United States v. Edwards

MACK, Associate Judge,

dissenting:

I.

The majority treads where wise men have feared to tread. 1 I am certain that my Brother Newman is not ruling out liberty as a “basic human right.” Yet, this case is as much about the constitutional right to liberty as it is about the constitutional right to bail. Ironically enough, my concern is not with the constitutional rights of Marvin L. Edwards, who has entered pleas of guilty in both cases, and who is no longer being held under the detention statute he challenges. My concern is with MY constitutional rights for I, like millions of Americans have lived, for a time at least, believing that the United States Constitution prohibited my punishment for a crime until such time as I have been found guilty of committing that crime. 2 And in the interest of giving equal time to Professor Foote 3 (with whom the majority opinion takes issue) “there is a value in unrealized ideals and to close that gap between ideal and reality by abandoning the ideal is not a course lightly to be undertaken.” 4

Idealism aside, however, in my view the majority’s analysis of the scope of the Eighth Amendment does not pass muster. The reasoning is not clinical — nor could it be. The conclusion is reached that the Eighth Amendment in commanding that “Excessive bail shall not be required ...” means only that, and does not grant a right to bail. I presume that the majority is saying that only the Congress can grant a right to bail, and once that right has been granted, the Constitution takes over and mandates that the bail not be excessive. This is a classic example of the cart pulling the horse since the Congress could abrogate the right to bail altogether, making the Eighth Amendment absolutely meaningless. Surely the framers of our Bill of Rights did not intend to fashion illusory protection— leaving open the possibility that a subsequent act of a legislature could empty a critical provision of the federal Constitution of all content.

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 , 15 S.Ct. 450, 453 , 39 L.Ed. 424 (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 , 72 S.Ct. 1, 3 , 96 L.Ed. 3 (1951) (emphasis supplied).]

The fact that the right to bail has been mandated by federal statute (since the passage of the Judiciary Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 81 , as amended, Rev. Stat. §§ 751-53 (1875)) has little bearing, if any, on the question of whether, in this case at least, it is constitutionally mandated. My colleagues’ position, carried to its logical conclusion, could conceivably vest in the District of Columbia City Council the power to deny the right to bail to any citizen *1366 arrested and charged with an offense in this city. 5 (This is not to suggest, of course, that the Council would exercise such power.)

By the majority’s own account, the history of the Eighth Amendment is generally unilluminating. Yet, having solemnly pronounced this fact, the majority launches into an in-depth discussion of English and American colonial history (well-known and well-used by many commentators) 6 and proceeds to draw its own inferences therefrom. I suggest that the majority’s inferences are no more sound than those of commentators who have reached an opposite conclusion. See Foote, The Coming Constitutional Crisis in Bail, 113 U. of Pa.L. Rev. 959 (1965), who has argued that specific language with respect to the right to bail was inadvertently omitted from the draft of the Amendment.

The central theme of the majority’s historical analysis appears to be that, in England, Parliament was free to define which crimes were bailable. It follows, therefore, that the framers of the United States Constitution would place no restraints whatever on the Congress in this regard. The language of the Eighth Amendment speaks of “excessive bail” in language almost identical to the English Bill of Rights which was directed toward judicial abuse. Therefore, our Bill of Rights in addressing bail, imposes merely a restraint on the courts.

I suggest that the majority’s approach is much too parochial. Its focus on precedent is solely to the identity of language and it ignores altogether the important aspect of motivation. History fails as a meaningful tool of legal interpretation and becomes merely a recitation of facts unless it can be presumed that individuals learn from it. It is “well known that our Bill of Rights was written and adopted to guarantee Americans greater freedom than had been enjoyed by their ancestors who had been driven from Europe by persecution.” Carlson v. Landon, 342 U.S. 524, 557 , 72 S.Ct. 525, 542 , 96 L.Ed. 547 (1952) (Black, J., dissenting) citing Bridges v. California, 314 U.S. 252, 264-65 , 62 S.Ct. 190, 194-95 , 86 L.Ed. 192 (1941).

In focusing narrowly on the language and purpose of the English Bill of Rights, the majority does a disservice to history and its meaning. The true purpose of the English Bill of Rights of 1689 (1 W & M st. 2, c.2) cannot be discerned without resort to an understanding of the purposes of other developments in the 17th Century — the Habeas Corpus Act of 1677 (31 Charles 1, c.2) and the Petition of Right of 1628 (3 Charles 1, c.l). Each one of these developments represented merely one step at a time to remedy a specific problem at hand, in light of a bigger struggle growing out of centuries of abuses by man against man — in unjustly detaining or corruptly extracting money for liberty — conduct engaged in by local custodians, justices, and monarchs alike. See Duker, The Right to Bail: A Historical Inquiry, 42 Alb.L.Rev. 33 (1977). If, therefore, we are to rely on English history, let us go back to the Statute of Westminister the First 1275 7 and more basically to the 29th Chapter of the Magna Carta (1215) providing that:

*1367 No Freeman shall be taken or imprisoned, or disseised of his Freehold, or Liberties, or free Customs, or to be outlawed, or any otherwise destroyed, but by lawful Judgment of his Peers, or by the law of the Land. [ 9 Hen. 3 , c.29.]

Further, the majority, with its emphasis on Parliament, does not make allowances for the differences between the English system of absolute Parliamentary control over individual rights and the basic American system of a government of limited and defined powers delegated by the people and circumscribed by enumerated individual liberties. See Black, The Bill of Rights, 35 N.Y.U.L.Rev. 865 (1960). James Madison spoke to this contrast in proposing the Bill of Rights to Congress (1 Annals of Cong. 18, 46-50 (Gales & Seaton ed. 1789-1791)).

In the declaration of rights which that country has established, the truth is, they have gone no further than to raise a barrier against the power of the Crown; the power to legislate is left altogether indefinite .... But although ... it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states have thought it necessary to raise barriers against power in all forms and departments of government.

In this framework, viewed against the backdrop of centuries of struggles against unlawful detention, it seems somehow ludicrous to me to suggest that the Eighth Amendment was drafted with the idea of isolating Congress from its restraints. I cannot believe that the framers of the Bill of Rights were more preoccupied with an English form of government than with a guarantee of liberty. Moreover, it appears to me even more ludicrous to suggest that pretrial detention is not punishment within the meaning of the Bill of Rights. Historically speaking, such detention was the major reason for the development of the right to bail. One would have been hard pressed, in 1626, to have had the duty of explaining to Sir Thomas Darnel and four other knights, that they were not being punished when they were committed “by special command of his majesty” (for refusing to pay illegal assessments) and held without trial after the Attorney General, prevailing against an argument for release on bail, suggested that the “King’s position was best for balancing the interest of society and the individual.” Duker, supra at 58-59.

In this country, until recently, there was little doubt that the Eighth Amendment, by necessary implication, guaranteed the right to bail before trial, except in capital cases. Our own Judge Holtzoff, as late as 1960, stated this emphatically and added:

The right to bail pending trial is absolute, except in capital cases,[ 8 ] no matter how vicious the offense or how unsavory the past record of the defendant may be. [Trimble v. Stone, 187 F.Supp. 483, 485 (D.D.C.1960).]

See also United States v. Motlow, 10 F.2d 657, 659 (7th Cir. 1926).

Perhaps the reluctance of my colleagues to follow this traditional view of the Eighth Amendment’s mandate stems from the phrasing of the claimed right in “absolute” terms. There is very little in the world in which we live that is absolute. Yet because the Constitution was written for the ages, judges must resist the temptation to interpret it restrictively, in the expediency of the moment, with the problems of their life span in mind. Perhaps a better solution for the majority would have been to suggest as did Justice Burton that the Eighth Amendment prohibits, along with excessive bail, the “unreasonable denial of bail.” See Carlson v. Landon, supra 342 U.S. at 569, 72 S.Ct. at 548 . The legislative scheme here at issue then could have been evaluated as to reasonableness.

*1368 I am most receptive to the suggestion that the Constitution is a living document; yet I am not embarrassed to say that it borders on a sacred one. If we are tempted to believe that it is necessary that we resolve an ambiguity therein, I would opt for the interpretation that not only makes common sense but that is the very essence of the Bill of Rights — the preservation of individual liberty.

II.

The statute which is the subject of this litigation is a “one-of-a-kind” law, applying only to the District of Columbia. Its provisions, imaginatively drafted in 1970 by good lawyers who “apparently ... tried to protect the Act against attack on constitutional grounds,” 9 represent a response to what was thought to be a crisis stemming from crime in the streets. In succumbing to the seductive appeal of sanctioning these provisions designed to prevent crime through detention, the majority of this court follows the example of the Queen immortalized in literature and described by a distinguished commentator 10 as follows:

Witness this classic exchange in Lewis Carroll’s Through The Looking Glass [88 Harper & Bros. ed. 1902]. The Queen observes that the King’s Messenger is “in prison now, being punished; and the trial doesn’t even begin till next Wednesday; and of course the crime comes last of all.” Perplexed, Alice asks, “Suppose he never commits the crime?” “That would be all the better, wouldn’t it?” The Queen replies.

The majority recognizes that the government has conceded, as it must 11 that if preventive detention is punishment, it cannot be imposed, constitutionally, absent conviction for the crimes charged (with certain exceptions not here relevant). 12 The majority then follows a tortured analysis designed to show that this statute, which sanctions detention for 60 days prior to trial without benefit of bail, is regulatory 13 rather than penal in character and therefore does not punish. I suggest that today’s arrestee, detained under the aegis of protecting the community, would be no less surprised, than would have Sir Thomas Dar-nel, to know he was not being punished “in a legal sense”: in fact he would be more apt to surmise that he was not being legally punished. “[PJretrial detention itself [is] indistinguishable from punishment .... ” Campbell v. McGruder, 188 U.S.App.D.C. 258, 267 , 580 F.2d 521, 530 (1978). A person detained prior to trial is deprived of the right to free association, Papachristou v. Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972), NAACP v. Alabama, 357 U.S. 449 , 78 S.Ct. 1163 , 2 L.Ed.2d 1488 (1958), and the right to travel, Dunn v. Blumstein, 405 U.S. 330 , 92 S.Ct. 995 , 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618 , 89 S.Ct. 1322 , 22 L.Ed.2d 600 (1969). The “privacy and integrity” of his family is threatened. See Moore v. East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977). In addition, pretrial detention handicaps a defendant in the preparation of a defense. Barker v. Wingo, 407 U.S. 514, 533 , 92 S.Ct. 2182, 2193 , 33 *1369 L.Ed.2d 101 (1972); Stack v. Boyle, supra. Moreover, there is persuasive authority suggesting that pretrial detention affects the outcome of a case. See Preventive Detention: An Empirical Analysis, 6 Harv. Civ. Rights—Civ. Lib. L. Rev. 289, 347 (1971). See also Kinney v. Lenon, 447 F.2d 596 (9th Cir. 1971).

The sanction of the instant statute, measured by the traditional tests which the majority recognizes as pertinent to drawing distinctions between penal and regulatory sanctions, is indisputably penal. See Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979); Kennedy v. Mendoza-Martinez, 372 U.S. 144 , 83 S.Ct. 554 , 6 L.Ed.2d 644 (1963). It imposes an affirmative restraint — the loss of liberty — which has historically been regarded as punishment; it comes into play on a finding of scienter; and in seeking deterrence, it promotes the traditional aim of punishment. Moreover, as I point out subsequently, it bears little rational connection to the assigned “alternative purpose” of protecting the community and it appears excessive in relation to that alternative purpose.

Specifically, under D.C. Code 1973, § 23-1322(a)(1), a judicial officer may order pretrial detention of a person charged with a “dangerous crime” 14 where the government certifies that the pattern of behavior “consisting of his past and present conduct” indicates that no condition or combination of conditions reasonably assures the safety of the community.

A hearing is required at which the standards of proof are “clear and convincing evidence” as to the pattern of behavior and a “substantial probability” that the person committed the offense for which he is before the judicial officer.

This statutory scheme must be assessed in light of undisputed principles. Where the state seeks to limit a fundamental right it may do so only upon a showing of a “compelling state interest.” Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973). Further, the scheme must be “necessary” for, and “not merely rationally related” to the effectuation of that interest. McLaughlin v. Florida, 379 U.S. 184, 196 , 85 S.Ct. 283, 290 , 13 L.Ed.2d 222 (1964). Finally, there must be no less restrictive means of promoting that interest. NAACP v. Alabama, 377 U.S. 288 , 84 S.Ct. 1302 , 12 L.Ed.2d 325 (1964). One cannot question that the right to liberty is a fundamental right or that the state has a compelling interest in curtailing street crime. One can and does question whether the statute in question promotes the compelling state interest and whether it does so in a manner least restrictive of the fundamental right.

Underlying the statutory classification of “dangerous” persons is a presumption that the state can predict those persons who are dangerous. I have reviewed defense counsel’s exhaustive treatment of this presumption and I am convinced by the authorities relied upon that the presumption is not a valid one. Moreover, I am likewise convinced that the utilization of this presumption for the asserted purpose will result in pretrial detention of persons who pose no threat to the community. In my view, therefore, this classification of “dangerousness” is arbitrary and invalid under due process and equal protection principles. Estate of French v. Doyle, D.C.App., 365 A.2d 621, 623 (1976), dismissed sub nom. Key v. Doyle, 434 U.S. 59 , 98 S.Ct. 280 , 54 L.Ed.2d 238 (1977), reh. den., 434 U.S. 1025 , 98 S.Ct. 753 , 54 L.Ed.2d 773 (1978).

Without dwelling at length on the sources relied upon by defense counsel, it is interesting to note that at congressional hearings on the legislation, experts both in and out of government expressed concern with the ability of the authorities to predict dan *1370 gerousness. 15 These concerns have been echoed in the results of empirical studies. 16

The American Psychiatric Association has suggested that “[njeither psychiatrists nor anyone else have reliably demonstrated an ability to predict future violence or ‘dangerousness’.” 17 The American Bar Association, has deemed detention under our statute “constitutionally dubious at best”, 18 noting that ten years of experience had demonstrated that the experts’ doubts as to the inability to predict dangerousness were well founded. 19 Moreover, the Bar Association has noted that the statute is virtually useless in reducing recidivism. 20

*1371 In a like vein (although Mr. Edwards is hardly in a position to challenge this), 21 the language of § 23-1322 poses serious problems with respect to unconstitutional vagueness. Nowhere in the statute is “past and present conduct” defined. Neither does the statute define the “safety” of the community.

The process, for reviewing a statute for vagueness, is to determine whether it is sufficiently explicit to inform those who are subject to it what conduct will render them liable to its penalties or whether it is so vague that men of common intelligence must necessarily guess at its meaning. See Willcher v. United States, D.C.App., 408 A.2d 67 (1979). A statute fails to meet the requirements of the Due Process Clause if it leaves the trier-of-fact free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. Giaccio v. Pennsylvania, 382 U.S. 399 , 86 S.Ct. 518 , 15 L.Ed.2d 447 (1966). In this regard, definitional uncertainty becomes an open invitation to virtually unrestrained administration. Ricks v. District of Columbia, 134 U.S.App.D.C. 201 , 414 F.2d 1097 (1968).

This statute, by failing to specify what types of past or future conduct may be considered in assessing a defendant’s dangerousness, opens the way for abuse in administration. I can only conclude that the framers of this legislation recognized this fact. Thus, a Justice Department spokesman, testifying as to the “totality of ... circumstances” (record, character and attitude) that a trial judge would review in concluding whether a course of conduct would be dangerous to the community, added:

The court could say that a petty larceny or petty offense was dangerous to the community, the guy was a drunk driver for example, and this was dangerous to the community. Such a conclusion, however, would be simply unreasonable. I think the conclusion that mari[j]uana smoking is dangerous is unreasonable. But I don’t know of any way to prevent courts from being unreasonable.

We predicate everything here on the good faith of courts and the good faith of prosecutors not to allege such information and the good faith of courts of appeals to review these matters and be fair in their judgment. [Preventive Detention: Hearings on S. 2600 Before the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 91st Cong., 2d Sess. 314 (1970) (emphasis added).]

The flexibility that accompanies the exercise of discretion is a necessary component of our system of criminal justice. It is a tribute to the reasonableness of our prosecutors and our courts that the instant statute is being challenged for the first time. But the restraints embodied in the Bill of Rights were not codified under the illusion that man would always be reasonable and would always act in good faith. As the United States Court of Appeals so aptly noted in striking as unconstitutionally vague the District’s general vagrancy statute (D.C.Code 1967, §§ 22-3302 to -3306):

[A] criminal statute perishes on constitutional grounds when it leaves speculative the tests for ascertaining the line separating guilty from innocent acts. [Ricks v. District of Columbia, supra 134 U.S.App.D.C. at 205 , 414 F.2d at 1100 .]

And not even past violation of the criminal law authorizes one’s subjection to innately vague statutory specifications of crime. [Id. at 214, 414 F.2d at 1110 (footnote omitted).]

I would hold this statute unconstitutional as violative of both substantive and proce *1372 dural 22 due process and I would look to more feasible and less restrictive alternatives for combating pretrial crime. [Defense counsel has suggested use and enforcement of stringent pretrial release conditions, with prosecution for violation and revocation of release in cases of noncompliance; expedited proceedings for persons deemed likely to commit crime while on bail; and extensive filing of “release papers” which enhance penalties for offenses committed by persons on pretrial release. See also American Bar Association Standards Relating to Pretrial Release, supra Standard 10-5.9 which characterize a defendant as a danger to the community if he has “(b)(ii)(A) ... committed a criminal offense since release, or .. . (B) violated conditions of release designed to protect the community and no additional conditions of release are sufficient to protect the safety of the community ....”]

I would affirm the order of Judge Bowers denying the government’s application for pretrial detention and reverse the order of Judge Norman granting pretrial detention. 23

. The United States Supreme Court, for whatever reason, has left unresolved, for over a century and a half, any question of whether the Bill of Rights confers a right to bail.

. The presumption of innocence is “constitutionally rooted.” Cool v. United States, 409 U.S. 100, 104 , 93 S.Ct. 354, 357 , 34 L.Ed.2d 335 (1972). “[A] presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453 , 15 S.Ct. 394, 402 , 39 L.Ed. 481 (1895). See also Bell v. Wolfish, 441 U.S. 520, 533 , 99 S.Ct. 1861, 1870 , 60 L.Ed.2d 447 (1979); Campbell v. McGruder, 188 U.S.App.D.C. 258, 268 , 580 F.2d 521, 531 (1978).

. See Foote, The Coming Constitutional Crisis in Bail, 113 U. of Pa.L.Rev. 959 (1965).

. Ibid. at 964.

.At the time when the American states were ratifying the United States Constitution, debates centered around the necessity for a federal Bill of Rights. In North Carolina, it was suggested that incorporation of such a bill would prove detrimental to liberty since it would be impossible to enumerate all the individual rights not relinquished by the Constitution, and the omission of some rights would raise the question of their existence. A compromise suggested what one commentator has speculated might have given form to the Ninth Amendment — a clause in the federal Constitution guaranteeing that all rights not surrendered to the central government would be reserved to the states. See Duker, The Right to Bail: A Historical Inquiry, 42 Alb.L.Rev. 33, 83 (1977).

. Foote, supra; Duker, supra; Meyer, Constitutionality of Pretrial Detention, 60 Geo.L.J. 1139 (1972); Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va.L.Rev. 371 (1970).

. 3 Ed. 1, c.15.

. The capital crimes exception predates the Constitution and is found consistently in colonial provisions for the right to bail. As Chief Judge Newman points out, this exception stems from the fear that persons facing the death penalty will be tempted to flee.

. See Meyer, supra at 1169.

. See Tribe, supra at 374.

. Under the Due Process Clause, detainees may not be punished prior to an adjudication of guilt in accordance with due process of law. Bell v. Wolfísh, supra 99 S.Ct. at 1872 ; Ingraham v. Wright, 430 U.S. 651 , 671-72 n.40, 674, 97 S.Ct. 1401 , 1412-13 n.40, 1414, 51 L.Ed.2d 711 (1977).

. There is no dispute here that pretrial detention to prevent flight or the intimidation of witnesses is constitutionally permissible. The practice of denying bail in capital offenses, predating the Constitution, was based upon the premise that one so charged is more likely to flee.

.The constitutional challenge in Bell v. Wolfish, supra, was to prison security practices, clearly regulatory in nature, as applied to pretrial detainees, concededly legitimately incarcerated to insure presence at trial. Here we are concerned with the constitutionality of the initial decision to detain.

. Interestingly enough, the term “dangerous crime” includes offenses ranging from attempted burglary, or distribution of narcotics, to forcible rape. It does not include such dangerous offenses as murder and kidnapping.

. Thus Ms. Patricia Wald, formerly of the Department of Justice and now a Judge of the United States Court of Appeals for the District of Columbia Circuit, stated that

despite the fact that preventive detention has been talked about for years, we have as yet no empirical study, no predictable study, which shows the factors which go into recidi-vis[m] on bail and which the judge could use in order to single out one man in 10 who might commit the crime. [Proposed District of Columbia Omnibus Crime Bill: Hearings on S. 2601 Before the Senate Committee on the District of Columbia, 91st Cong., 2d Sess. 2153 (1970).]

Former Chief Judge Harold Greene of the Superior Court, now Judge of the United States District Court for the District of Columbia, also testified as to the anticipated over-inciusiveness of the proposed legislation:

Statistics indicate that future criminal behavior is not easily predictable. Eight, ten, or perhaps even more suspects who would not commit crimes while out on bail would have to be detained in order to be sure to keep off the streets the one defendant who will. It is perhaps for that reason that preventive detention has been outside the mainstream of Anglo-American jurisprudence from Magna Carta to the present day. [Proposed District of Columbia Omnibus Crime Bill: Hearings on S. 2601 Before the Senate Committee on the Judiciary, 91st Cong., 1st Sess. 31 (1969).]

. The American Bar Endowment sponsored a Harvard study of the rearrest rate of persons in the Boston area during a six-month period in 1968. Preventive Detention: An Empirical Analysis, 6 Harv. Civ. Rights—Civ. Lib. L. Rev. 289 (1971). Using the District of Columbia preventive detention statute as a framework, the researchers focused on 427 released defendants charged with violent or dangerous crimes who would have been eligible for preventive detention had the District of Columbia law been in effect in Boston in 1968. Id. at 306.

Of the 427 defendants in the sample, 41 were rearrested and convicted of crimes committed during the pretrial period. Twenty-two of the 41 convictions were for violent or dangerous crimes as defined by the act.

The researchers used a “dangerous scale” model which considered the factors set out in § 1321(b) with the exception of the weight of the evidence in the instant arrest (the factors set out in § 1321(b) were originally designed to predict default —i. e., flight from prosecution) and incorporated by reference into § 1322(b)(2)(B). They concluded that in order to prevent all 41 offenses it would be necessary to detain 357 persons — that is, for every one recidivist detained eight nonrecidivists would also have to be detained. Id. at 314. Such a ratio “amounts to little less than a dragnet.” Id. at 344.

. American Psychiatric Association, Task Force Report on the Clinical Aspects of Violent Individuals 28 (1974). See also Rubin, Prediction of Dangerousness in Mentally Ill Criminals, 27 Arch. General Psychiatry 397 (1972) (no empirical evidence to support the belief that psychiatrists can accurately predict dangerous behavior).

. Commentary to the American Bar Association Standards Relating to Pretrial Release (2d ed. Approved Draft, 1979, following Standard 10-5.9) at 10-106. See also Millard v. Harris, 132 U.S.App.D.C. 146 , 159, 406 F.2d 964, 977 (1968).

. ABA Report, supra at 10-98.

. “The chief finding of the first ten months of observation has been the virtual non-use of the preventive detention law.” Id. at 10-105, quoting Vera Institute of Justice, Preventive Detention in the District of Columbia 72-73 (1972). See also House Committee on the District of Columbia, H.R. Rep.No. 1419, 94th Cong., 2d Sess. 4 (1976):

[F]rom the date of enactment until [1976], pretrial detention was rarely requested (only about 60 times during the entire 5 year period.) Various explanations were given for such non-use, but nearly all agree that the 1970 Act’s detention provisions have been a complete failure as a tool for dealing with the hard core group of repeat offenders. [Footnote omitted.]

. A determination of vagueness is not made in a vacuum but rather is made with regard to the facts of the case at hand. Willcher v. United States, D.C.App., 408 A.2d 67 (1979); see United States v. Mazurie, 419 U.S. 544 , 95 S.Ct. 710 , 42 L.Ed.2d 706 (1975). In light of appellant’s extensive prior criminal activity and juvenile record it cannot be concluded that he was without notice that this specific past conduct did not bring him within the scope of the pretrial detention statute.

. I concur in the reasoning of Judge Ferren to the extent that he finds procedural deficiencies in the scheme of the statute.

. I do not reach the issue involving closure of trial.