1 of 10 DOCUMENTS
UNITED
STATES v. SALERNO ET AL.
No.
86-87
SUPREME COURT OF THE UNITED STATES
481 U.S. 739; 107 S. Ct. 2095; 1987 U.S. LEXIS 2259; 95
L. Ed. 2d 697; 55 U.S.L.W. 4663
January
21, 1987, Argued
May
26, 1987, Decided
PRIOR HISTORY:
[***1]
CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
DISPOSITION:
794 F.2d 64, reversed.
CORE TERMS: detention,
bail, pretrial detention, arrestee, Eighth Amendment, Bail Reform Act, excessive, flight, detain, clear and convincing
evidence, indictment, presumption of
innocence, probable cause, judicial officer,
future dangerousness, punitive, excessive bail, sentenced, detained,
detainee, safeguard, pretrial,
juvenile, arrest, authorize, arrested, innocent, adversary hearing, right to bail, proffer
DECISION:
Provisions of Bail
Reform Act of 1984 (18 USCS 3141 et seq.) allowing pretrial detention
without bail on ground of dangerousness held not to violate either (1) bail
clause of Eighth Amendment, or (2) due process.
SUMMARY:
Under particular
conditions, the Bail Reform Act of 1984 (18 USCS 3141 et seq.) permits a
federal court to detain an arrestee without bail, pending trial, on the ground
of such an arrestee's dangerousness to any other person and to the community.
Two defendants were arrested after being indicted on numerous counts of
racketeering activity--including fraud, extortion, gambling, and conspiracy to
commit murder--as well as other federal crimes. At a hearing pursuant to the
Bail Reform Act in the United States District Court for the Southern District
of New York, the Federal Government presented evidence--contested by the
defendants--that (1) the defendants were a "boss" and a
"captain," respectively, in an organized crime "family";
(2) both defendants had participated in conspiracies to aid their illegitimate
enterprises through violent means; and (3) one defendant had personally
participated in two murder conspiracies. The District Court (1) granted the
government's motion for pretrial detention under the Act on the grounds of
dangerousness, and (2) expressed the view that the evidence of the two defendants'
present danger to the community was overwhelming (631 F Supp 1364). On
appeal, the United States Court of Appeals for the Second Circuit ruled that
the District Court's pretrial detention order ought to be vacated, expressing
the view that (1) pretrial detention of the two defendants on the ground of
dangerousness met the Act's statutory conditions; but (2) the Bail Reform Act's
authorization of pretrial detention on the ground of dangerousness to the
community was repugnant to the Federal Constitution's concept of substantive
due process, which concept, the Court of Appeals reasoned, prohibited a total
deprivation of liberty simply as a means of preventing future crimes (794
F2d 64).
On
certiorari, the United States Supreme Court reversed. In an opinion by
Rehnquist, Ch. J., joined by White, Blackmun, Powell, O'Connor, and Scalia,
JJ., it was held that the contested provisions of the Bail Reform Act--which
allowed a federal court to detain an arrestee pending trial if the Federal
Government demonstrated by clear and convincing evidence after an adversary
hearing that no release conditions would reasonably assure the safety of any
other person and the community--did not, on their face, violate (1) substantive
due process under the Fifth Amendment, (2) procedural due process under the
Fifth Amendment, or (3) the Eighth Amendment guaranty against excessive bail.
Marshall,
J., joined by Brennan, J., dissented, expressing the view that (1) due to
developments after the District Court issued its pretrial detention order,
there was a substantial question whether, within the meaning of Article III of
the Constitution, a live case or controversy remained; and (2) under the due
process clause of the Fifth Amendment and the bail clause of the Eighth
Amendment, the contested Bail Reform Act provisions--which permitted indefinite
detention of an indicted defendant, pending the trial of allegations which were
legally presumed to be untrue, if the Federal Government showed to the
satisfaction of a judge that the defendant was likely to commit crimes,
unrelated to the pending charges, at any time in the future--were invalid as
infringing upon the constitutionally established presumption of innocence.
Stevens,
J., dissented, expressing the view that (1) there might be times when the
government's interest in protecting the safety of the community would justify
the brief detention of a person who had not committed any crime; but (2) the
provisions of the Bail Reform Act which allowed pretrial detention on the basis
of future dangerousness to the community were unconstitutional; and (3) there
was a possibility that, in the case at hand, the Federal Government was more
interested in litigating a "test case" than in resolving an actual
controversy concerning the two defendants' threat to the safety of the
community.
LEXIS HEADNOTES - Classified to U.S.
Digest Lawyers' Edition:
BAIL AND RECOGNIZANCE § 7
CONSTITUTIONAL LAW § 853.4
Bail Reform Act -- pretrial detention
without bail -- substantive due process --
Headnote: [1A] [1B] [1C] [1D] [1E] [1F]
[1G]
The pretrial detention provisions of the
Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which allow a federal
court to detain arrestees without bail, pending trial, if the Federal
Government demonstrates by clear and convincing evidence after an adversary
hearing that no release conditions will reasonably assure the safety of any
other person and the community--do not, on their face, violate substantive due
process under the Fifth Amendment to the United States Constitution, because
(1) the pretrial detention provisions are regulatory, not penal; and (2) under
the limits imposed by the Act, the Federal Government's legitimate and
compelling interest in preventing crime by such arrestees outweighs the
arrestees' fundamental interest in liberty. (Marshall, Brennan, and Stevens,
JJ., dissented from this holding.)
BAIL AND RECOGNIZANCE § 7
CONSTITUTIONAL LAW § 831.5
Bail Reform Act -- pretrial detention
without bail -- procedural due process --
Headnote: [2A] [2B] [2C] [2D] [2E] [2F]
The pretrial detention provisions of the
Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which permit the
detention of certain arrestees without bail on the grounds of dangerousness to
any other person and to the community--do not, on their face, violate
procedural due process under the Fifth Amendment to the United States
Constitution, because the procedures under the Act by which a judicial officer
evaluates the likelihood of future dangerousness are specifically designed to
further the accuracy of that determination, where (1) there is nothing
inherently unattainable about a prediction of future criminal conduct; (2)
detainees have a right to counsel at a detention hearing; (3) detainees may
testify on their own behalf; (4) detainees may present information by proffer
or otherwise; (5) detainees may cross-examine witnesses who appear at such a
hearing; (6) the judicial officer charged with the responsibility of
determining the appropriateness of detention is guided by statutorily
enumerated factors, which include (a) the nature and circumstances of the
charges, (b) the weight of the evidence, (c) the history and characteristics of
the putative offender, and (d) the danger to the community; (7) the government
must prove its case by clear and convincing evidence; (8) the judicial officer
must include written findings of fact and a written statement of reasons for
the decision to detain; and (9) the Act provides for immediate appellate review
of the detention decision. (Marshall, Brennan, and Stevens, JJ., dissented in
part from this holding).
BAIL AND RECOGNIZANCE § 7
Bail Reform Act -- pretrial detention
without bail -- Eighth Amendment --
Headnote: [3A] [3B] [3C] [3D] [3E] [3F]
[3G]
The pretrial detention provisions of the
Bail Reform Act of 1984 (18 USCS 3141 et seq.)--which permit the
pretrial detention, without bail, of certain arrestees on the ground of
dangerousness to any other person and to the community--do not, on their face,
violate the clause of the Eighth Amendment of the United States Constitution
which provides that excessive bail shall not be required, because, (1) even if
the bail clause--which says nothing about whether bail shall be available at
all--imposes substantive limitations on Congress' power to define the classes
of criminal arrestees to be admitted to bail, the clause does not categorically
prohibit the government from pursuing compelling interests other than the risk
of flight through the regulation of pretrial release; (2) in the Bail Reform
Act, Congress has mandated pretrial detention on the basis of a legitimate and
compelling interest in the prevention of crime by arrestees who have been shown
to be dangerous to any other person and to the community; and (3) the
government's Bail Reform Act response of pretrial detention is not excessive in
light of the interest asserted. (Marshall, Brennan, and Stevens, JJ., dissented
from this holding.)
APPEAL § 1659
mootness -- pretrial detention --
sentence in unrelated proceeding --
Headnote: [4A] [4B]
A pretrial detainee's challenge to the
constitutionality of the pretrial detention provisions of the Bail Reform Act
of 1984 (18 USCS 3141 et seq.) remains alive and properly presented on
certiorari for resolution by the United States Supreme Court--even though the
detainee has subsequently been sentenced in unrelated proceedings before a
different judge--where (1) the detainee has not been confined pursuant to the
unrelated sentence, and (2) a Federal District Court's pretrial detention order
in the case at hand is the authority for the detainee's present incarceration.
(Marshall, Brennan, and Stevens, JJ., dissented in part from this holding.)
BAIL AND RECOGNIZANCE § 6
CONSTITUTIONAL LAW § 930
STATUTES § 13
Bail Reform Act -- facial challenge --
overbreadth --
Headnote: [5]
In a facial challenge to a legislative
act, a challenger must establish that no set of circumstances exists under
which the act would be valid; the fact that, as to criminal trials, the Bail
Reform Act of 1984 (18 USCS 3141 et seq.) might operate
unconstitutionally under some conceivable set of circumstances is insufficient
to render the Act wholly invalid, since the United States Supreme Court has not
recognized an "overbreadth" doctrine outside the limited context of
the First Amendment to the United States Constitution.
CONSTITUTIONAL LAW § 514
substantive and procedural due process --
Headnote: [6]
The due process clause of the Fifth
Amendment to the United States Constitution protects individuals against two
types of government action: (1) "substantive" due process prevents
the government from engaging in conduct that (a) shocks the conscience, (b) or
interferes with the rights implicit in the concept of ordered liberty; and (2)
even if government action depriving a person of life, liberty, or property
survives substantive due process scrutiny, "procedural" due process
requires that such government action be implemented in a fair manner.
BAIL AND RECOGNIZANCE § 7
CONSTITUTIONAL LAW § 853.4
STATUTES § 145.4
Bail Reform Act -- pretrial detention
without bail -- due process -- regulation -- legislative history --
Headnote: [7A] [7B] [7C] [7D]
For the purpose of substantive due
process analysis under the Fifth Amendment to the United States Constitution,
the restrictions on liberty imposed by the pretrial detention provisions of the
Bail Reform Act of 1984 (18 USCS 3141 et seq.) constitute permissible
regulation rather than impermissible punishment, where (1) the legislative
history of the Act indicates that Congress did not formulate the pretrial
detention provisions (a) as punishment for dangerous individuals, but (b) as a
potential means of achieving the legitimate regulatory goal of preventing
danger to the community; and (2) the incidents of pretrial detention are not
excessive in relation to the danger-prevention goal, since (a) the Act limits
detention to the most serious of crimes, (b) the arrestee is entitled to a
prompt detention hearing, (c) the maximum length of pretrial detention is
limited by the stringent time limitations of the Speedy Trial Act (18 USCS
3161 et seq.), and (d) the conditions of confinement envisioned by the
Act--to the extent practicable, in facilities separate from persons awaiting or
serving sentences, or being held in custody pending appeal--appear to reflect
the regulatory goal relied upon by the government. (Marshall, Brennan, and
Stevens, JJ., dissented in part from this holding.)
CONSTITUTIONAL LAW § 848
STATUTES § 91
substantive due process -- punishment --
legislative intent --
Headnote: [8]
For the purpose of substantive due
process analysis under the Fifth Amendment to the United States Constitution,
the mere fact that a person is detained does not inexorably lead to the
conclusion that the government has imposed punishment; in order to determine
whether a restriction on liberty constitutes impermissible punishment or
permissible regulation, the United States Supreme Court will first look to
legislative intent; unless Congress expressly intends to impose punitive
restrictions, the punitive/regulatory distinction turns on whether (1) an
alternative purpose, to which the restriction may rationally be connected, is
assignable for the restriction, and (2) the restriction appears excessive in
relation to the alternative purpose assigned to the restriction. (Marshall,
Brennan, and Stevens, JJ., dissented in part from this holding.)
CONSTITUTIONAL LAW § 528.3
due process -- detention without
conviction -- war -- aliens -- mental incompetents -- juveniles -- arrestees --
Headnote: [9A] [9B]
Despite the general rule of substantive
due process, under the Fifth Amendment of the United States Constitution, that
the government may not detain a person prior to a judgment of guilt in a
criminal trial, a number of exceptions exist whereby the government's
regulatory interest in community safety can, in appropriate circumstances,
outweigh an individual's liberty interest, where, for example, a government may
detain (1) individuals whom the government believes to be dangerous, during
times of war or insurrection; (2) potentially dangerous resident aliens,
pending deportation proceedings; (3) mentally unstable individuals who present
a danger to the public; (4) dangerous criminal defendants who become
incompetent to stand trial; (5) juvenile arrestees, prior to trial, when they
present a continuing danger to the community; (6) arrestees who are suspected
of a crime, until a neutral magistrate determines whether probable cause
exists; and (7) arrestees, prior to trial, when they present either a risk of
flight or a danger to witnesses.
BAIL AND RECOGNIZANCE § 7
CONSTITUTIONAL LAW § 853.4
Bail Reform Act -- pretrial detention
without bail -- substantive due process --
Headnote: [10A] [10B]
For the purpose of determining whether
the pretrial detention provisions of the Bail Reform Act of 1984 (18 USCS
3141 et seq.) violate substantive due process under the Fifth Amendment of
the United States Constitution, the Federal Government's legitimate and
compelling interest in preventing crimes by arrestees outweighs such arrestees'
fundamental interest in liberty, where (1) the Act operates to detain without
bail only those individuals who have been arrested for a specific category of
extremely serious offenses; (2) Congress has specifically found that such
individuals are far more likely to be responsible for dangerous acts in the
community after arrest; (3) the government must demonstrate probable cause to
believe that the charged crime has been committed by such an arrestee; and (4)
in a full-blown adversary hearing, the government must convince a neutral
decisionmaker by clear and convincing evidence that no conditions of release
can reasonably assure the safety of the community or any person. (Marshall,
Brennan, and Stevens, JJ., dissented from this holding.)
BAIL AND RECOGNIZANCE § 7
criminal case -- exceptions --
Headnote: [11]
A court may refuse bail in (1) a capital
case, or (2) a criminal case in which the defendant presents a threat to the
judicial process by intimidating witnesses. (Marshall and Brennan, JJ.,
dissented in part from this holding.)
BAIL AND RECOGNIZANCE § 6
criminal case -- function --
Headnote: [12]
A primary function of bail is to
safeguard the courts' role in adjudicating the guilt or innocence of criminal
defendants.
BAIL AND RECOGNIZANCE § 7.5
excessive amount --
Headnote: [13]
Pursuant to the clause of the Eighth
Amendment to the United States Constitution which provides that excessive bail
shall not be required, when the government has admitted that its only interest
is in preventing flight, bail must be set by a court at the sum designed to
insure that goal, and no more.
BAIL AND RECOGNIZANCE § 7
pretrial detention -- criminal case --
Headnote: [14]
In the United States, liberty is the
norm, and detention prior to a criminal trial, or without trial, is the
carefully limited exception.
SYLLABUS:
The Bail Reform Act of 1984 (Act) requires
courts to detain prior to trial arrestees charged with certain serious felonies
if the Government demonstrates by clear and convincing evidence after an
adversary hearing that no release conditions "will reasonably assure ...
the safety of any other person and the community." 18 U. S. C. § 3142(e) (1982 ed., Supp. III). The Act provides arrestees with a number of
procedural rights at the detention hearing, including the right to request
counsel, to testify, to present witnesses, to proffer evidence, and to
cross-examine other witnesses. The Act
also specifies the factors to be considered in making the detention decision,
including the nature and seriousness of the charges, the substantiality of the
Government's evidence, the arrestee's background [***2] and characteristics, and the nature and
seriousness of the danger posed by his release. Under the Act, a decision to detain must be supported by written
findings of fact and a statement of reasons, and is immediately
reviewable. After a hearing under the
Act, the District Court ordered the detention of respondents, who had been
charged with 35 acts of racketeering activity.
The Court of Appeals reversed, holding that § 3142(e)'s authorization of pretrial detention on the ground of
future dangerousness is facially unconstitutional as violative of the Fifth
Amendment's substantive due process guarantee.
Held:
1.
Given the Act's legitimate and compelling regulatory purpose and the procedural
protections it offers, § 3142(e) is not
facially invalid under the Due Process Clause.
Pp. 746-752.
(a)
The argument that the Act violates substantive due process because the
detention it authorizes constitutes impermissible punishment before trial is
unpersuasive. The Act's legislative
history clearly indicates that Congress formulated the detention provisions not
as punishment for dangerous individuals, but as a potential solution to the
pressing societal problem of crimes committed [***3] by persons on release. Preventing danger to the community is a
legitimate regulatory goal. Moreover,
the incidents of detention under the Act are not excessive in relation to that
goal, since the Act carefully limits the circumstances under which detention may
be sought to the most serious of crimes, the arrestee is entitled to a prompt
hearing, the maximum length of detention is limited by the Speedy Trial Act,
and detainees must be housed apart from convicts. Thus, the Act constitutes permissible regulation rather than
impermissible punishment. Pp. 746-748.
(b)
The Court of Appeals erred in ruling that the Due Process Clause categorically
prohibits pretrial detention that is imposed as a regulatory measure on the
ground of community danger. The
Government's regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual's liberty interest. Such circumstances exist here. The Act narrowly focuses on a particularly
acute problem -- crime by arrestees -- in which the Government's interests are
overwhelming. Moreover, the Act
operates only on individuals who have been arrested for particular extremely
serious offenses, and carefully delineates [***4] the circumstances under which detention will
be permitted. Pp. 748-751.
(c)
The Act's extensive procedural safeguards are specifically designed to further
the accuracy of the likelihood-of-future-dangerousness determination, and are
sufficient to withstand respondents' facial challenge, since they are more than
"adequate to authorize the pretrial detention of at least some [persons]
charged with crimes." Schall v. Martin, 467 U.S. 253, 264. Pp.
751-752.
2.
Section 3142(e) is not facially unconstitutional as violative of the Excessive
Bail Clause of the Eighth Amendment. The contention that the Act violates the
Clause because it allows courts essentially to set bail at an infinite amount
for reasons not related to the risk of flight is not persuasive. Nothing in the Clause's text limits the
Government's interest in the setting of bail solely to the prevention of
flight. Where Congress has mandated detention on the basis of some other
compelling interest -- here, the public safety -- the Eighth Amendment does not
require release on bail. Pp. 752-755.
COUNSEL:
Solicitor General
Fried argued the cause for the United States.
With him on the briefs were Assistant Attorney [***5] General Weld, Deputy Solicitor General
Bryson, Jeffrey P. Minear, Samuel Rosenthal, and Maury S. Epner.
Anthony
M. Cardinale argued the cause for respondents.
With him on the brief was Kimberly Homan. *
*
Briefs of amici curiae urging affirmance were filed for the National Association
of Criminal Defense Lawyers by Jon May and Mark King Leban; and for the Public
Defender Service by Cheryl M. Long, James Klein, and David A. Reiser.
Briefs
of amici curiae were filed for the American Bar Association by Eugene C.
Thomas, Charles G. Cole, and David A. Schlueter; for the American Civil
Liberties Union et al. by William J. Genego, Dennis E. Curtis, Mark Rosenbaum,
Paul Hoffman, Richard Emery, Martin Guggenheim, Alvin Bronstein, and David
Goldstein; and for Howard Perry by Allen N. Brunwasser.
JUDGES:
Rehnquist, C. J.,
delivered the opinion of the Court, in which White, Blackmun, Powell, O'Connor,
and Scalia, JJ., joined. Marshall, J.,
filed a dissenting opinion, in which Brennan, J., joined, post, p. 755. Stevens, J., filed a dissenting opinion,
post, p. 767.
OPINIONBY:
REHNQUIST
OPINION:
[*741] [**2098] CHIEF
JUSTICE REHNQUIST delivered the opinion of the Court.
[***6]
The Bail Reform Act of 1984 (Act) allows a federal court to detain an
arrestee pending trial if the Government demonstrates by clear and convincing
evidence after an adversary hearing that no release conditions "will
reasonably assure ... the safety of any other person and the community."
The United States Court of Appeals for the Second Circuit struck down this
provision of the Act as facially unconstitutional, because, in that court's
words, this type of pretrial detention violates "substantive due process."
We granted certiorari because of a conflict among the Courts of Appeals
regarding the validity of the Act. n1 479 U.S. 929 (1986). We hold that,
as against the facial attack mounted by these respondents, the Act fully
comports with constitutional requirements.
We therefore reverse.
n1
Every other Court of Appeals to have considered the validity of the Bail Reform
Act of 1984 has rejected the facial constitutional challenge. United States v. Walker, 805 F.2d 1042
(CA11 1986); United States v. Rodriguez, 803 F.2d 1102 (CA11 1986); United
States v. Simpkins, 255 U. S. App. D. C. 306, 801 F.2d 520 (1986); United
States v. Zannino, 798 F.2d 544 (CA1 1986); United States v. Perry, 788
F.2d 100 (CA3), cert. denied, 479 U.S. 864 (1986); United States
v. Portes, 786 F.2d 758 (CA7 1985).
[***7]
[*742] I
Responding
to "the alarming problem of crimes committed by persons on release,"
S. Rep. No. 98-225, p. 3 (1983), Congress formulated the Bail Reform Act of
1984, 18 U. S. C. § 3141 et
seq. (1982 ed., Supp. III), as the solution to a bail crisis in the federal
courts. The Act represents the National
Legislature's considered response to numerous perceived deficiencies in the [**2099] federal bail process. By
providing for sweeping changes in both the way federal courts consider bail
applications and the circumstances under which bail is granted, Congress hoped
to "give the courts adequate authority to make release decisions that give
appropriate recognition to the danger a person may pose to others if
released." S. Rep. No. 98-225, at 3.
To
this end, § 3141(a) of the Act requires
a judicial officer to determine whether an arrestee shall be detained. Section
3142(e) provides that "if, after a hearing pursuant to the provisions of
subsection (f), the judicial officer finds 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, he shall order the detention [***8]
of the person prior to trial."
Section 3142(f) provides the arrestee with a number of procedural safeguards.
He may request the presence of counsel at the detention hearing, he may testify
and present witnesses in his behalf, as well as proffer evidence, and he may cross-examine other witnesses appearing at
the hearing. If the judicial officer
finds that no conditions of pretrial release can reasonably assure the safety
of other persons and the community, he must state his findings of fact in
writing, § 3142(i), and support his
conclusion with "clear and convincing evidence," § 3142(f).
The
judicial officer is not given unbridled discretion in making the detention
determination. Congress has specified
the considerations relevant to that decision.
These factors include the nature and seriousness of the charges, the
substantiality of the Government's evidence against the arrestee, the [*743] arrestee's background and characteristics, and the nature and
seriousness of the danger posed by the suspect's release. §
3142(g). Should a judicial
officer order detention, the detainee is entitled to expedited appellate review
of the detention order. § § 3145(b), (c). [***9]
Respondents
Anthony Salerno and Vincent Cafaro were arrested on March 21, 1986, after being
charged in a 29-count indictment alleging various Racketeer Influenced and
Corrupt Organizations Act (RICO) violations, mail and wire fraud offenses,
extortion, and various criminal gambling violations. The RICO counts alleged 35 acts of racketeering activity, including
fraud, extortion, gambling, and conspiracy to commit murder. At respondents' arraignment, the Government
moved to have Salerno and Cafaro detained pursuant to § 3142(e), on the ground that no condition of
release would assure the safety of the community or any person. The District Court held a hearing at which
the Government made a detailed proffer of evidence. The Government's case showed that Salerno was the "boss"
of the Genovese crime family of La Cosa Nostra and that Cafaro was a
"captain" in the Genovese family.
According to the Government's proffer, based in large part on
conversations intercepted by a court-ordered wiretap, the two respondents had
participated in wide-ranging conspiracies to aid their illegitimate enterprises
through violent means. The Government
also offered the testimony of two of its trial [***10] witnesses, who would assert that Salerno
personally participated in two murder conspiracies. Salerno opposed the motion for detention, challenging the
credibility of the Government's witnesses.
He offered the testimony of several character witnesses as well as a
letter from his doctor stating that he was suffering from a serious medical
condition. Cafaro presented no evidence
at the hearing, but instead characterized the wiretap conversations as merely
"tough talk."
The District Court granted the Government's detention motion,
concluding that the Government had established by [*744] clear and
convincing evidence that no condition or combination of conditions of release would
ensure the safety of the community or any person:
"The
activities of a criminal organization such as the Genovese Family do not [**2100] cease with the arrest of its principals and their release on even
the most stringent of bail conditions.
The illegal businesses, in place for many years, require constant
attention and protection, or they will fail.
Under these circumstances, this court recognizes a strong incentive on [***11]
the part of its leadership to
continue business as usual. When business as usual involves threats,
beatings, and murder, the present danger such people pose in the community is
self-evident." 631 F.Supp. 1364, 1375 (SDNY 1986). n2
n2 Salerno was
subsequently sentenced in unrelated proceedings before a different judge. To this date, however, Salerno has not been
confined pursuant to that sentence. The
authority for Salerno's present incarceration remains the District Court's
pretrial detention order. The case is
therefore very much alive and is properly presented for our resolution.
Respondents
appealed, contending that to the extent that the Bail Reform Act permits
pretrial detention on the ground that the arrestee is likely to commit future
crimes, it is unconstitutional on its face.
Over a dissent, the United States Court of Appeals for the Second
Circuit agreed. 794 F.2d 64 (1986).
Although the court agreed that [***12] pretrial detention could be imposed if the defendants were likely
to intimidate witnesses or otherwise jeopardize the trial process, it found
"§ 3142(e)'s authorization of
pretrial detention [on the ground of future dangerousness] repugnant to the
concept of substantive due process, which we believe prohibits the total
deprivation of liberty simply as a means of preventing future crimes." Id.,
at 71-72. The court concluded that the Government could not, consistent
with due process, detain persons who had not been accused of any crime merely
because they were thought to present a danger to the community. Id., at 72, quoting United States
v. Melendez-Carrion, 790 F.2d 984, 100-1001
[*745] (CA2 1986)
(opinion of Newman, J.). It reasoned
that our criminal law system holds persons accountable for past actions, not
anticipated future actions. Although a
court could detain an arrestee who threatened to flee before trial, such
detention would be permissible because it would serve the basic objective of a
criminal system -- bringing the accused to trial. The court distinguished our decision in Gerstein v. Pugh, 420
U.S. 103 (1975), in which we upheld police [***13] detention pursuant to arrest. The court
construed Gerstein as limiting such detention to the
"'administrative steps incident to arrest.'" 794 F.2d, at 74,
quoting Gerstein, supra, at 114. The Court of Appeals also found our
decision in Schall v. Martin, 467 U.S. 253 (1984), upholding postarrest,
pretrial detention of juveniles, inapposite because juveniles have a lesser
interest in liberty than do adults. The
dissenting judge concluded that on its face, the Bail Reform Act adequately
balanced the Federal Government's compelling interests in public safety against
the detainee's liberty interests.
II
A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might
operate unconstitutionally [***14] under some conceivable set of circumstances is insufficient to
render it wholly invalid, since we have not recognized an
"overbreadth" doctrine outside the limited context of the First
Amendment. Schall v. Martin, supra,
at 269, n. 18. We think respondents have failed to shoulder their heavy
burden to demonstrate that the Act is
"facially" unconstitutional. n3
n3 We
intimate no view on the validity of any aspects of the Act that are not
relevant to respondents' case. Nor have
respondents claimed that the Act is unconstitutional because of the way it was
applied to the particular facts of their case.
[*746] [**2101] Respondents present two grounds for invalidating the Bail Reform
Act's provisions permitting pretrial detention on the basis of future
dangerousness. First, they rely upon the Court of Appeals' conclusion that the Act
exceeds the limitations placed upon the Federal Government by the Due Process
Clause of the Fifth Amendment. Second,
they contend that the Act contravenes [***15] the Eighth Amendment's proscription against excessive bail. We
treat these contentions in turn.
A
The Due Process Clause of the Fifth Amendment provides that
"No person shall ... be deprived of life, liberty, or property, without
due process of law ...." This Court has held that the Due Process Clause
protects individuals against two types of government action. So-called "substantive due
process" prevents the government from engaging in conduct that
"shocks the conscience," Rochin v. California, 342 U.S. 165, 172
(1952), or interferes with rights "implicit in the concept of ordered
liberty," Palko v. Connecticut, 302 U.S. 319, 325-326 (1937). When
government action depriving a person of life, liberty, or property survives
substantive due process scrutiny, it must still be implemented in a fair
manner. Mathews v. Eldridge, 424
U.S. 319, 335 (1976). This requirement has traditionally been referred to
as "procedural" due process.
[***16] Respondents first
argue that the Act violates substantive due process because the pretrial
detention it authorizes constitutes impermissible punishment before trial. See Bell v. Wolfish, 441 U.S. 520, 535,
and n. 16 (1979). The Government, however, has never argued that pretrial
detention could be upheld if it were "punishment." The Court of
Appeals assumed that pretrial detention under the Bail Reform Act is regulatory,
not penal, and we agree that it is.
As an initial matter, the mere fact that a person is detained does not
inexorably lead to the conclusion that the government has imposed
punishment. Bell v. Wolfish, supra,
at [*747] 537. To determine whether a restriction
on liberty constitutes impermissible punishment or permissible regulation, we
first look to legislative intent. Schall
v. Martin, 467 U.S., at 269. Unless Congress expressly intended to impose
punitive restrictions, the punitive/regulatory distinction turns on
"'whether an alternative purpose to which [the restriction] may rationally
[***17] be connected is
assignable for it, and whether it appears excessive in relation to the
alternative purpose assigned [to it].'" Ibid., quoting Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963).
We conclude that the detention imposed by the Act falls on the
regulatory side of the dichotomy. The
legislative history of the Bail Reform
Act clearly indicates that Congress did not formulate the pretrial detention
provisions as punishment for dangerous individuals. See S. Rep. No. 98-225, at 8.
Congress instead perceived pretrial detention as a potential solution to
a pressing societal problem. Id.,
at 4-7. There is no doubt that
preventing danger to the community is a legitimate regulatory goal. Schall v. Martin, supra.
Nor are the incidents of pretrial detention excessive in relation
to the regulatory goal Congress sought to achieve. The Bail Reform Act carefully limits the circumstances under
which detention may be sought to the most serious of crimes. See 18 U. S. C. § 3142(f) (detention [***18] hearings available if case involves crimes of
violence, offenses for which the sentence is life imprisonment or death, serious
drug offenses, or certain repeat offenders).
The arrestee is entitled to a prompt detention hearing, ibid.,
and the maximum length of pretrial detention is limited by the stringent time
limitations of the Speedy Trial [**2102]
Act. n4 See 18 U. S. C. § 3161 et seq. (1982 ed. and Supp.
III). Moreover, as in Schall v. Martin,
the conditions of confinement envisioned by the Act "appear to reflect the
regulatory purposes relied upon by the" Government. [*748] 467 U.S., at 270. As in Schall,
the statute at issue here requires that detainees be housed in a "facility
separate, to the extent practicable, from persons awaiting or serving sentences
or being held in custody pending appeal." 18 U. S. C. § 3142(i)(2). We conclude, therefore, that the pretrial detention contemplated
by the Bail Reform Act is regulatory in nature, and does not constitute
punishment before trial in violation of the Due Process Clause.
n4 We
intimate no view as to the point at which detention in a particular case might
become excessively prolonged, and therefore punitive, in relation to Congress'
regulatory goal.
[***19]
The
Court of Appeals nevertheless concluded that "the Due Process Clause
prohibits pretrial detention on the ground of danger to the community as a
regulatory measure, without regard to the duration of the detention." 794
F.2d, at 71. Respondents characterize the Due Process Clause as erecting an
impenetrable "wall" in this area that "no governmental interest
-- rational, important, compelling or otherwise -- may surmount." Brief
for Respondents 16.
We do not think the Clause lays down any such categorical
imperative. We have repeatedly held
that the Government's regulatory interest in community safety can, in
appropriate circumstances, outweigh an individual's liberty interest. For example, in times of war or
insurrection, when society's interest is at its peak, the Government may detain
individuals whom the Government believes to be dangerous. See Ludecke v. Watkins, 335 U.S. 160
(1948) (approving unreviewable executive power to detain enemy aliens in
time of war); Moyer v. Peabody, 212 U.S. 78, 84-85 (1909) (rejecting due
process claim of individual jailed without probable cause by [***20] Governor in time of insurrection). Even outside the exigencies of war, we have
found that sufficiently compelling
governmental interests can justify detention of dangerous persons. Thus, we have found no absolute
constitutional barrier to detention of potentially dangerous resident aliens
pending deportation proceedings. Carlson
v. Landon, 342 U.S. 524, 537-542 (1952); Wong Wing v. United States, 163
U.S. 228 (1896). We have also held that the government may detain mentally
unstable individuals who present a danger
[*749] to the public, Addington
v. Texas, 441 U.S. 418 (1979), and dangerous defendants who become
incompetent to stand trial, Jackson v. Indiana, 406 U.S. 715, 731-739
(1972); Greenwood v. United States, 350 U.S. 366 (1956). We have
approved of postarrest regulatory detention of juveniles when they present a
continuing danger to the community. Schall
v. Martin, supra. Even competent adults may face substantial liberty
restrictions as a result of the operation of our criminal justice system. If the police suspect an individual of a
crime, they may arrest and hold him until a neutral magistrate determines [***21]
whether probable cause exists. Gerstein v. Pugh, 420 U.S. 103 (1975).
Finally, respondents concede and the Court of Appeals noted that an arrestee
may be incarcerated until trial if he presents a risk of flight, see Bell v.
Wolfish, 441 U.S., at 534, or a danger to witnesses.
Respondents characterize all of these cases as exceptions to the
"general rule" of substantive due process that the government may not
detain a person prior to a judgment of guilt in a criminal trial. Such a "general rule" may freely
be conceded, but we think that these cases show a sufficient number of
exceptions to the rule that the congressional action challenged here [**2103] can hardly be characterized as totally novel. Given the well-established authority of the
government, in special circumstances, to restrain individuals' liberty prior to
or even without criminal trial and conviction, we think that the present
statute providing for pretrial detention on the basis of dangerousness must be
evaluated in precisely the same manner that we evaluated the laws in the cases
discussed above.
[***22]
The government's interest in preventing crime by arrestees is both
legitimate and compelling. De Veau
v. Braisted, 363 U.S. 144, 155 (1960). In Schall, supra, we
recognized the strength of the State's interest in preventing juvenile
crime. This general concern with crime
prevention is no less compelling when the suspects are adults. Indeed, "the [*750] harm suffered
by the victim of a crime is not dependent upon the age of the
perpetrator." Schall v. Martin, supra, at 264-265. The Bail Reform
Act of 1984 responds to an even more particularized governmental interest than
the interest we sustained in Schall.
The statute we upheld in Schall permitted pretrial detention of
any juvenile arrested on any charge after a showing that the individual might
commit some undefined further crimes.
The Bail Reform Act, in contrast, narrowly focuses on a particularly
acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for [***23] a specific category of extremely serious
offenses. 18 U. S. C. § 3142(f). Congress specifically found that these individuals are far more
likely to be responsible for dangerous acts in the community after arrest. See
S. Rep. No. 98-225, at 6-7. Nor is the
Act by any means a scattershot attempt to incapacitate those who are merely
suspected of these serious crimes. The
Government must first of all demonstrate probable cause to believe that the
charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the
Government must convince a neutral decisionmaker by clear and convincing evidence
that no conditions of release can reasonably assure the safety of the community
or any person. 18 U. S. C. § 3142(f). While the Government's general interest in preventing crime is
compelling, even this interest is heightened when the Government musters
convincing proof that the arrestee, already indicted or held to answer for a
serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society's
interest in crime prevention is at its greatest.
[***24]
On the other side of the scale, of course, is the individual's
strong interest in liberty. We do not
minimize the importance and fundamental nature of this right. But, as our cases hold, this right may, in
circumstances where the government's interest is sufficiently weighty, be
subordinated [*751] to the greater needs of society. We think that Congress' careful delineation
of the circumstances under which detention will be permitted satisfies this
standard. When the Government proves by
clear and convincing evidence that an arrestee presents an identified and
articulable threat to an individual or the community, we believe that,
consistent with the Due Process Clause, a court may disable the arrestee from
executing that threat. Under these
circumstances, we cannot categorically state that pretrial detention
"offends some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental." Snyder v.
Massachusetts, 291 U.S. 97, 105 (1934).
Finally, we may dispose briefly [***25] of respondents' facial challenge to the
procedures of the Bail Reform Act. To sustain them against such a challenge, we
need only find them "adequate to authorize the pretrial detention of at
least some [persons] charged with crimes," Schall, supra, at 264,
whether or not they might be insufficient in some particular
circumstances. We think they pass that
test. As we stated in Schall,
"there is [**2104] nothing inherently unattainable about a
prediction of future criminal conduct." 467 U.S., at 278; see Jurek
v. Texas, 428 U.S. 262, 274 (1976) (joint opinion of Stewart, POWELL, and
STEVENS, JJ.); id., at 279 (WHITE, J., concurring in judgment).
Under the Bail Reform Act, the procedures by which a judicial
officer evaluates the likelihood of future dangerousness are specifically
designed to further the accuracy of that determination. Detainees have a right to counsel at the
detention hearing. 18 U. S. C.
§ 3142(f). They may testify in their own behalf, present information by proffer
or otherwise, and cross-examine witnesses who appear at the hearing. Ibid. The [***26] judicial officer charged with the responsibility of determining
the appropriateness of detention is guided by statutorily enumerated factors,
which include the nature and the circumstances of the charges, the weight of
the evidence, the history and characteristics of the putative offender, [*752] and the danger to the community.
§ 3142(g). The Government must prove its case by clear
and convincing evidence. §
3142(f). Finally, the judicial
officer must include written findings of fact and a written statement of
reasons for a decision to detain. §
3142(i). The Act's review
provisions, § 3145(c), provide for
immediate appellate review of the detention decision.
We think these extensive safeguards suffice to repel a facial
challenge. The protections are more
exacting than those we found sufficient in the juvenile context, see Schall,
supra, at 275-281, and they far exceed what we found necessary to effect
limited postarrest detention in Gerstein v. Pugh, 420 U.S. 103 (1975).
Given the legitimate and compelling [***27] regulatory purpose of the Act and the procedural protections it
offers, we conclude that the Act is not facially invalid under the Due Process
Clause of the Fifth Amendment.
B
Respondents also contend that the Bail Reform Act violates the
Excessive Bail Clause of the Eighth Amendment. The Court of Appeals did not
address this issue because it found that the Act violates the Due Process
Clause. We think that the Act survives
a challenge founded upon the Eighth Amendment.
The Eighth Amendment addresses pretrial release by providing
merely that "excessive bail shall not be required." This Clause, of
course, says nothing about whether bail shall be available at all. Respondents nevertheless contend that this
Clause grants them a right to bail calculated solely upon considerations of
flight. They rely on Stack v. Boyle, 342 U.S. 1, 5 (1951), in which the
Court stated that "bail set at a figure higher than an amount reasonably
calculated [to ensure the defendant's presence at trial] is 'excessive' under
the Eighth Amendment." [***28] In respondents' view, since the Bail Reform
Act allows a court essentially to set bail at an infinite amount for reasons
not related to the risk of flight, it [*753]
violates the Excessive Bail
Clause. Respondents concede that the
right to bail they have discovered in the Eighth Amendment is not
absolute. A court may, for example,
refuse bail in capital cases. And, as
the Court of Appeals noted and respondents admit, a court may refuse bail when
the defendant presents a threat to the judicial process by intimidating
witnesses. Brief for Respondents
21-22. Respondents characterize these
exceptions as consistent with what they claim to be the sole purpose of bail --
to ensure the integrity of the judicial process.
While we agree that a primary function of bail is to safeguard the
courts' role in adjudicating the guilt or innocence of defendants, we reject
the proposition that the Eighth Amendment categorically prohibits the
government from pursuing other
admittedly compelling interests through regulation of pretrial [***29] release.
The above-quoted [**2105] dictum in Stack v. Boyle is far
too slender a reed on which to rest this argument. The Court in Stack had no occasion to consider whether the
Excessive Bail Clause requires courts to admit all defendants to bail, because
the statute before the Court in that case in fact allowed the defendants to be
bailed. Thus, the Court had to
determine only whether bail, admittedly available in that case, was excessive
if set at a sum greater than that necessary to ensure the arrestees' presence
at trial.
The
holding of Stack is illuminated by the Court's holding just four months
later in Carlson v. Landon, 342 U.S. 524 (1952). In that case,
remarkably similar to the present action, the detainees had been arrested and
held without bail pending a determination of deportability. The Attorney General refused to release the
individuals, "on the ground that there was reasonable cause to believe
that [their] release would be prejudicial to the public interest and would
endanger the welfare and safety of the United States." Id., at 529
(emphasis added). The detainees brought
the same challenge that respondents bring to us today: [***30] the Eighth Amendment [*754]
required them to be admitted to
bail. The Court squarely rejected this proposition:
"The
bail clause was lifted with slight changes from the English Bill of Rights
Act. In England that clause has never
been thought to accord a right to bail in all cases, but merely to provide that
bail shall not be excessive in those cases where it is proper to grant bail.
When this clause was carried over into our Bill of Rights, nothing was said
that indicated any different concept.
The Eighth Amendment has not prevented Congress from defining the
classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not
compulsory where the punishment may be death.
Indeed, the very language of the Amendment fails to say all arrests must
be bailable." Id., at 545-546 (footnotes omitted).
Carlson v. Landon was a civil case, and we need not decide
today whether the Excessive Bail Clause speaks at all to Congress' power to
define the classes of criminal arrestees who [***31] shall be admitted to bail. For even if we
were to conclude that the Eighth Amendment imposes some substantive limitations
on the National Legislature's powers in this area, we would still hold that the
Bail Reform Act is valid. Nothing in
the text of the Bail Clause limits permissible Government considerations solely
to questions of flight. The only arguable substantive limitation of the Bail
Clause is that the Government's proposed conditions of release or detention not
be "excessive" in light of the perceived evil. Of course, to determine whether the
Government's response is excessive, we must compare that response against the
interest the Government seeks to protect by means of that response. Thus, when the Government has admitted that
its only interest is in preventing flight, bail must be set by a court at a sum
designed to ensure that goal, and no more.
Stack v. Boyle, supra. We believe that when Congress has mandated
detention on the basis of a compelling
interest other than prevention [*755]
of flight, as it has here, the
Eighth Amendment does not require release on bail.
III
[***32]
In our society liberty is the norm, and detention prior to trial or
without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail
Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to
trial of arrestees charged with serious felonies who are found after an
adversary hearing to pose a threat to the safety of individuals or to the
community which no condition of release can dispel. The numerous procedural safeguards detailed above must attend
this adversary hearing. We are unwilling to say that this congressional
determination, based as it is upon that primary concern of every government --
a concern [**2106] for the safety and indeed the lives of its
citizens -- on its face violates either the Due Process Clause of the Fifth
Amendment or the Excessive Bail Clause of the Eighth Amendment.
The
judgment of the Court of Appeals is therefore
Reversed [***33] .
DISSENTBY:
MARSHALL; STEVENS
DISSENT:
JUSTICE MARSHALL,
with whom JUSTICE BRENNAN joins, dissenting.
This
case brings before the Court for the first time a statute in which Congress
declares that a person innocent of any crime may be jailed indefinitely,
pending the trial of allegations which are legally presumed to be untrue, if
the Government shows to the satisfaction of a judge that the accused is likely
to commit crimes, unrelated to the pending charges, at any time in the
future. Such statutes, consistent with
the usages of tyranny and the excesses of what bitter experience teaches us to
call the police state, have long been thought incompatible with the fundamental
human rights protected by our Constitution.
Today a majority of this Court holds otherwise. Its decision disregards basic principles of
justice [*756] established centuries ago and enshrined
beyond the reach of governmental interference in the Bill of Rights.
I<