 2 murder
conspiracies.
b.) Proc.
History: Trial crt found that the govn proved through CCE that the Δs’
release would jeopardize the safety of the community. Δs appealed,
arguing that the BRA is facially unconstitutional b/c it violates DP of 5th Amendment and constitutes excessive bail in violation of the 8th Amendment. 2nd
Circuit reversed, holding it violated substantive DP b/c it allowed
preventive detention of those who may commit future crimes, though not
accused of a crime at the time.
c.) Issue:
Whether the provision of the BRA allowing for preventive detention upon
a CCE showing of a threat to the safety of others facially violates
substantive DP.
d.) Holding: No
e.) Proc. Disp.: Appellate court opinion reversed
f.) Rule: Preventive detention of a criminal defendant after indictment does not violate substantive due process under the 5th Amendment nor constitute excessive bail under the 8th
Amendment when the government has demonstrated through clear and
convincing evidence that the defendant presents a threat to the safety
of the community.
g.) Majority (Rehnquist, C.J.; ends on page 782): The provision of BRA allowing for preventive detention does not violate DP of 5th Amendment nor constitute excessive bail in violation of the 8th Amendment when the govn has demonstrated through CCE that the defendants present a threat to the safety of others.
(1) Δ’s
failed to meet their burden of showing that no set of circumstances
exists in which the statute could operate constitutionally.
(a) To establish that the statute violates 5th
Amendment substantive DP guarantees, D’s must show that govn conduct
interferes with a D’s life, liberty or property rights. To fall within
this category, the purpose of pre-trial preventive detention under BRA
must be punitive.
1) The
Court reviewed the legislative history of the statute and found that it
demonstrated that Congress enacted the statute not to punish those who
have committed a crime, but to regulate conduct that is likely to
endanger the safety of others.
2) The
Act takes care to set forth the conduct to which detention is to apply,
imposes a heightened burden of proof on the govn, and affords a D
numerous procedural safeguards.
3) Congress’s interest in regulating the safety of all citizens need not yield to an individual’s liberty interests.
(b) Δ’s also argued that the Act facially violated the 8th
Amendment’s prohibition against excessive bail, which requires bail to
be set solely on the risk of flight in the interest of furthering the
integrity of the judicial profess.
1) However, the 8th Amendment doesn’t restrict the govn’s pursuit of other compelling interests through the regulation of pretrial release.
2) The risk of flight is just one of many facts that may be considered in determining whether the bail set is excessive.
3) The only limit the 8th Amendment places on the court is that the bail must not be excessive in light of the govn interest asserted.
4) If preventive detention sufficiently meets the reasonable objective sought by the court, the detention isn’t excessive.
h.) Dissent (Marshall, J.; joined by Brennan, J.; 782-786): The importance of the 8th and 5th Amendments can’t be viewed separately to determine that the BRA is facially constitutional.
(1) There’s no meaningful distinction b/t the imposition of excessive bail and the total denial of bail.
(a) The effect is the same – the defendant remains in jail.
1) Thus, the 8th amendment can’t prohibit the one and not the other
(b) Similarly, substantive DP under the 5th Amendment protects much more than a person’s right to be free of punishment before conviction.
1) Fundamental to substantive DP is the presumption of innocence every defendant enjoys until proven guilty.
2) This presumption arises at the time of the initial charge and carries through conviction.
3) A
defendant acquitted at trial, of course, can’t be detained b/c his
innocence is established. The result should be the same for an indicted
defendant enjoying the presumption of innocence. He is innocent upon
indictment as he is upon acquittal.
4) However,
the BRA permits the conclusion that one who is presumed innocent may be
detained after he has been indicted. The consideration of potential
future criminal activity to permit preventive detention transforms an
indictment into evidence against the defendant to refute the presumption
of innocence.
5) It
bears no relation to the govn function of ensuring that defendants
stand trial, as does detention for a risk of flight, but rather presents
a govn interest that exceeds those to be analyzed to determine whether
bail is excessive under the 8th Amendment.
(c) The protections of the 8th
Amendment help secure a defendant’s substantive DP by prohibiting
excessive bail and unjustified detentions b/c all defendants are
presumed innocent until proven otherwise.
i.) Dissent
(Stevens, J.; 786-87): While pretrial detention may promote a govn
interest in protecting the safety and welfare of the community in some
circumstances, the “future dangerousness” of a defendant is not one of
them. If fear for the safety of others is sufficient to justify such
detention, it should be immaterial whether the defendant has been
charged, indicted, or convicted of a crime. The appropriateness of
preventive detention should be viewed in light of the evidence of the
threat to the safety of the community whenever it exists, not merely
after an indictment is brought.
2.) The
discouraging picture applies in particular to false positive
predictions (incorrect predictions of dangerousness) and less so to
false negatives (wrong predictions that a person will not commit a
crime.
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