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.