1987 May 26

Preventive Detention: “Dangerous” Offenders Have No Right to Bail


The 1984 federal Bail Reform Act embodied the principle of preventive detention by allowing judges to deny bail to defendants they believed to be “dangerous” to the community. The law significantly reversed the historic 1966 Bail Reform Act (signed into law on June 22, 1966), which created a presumption of release for all defendants. In United States v. Salerno, decided on this day, the Supreme Court upheld the constitutionality of the 1984 law. In the 1980s, states followed the federal lead and passed similar preventive detention laws that allowed judges to deny bail to “dangerous” offenders.

Chief Justice Rehnquist: “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.”

Learn “Why Bail Matters”: https://aclu-wa.org/blog/why-bail-matters

Learn more about why preventive detention is a failed crime control strategy: Samuel Walker, Sense and Nonsense About Crime, Drugs, and Community, 8th ed. (2014)

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