Amicus Brief — Murphy v. Hunt

NEC 19 1961

ey

No. 80-2165

AS.

eu | ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

JAMES M. Murpny, District

Judge of the Fourth Judicial

District of the State of Nebraska,

Douglas County, Nebraska,

Appellant,

v.

EuGENE L. Hunt, Appellee.

On Appeal from the United States Court

of Appeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF APPELLEE

IRVIN B. NATHAN

Davip P. TOWEY

ARNOLD & PORTER

1200 New Hampshire Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Attorneys for the American

Civil Liberties Union

Of Counsel:

SuSAN P. STURM

eT

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

TABLE OF CONTENTS

STATEMENT OF INTEREST eeeeseeaeoevoeeeeeeeeeeeee 1

SUMMARY OF ARGUMENT. eeeeveeveeeveeeeeeeeeeeeee 4

ARGUMENT cccccccecccccecceceeseeeeeeeeeeee 9

I. THE BROAD CONSTITUTIONAL ISSUES *

RAISED BY PREVENTIVE DETENTION OF

CRIMINAL DEFENDANTS FOR "DANGER-

OUS" PROPENSITIES ARE NOT PROP-

ERLY PRESENTED FOR ADJUDICATION

IN THIS CASE eoeeeoeveeveeeeeveeeeeeeeeeeene 9

II. THE NEBRASKA PROVISION VIOLATES

THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT BECAUSE IT

ARBITRARILY DENIES BAIL TO A

CLASS OF DEFENDANTS, EVEN WHERE

A DEFENDANT IS NOT "DANGEROUS"

AND POSES NO RISK OF FLIGHT ..++++- 19

III. THE NEBRASFA PROVISION VIOLATES

THE GUARANTEE OF THE EIGHTH

AMENDMENT APPLICABLE TO THE

STATES THROUGH THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMEND-

MENT THAT “EXCESSIVE BAIL SHALL

NOT BE REQUIRED” .wccceccceecccsess 34

A. The Excessive Bail Clause of

the Eighth Amendment Renders

Unconstitutional a Law Cate-

gorically Denying Pretrial

Release to Noncapital De-

fendants Without Consid-

eration of Relevant Individual

Factors e*eeneneeeneneeeneeneeneeeeeeee 35

B. The Excessive Bail Clause of

the Eighth Amendment Restrains

States as well as the Federal

Government from Unreasonable

Denials of Bail e*eneeeeeeeneeneneee 51

IV. THE NEBRASKA PROVISION VIOLATES

THE SUBSTANTIVE GUARANTEES OF THE

DUE PROCESS CLAUSE BECAUSE IT RE-

QUIRES THE IMPRISONMENT OF CRIM-

INAL DEFENDANTS SOLELY ON THE

BASIS OF A PRETRIAL FINDING THAT

THE DEFENDANT IS LIKELY TO BE

CONVICTED OF THE OFFENSE

CHARGED 2 Oo Gece OOS ee ere eee ese Cee ee ees

CONCLUSION e« ccoccccccccccccccceeseeeeeeeees

57

65

TABLE OF AUTHORITIES

Cases: Page

Alabama State Federation of Labor v.

McAdory, 325 U.S. 450 Go ee ee

Aptheker v. Secretary of State, 378 U.S.

MT Unsats bak hd es eset boas a0 ab ioe hsent en

Atkins v. People of the State of Michigan

, 644 F.2d 543 (6th Cir.), cert. denied,

101 Ss. Cte 3115 CU9SL)cccccccccccccccesccccesece4®

Baker v. McCollan, 443 U.S. 137 (1979) .ceceeeveees5Sl

Barker Ve Wingo, 407 U.S. 514 (1972) ccccccccceessGs ae

Bell v. Wolfish, 441 U.S. 520 (1979)..........passim

Board of Regents v. Roth, 408 U.S. 564 (1972).....25

Carbo v. United States, 288 F.2d 686 (9th

Cir.), cert. denied, 365 U.S. 861 (1961)........44

Carlson v. Landon, 342 U.S. 524 (1952) ..eeeeeeveeee47

Coffin v. United States, 156 U.S. 432 (1895)......3l

Coleiman Ve Alabama, 399 U.S. 1 (1970) eccccccceccce SS

Cowgill v. California, 396 U.S. 371 (1970)........18

Darnel's Case, 3 How. St. Tre 1 (1627) .ceeeseveees 36

DeBacker v. Brainard, 396 U.S. 28 (1969)...e++0+++18

District of Columbia v. Clawans, 300 U.S.

617 LOST) ccccccccccccccccccccccccccccccccescceehda

Duncan v. Louisana, 391 U.S. 145 (1968)....ee0000+52

Elkins v. United States, 364 U.S. 206 (1960)......55

Estelle v. Williams, 425 U.S. 501 (1975)..eeeee00+28

Gagnon v. Scarpelli, 411 U.S. 778 (1973)...eee++++30

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)......30

Gideon v. Wainwright, 372 U.S. 335 (1963) ...eeeee0e2

Goldberg v. Kelly, 397 U.S. 254 (1970) .eeevevevee +30

Greene v. McElroy, 360 U.S. 474 (1959) ..eeeeeeeeee 30

Greenholtz v. Inmates of the Nebraska Penal &

Correctional Complex, 442 U.S. 1 (1979) eveeeeeee25

Hudson v. Parker, 156 U.S. 277 (1895).cesevveeeee +45

Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981),

rob. juris. noted, 50 U.S.L.W. 3244 (October

1981 COCCOC COCO OEE EECEOOEEEOEESECOLOCCEC CC EEOC OH DO

Ingraham v. Wright, 430 U.S. 651 (1977) ..eeeeeen ee 25

International Brotherhood of Teamsters v. Denver

Milk Producers, Inc., 334 U.S. 809 (1948).......18

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)..64

Klopfer v. North Carolina, 386 U.S. 213 (1967).52,53

Leary v. United States, 395 U.S. 6 (1969)....+++++58

McGinnis v. Royster, 410 U.S. 263 (1973) ...+ee+04-32

Mapp v.- Ohio, 367 U.S. 643 (196]L)ccccccccccccceceedS

Mastrian v. Hedman, 326 F.2d 708 (8th Cir.),

cert. denied, 376 U.S. 965 (1964) ....6++++43-44,49

Memorial Hospital v. Maricopa County, 415 U.S.

COOOEHHOCSEEOEEHOEEESEEOSOCEOCCOOSECOCOCEES

Minnesota ex rel. Pearson v. Probate Court, 309

U.S. 270 C1940) ccccccccccccccccsecccccccccccccoeend

Miranda v. Arizona, 384 U.S. 436 (1966) ..eeeeeeeeee2

Moore v. East Cleveland, 431 U.S. 494 (1977)......28

Morrisey v. Brewer, 408 U.S. 471 (1972)..++++++29=30

NAACP v. Alabama, 377 U.S. 288 (1964)..seeeeeee4+ +60

NAACP v. Alabama, 357 U.S. 449 (1958)..eeeeeeeeees 28

In re Oliver, 333 U.S. 257 (1948)..seeeeveeeeee53, 54

Papachyistoy v. City of Jacksonville, 405 U.S. -

Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106,

cert. denied, 444 U.S. 920 (1979)passim

Rescue Army v. Municipal Court, 331 U.S. 549

SO SECOROHEEREOSCHOOCEEC OSH SOSODSEDOSEVOV OOO OET

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

SP PrTrrTrerrrrrerrrrerTerererrrrrrrerieriryrl. UL

Roe Ve Wade, 410 U.S. 113 C19TDdccccscoeccecsesevseae

Schilb Ve Kuebel, 404 U.S. 357 (197S de cccccescvvceds

Shelton v. Tucker, 364 U.S. 479 (1960). ..eeeeeeeee6l

Sistrunk v. Lyons, 646 F.2d 64 (3d Cir. 1981).....49

Socialist Labor Party v. Gilligan, 406 U.S. 583

19 Bocce o cee eeeeeerereereceresscceocceccooooeoeeeae

Specht v. Patterson, 386 U.S. 605 (1967).....7,23-24

Speiser v. Randall, 357 U.S. 513 (1958)...+.+.+++17,25

Smith v. Hooey, 393 U.S. 374 (1969) sseeeeeeeeeeeee27

Stack v. Boyle, 342 U.S. 1 (1951)....+32,45,46-47, 56

Stanley v. Illinois, 405 U.S. 645 (1972)..++++++++28

Taylor v. Kentucky, 436 U.S. 478 (1978)...++++.31=32

Terry Ve Ohio, 392 U.S. l (1968) cccccccccccvccceeee

Trimble v. Stone, 187 F. Supp. 483 (D.D.C. 1960)..46

United States ex rel. Goodman v. Kehl, 456 F.2d

863 (2d Cir. LDT2Z eo ccccetacccvccceccccccccsccc ce 04

United States v. Kennedy, 618 F.2d 557 (9th Cir.

l P66 0686 4.6 66 06 660086 60.00:6600006060000000 680808)

United States v. Motlow, 10 F.2d 657 (7th Cir.

l TEVTTELUUUELETETELELELETETELELILI Teer}

Vitek Ve Jones, 445 U.S. 480 C19SO da cveocvcccescossersse

In re Winship, 397 U.S. 358 (1970).......20,32,47, 54

Witherspoon v. Illinois, 391 U.S. 510 (1968).......2

Wolf v. Colorado, 338 U.S. 25 (1949). cccccvvevveee52

Statutes and Constitutions

U.S. Const. amend. Voeoceedsesedsersesesesesseseseovesae

U.S. Const. amend. VITIe esses vsecccvvvvvveeees spassim

U.S. Const. amend. X1Veeecoeeeevveeevvseseees spassim

18 U.S.C. § 3146 (1976 )eccccccscvecsccsccscvecseccsee ee

Judiciary Act of 1789, 1 Stat. Q9leeveveeeeeeee+40,55

Fed. R. Crim. P. BE. coeceseeceeeesoeeesereoeeeeeseoee

An Ordinance for the Government of the Territory

of the United States Northwest of the River

Ohio, July 3, 1787, art. Licccccccccccccc esa 39740

Ala. Const. arte I, $ L6cccccccccccccccccccecccce eh)

Alaska Const. art. I, ; Lhbcccccccccnccccccccccccc ches

Ariz. Const. art. II, eg e666 60) 66600066 066.0606858

Ark. Const. arte IZ, §$ Beccccccccccccccccccccescs ch

Cal. Const. Ort. I, §$ L2cccccccccccccvcvcscvcccce ehh

Colo. Const. art. IZ, § LD. ceccccccccvccecccvcccsehl

Conn. Consett. art. I, § Becoccccccccccccccccscccce ehh

Del. Const. arte I, §$ LQ. ccccvccvcccccccvecvesseerHl

D.C. Code 1973, § 2991322. cccccccccccccvcccccccece aD

Fla. Const. arte I, §$ Lhe ccccccccccvcccvvccccccce eh)

Ga. Code Ann.

§ 27-701.1 (197) eccoccccccccccccccccccccccccccc ch

§ RTGS co ccccccescecesesecsvessesoveevovcecocenccSs

Hawaii Rev. Stat. § 804-3 (1976). .ceeeeeeevevevvevedl

Idaho Const. art. I, §$ Geveccccccccccccseccccscvesehl

Til. Const. art. I, © Decccccccccvcccvccscccvcscee&l

Ind. Const. arte I, § LJeecccccccccccvvccvcvccces ehh

Iowa Const. art. I, § L2ccccccccvccvcccccvcscvessedl

Kan. Const., Bill of Rights § Q..eeeeeeeeeeeereeee4l

Ky. Const., Bill of Rights § 16. ..eeeeeeeeerevveer4l

Lhe Const. QFt. EF, & IWsecsccccvvessssesesensecsseeeeoun

Massachusetts Colonial Laws (Whitmore

ed. 1887)39,53-54

Me. Const. art. I, § LDecoccscesecceveessesecesesoeen

Md. Rule Crim. Proc. 721. eeeeeeeeeeeneneeeneeeeeeeee 41

Mich. Const. art. I, § 15. *eenreeeeeteeneenereeeeeeeneeeeee 41

Minn. Const. art. I, § Te FOUCCCRCEBPSOCOEO CPE Ceres Fes. 2 41

Mies.. Const. Ft. IIT, § BeeveccvcccvcccccsscesseSh

Mo. Const. art. I, § 20. *eeeeetenerpeevenreeeeeeeeeeeeee 41

Mont. Const. art. III, § 19. *eeeeeneeeeeeeeeeeeeee 41

Neb. Const. art. I, § Decccccccscccccccccccc e049, 41

Neb. Rev. Stat. § SZIELIDL ccccccccceeeeseveceeseeeenn

§ 29=FEL GCleccocececeeeseeceseeeseesesseeeeeeeseenn

§ 29m FOL Ode ccccceee eee eseeneeeeeeeeeeseneeeeseenn

BS BWeLIWT eo ccccccvesccsevccecsesseccesseseessveseene

Nev. Const. art. Be § Tecoveccceeeneeeeeseseeeseeean

N.C. Const. Declaration of Rights § X (Dec. 18,

1776) ccccvecce -TEREERUTELELETELETETETTT TTT SS.

N.C. Gen. Stat.

§ 15-47 C19TS) ccccvcccccevccvececcceveccceceeceeeen

§ LSA—“S34(D) ccccccccvccccccsecevccecececeneseescha

N.D. Const. art. I, § Llhcocoereeeeeeseeereeeneesen eeu

N.H. Rev. Stat. Ann. § 59731 (1974) ccccccvccccccsedl

WoeJFo Const. OFC. Tp § Llcccccccccccvcesecccesceveeesn

N.M. Const. art. II, § L3ccccceecceecceeeeeceeeceeae

N.Y. Crim. Proc. Law § 530 (McKinney 1979).....41,42

Ohio Const. art. I, § 9. e*eeeeeneteeeeeenreneteeeeeeeeeee 41

Okla. Const. art. Il, § 8. *eeenreeenereevenreeeeeeeeeeneeee 41

Or. Const. art. T, § LGocccevoescereteereueeeetecene

Pa. Conete OFC. IT, § USecccccccccsesecscscceveccseccGs

Laws Agreed Upon in England, May 3, 1682, in

Proceedings Relative to Calling the Conventions

Of 1776 ONG LIDO (1025) (PBcdocccccccccscccceess Se

R.I. Const., Declaration of Rights art. I, §

Decceeeeeeeeeeesereoeseeesesesessenseeseseeeeeseue

8.C. Const. art. I, § Lecce cece eeeeeeeeseeeeeeeeeseen

S.D. Const., Bill of Rights art. VI, § B.eeeeeeeee4l

Tenn. Const., Declaration of Rights art. I, §

Lec ccoceeeeeesessesbesececccedseedseneseeceeseseeeeneeen

Tex. Const. art. I, § LlHKAc cer ccesccveceseeceevee ed

Utah Const. art. IT, §$ Secccccccccccccccccccccvese eds

Va. Code § 19, Bel Bc cocecesesoessesvessessseseseeeue

Vte Const. ch. 2, § Save coveensseeeenesseeeeeeueeseun

Wash. Const. art. TI, § 20. e*eeeeeeeneeeeneeeeeeeeeeeee 41

Ww. Va. Code § 62-1C-1(a) (1978) cccccccccccccccccc cdl

Wis. Const. art. I, § Bococceeeeeebe eee tebe ee eee eee

Wyo. Const. art. I, § Ldeccccvecccvccccveceveseeeedl

Bill of Rights of 1688, 1 W. & M., st. 2, c.

Y POU ETERELELELELERELELULELEPEPELEPLETeTerrrryTy . Sel

Habeas Corpus Act of 1679, 31 Car. 2, Ce 26++++36,37

Petition of Right of 1627, 3 Car. 1, Co leoeeeeee+ 36

Statute of Westminster the First, 1275, 3 Edw.

l, Ce Led ccccccccccccccceeceeceeesececeeeeeeveseeea

Magna Carta CLZLS) ccoccccccecccvcccecevescoeceseseeea

Assize of Clarendon (1166). .ceeeeseeessvcsevsesevsede

Miscellaneous:

Autobiography, in 1 Writings of Thomas Jefferson

Ford ed. LEGA) ccoccccccceccesecccccececceceeesees®e

4 W. Blackstone, Commentaries on the Laws of

England (4th ed. CVV 5665 60006066650 56508060000008

Duker, The Right to Bail, 42 Alb. L. Rev. 33

C1LDTT J ccccccccccccccccccccccceeecceceeceeeseed ay Oe

Foote, The Coming Constitutional Crisis of Bail:

I and $ 113 U. Pa. L. Rev. 9 9-9 9, ll ’

1164-1186 (1906S) ccccccccccccccccccccs ce bey 45, 94, 55

Haskins, Law and Authority in Early Massachusetts

CL9GO) ccccccccececcccecececcccccccceseccescecceehs

2 W. Hawkins, Pleas of the Crown (6th ed. 1787)...38

4 Holdsworth, A History of English Law (3d ed.

LDH) cccccccececcccecccevececccccvccceccccceesee3O

L» Katz, Justice is the Crime: Pretrial Delay

in Felony Cases (LOT2)ccccccccccccccccccccces 25@2e

National Bureau of Standards, Compilation and

Use of Criminal Court Data in _Relation to Pre-

Trial Release of Defendants: Pilot Study (1970)58-59,¢

Preventive Detention: An Empyrieat Analysis,

6 Harv. C.R.-C.L- L. Rev. 1 oeeeee 58,61-62

Note, Preventive Detention Before Trial, 79 Harv.

Le Rev. 1489 th. ) PPRPPPVPETITITIT eee

Rankin, The Effect of Pretrial Detention, 39

N.Y.U. Le Rev. 641 PRINTS G6GCRCCL AGC eee Obeeeceent

1 J. Stephen, A History of the Criminal Law of

England | ESRC EE EEE EEG EEE |

Thaler, Punishing the Innocent: The Need for

Due Process and the Presumption of Innocence

Prior to Trial, 1 WwW S. Le Rev. G4leccccvccceehS

The Unconstitutional Administration of Bail:

Bellamy v. The Judges of New York City, 98 Crim.

Le Bull. 459 FRUPEUSUE40 65460 5560465505800 0 006 0NEL ET

Tribe, An Ounce of Detention: Preventive Justice

in the World of John Mitchell, 56 Va. L. Rev.

371 PRO 63 645066655063 56054004006 coe aoeneweeesee

P. Wice, Freedom for Sale (1974)..ceevesevvevevees62

K. Williams, The Prosecution of Sexual Assaults

CIDTBS) ccccccccvcevcceevevcccccevccccccevccccceces®

Zeisel, Bail Revisited, 1979 Am. B. Foundation

Research we 769 >. a es

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

No. 80-2165

JAMES M. MURPHY, District

Judge of the Fourth Judicial

District of the State of

Nebraska, Douglas County,

Nebraska,

Appellant,

-V.-

EUGENE L. HUNT,

Appellee.

BRIEF OF AMICUS CURIAE

THE AMERICAN CIVIL LIBERTIES UNION

IN SUPPORT OF APPELLEE

STATEMENT OF INTERESTL/

The American Civil Liberties Union

("ACLU") is a national, nonpartisan, nonprofit

organization of over 200,000 members dedicated

to protecting personal Liberty through a

1/ The parties have consented to the filing

of this brief. Their letters of consent have

been filed with the Clerk of this Court

pursuant to Rule 36.2 of the Rules of this

Court.

=o 2 «@

vigorous defense of the safeguards embodied

in the Bill of Rights. Since its founding

in 1920, the ACLU has appeared before this

Court, either as counsel or amicus, on more

than one thousand occasions in support of

those safeguards.

Constitutional protections in the

area of criminal procedure have been one of

the ACLU's principal areas of concern. The

ACLU has appeared in numerous criminal

procedure cases before this Court, including

such landmark cases as Gideon v. Wainwright,

372 U.S. 335 (1963); Miranda v. Arizona, 384

U.S. 436 (1966); Witherspoon v. Illinois,

391 U.S. 510 (1968); and Terry v. Ohio, 392

U.S. 1 (1968).

The ACLU believes that the right to

be free of unreasonable pretrial detention

plays a critical role in assuring fairness

in the overall criminal process. The ACLU

is concerned that this right is threatened

by the power asserted by the State of Nebraska

» 3 «

in the present action categorically to detain

persons charged with certain noncapital

offenses prior to trial solely on the basis

of probable guilt. The history and traditions

of this country afford no precedent for such

pretrial detention. The ACLU's interest here

is to answer the sweeping claims of power

made by the State of Nebraska and to

demonstrate the patent unconstitutionality

of the Nebraska pretrial detention provision.

—

SUMMARY OF ARGUMENT

Article I, section 9 of the Nebraska

constitution was amended in 1978 categorically

to deny bail to persons charged with sexual

offenses involving force "where the proof

is evident or the presumption great." In

a comprehensive and well-reasoned opinion,

the Eighth Circuit found that this Nebraska

provision violates the due process guarantees

applicable to the states through the fourteenth

amendment. Hunt v. Roth, 648 F.2d 1148 (8th

Cir. 1981), prob. juris. noted, 50 U.S.L.W.

3244 (October 6, 1981). The Nebraska provision

requires the incarceration of defendants

charged with forcible sexual offenses solely

on the basis of probable guilt of the offense

charged. Precluding the trial court from

examining any of the circumstances relating

to an individual defendant's likelihood of

appearing for trial or even his dangerousness

to the community, the Nebraska constitutional

provision creates an absolute, irrebuttable

presumption that anyone charged with this

oS =

one type of noncapital offense may not even

be considered for bail so long as the

prosecutor can offer some evidence or even

a strong presumption that the defendant

committed the crime which stands charged but

not proven. Such an automatic denial of

liberty without even the most rudimentary

procedural protections is a clear violation

of the guarantees of the due process clause.

The present case is not the proper

occasion to resolve the serious constitutional

issues raised by preventive detention of

noncapital defendants based on a judicial

finding of dangerousness. The State of

Nebraska has attempted to frame the issues

in a way that would require this Court to

resolve in the context of this case those

questions, which raise profound implications

for the character of criminal justice in this

country. The ACLU has long taken the position

that alleged "dangerous" propensities are

neither a traditional nor constitutionally

valid basis for denying bail to a defendant

@ 6 «

prior to trial. Nonetheless, this case --

a challenge to a three-year-old constitutional

provision which comes to this Court on a record

stripped of the factual setting in which the

provision was invoked -- affords no basis

for examining the constitutionality of

preventive detention enactments, which allow

denial of bail based on a finding of

dangerousness. Denial of bail under the

Nebraska provision is not premised on a

judicial finding that an individual defendant

is likely to represent a danger to the

community if released. As interpreted by

the Supreme Court of Nebraska, dangerousness

is irrelevant to the decision to detain; as

long as the evidence relating to the present

charge is sufficient, the defendant is

automatically “ineligible for bail." Parker

v. Roth, 202 Neb. 850, 278 N.W.2d 106, 115,

117-18, cert. denied, 444 U.S. 920 (1979).

Under well-settled principles of judicial

restraint, this Court should refrain from

addressing the propriety of preventive

~~ a

detention based upon dangerousness in the

abstract setting in which those questions

are raised here.

This challenge to the constitutionality

of the Nebraska provision presents narrow

issues. The Nebraska provision denies the

procedural due process guarantees of rights

of confrontation and cross examination required

by Specht v. Patterson, 386 U.S. 605 (1967).

It prevents consideration of evidence bearing

on the individual defendant's likelihood of

flight or even dangerousness. The irrebuttable

presumption against bail for this one class

of noncapital offenders, is not based on any

data or any rational basis for concluding

that such defendants are less likely to appear

for trial or are more Likely to commit other

crimes while out on bail than any other class

of noncapital defendants. The provision

abridges the presumption of innocence

guaranteed by the due process clause. It

denies an individualized determination of

eligibility for pretrial release under

e @ «

traditional criteria in violation of the

excessive bail clause of the eighth amendment.

Finally, it violates fundamental substantive

guarantees "({fJor under the Due Process Clause,

a detainee may not be punished prior to an

adjudication of guilt in accordance with due

process of law." Bell v. Wolfish, 441 U.S.

520, 535 (1979).

This experiment by the State of

Nebraska with the liberties of the American

people is patently unconstitutional on its

face. This Court should hold the Nebraska

provision null and void.

ao @ «=

ARGUMENT2/

I.

THE BROAD CONSTITUTIONAL ISSUES

RAISED BY PRETRIAL DETENTION OF

CRIMINAL DEFENDANTS FOR “DANGEROUS"

PROPENSITIES ARE NOT PROPERLY PRESENTED

FOR ADJUDICATION IN THIS CASE

On the basis of the challenged Nebraska

constitutional provision,23/ appellee-defendant

Eugene Hunt was imprisoned for 4 months prior

to his trial on charges of first-degree sexual

assault, nonforcible sexual assault (statutory

2/ The ACLU wishes to acknowledge the

contributions of the following students at

the Harvard Law School who assisted in the

preparation of this brief: Sarah Fox, Nicolas

Grabar, and Laurence Shtasel.

3/ Article I, section 9, of the Nebraska

constitution provides as follows:

"All persons shall be bailable

by sufficient sureties, except for

treason, sexual offenses involving

penetration by force or against the

will of the victim, and murder, where

the proof is evident or the presumption

great. Excessive bail shall not be

required, nor excessive fines imposed,

nor cruel and unusual punishment

inflicted." (Emphasis added.)

The underscored amendments were added in 1978

pursuant to a popular referendum.

- 10 -

rape) and several accompanying counts of

nonsexual felonies. Because of the

circumstances of this case, the record does

not indicate the factual basis upon which

the trial judge concluded that the evidence

or presumption against the defendant precluded

his being considered for bail.

Defendant initially appeared on the

charges in Omaha Municipal Court, where he

was admitted to bail on the nonsexual charges,

but denied bail on the sexual offense charges.

Defendant subsequently appeared with counsel

before Douglas County District Court Judge

James M. Murphy for a review of the bail

denial, but because both defendant and the

state's attorney stipulated to the evidentiary

requirement that "the proof [be] evident or

the presumption great," no inquiry was made

into the factual basis for this finding.

Defendant then brought a collateral action

challenging the bail denial in federal court.

The parties again entered into a stipulation

permitting the court to rule on defendant's

o fi «

claims without inquiry into the factual and

procedural setting in which the decision to

detain was made.

Procedural protections for those

defendants who have been charged with offenses

covered by the provision are, however, minimal.

Nebraska does provide bail hearings for all

criminal defendants, Neb. Rev. Stat. § 29-

901.01 (1979), but it does not appear that

defendants are entitled to counsel as a matter

of right until the appeal stage of the

proceeding. Neb. Rev. Stat. § 29-901.03.

Moreover, the evidence presented at the hearing

need not conform to the normal rules of

admissibility in a court of law, Neb. Rev.

Stat. § 27-1101(4)(b), so that the State is

free to offer hearsay and unreliable

identification testimony.

Although the State depicts this

Nebraska provision as a means for "the

protection of society from repetition of .. .

heinous crimes" (Appellant's Brief at 28),

- 12 =

the provision in fact has nothing to do with

dangerousness. The Nebraska provision, on

its face, requires the incarceration of persons

charged with sexual offenses solely on the

basis of probable guilt of the offense charged.

Nothing in the record suggests that trial

judges are even permitted to consider

danyerousness to society in determining

eligibility for bail under the Nebraska

provision. Indeed, as interpreted by the

Supreme Court of Nebraska, such considerations

are irrelevant to the decision to detain;

as long as the evidence relating to the present

charge is sufficient, the defendant is

automatically “ineligible for bail." Parker

v. Roth, supra, 278 N.W. 2d at 115, 117-18.4/

4/ Despite the State's assertion that it

remains within the discretion of the trial

judge to grant or deny bail even in cases

where the judge is persuaded that “the proof

is evident or the presumption great,"

(Appellant's Brief at 31), the Supreme Court

of Nebraska has clearly construed the provision

as requiring the denial of bail where that

evidentiary requirement has been met. In

Parker v. Roth, supra, the Court stated that

n order for one so charged to be

ineligible for bail, it must appear to the

trial court that either the proof of the charge

[Footnote continued on following page

» 13 «

This case also comes to this Court

stripped of a record as to how the provision

is actually applied in the State of Nebraska.

The parties’ stipulation that the evidentiary

standard that the “proof [be] evident or the

presumption great" had been met in the present

case foreclosed any possibility that the lower

courts might have reversed the denial of bail

for insufficiency of evidence, avoiding the

need to reach federal constitutional issues.

Moreover, the stipulations precluded the

development of a record reflecting the manner

in which the evidentiary standard is applied

by trial judges in the State of Nebraska.

LFootnote continued J

is evident or the presumption great." 278

N.W.2d at 115 (emphasis added). See also

id. at 117-18 ("Based upon the stipulation

entered into in this case, appellant was not

eligible for bail.) (emphasis added). As

this Court stated in Minnesota ex rel. Pearson

v. Probate Court, 309 U.S. ’ ’

the state court's construction of a state

enactment “is binding upon us .. . For the

purpose of deciding the constitutional

questions appellant raises we must take the

statute as though it read precisely as the

highest court of the State has interpreted

it."

o 14 <@

The stipulation supplies no meaningful

information, since the evidentiary standard

which the parties agreed had been met itself

has no commonly accepted content. The

legislative history of the challenged provision

provides no guidance as to the level of proof

the standard was intended to require; indeed,

the comments of the amendment's supporters

suggest that it is within the discretion of

the trial judge to decide for himself whether

there is sufficient evidence to imprison a

particular defendant.2/ Nor are we aware

of any case in which the Nebraska courts have

interpreted the standara.&/ Thus, this Court

5/ See, e-g-, Comments of Senator Duis during

the April 12, 1978 floor debate at p. 08920

("{T]his Constitutional amendment would require

that of course the proof is evident and the

presumption has to be great. The judge does

not have to do this unless those factors are

there and left to his discretion"); comments

of Senator Labedz during the January 26, 1978

meeting of the Committee on Constitutional

Revision and Recreation at p. 16 ("({T]he judge

is the one who will determine it").

6/ In Parker v. Roth, 202 Neb. 850, 278 N.W.2d

106 (1979), cert. denied, 444 U.S. 920 (1979),

the only case in which the Supreme Court of

Nebraska has examined the state constitutional

provision at issue here, the court did not

{Footnote continued on following page]

@ 18 «

has no basis for finding that a

constitutionally adequate quantum of evidence

is required to satisfy that standard under

state law, or that the burden of proof is

placed on the appropriate party.

Although the proviso that the "proof

is evident or the presumption great" has

historical antecedents and was used by the

Continental Congress in the Northwest Ordinance

of 1787, see Foote, The Coming Constitutional

Crisis of Bail I and II, 113 U. Pa. L. Rev.

959, 999, 1125, 1164-1186, 970 (1965)

(hereinafter cited as "Foote Article"), and

appears in a number of state constitutions,

it has been interpreted in a variety of ways.

As one scholar found, there is a three-way

split among jurisdictions interpreting the

language as to the allocation of the burden

of proof; moreover, there are as many as 20

different state court formulations of the

TFootnote continued]

address itself to the meaning of the proviso

that “proof is evident or presumption great"

because counsel for the parties in that case

had entered into a similar stipulation that

its requirements had been met.

- 146 =

amount of proof which it requires. Thaler,

Punishing the Innocent: The Need for Due

Process and the Presumption of Innocence Prior

This is clearly not the appropriate

case to resolve the complicated issues raised

by preventive detention based on a judicial

finding of "dangerousness" or to uphold the

constitutionality of such enactments. The

challenged enactment does not even pose

directly the propriety of detaining defendants

found to be "dangerous." Moreover, the

parties’ stipulation of law and fact has

deprived this case of a meaningful factual

foundation for such a ruling.

In similar situations, this Court

has followed a policy of self-restraint,

declining to rule on issues not concretely

presented. This policy reflects the

limitations on federal judicial power when

undertaking "the most important and the most

delicate of the Court's functions," that is,

» 27 «

deciding constitutional issues. Rescue Army

ve. Municipal Court, 331 U.S. 549, 569 (1947);

Alabama State Federation of Labor v. McAdory,

325 U.S. 450, 461 (1945).

The broad constitutional issue that

this Court is asked to resolve -- whether

and in what circumstances the pretrial

detention of a supposedly dangerous defendant

is constitutionally permissible -- cannot

be resolved on the record of this case. Too

little is known about the workings of the

Nebraska provision -- the standards it employs,

the procedures it requires, the evidence it

demands -- to uphold the constitutionality

of preventive detention. As this Court stated

in Speiser v. Randall, 357 U.S. 513, 520

(1958), where the vindication of legal rights

depends on how the factfinder appraises the

facts, "the procedures by which the facts

of the case are determined assume an importance

fully as great as the validity of the

substantive rule of law to be applied." The

record in this case provides no insight into

e 16 «

those concerns._/

Where, as here, only a skeletal record

is available, and the legal issue pressed

by the State is not even posed directly, the

Court should refrain from deciding broad

constitutional issues dependent on a fully

developed factual and legal basis. The 1l

word amendment to the Nebraska constitution

at issue in this case is not an enactment

authorizing pretrial detention based on a

judicial finding of dangerousness. The

resolution of those far-reaching issues should

await the proper occasion.

7/ In Socialist Labor Party v. Gilligan,

406 U.S. 583, 587 (1972), this Court declined

to resolve weighty constitutional issues on

the basis of such an “extraordinarily skimpy”

record. See also Cowgill v. California, 396

U.S. 371 (1970) (per curiam) (Harlan, J.,

concurring) (stipulated statement of facts

inadequate to decide constitutional questions) ;

DeBacker v. Brainard, 396 U.S. 28, 32 (1969)

(per curiam) (constitutional issue not decided

due to “barrenness" of record); International

Brotherhood of Teamsters v. Denver Milk

Producers, Inc., 334 U.S. 809 (1948) (per

curiam) ("inadequacy" of record prevents

determination of constitutional issue).

o 19 «

II.

THE NEBRASKA PROVISION VIOLATES

THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT BECAUSE IT ARBITRARILY DENIES

BAIL TO A CLASS OF DEFENDANTS, EVEN

WHERE A DEFENDANT IS NOT "DANGEROUS"

AND POSES NO RISK OF FLIGHT

Although the issues in this case have

been framed so as to request this Court to

address pretrial detention of supposedly

"dangerous" criminal defendants, the issue

in fact presented is narrow. Regardless of

the State's asserted purpose in amending its

constitution, it is apparent from the face

of the amended provision that it not only

permits but requires the pretrial imprisonment

of persons charged with one type of noncapital

offenses who are not dangerous, and pose no

risk of flight, merely because it "“appear(s)

to the trial court that either the proof is

evident or the presumption great." Parker

v. Roth, supra, 278 N.W.2d at 115 (1979).

The question thus presented is whether the

arbitrary denial of bail to this selected

category of criminal defendants can be squared

«= 20 «

with the dictates of the due process clause

of the fourteenth amendment.

Under Nebraska law, the critical

determination as to whether the evidence

against an alleged sexual offender is

sufficient to render him ineligible for bail

is within the discretion of the trial judge.

As we have shown, the requirement that "the

proof [be] evident or the presumption great"

has no established meaning, and provides no

guidance as to where the burdens of production

and persuasion lie, or on what quantum of

evidence the trial judge is to conclude that

the evidentiary requirement has been met.

See In re Winship, 397 U.S. 358, 370 (1970)

(Harlan, J., concurring) (the purpose of a

proper evidentiary standard is to instruct

"the fact finder concerning the degree of

confidence our society thinks he should have

in the correctness of factual conclusions").

The Supreme Court of Nebraska, in the one

case interpreting the amended provision,

indicated only that it requires a showing

@ 21 «

of some evidence in addition to the “mere

filing of a charge." Parker v. Roth, supra,

278 N.W.2d at 115.

In the absence of any meaningful

substantive or procedural limits on the

exercise of the judge's discretion in making

the determination that "the proof is evident

or the presumption great," a Nebraska defendant

charged with a specified sexual offense could

be denied bail and imprisoned before trial

on the: basis of hearsay testimony by the

arresting officer as to statements by the

alleged victim. Moreover, because the Nebraska

constitution requires that bail be denied

to any defendant against whom the proof of

the present charge appears sufficiently great,

evidence relating to the defendant's likelihood

of flight or even dangerousness has no bearing

on the decision to detain. Even if the

defendant were a family man with strong

community ties and no history of antisocial

conduct, who was prepared to offer detailed

character and psychiatric evidence to show

a 22 «

that he was not dangerous and posed no risk

of flight, the trial judge would have no choice

but to detain him, as long as the judge

believed there was sufficient evidence

supporting the charge to satisfy the minimal

requirements imposed by the vague language

of the Nebraska provision.

Since the Nebraska provision

effectively precludes rather than encourages

inquiry into factors directly related to risk

of flight or, for that matter, dangerousness,

it clearly serves no purpose even conceivably

related to the proper function of bail. It

simply advances the point at which a defendant

can be jailed for a criminal offense from

the post-conviction stage to the pretrial

stage. Under Nebraska law, even a convicted

sexual offender might receive only a one-year

sentence; yet the constitutional provision

at issue here mandates the incarceration of

persons merely charged with sexual offenses --

who might wait as long as a year or more for

o 93 «

trial8/ .- on the basis of less evidence than

would be required to convict them. The

arbitrariness of this practice renders it

unconstitutional under the due process clause

of the fourteenth amendment.

In Specht v. Patterson, 386 U.S. 605

(1967), this Court considered a due process

challenge to a Colorado procedure permitting

indeterminate sentencing without full hearing

of convicted sex offenders found to be a threat

to the public. Noting that this procedure

made “one conviction the basis for commencing

another proceeding under another Act," id.

at 608, providing for more severe sentencing,

this Court held the Colorado procedure invalid.

This Court stated:

"Due process .. . requires

that [the defendant] be

8/ The Nebraska speedy trial provisions

require that a defendant be brought to trial

within six months, but there are several

exceptions including one for continuances

sought by the prosecution to secure material

evidence. See Neb. Rev. Stat. § 29-1207.

oe 34 @

present with counsel, have

an opportunity to be heard,

be confronted with witnesses

against him, have the right

to cross-examine, and to

offer evidence of his own.

And there must be findings

adequate to make meaningful

any appeal that is allowed... .

None of these procedural

safeguards we have mentioned

is present under Colorado's

Sex Offenders Act." Id.

at 610-11.

The Specht case stands for the proposition

that additional punishment may not be meted

out to convicted sex offenders without full

due process protections. It follows a

fortiori that the imposition without such

procedural protections of additional punishment --

in the form of denial of pretrial release --

upon persons merely charged with sex offenses

violates the dictates of the due process

clause.

It cannot be questioned that the

Nebraska provision encroaches upon fundamental

rights to personal liberty protected by the

fourteenth amendment. The due process clause,

by its express terms, protects all persons

@ 28 «

from deprivations of "life, Liberty or

property” without due process of law, and

“Clliberty from bodily restraint always has

been recognized as the core of the liberty

protected by the Due Process Clause from

arbitrary government action." Greenholtz

v. Inmates of the Nebraska Penal & Correctional

Complex, 442 U.S. 1, 18 (1979) (Powell, J.,

concurring), citing Ingraham v. Wright, 430

U.S. 651, 673-74 (1977); Board of Regents

v. Roth, 408 U.S. 564, 572 (1972). For the

criminal defendant, as for any other person,

the interest in personal liberty is "an

interest of transcending value," Speiser v.

Randall, supra, 357 U.S. at 525; it is not

extinguished simply because a person has been

charged with a criminal. offense.

To confine a defendant to jail pending

trial is to deprive him of his Liberty

altogether. Defendants awaiting trial are

often housed under conditions worse than those

afforded to convicted and sentenced felons.

See generally L. Katz, Justice is the Crime:

@ 26 @

Pretrial Delay in Felony Cases 56-58 (1972).

Where “reasonably necessary" to the operation

of the detention facility, they may be required

to submit to the same harsh and restrictive

security measures applied to prison inmates.

Bell v. Wolfish, 441 U.S. 520 (1979). The

impact on the individual can be devastating:

"It often means loss of a job; it disrupts

family life; and it enforces idleness. Most

jails offer little or no recreational or

rehabilitative programs. The time spent in

jail is simply dead time." Barker v. Wingo,

407 U.S. 514, 532-33 (1972).

Detainees subject to such oppressive

conditions have been found to be more likely

to plead guilty.2/ Persons subject to pretrial

incarceration are also more likely to be

convicted if tried, and more likely to receive

9/ One study of several hundred New York

City detainees found that 79 percent of those

defendants who were detained pled guilty

compared with only 49 percent of those who

were released. The Unconstitutional

Administration of Bail: Bellamy v. The Judges

of New York City, 8 Crim. L. Bull. 459, 467

(1972) (Reretactter cited as “Bellamy Study").

- 27 «-

harsher sentences if convictea.t2/ this is

hardly surprising, given that the incarcerated

defendant cannot freely consult with his

lawyer, is more readily available for police

interrogation, and appears in court in the

custody of police. The difficulties the

defendant may face in preparing his defense

were graphically described by this Court in

Smith v. Hooey, 393 U.S. 374, 379-80 (1969):

"Confined in a prison, .. .

his ability to confer with

potential defense witnesses,

or even to keep track of

their whereabouts is obviously

impaired. And, while

‘evidence and witnesses

disappear, memories fade,

and events lose their

perspective,’ a man isolated

in prison is powerless to

10/ The two major studies in this area

Tsolated several factors traditionally thought

relevant to the disposition of a case,

including previous record, family

relationships, and employment stability.

The researchers held these factors constant,

and found that there was a causal relationship

between detention and unfavorable disposition

of the case. Rankin, The Effect of Pretrial

Detention, 39 N.Y.U. Le. Rev. 641 (1964);

Bellamy Study, supra; see also Zeisel, Bail

Revisited, 1979 = B. Foundation Research

J. 769, 779 (1979).

o 28 «

exert his own investigative

efforts to mitigate these

erosive effects of the passage

of time."

Thus, pretrial incarceration infringes not

only the defendant's interest in personal

liberty but also his right to receive a fair

trial, "a fundamental liberty secured by the

Fourteenth Amendment." Estelle v. Williams,

425 U.S. 501, 503 (1976) .21/

The Nebraska provision violates the

procedural guarantees of the due process clause

because the State has failed to provide for

11/ It goes without saying that a detainee

Is also deprived of his right to privacy,

see Roe v. Wade, 410 U.S. 113, 152-53 (1973),

and to travel, see Memorial Hospital v.

Maricopa County, 415 U.S. 250 C374), his

right to walk about freely, see Papachristou

v. City of Jacksonville, 405 U.S. Fee (1972),

and to associate with persons of his own

choice, see NAACP v. Alabama, 357 U.S. 449

(1958), as well as his freedom to choose and

maintain his family relationships, see Stanley

v. Illinois, 405 U.S. 645 (1972); Moore v.

East Cleveland, 431 U.S. 494 (1977). “Imposing

those consequences on anyone who has not yet

been convicted is serious. It is especially

unfortunate to impose them on those persons

who are ultimately found to be innocent."

Barker v. Wingo, supra, 407 U.S. at 533.

oe 29 «

procedures to ensure that a defendant subject

to pretrial incarceration receives a meaningful

heering before he is deprived of his liberty.

As noted above, defendants in Nebraska have

no right to counsel at the initial bail

hearing, and because the normal rules of

evidence do not apply at bail hearings, they

have no right to confront the witnesses against

them. While such a hearing might be adequate

to protect the interests of a defendant in

a typical bail proceeding, where the

presumption is that the defendant will be

released and the only issue is the amount

at which bail will be set, it is wholly

inadequate to protect the interests of a

defendant who faces automatic imprisonment

if the trial judge decides that the proof

against him is "evident."

The absence of confrontation rights

alone constitutes a denial! of due process,

for even in dealing with the "conditional

liberty" interest of convicted felons,

Morrisey v. Brewer, 408 U.S. 471, 480 (1972),

@ 30 «

this Court has held that confrontation rights

must be provided at preliminary hearings to

revoke parole, Morrisey, 408 U.S. at 487,

or probation, Gagnon v. Scarpelli, 411 U.S.

778, 782 & n.5 (1973), and at hearings to

consider transfer of a prisoner to a mental

hospital, Vitek v. Jones, 445 U.S. 480, 496

(1980). As the Court said in Goldberg v.

Kelly, 397 U.S. 254, 269 (1970), where

confrontation was mandated in welfare

termination hearings: "In almost every setting

where important decisions turn on questions

of fact, due process requires an opportunity

to confront and cross-examine adverse

witnesses." See also Greene v. McElroy, 360

U.S. 474, 496-97 (1959).

The dangers posed by the absence of

procedural safeguards for sex offense

defendants facing pretrial incarceration in

Nebraska are aggravated by the impermissible

vagueness of the evidentiary standard. In

Giaccio v. Pennsylvania, 382 U.S. 399 (1966),

for example, this Court struck down on due

- 3] -

process grounds state legislation which

authorized juries to assess costs against

defendants acquitted of criminal charges

without identifying the factors to be

considered in determining whether assessment

was appropriate in a particular case. The

parallel defect in the Nebraska provision

is that it permits the trial judge to make

the critical factual determination on which

the denial of bail turns without authoritative

legislative or judicial guidance as to the

quantum of evidence needed to satisfy the

standard.

The inadequate procedures under the

Nebraska provision also violate procedural

due process by abridging the presumption of

innocence guaranteed by the fourteenth

amendment. "The principle that there is a

presumption of innocence in favor of the

accused . . . lies at the foundation of the

administration of our criminal law." Coffin

v. United States, 156 U.S. 432, 453 (1895);

accord Taylor v. Kentucky, 436 U.S. 478, 483

» $2 «

(1978). The presumption is accordingly

incorporated in the protections of the due

process clause of the fourteenth amendment.

In re Winship, supra, 397 U.S. at 361-64

(1970).

This Court held in Stack v. Boyle,

342 U.S. 1 (1951), that enforcement of the

presumption of innocence requires a right

to a meaningful individualized hearing on

eligibility for pretrial release:

"Unless this right to bail

before trial is preserved,

the presumption of innocence,

secured only after centuries

of struggle, would lose its

meaning." 342 U.S. at 4.

See also McGinnis v. Royster, 410 U.S. 263,

273 (1973).

Thus, this Court in Stack v. Boyle

emphatically rejected the notion, advanced

by the State in this case, that the presumption

of innocence is “in actuality not a real

presumption" and means “nothing more than

that it is for the prosecution to adduce

o 93 «

evidence and produce persuasion beyond a

reasonable doubt." Appellant's Brief at 35.12/

This Court has recognized instead that the

right to a meaningful hearing on eligibility

for pretrial release is an integral part of

a protective scheme which gives meaning to

the “presumption of innocence."

It is, on its face, inherently

destructive of the presumption of innocence

and fundamental considerations of due process

to base pretrial detention on a determination

without full procedural protections that the

defendant is probably or presumptively guilty

of the offense charged. This is an

12/ This Court's rejection of the presumption

as a basis for challenging the prison

conditions at issue in Bell v. Wolfish, 441

U.S. 520, 532-33 (1979), does not support

the State's position. This Court made clear

in Wolfish that the initial decision to detain --

which is challenged directly in the present

case -- was not at issue there. Id. at 533-

34. To view this Court's comments in Wolfish

as making the presumption irrelevant to the

decision to detain an unconvicted defendant

would be squarely inconsistent with repeated

pronouncements by this Court of the

“fundamental” character of that right. See

id. at 582 n.11 (Stevens, J., dissenting).

@ 34 @

impermissible shortcut through the

constitutional process of determining guilt.

For these reasons, the Nebraska provision

should be struck down as violative of the

procedural guarantees of the due process clause

of the fourteenth amendment.

IIl.

THE NEBRASKA PROVISION VIOLATES THE GUARANTEE

OF THE EIGHTH AMENDMENT APPLICABLE TO

THE STATES THROUGH THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMENDMENT THAT

"EXCESSIVE BAIL SHALL NOT BE REQUIRED"

The eighth amendment guarantees to

citizens of the United States that "excessive

bail shall not be required." This

constitutional protection is fundamental by

every test this Court has applied and therefore

extends to the states through the due process

Clause of the fourteenth amendment. Central

to the eighth amendment is a constitutional

right to a meaningful individualized

determination of eligibility for pretrial

release -- a right the State of Nebraska has

denied to persons charged with forcible sexual

offenses.

o 9§ «

A. The Excessive Bail Clause of

the Eighth Amendment Renders

Unconstitutional a Law Cate-

gorically Denying Pretrial

Release to Noncapital Defen-

dants Without Consideration of

Relevant Individual Factors.

The right to an individual evaluation

of eligibility for pretrial release, based

upon relevant criteria beyond the offense

charged, is fundamental to the American system

of justice. This right is embodied in the

guarantee of the eighth amendment that criminal

defendants be free from unreasonable denial

of pretrial release. The importance of this

right is attested to by its uninterrupted

observance in Anglo-American jurisprudence.

The institution of bail originated

in medieval England, and was first codified

in the Statute of Westminster the First, 1275,

3 Edw. 1, c. 15, which provided a detailed

enumeration of which offenses must be bailable

and which were nonbailable offenses. In

succeeding centuries, additional statutes

were enacted which further defined those

a 96 «

offenses for which bail must be set. See

4 Holdsworth, A History of English Law 526-

28 (3d ed. 1945).

In addition, English bail law was

shaped by three important developments: The

Petition of Right of 1627, 3 Car. 1, c. l;

the Habeas Corpus Act of 1679, 31 Car. 2,

c. 2; and the Bill of Rights of 1688, 1 W.

& Me, St. 2, Ce 2. The Petition of Right

was adopted by the House of Commons and

approved by Charles I shortly after the King's

Bench denied one Darnell release on bail,

Darnel's Case, 3 How. St. Tr. l, 221-24 (1627),

apparently on the Attorney General's argument

that the Magna Carta did not apply to pretrial

imprisonment. Id. at 39. The Petition recited

the abuse of bail in cases like Darnel's,

and prayed that “no freeman in any such manner

as is before mentioned, be imprisoned or

detained." 3 How. St. Tr. at 224, para. X.

When cases continued to arise in which

prisoners were denied bail, Parliament, in

« 37 «

enacting the Habeas Corpus Act of 1679, recited

that "many of the King's subjects have been

and hereafter may be long detained in prison,

in such cases where by law they are bailable,"

and provided a detailed habeas corpus

procedure. 1679, 31 Car. 2, c. 2. This Act

eliminated the procedural obstacles to the

obtaining of bail, but it gave rise in turn

to a judicial practice of setting impossibly

high bail in order to prevent the release

of prisoners.

Accordingly, Parliament enacted a

Bill of Rights, which was accepted by William

and Mary, and which recited that “excessive

bail hath been required of persons committed

in criminal cases, to elude the benefit of

the laws made for the liberty of the subjects,"

Bill of Rights, 1688, 1 W. & M., St. 2, Cc.

2, preamble, clause 10. It concluded that

"Excessive bail ought not to be required

» « « «" Bill of Rights, 1688, 1 W. & M.,

st. 2, c. 2, rights, clause 10.

= $39 «

English jurisprudence subsequently

evolved into a system in which defendants

were presumptively released unless special

circumstances required that they be held

pending trial. 4 W. Blackstone, Commentaries

on the Laws of England 295 (4th ed. 1770).

Although in some instances a justice of the

peace could find that a defendant should be

detained because of his particular

characteristics, an individualized

determination was required on the basis

genetally of circumstances extrinsic to the

offense charged. See 2 W. Hawkins, Pleas

of the Crown 140-79 (6th ed. 1787).

Building upon this historical

development in England, the American system

of bail established even greater protections

against unreasonable detention of defendants

pending trial. Several of the principal

colonies, such as Massachusetts (1641) and

Pennsylvania (1682), simplified the English

bail structure by making bail available as

@ 39 «

a matter of right in all but capital cases.

See, e.g-, Massachusetts Body of Liberties,

in Massachusetts Colonial Laws 37 (Whitmore

ed. 1887); Laws Agreed Upon in England, May

3, 1682, in Proceedings Relative to Calling

the Conventions of 1776 and 1790 at 26, 28

(1825) (Pennsylvania); N.C. Const., Declaration

of Rights § X (Dec. 18, 1776). In 1785, a

bill was passed by the Virginia legislature

entirely eliminating judicial discretion as

to whether bail should be granted: "if the

crime be punishable in life or limb, or if

it be manslaughter, and there be good cause

to believe the party guilty thereof, he shall

not be admitted to bail; all other cases are

bailable." Jefferson, Autobiography, in 1

Writings of Thomas Jefferson 62, 481 (Ford

ed. 1892).

Finally, in 1787, the Northwest

Ordinance was adopted by Congress. It included

a guarantee to territorial residents (to

“forever remain unaltered unless by common

consent") that:

- 40 -

"all persons shall be

bailable, unless for capital

offences, where the proof

shall be evident, or the

presumption great; all fines

shall be moderate; and no

cruel or unusual punishments

shall be inflicted... ."

An Ordinance for the

Government of the Territory

of the United States Northwest

of the River Ohio, July 3,

1787, art. ii.

The First Congress enacted the same

protections against unreasonable denial of

pretrial release in the Judiciary Act of 1789

(1 Stat. 91 § 33), which expressly provided

for an absolute right to bail in all noncapital

federal criminal cases. Within a few days

of passing the Judiciary Act, Congress adopted

the eighth amendment of the Bill of Rights

guaranteeing that “excessive bail shall not

be required." 1 Stat. 91,§ 33 (1789).

During the course of the nineteenth

century, these protections against unreasonable

denial of pretrial release became virtually

the universal pattern in American law. Today,

36 state constitutions declare bail available

- 41 -

as of right in all but capital cases, 23/

and

in seven others state statutes have the same

effect .14/ In five more states the state

constitution conformed to that pattern until

amendments in the 1970s. 245/ Even where bail

13/ Ala. Const. art. I, § 16; Alaska Const.

art. I, § 11; Ark. Const. art. 2, § 8; Cal.

Const. art. I, § 12; Colo. Const. art. II,

§ 19; Conn. Const. art. I, § 8; Del. Const.

art. I, § 12; Fla. Const. art. I, § 14; Idaho

Const. art. I, § 6; Ill. Const. art. I, §

9; Ind. Const. art. I, § 17; Iowa Const. art.

I, § 12; Kan. Const., Bill of Rights § 9;

Ky. Const., Bill of Rights § 16; La. Const.

art. I, § 18; Me. Const. art. I, § 10; Minn.

Const. art. I, § 7; Miss. Const. art. III,

§ 29; Mo. Const. art. 1, § 20; Mont. Const.

art. III, § 19; Nev. Const. art. I, § 7; N.J.

Const. art. I, § 11; N.M. Const. art. II,

§ 13; N.D. Const. art. I, § 11; Ohio Const.

art. I, § 9; Okla. Const. art. II, § 8; Or.

Const. art. I, § 14; Pa. Const. art. I, §

14; R.I. Const., Declaration of Rights art.

I, § 9; S.C. Const. art. I, § 15; S.D. Const.,

Bill of Rights art. VI, § 8; Tenn. Const.,

Declaration of Rights art. I, § 15; Vt. Const.

ch. 2, § 32; Wash. Const. art. I, § 20; Wis.

Const. art. 1, § 8; Wyo. Const. art. I, §

14.

14/ Ga. Code Ann. § 27-701.1 (1978); Hawaii

Rev. Stat. § 804-3 (1976); Md. Rule Crim.

Proc. 777; N.H. Rev. Stat. Ann. § 597:1 (1974);

N.Y. Crim. Proc. § 530.10 (McKinney 1979);

N.C. Gen. Stat. § 15-47 (1978); W. Va. Code

§ 62-1C-)(a) (1978).

15/ Ariz. Const. art. II, § 22; Mich. Const.

art. I, § 15; Neb. Const. art. I, § 9; Tex.

Const. art. I, § ll-a; Utah Const. art. I,

§ 8.

oe 42 «

is discretionary, it must be based on a

meaningful individualized hearing. 16/

American jurisprudence has carved

Out only a few carefully circumscribed

exceptions to the right of bail before trial,

and each one of these is inextricably tied

to preserving the integrity of the trial

process itself. The capital crimes exception

predates the Constitution and can be consis-

tently found in colonial formulations of the

right to bail. Its status as an historical

exception to an acknowledged right is akin

to that of the petty crimes exception to the

right of trial by jury. ,Cf. District of

Columbia v. Clawans, 300 U.S. 617 (1937).

The exception for capital crimes stems from

a fear that persons "facing a possible death

sentence would likely flee regardless of what

bail was set... ." United States v. Kennedy,

16/ Ga. Code § 27-901; N.Y. Crim. Proc. Law

(McKinney's) §§ 530.20-530.40; N.C. Gen. Stat.

§ 15A-534(b); Va. Code § 19.2-120.

@ 43 @

618 F.2d 557, 559 (9th Cir. 1980). As Black-

stone observed, “what is there that a man

may not be induced to forfeit, to save his

own life?" 4W. Blackstone, Commentaries

on the Laws of England 294 (4th ed. 1770).

As the applicability of capital punishment

has declined, however, the haphazard assortment

of nonbailable charges, explicable only by

the special penalty they carriea,172/ has

declined correspondingly. See Tribe, An Ounce

of Detention: Preventive Justice in the World

of John Mitchell, 56 Va. L. Rev. 371, 377-

78 (1970).

The additional exception recognized

by modern courts for defendants who represent

a threat to witnesses or judicial officers --

see, e.g., Mastrian v. Hedman, 326 F.2d 708,

17/ The designation of crimes as capital

in 1791 does not, of course, reflect that

those crimes are considered serious today.

Massachusetts at one time punished by death,

adultery, witchcraft, blasphemy, and rebelli-

ousness against parents. Haskins, Law and

Authority in Early Massachusetts 204-11 (1960).

« 44 «

712 (8th Cir.), cert. denied, 376 U.S. 965

(1964); Carbo v. United States, 288 F.2d 686

(9th Cir.), cert. denied, 365 U.S. 861 (1961) --

is also tied to the need to assure a fair

trial. Pretrial detention to determine compe-

tence to stand trial has a similar rationale.

Bail itself has been traditionally linked

to the goal of ensuring the defendant's pres-

ence at trial. These exceptions to the right

to pretrial freedom are justifiable only to

insure the same end as bail itself: a fair

trial.

On the basis of the development of

the bail system in this country, distinguished

commentators have concluded that the eighth

amendment was intended to confer upon noncapital

defendants an absolute right to have bail

set pending trial. Thus, after an exhaustive

study of the origins of the eighth amendment,

Professor Caleb Foote concluded:

"From the analysis of the

eighth amendment the only

interpretation which seems

to be consistent with its

historical antecedents and

e 48 o

what must have been its pur-

pose is to find in it protec-

tion from pretrial detention

which is secured against

abridgement by legislation

or the vagaries of judicial

discretion. .. ." Foote

Article, supra, at 1180.

See also Tribe, An Ounce of Detention: Pre-

ventive Justice in the World of John Mitchell,

56 Va. L. Rev. 371 (1970).

And indeed, until recently, there

appeared little doubt about this purpose of

the amendment. When faced with its first

opportunity to delineate the right to bail,

this Court in Stack v. Boyle, 342 U.S. l

(1951), considered the right to be of consti-

tutional dimensions:

"This traditional right to

freedom before conviction

permits the unhampered prepa-

ration of a defense, and

serves to prevent the inflic-

tion of punishment prior

to conviction. Hudson v.

Parker, 156 U.S. 277, 285

- Unless this right

to bail before trial is pre-

served, the presumption of

innocence, secured only after

centuries of struggle, would

lose its meaning." 342 U.S.

at 4.

o @6 «

Subsequently, in Trimble v. Stone,

Holtzoff concluded:

"The right to bail before

trial, except in capital

cases, is guaranteed by the

Bill of Rights. The Eighth

Amendment . . . has invariably

been construed as guaranteeing

the right to bail by necessary

implication and not merely

meaning that when allowed,

bail shall not be excessive.

+ « « The right to bail

pending trial is absolute,

except in capital cases,

no matter how vicious the

offense or how unsavory the

past record of the defendant

may be."

The question, however, of whether

the eighth amendment guarantees an absolute

right to bail for noncapital defendants need

not be revisited in the present case. The

American criminal justice system has always

been held to guarantee defendants, at a

minimum, a meaningful individualized inquiry

into their fitness for pretrial release,

according to traditional criteria beyond the

offense charged. Indeed, Stack v. Boyle,

o 6479 «

342 U.S. 1 (1951), expressly held that an

individualized determination of eligibility

for bail was central to the constitutional

standard embodied in the eighth amendment. 18/

In its universality this requirement is

comparable to the reasonable doubt standard,

In re Winship, 397 U.S. 358, 363 (1970), or

the public right to open trials, Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555,

579-80 (1980). Thus, the guarantee against

unreasonable pretrial detention derives not

only from the general commands of procedural

due process but also from the specific pro-

hibition on excessive bail.

18/ In the case chiefly relied upon by the

State as support for the Nebraska provision --

Carlson v. Landon, 342 U.S. 524 (1952) --

release before deportation hearing was denied

to alleged communist supporters based upon

an individualized evaluation by the Attorney

General rather than a magistrate. Moreover,

deportation proceedings are most closely

analogous to the traditional exception to

a right of bail in capital cases because of

the likelihood that a person would flee rather

than risk the penalty of being forced to leave

the country.

« 48 «

The Nebraska provision permits no

individualized inquiry into the criteria

traditionally considered in determining

eligibility for pretrial release. Rather,

the provision requires the pretrial imprison-

ment of defendants solely on the basis that

it “appear[s] to the trial court that either

the proof is evident or the presumption great."

Parker v. Roth, supra, 278 N.W.2d at 115.

There is no precedent in American jurisprudence

for categorically denying pretrial release

on the basis that the defendant is probably

or presumptively guilty of a certain class

of noncapital offenses, regardless of whether

those crimes are viewed as heinous by the

community.

The mere fact that the Nebraska pro-

vision dispenses with bail altogether, rather

than setting an excessive bail, does not remove

it from the scope of the bail clause and its

concern with reasonable treatment of the

accused. There has been a consensus in the

federal courts that the excessive bail clause

@ 49 «

prohibits unreasonable denials of bail as

well as strictly "excessive" bail. See, e.g,

Sistrunk v. Lyons, 646 F.2d 64, 70 n.23 (3d

Cir. 1981); Atkins v. People of the State

of Michigan, 644 F.2d 543, 549 (6th Cir.),

cert. denied, 101 S. Ct. 3115 (1981); United

States ex rel. Goodman v. Kehl, 456 F.2d 863,

868 (2d Cir. 1972); Mastrian v. Hedman, 326

F.2d 708, 710-11 (8th Cir.), cert. denied,

376 U.S. 965 (1964). Justice Butler, sitting

on circuit, stated that "[tJhe provision

forbidding excessive bail would be futile

if magistrates were left free to deny bail."

United States v. Motlow, 10 F.2d 657, 659

(7th Cir. 1926).

It is inconsistent with both history

and reason to suggest, as the State argues

in the present case, that a legislature is

free under the eighth amendment categorically

to deny bail for an entire class of noncapital

offenses. The flaw in the interpretation

advanced by the State is that it would

countenance intolerable consequences. Under

- §0 -

that interpretation, a legislature could,

with constitutional impunity, deny pretrial

bail for every offense, from traffic misde-

meanors to felony murders. But, as the Eighth

Circuit recogized in the present case, "(Lilf

legislative bodies are free to define any

and all offenses as nonbailable, they may

deprive the [eighth] amendment of any force

and accused persons of any protection." Hunt

v. Roth, supra, 648 F.2d at 1158.

There is not a shred of evidence to

show that the framers of the Bill of Rights

meant to deny American citizens the fundamental

right to be free of unreasonable pretrial

detention or to put the matter at the discre-

tion of the legislature. Such an intention

would have been contrary to the whole tenor

of the Bill of Rights which protects against

abridgement of fundamental freedoms by all

three branches of government. The only in-

terpretation of the eighth amendment which

is consistent with these other guarantees

is one which recognizes, at a minimum, a

@ 81 «

fundamental right to a meaningful individu-

alized determination of eligibility for

pretrial release based on traditional criteria.

An enactment such as the Nebraska provision

which categorically denies pretrial release

based solely on probable guilt is a blatant

violation of that guarantee.

B. The Excessive Bail Clause of

the Eighth Amendment Restrains

States as well as the Federal

Government from Unreasonable

Denials of Bail.

While the eighth amendment's bail

clause has not explicitly been held to control

the actions of the states, the members of

this Court have unanimously agreed that "the

Eighth Amendment's proscription of excessive

bail has been assumed to have application

to the States through the Fourteenth Amend-

ment." Baker v. McCollan, 443 U.S. 137, 144

n.-3 (1979) (quoting Schilb v. Kuebel, 404

U.S. 357, 365 (1975)); id. at 149 nol

(dissent). The fourteenth amendment protects

a right against state action when the right

@ $2 «

is "fundamental in the context of the criminal

processes maintained by the American States."

Duncan v. Louisiana, 391 U.S. 145, 150 n.14

(1968). By every standard this Court has

applied, the protections of the excessive

bail clause of the eighth amendment are

fundamental.

In past cases, this Court has consid-

ered fundamental those rights that trace back

to the early canons of English law. See

Klopfer v. North Carolina, 386 U.S. 213, 223-

26 (1967) (right to speedy trial “at the very

foundation of our English Law Heritage");

Wolf v. Colorado, 338 U.S. 25, 28 (1949) (pro-

tection against unreasonable searches "en-

shrined in. . . basic constitutional documents

of English-Speaking People"). By this stan-

dard, the credentials of the right to reason-

able pretrial release are impeccable. Its

lineage runs through the Statute of Westminster,

3 Ed., ch. 15 (1275), past Magna Carta (1215)

to the Assize of Clarendon (1166) and beyond,

to the earliest recorded English laws before

@- 53 «

the Norman Conquest. See generally Duker,

The Right to Bail, 42 Alb. L. Rev. 33, 34-

50 (1977) (hereinafter cited as “Duker

Article"). “The right to be bailed in certain

cases is as old as the law of England itself."

1 J. Stephen, A History of the Criminal Law

of England 233 (1883).

In determining the fundamental nature

of an individual right, this Court also looks

to the importance attached to it during the

early years of the Republic. See Klopfer

v. North Carolina, supra, 386 U.S. at 225

(fundamental nature of speedy trial right

“evidenced by its guarantee in the constitu-

tions of several of the states"); In re Oliver,

333 U.S. 257, 266-67 (1948) (early state

charters also protected public trial). By

this measure as well, bail is clearly

fundamental. As noted above, the first body

of law enacted in America established a right

to be bailed in all but a limited number of

cases. Massachusetts Body of Liberties, in

Massachusetts Colonial Laws 37 (Whitmore ed.

@ §4 «

1887). As was true of the right to speedy

trial, the prohibition against excessive bail

was included in the Virginia Declaration of

Rights of 1776 even before it appeared in

the eighth amendment. See Foote Article,

supra, at 983. Also, as was true of the right

to a public trial, such prohibitions were

guaranteed by almost all of the original state

constitutions. See Duker Article, supra,

at 80-82.

Like other fundamental rights, the

right to reasonable pretrial release has

enjoyed continuing protection at both the

state and federal levels. See, e.g-., In re

Oliver, supra, 333 U.S. at 273 (public trials

are a “universal requirement of our federal

and state governments"); In re Winship, supra,

397 U.S. at 363 (vital role of proof beyond

a reasonable doubt in American criminal

procedure makes it part of fourteenth amendment

due process). The universal protection of

a right to bail makes it, too, a fundamental

privilege protected by the fourteenth

=» 88 o

amendment. Even while the states were

ratifying the Bill of Rights, Congress passed

the Judiciary Act of 1789, guaranteeing a

right to bail to those accused of noncapital

federal offenses. See Foote Article, supra,

at 971. That guarantee has continued unabated

up to the present day. Fed. R. Crim. P. 46;

18 U.S.C. § 3146 (1976). Furthermore, as

we have shown, the right to bail enjoys pro-

tection in nearly all of the states.

A final justification for incorporation

of the eighth amendment into the guarantees

of the due process clause is to ensure the

continued protection of other fundamental

rights. In Mapp v. Ohio, 367 U.S. 643 (1961),

this Court directed states to comply with

the exclusionary rule, not because it was

a traditionally protected right, but because

it was essential "to compel respect for the

constitutional guaranty" against unreasonable

searches. Id. at 656 (quoting Elkins v. United

States, 364 U.S. 206, 217 (1960)); see also

Coleman v. Alabama, 399 U.S. 1, 8-9 (1970)

@ 56 «

(assistance of counsel prior to trial necessary

to safeguard fifth amendment rights). The

right to reasonable pretrial release is simi-

larly situated: it is necessary to protect

other incorporated federal rights. The right

to a fair trial is at the heart of our criminal

process, and, as this Court recognized in

Stack v. Boyle, supra, 342 U.S. at 4, “unham-

pered preparation of a defense" depends on

pretrial freedom.

For these reasons, the rights guaran-

teed by the eighth amendment apply to the

states through the due process clause of the

fourteenth amendment. Further, as we have

shown, the Nebraska provision plainly violates

even the most minimal rights to a reasonable

consideration of pretrial release held to

be guaranteed by the eighth amendment. Thus,

the Nebraska provision should be struck down

as violative not only of general due process

guarantees but also of the excessive bail

Clause of the eighth amendment.

o $7 «

IV.

THE NEBRASKA PROVISION VIOLATES THE

SUBSTANTIVE GUARANTEES OF THE DUE PROCESS

CLAUSE BECAUSE IT REQUIRES THE IMPRISONMENT

OF CRIMINAL DEFENDANTS SOLELY ON THE

BASIS OF A PRETRIAL FINDING THAT THE

DEFENDANT IS LIKELY TO BE CONVICTED OF

THE OFFENSE CHARGED

Under the Nebraska provision, the

critical determination by which defendants

will be deprived of their liberty prior to

trial is based exclusively on evidence relating

to the likelihood that the defendant committed

the offense charged. Although the State claims

that the purpose of the provision is to prevent

the commission of crime by defendants awaiting

trial (Appellant's Brief at 28), research

in the area of pretrial crime reflects that

a current charge does not in itself provide

a reliable basis for predicting future criminal

conduct.

It is settled that any legislative

assumption or judicial inference leading to

the deprivation of personal liberty:

» 88 «

"must be regarded as ‘irra-

tional’ or ‘arbitrary,' and

hence unconstitutional, unless

it can at least be said with

substantial assurance that

the presumed fact is more

likely than not to flow from

the proved fact on which

it is made to depend." Leary

v. United States, 395 U.S.

6, 36 (1969). (Emphasis

supplied. )

The predictions of dangerousness cited

by the State as support for the Nebraska provi-

sion are subject to this test and cannot pass

it. No one can say with the "substantial

assurance” required by the due process clause

that the prediction of dangerousness advanced

as the basis for the Nebraska provision is

"more likely than not" to be accurate. Leary

v. United States, supra. The two leading

studies in the area found no reliable indica-

tors for predicting which defendants are most

likely to commit crimes during the period

between their arrest and trial. Note,

Preventive Detention: An Empirical Analysis,

6 Harv. C.R.-C.L. Le Rev. 289 (1971); National

Bureau of Standards, Compilation and Use of

o $9 «

Criminal Court Data in Relation to Pre-Trial

Release of Defendants: Pilot Study 160 (1970).22/

Sex offenders do not, as the State

suggests, represent a special class of defen-

dants in this regard. In one recent study

of defendants charged with sex offenses in

the District of Columbia, 36 percent were

rearrested during the pretrial period on

various charges, only one of which resulted

in conviction. K. Williams, The Prosecution

of Sexual Assaults, 14-18 (1978). The State

of Nebraska's own experience with the provision

at issue here demonstrates its overinclusive-

ness. A survey conducted one year after

adoption of the Nebraska provision20/ reflects

19/ Both st’: dies concluded, for example,

that 5 percent of those who would have quali-

fied for incarceration under the District

of Columbia pretrial detention statute, D.C.

Code 1973, § 23-1322 -- which provides for

more refined efforts at prediction than the

Nebraska provision -- were rearrested for

violent or dangerous crimes during the pretrial

period.

20/ The results of this study are set forth

in the Joint Appendix at pp. 7-1l.

@ 60 «

that bail had been denied to 32 identified

defendants charged with sexual offenses.

Out of the 22 cases which reached final

disposition, however, only two defendants

were in fact convicted of forcible first degree

sexual assault. Two defendants were acquitted

after spending a total of 120 days in confine-

ment, prosecutions were dismissed against

3 others, and the remainder were disposed

of on convictions of or guilty pleas to bail-

able felonies or misdemeanors.

Because the State is, in effect, en-

gaging in mere guesswork in amending its con-

stitution so as to incarcerate persons charged

with sex offenses pending trial, the Nebr..*a

provision fails to achieve the measures of

precision mandated by the due process clause:

"CA] governmental purpose to control or prevent

activities constitutionally subject to state

regulation may not be achieved by means which

sweep unnecessarily broadly and thereby invade

the area of protected freedoms." NAACP v.

Alabama, 377 U.S. 288, 307 (1964).

@ 61 «

The due process clause mandates that

in any legislation involving the curtailment

of personal liberty, “less drastic" means

of achieving the Congressional objective must

be employed whenever feasible. Aptheker v.

Secretary of State, 378 U.S. 500, 512-13

(1964); Shelton v. Tucker, 364 U.S. 479, 488

(1960). Yet individuals are deprived of their

liberty under the Nebraska provision, despite

the availability of numerous less drastic

alternatives for dealing with commission of

crime by persons awaiting trial.

Both the NBS and the Harvard studies

found, for example, that more than half of

all pretrial crime is committed after the

first 90 days following arrest, indicating

that the risk that a particular defendant

might commit sexual offenses while awaiting

trial could be significantly reduced simply

by ensuring that the defendant is brought

to trial promptly. Note, Preventive Detention:

An Empirical Analysis, 6 Harv. C.R.-C.L. L.

@ 62 =

Rev. at 389; National Bureau of Standards,

Supra at 165. Other alternatives, such as

supervision by a parole officer or release

to the custody of an agency or third party

have proven effective in reducing pretrial

crime, see P. Wice, Freedom for Sale, 77-78

(1974), and could be supplemented by increasing

the penalties for crimes committed while on

pretrial release. See generally Note,

Preventive Detention Before Trial, 79 Harv.

L. Rev. 1489, 1508-09 (1966),

Not only does the Nebraska provision

preclude inquiry into less restrictive

alternatives to pretrial imprisonment, it

also prohibits the trial judge from taking

into consideration any evidence unrelated

to proof of the pending charge which would

bear directly on whether the defendant was

likely to commit sexual offenses if released. 21/

21/ Even if as a result of the crime or other-

wise the defendant was utterly incapacitated

from committing any future sexual offense,

the State of Nebraska would still insist on

his incarceration as a danger to the community.

= 63 «

Testimony as to character or the absence of

a criminal history, as well as psychiatric

testimony as to the particular defendant's

propensity for violent behavior, is treated

as irrelevant under the Nebraska pretrial

detention scheme. Thus, the only purpose

in fact advanced by the Nebraska provision

is an illegitimate interest in punishing

persons charged with sex offenses before they

are tried.

In Bell v. Wolfish, 441 U.S. 520,

535 (1979), this Court held that “under the

Due Process Clause, a detainee may not be

punished prior to an adjudication of guilt

in accordance with due process of law." And

under the tests outlined in Wolfish for deter-

mining whether a particular sanction consti-

tutes punishment, the imprisonment of criminal

defendants on the basis of evidence relating

solely to guilt is plainly punitive. Not

only is “the behavior to which it applies

+ « « Already a crime," but the deprivation

of liberty involved is also “excessive in

@ 64 =

relation to the alternative purpose assigned" --

that of preventing the commission of sexual

offenses by defendants awaiting trial. See

Bell v. Wolfish, supra, 441 U.S. at 537-38,

following Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69 (1963). Moreover, the sup-

porters of the Nebraska provision have evi-

denced a clear desire for retribution based

upon a single notorious incident and an

undisguised assumption that all persons charged

with sex offenses are guilty of those crimes. 22/

Regardless of whether it is ever

permissible for a state to take a defendant's

criminal "propensities" into account in

determining eligibility for bail -- and the

22/ As the State puts it: "The people of

the State of Nebraska have made a... deter-

mination that these particular sex offenders

+ « « constituted a distinct class o

criminals. .. . [TJhe differing treatment

between this distinct, specific and narrow

class of rapists and other criminal offenders

is justified » « « «" Appellant's Brief at

28, 32 (emphasis supplied). While rape is

undoubtedly a heinous crime, that does justify

punishment of persons not yet found guilty

of any offense.

= 68 «

ACLU submits that it is not <= the Nebraska

provision challenged here cannot survive

constitutional scrutiny. The system which

the State of Nebraska has set into motion

through adoption of this amendment is not

a system of preventive detention but a system

which achieves pretrial punishment of persons

charged with a single class of noncapital

offenses. The provision must be struck down

as violative of the substantive guarantees

of the due process clause.

CONCLUS ION

For the foregoing reasons, this Court

should affirm the comprehensive and well-

reasoned opinion of the Eighth Circuit in

the present case. The Nebraska provision

should be struck down as void and unenforceable.

oe submitted, |

aco’ >. few

reve B. Nathan

David P. Towey

Susan P. Sturm ARNOLD & PORTER

1200 New Hampshire Ave., N.W.

Washington, D.C. 20036

Attorneys for the American Civil

Liberties Union

Of counsel: