SALERNO, UNITED STATES v. 481 U.S. 739 (1987)

In many nations of the world, governments imprison people believed to be dangerous because of their opinions. This does not happen in a free society. However, since the Bail Reform Act, passed by Congress in 1984, persons arrested for a specific category of serious offenses, those violating the racketeer influences and corrupt organizations act (RICO), may be imprisioned while awaiting trial. This is preventive detention, which is based on the supposition that the prisoner will likely commit other crimes if let out on bail. When the Court sustained the constitutionality of the 1984 statute, Justice thurgood marshall, dissenting, joined only by Justice william j. brennan, made the following remarkable statement:

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.

Justice john paul stevens, dissenting separately, agreed with Marshall that the statute violated both the presumption of innocence and the Eighth Amendment's excessive-bail clause.

Chief Justice william h. rehnquist, for the majority, first rejected the contention that the statute conflicted with the Fifth Amendment's due process clause. No conflict existed, he held, because Congress's purpose in authorizing pretrial detention was not penal, but merely regulatory. So construed, the statute did not authorize impermissible punishment without trial; it merely employed pretrial detention to protect the community against danger. Not only was substantive due process not violated; the statute conformed with procedural due process as well, because it provided for a full adversary hearing before a judge. The government had the burden of proving that to offer bail to the prisoner endangered society and that the prisoner had the right to counsel and all other trial rights.

Rehnquist also rejected the argument based on the Eighth Amendment's excessive-bail clause. It did not guarantee a right to bail, only that, when available, bail should not be excessive. In murder cases, bail can be denied. Moreover, in schall v. martin (1984), the Court had permitted pretrial detention of juveniles following a showing before a judge that the person might commit crimes if bailed. Finally, the bail clause bound courts, not Congress. Given the Court's extraordinary deference to Congress on an important Bill of Rights issue, Salerno may deserve a good part of Justice Marshall's denunciation and show the risks of judicial faineance. However, the risk comes from Congress, not an acquiescent Court, and Congress is controllable by the people.

Leonard W. Levy
(1992)