Constitutionality of Pretrial Detention Statutes and Denial of Bail
UNITED STATES v. SALERNO, Supreme Court of the United States (1987), 481 U.S. 739, 107 S.Ct. 2095
FACTS:
Following a 29-count federal indictment which alleged various Racketeer Influenced and Corrupt Organizations Act (RICO) violations, mail and wire fraud, extortion, and other crimes, the United States arrested Anthony Salerno and Vincent Cafaro. The government moved to have the men detained in custody prior to trial under Section 3142(e) of the Bail Reform Act of 1984. The government allegation contended that there existed no conditions of pretrial release which could assure the safety of the community or any person.
The District Court held a hearing at which the prosecutor offered evidence that Salerno was the leader of the Genovese Family of La Cosa Nostra and that Cafaro served as a "captain" in the same criminal organization. The government introduced evidence showing participation in several violent conspiracies, including two which involved murder. Salerno offered several character witnesses and attacked the credibility of the prosecutor's witnesses. The District Court granted the prosecutor's pretrial detention motion since the judge concluded that the men, if on bail, would continue to pose a threat to the community and would continue their criminal enterprises. The District Court noted:
"The activities of a criminal organization such as the Genovese Family do not cease with the arrest of its principals and their release on even the most stringent of bail conditions. The illegal business, in place for many years, require constant attention and protection, or they will fail. Under these circumstances, this court recognizes a strong incentive on 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).
Respondents Salerno and Cafaro successfully appealed the denial of bail and the detention order to the Court of Appeals. Here, the Court concluded that due process would be violated if the courts permitted the government to detain persons who had been accused of crime merely because of a thought that the men presented a present danger to the community. The Supreme Court granted certiorari.
PROCEDURAL QUESTION:
May the government, consistent with the Eighth Amendment, enforce a statute which permits pretrial, preconviction denial of bail on proof of present or possible future danger to any person or danger to the community?
HELD: Yes.
Chief Justice REHNQUIST delivered the opinion of the Court.
The Bail Reform Act of 1984 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 the court's words, this type of pretrial detention violates "substantive due process." We granted certiorari because of a conflict among the Courts of Appeal regarding the validity of the Act. 479 U.S. 929, 93 L.Ed.2d 351, 107 S.Ct. 397 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse.
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The Court of Appeals ... found our decision in Schall v. Martin, 467 U.S. 253, 81 L.Ed.2d 207, 104 S.Ct. 2403 (1984), upholding postarrest pretrial detention of juveniles, inapposite because juveniles have a lesser interest in liberty than do adults.
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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 the Eighth Amendment's proscription against excessive bail. We treat these contentions in turn.
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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, 60 L.Ed.2d 447, 99 S.Ct. 1861 (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.
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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.
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 USC 3142(f) [18 USCS 3142(f)] (detention 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 Act. See 18 USC 3161 et seq. (1982 ed and Supp III) [18 USCS 3161 et seq.]. 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.
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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.
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 F2d, 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.
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The government's interest in preventing crime by arrestees is both legitimate and compelling. De Veau v. Braisted, 363 U.S. 144, 155, 4 L.Ed.2d 1109, 80 S.Ct. 1146 (1960). ... The Bail Reform Act, in contrast, narrowly focuses on particularly acute problem in which the Government interests are overwhelming. The Act operates only on individuals who have been arrested for a specific category of extremely serious offenses. 18 USC 3142(f) [18 USCS 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. 98-224, 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 decision maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person. 18 USC 3142(f) [18 USCS 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.
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Finally, we may dispose briefly 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, 81 L.Ed.2d 207, 104 S.Ct. 2403, whether or not they might be insufficient in some particular circumstances. We think they pass that test. As we stated in Schall, "there is nothing inherently unattainable about a prediction of future criminal conduct. 467 US, at 278, 81 L.Ed.2d 207, 104 S.Ct. 2403; [other citations omitted].
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Given the legitimate and compelling 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 "[e]xcessive 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, 96 L.Ed. 3, 72 S.Ct. 1 (1951), in which the Court stated that "[b]ail set at a figure higher than an amount reasonably calculated [to ensure the defendant's presence at trial] is 'excessive' under the Eighth Amendment." 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 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.
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The holding of Stack is illuminated by the Court's holding just four months later in Carlson v. Landon, 342 U.S. 524, 96 L.Ed. 547, 72 S.Ct. 525 (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, 96 L.Ed. 547, 72 S.Ct. 525 emphasis added). The detainees brought the same challenge that respondents bring to U.S. today: the Eighth Amendment 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, 96 L.Ed. 547, 72 S.Ct. 525 (footnotes omitted).
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We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does require release on bail.
The judgment of the Court of Appeals is therefore reversed.
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 established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.
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Notes
1. Is the Court's acceptance that a denial of bail under that statute constitutes mere regulation of the process and is not punitive in nature dispositive of the Eight Amendment issue? Should it be?
2. With respect to Justice Marshall's assertion that a person may be jailed indefinitely, consider the effect of the Sixth Amendment right to a speedy trial and the Federal Speedy Trial Act. The combination of both the Sixth Amendment and the Act would appear to negate Justice Marshall's conclusion.
3. Who determines whether bail shall be available in a given situation? Congress? The judge? The prosecutor? How much weight should be given to the seriousness and type of crimes the person has been accused of committing?
Failure to Hold Timely Pretrial Detention Hearing: The Result.
UNITED STATES v. MONTALVO-MURILLO, Supreme Court of the United States (1990), 495 U.S. 711, 110 S.Ct. 2072
FACTS:
On February 8, 1989, federal agents discovered approximately 72 pounds of cocaine hidden in respondent's truck in New Mexico. He admittedly had plans to transfer the cocaine to purchasers in Chicago. DEA agents persuaded Montalvo-Murillo to help them make a controlled delivery in Illinois.
When the purchasers failed to appear, federal agents took respondent before a U.S. magistrate. The appearance in court occurred two days after his initial arrest and resulted in an agreement between the government and respondent that any bail-detention hearing would be held in New Mexico. Following his removal back to the jurisdiction of his arrest, the DEA requested a detention hearing pursuant to the Bail Reform Act of 1984. At the first New Mexico detention hearing, and since the government did not have all of its paperwork completed, the magistrate's decision was delayed. As a result of the actual detention hearing on February 21, respondent was ordered released on $50,000 bond by the magistrate.
Pursuant to a de novo hearing on February 23, 1989, the District Court found that no condition of release would assure respondent's appearance or secure the safety of the community. However, the Court upheld the magistrate's decision to grant pretrial bail since the detention hearing had not been held upon respondent's first appearance as required by Section 3142(f) of the Bail Reform Act. The remedy, according to the District Court, under such circumstances was to release an arrestee under appropriate conditions.
When the Court released Montalvo-Murillo on bail, he promptly became a fugitive by skipping bail and his whereabouts remained unknown.
Since federal circuit courts of appeal had rendered differing opinions concerning the remedy in situations where detention hearings had not been held according to the statutory time table, the United States Supreme Court granted certiorari.
PROCEDURAL QUESTION:
Under the Bail Reform Act of 1984, where the government fails to comply with the legal requirements of a prompt detention hearing, must a dangerous person be released on conditions of bail?
HELD: No.
RATIONALE:
JUSTICE KENNEDY delivered the opinion of the Court.
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Two provisions of the Bail Reform Act are relevant. The substantive provisions that allow detention are contained in subsection (e):
"DETENTION - If, after a hearing pursuant to the provisions of subsection (f) of this section, 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 of the person before trial. . . ." Section 3142(e).
The controversy in this case centers around the procedures for a hearing, found in subsection (f):
"DETENTION HEARING - The judicial officer shall hold a hearing to determine whether any condition or combination of conditions . . . will reasonably assure the appearance of such person as required and the safety of any other person and the community -
"The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, such person shall be detained. . . . The person may be detained pending completion of the hearing." Section 1342(f).
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The sole question presented on certiorari is whether the Court of Appeals was correct in holding that respondent must be released as a remedy for the failure to hold a hearing at his first appearance.
II
In United States v. Salerno, 481 U.S. 739 (1987), we upheld the Bail Reform Act of 1984 against constitutional challenge. Though we did not refer in Salerno to the time limits for hearings as a feature which sustained the constitutionality of the Act, we recognize that a vital liberty interest is at stake. A prompt hearing is necessary, and the time limitations of the Act must be followed with care and precision. But the act is silent on the issue of a remedy for violations of its time limits. Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained.
The Act, ..., requires pretrial detention of certain persons charged with federal crimes, and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight. 18 U.S.C. Sections 3142(e), (f). The Act authorizes detention "after a hearing [held] pursuant to the provisions of subsection (f) of this section." Section 3142(e). Subsection (f) provides that "[t]he judicial officer shall hold a hearing" and sets forth the applicable procedures. Nothing in Section 3142(f) indicates that compliance with the first appearance requirement is a precondition to holding the hearing or that failure to comply with the requirement renders such a hearing a nullity. It is conceivable that some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute "a hearing pursuant to the provisions of subsection (f)" for purposes of Section 3142(e). A failure to comply with the first appearance requirement, however, does not so subvert the procedural scheme of Section 3142(f) as to invalidate the hearing. The contrary interpretation - that noncompliance with the time provisions in Section 3142(f) requires the release even of a person who presumptively should be detained under Section 3142(e) - would defeat the purpose of the Act.
We hold that a failure to comply with the first appearance requirement does not defeat the Government's authority to seek detention of the person charged. We reject the contention that if there had been a deviation from the time limits of the statute, the hearing necessarily is not one conducted "pursuant to the provisions of subsection (f)." There is no presumption or general rule that for every duty imposed upon the court or the government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent. See French v. Edwards, 13 Wall. 506, 511 (1872) ("[M]any statutory requisitions intended for the guide of officers in the conduct of business devolved upon them . . . do not limit their power or renders its exercise in disregard of the requisitions ineffectual").
In our view, construction of the Act must conform to the "'great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.'" Brock v. Pierce County, 476 U.S. 253, 260 (1986) (quoting United States v. Nashville, C & St. L. R. Co., 118 U.S. 120, 125 (1886)).
In Brock v. Pierce County, supra, the Court addressed a statute that stated that the Secretary of Labor "shall" act within a certain time on information concerning misuse of federal funds. The respondents there argued that a failure to act within the specified time divested the Secretary of authority to act to investigate a claim. We read the statute to mean that the Secretary did not lose the power to recover misused funds after the expiration of the time period. Congress' mere use of the word "shall" was not enough to remove the Secretary's power to act. Id., at 260 (footnote omitted) ("We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act").
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Our conclusion is consistent with the design and function of the statute. We have sustained the Bail Reform Act of 1984 as an appropriate regulatory device to assure the safety of persons in the community and to protect against the risk of flight. We have upheld the substantive right to detain based upon the Government's meeting the burden required by the statute. United States v. Salerno, 481 U.S. 739 (1987). Automatic release contravenes the object of the statute, to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee. The end of exacting compliance with the letter of Section 3142(f) cannot justify the means of exposing the public to an increased likelihood of violent crime by persons on bail, an evil the statute aims to prevent. ... The safety of society does not become forfeit to the accident of noncompliance with statutory time limits where the Government is ready and able to come forward with the requisite showing to meet the burden of proof required by the statute.
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We find nothing in the statute to justify denying the Government an opportunity to prove that the person is dangerous or a risk of flight once the statutory time for hearing has passed. We do not agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits. Magistrates and district judges can be presumed to insist upon compliance with the law without the threat that we must embarrass the system by releasing a suspect certain to flee from justice, as this one did in such a deft and prompt manner. The district court, the court of appeals, and this Court remain open to order immediate release of anyone detained in violation of the statute. Whatever other remedies may exist for detention without a timely hearing or for conduct that is aggravated or intentional, a matter not before us here, we hold that once the Government discovers that the time limits have expired, it may ask for a prompt detention hearing and make its case to detain based upon the requirements set forth in the statute.
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We hold that respondent was not, and is not, entitled to release as a sanction for the delay in the case before us.
The judgement of the Court of appeals is Reversed.
Justice Stevens, with whom Justice Brennan and Justice Marshall join, dissenting.
This case involves two lawbreakers. Respondent, as the Court repeatedly argues, ante, at 1, 2 4, 9, failed to appear after his release on bail, an apparent violation of 18 U.S.C. Section 3146. Even before that, however, the Government imprisoned respondent without a timely hearing, a conceded violation of 18 U.S.C. Section 3142. In its haste to ensure the detention of respondent, the Court readily excuses the Government's prior and proven violation of the law. I cannot agree.
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Our historical approach eschewing detention prior to trial reflects these concerns:
"From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4(1951).
Sections 3142(e) and (f), allowing limited detention of arrestees, were enacted against this historical backdrop. Bail Reform Act of 1984, Publ. L. 98-473, 98 Stat. 1976, 18 U.S.C. Sections 3142(e), (f).
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Section 3142(e) permits pretrial detention only "[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, 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." 18 U.S.C. Section 3142(e). Subsection (f) in turn sets forth specific deadlines, chosen "in light of the fact that the defendant will be detained during such a continuance." S. Rep. No. 98-225, at 22, within which a detention hearing must be held:
"The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days." 18 U.S.C. Section 3142(f)(2).
There was no such hearing -- or finding of good cause for continuance -- when respondent was arrested on February 8, 1989, when he first appeared before a Northern District of Illinois Magistrate on February 10, or when the New Mexico Magistrate convened the parties on February 16. No court considered the basis of detention until February 21, after respondent had been incarcerated for 13 days.
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A federal prosecutor should have no difficulty comprehending the unequivocal terms of Section 3142(f)(2) and complying with its deadlines by proceeding or obtaining a proper continuance at the arrestee's first appearance. The rare failure to meet the requirements of subsection (f) will mean only that the Government forfeits the opportunity to seek pretrial detention in that case. Because the provisions of Section 3142(f)(2) are a prerequisite only for hearings to consider this particular form of pretrial action, the prosecutor still may seek any conditions of release that are "reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." 18 U.S.C. Section 3142 (c)(1)(B)(xiv). The range of options -- the sole safeguards that were available in cases prior to the creation of the special detention provisions in 1984 -- remain viable.
II
The Court, however, concludes that no adverse consequences should flow from the prosecutor's violation of this plain statutory command. Treating the case as comparable to an agency's failure to audit promptly a grant recipient's use of federal funds, see Brock v. Pierce County, 476 U.S. 253 (1986), the Court concludes that there is no reason to penalize the public for a prosecutor's mistake. If a belated hearing eventually results in a determination that detention was justified, the error has been proved harmless. The Court apparently discards the possibility that the hearing might result in a determination that the arrestee is eligible for release -- as the Magistrate so determined in this case -- or that detention of any arrestee before establishing the legality of that intrusion on liberty could "affect substantial rights." 876 F.2d 826, 829 (CA10 1989); Fed Rule Crim. Proc. 52(a). A harmless-error analysis fails to appreciate the gravity of the deprivation of liberty that physical detention imposes and the reality that "[r]elief in this type of case must be speedy if it is to be effective." Stack, 342 U.S., at 4.
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I respectfully dissent.
Notes
1. According to the majority in Montalvo-Murillo, the person who has been detained in violation of the Bail Reform Act of 1984 has no remedy of release if a detention hearing is not held in accordance with law. Should there be a remedy where the government breaks one of its laws in order to keep another alleged lawbreaker in pretrial detention? Do the dissenters have a valid point?
2. The Bail Reform Act of 1984 uses the word "shall" in its usually understood sense. Failure to follow the Act, according to the majority, should not allow an accused person freedom as a remedy for a prosecutor's mistake. Should the prosecution suffer some sort of penalty for not following the clear dictate of the law? Should a remedy exist in such a situation? Should it make a difference if a prosecutor deliberately delayed seeking a detention hearing for the explicit reason of keeping an arrestee in close custody?