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. In United States v. Salerno, decided on this day, the Supreme Court upheld the constitutionality of the 1984 law.
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 the 1980s, states followed the federal lead and passed similar preventive detention laws that allowed judges to deny bail to “dangerous” offenders.
The 1966 bail reform bill had inspired all of the states to enact similar laws, and the result was a significant reduction in the percentage of jail inmates who were in jail awaiting trial. The 1984 law reversed that development and before long the percentage of jail inmates who were awaiting trial returned to is pre-1966 levels.
The increase of people in jail while awaiting trial has contributed “mass incarceration,” when you combine the number of people both in prison and in jail.
In fact, data on both federal and state prisoners over the years has consistently shown that only a small percentage of people commit new offenses while on pretrial release.
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
Read “A Guide to Addressing Jail Overcrowding” here
See the Justice Department report on how many federal offenders commit crimes while on pretrial release.
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)