Amicus Brief — Murphy v. Hunt

a]

2

FILED

pec 18 190

Office - Supreme Court, US. |

No. 80-2165 ALEXANDER L. STEVAS.

CLERK

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

JAMES M, MURPHY, DISTRICT JUDGE OF

THE FOURTH JUDICIAL DISTRICT OF

NEBRASKA,

APPELLANT,

vs.

EUGENE L. HUNT,

APPELLEE,

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE STATE PUBLIC DEFENDER OF

CALIFORNIA AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

QUIN DENVIR

State Public Defender

DAVID R. LIPSON

Deputy State Public Defender

1390 Market Street, Suite 425

San Francisco, CA 94102

Telephone: (415) 557-1498

Attorneys for Amicus Curiae

No, 80-2165

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

JAMES M. MURPHY, DISTRICT JUDGE OF

THE FOURTH JUDICIAL DISTRICT OF

NEBRASKA,

APPELLANT,

vs.

EUGENE L. HUNT,

APPELLEE,

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE STATE PUBLIC DEFENDER OF

CALIFORNIA AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

QUIN DENVIR

State Public Defender

DAVID R. LIPSON

Deputy State Public Defender

1390 Market Street, Suite 425

San Francisco, CA 94102

Telephone: (415) 557-1498

Attorneys for Amicus Curiae

TABLE OF CONTENTS

PAGE

INTEREST OF AMICUS CURIAE 1

AND CONSENT

ARGUMENT

THE 1978 NEBRASKA CONSTITUTIONAL 3

AMENDMENT PRECLUDING BAIL FOR

ALL PERSONS ACCUSED OF FORCIBLE

SEXUAL ASSAULT, WHERE THE PROOF

IS EVIDENT OR THE PRESUMPTION

GREAT, VIOLATES THE DUE PROCESS

CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION, BY CREATING A

CONCLUSIVE PRESUMPTION THAT

RISKS IMPERMISSIBLY AN

ERRONEOUS DEPRIVATION OF THE

ACCUSED'S VITAL INTEREST IN

PRETRIAL LIBERTY

Introduction 3

A. Nebraska's 1978 Bail 9

Amendment Creates A

Conclusive Presumption

That Anyone Accused Of

A Forcible Sex Offense Is

Too Dangerous To Release

Before Trial (I.e., Will

Commit Such An Offense If

Released)

B. The Conclusive Presumption 19

Of Dangerousness As To All

Persons Accused Of Forcible

Sex Offenses Denies Due

Process Of Law As Guaranteed

By The Fourteenth Amendment,

In That The Pretrial Detainee's

Basic Interest In Liberty Is

Infringed Outright, The Risk

Of Erroneous Deprivation Of

That Interest Is Great, And

The State's Interest, While

Legitimate, Is Too Specu-

lative To Have Sufficient

Countervailing Force

1. Development of the 20

Conclusive Presumption

Doctrine Generally

2. Due Process Analysis 30

of the Conclusive Pre-

sumption In the Case

at Bench

CONCLUSION 65

ii.

TABLE OF CASES

Page

Addington v. Texas

441 U.S. 418 (1979) 56

Bell v. Burson

402 U.S. 535 (1971) 20

Bell v. Wolfish

441 U.S. 520 (1979) 6

Cleveland Board of Education v. LaFleur ©

414 U.S. 632 (1974) 15

Coker v. Georgia

433 U.S. 584 (1977) 40

Craig v. Boren

429 U.S. 190 (1976) 60

Escandar v. Ferguson

441 F.Supp. 53

(S.D. Fla. 1977) 64

Gerstein v. Pugh

420 U.S. 103 (1975) 35

Greenholtz v. Inmates of the

Nebraska Penal and Correctional

Complex

442 U.S. 1 (1979) 33

Hampton v. Mow Sun Wong

426 U.S. 88 (1976) 39

Hunt v. Roth

648 F.2d 1148 (8th Cir. 1981) 6

iii.

TABLE OF CASES CONT'D.

In re Underwood

9 Cal.3d 345

107 Cal.Rptr. 401 (1973)

Mathews v. Eldridge

424 U.S. 319 (1976)

McGowan v. Maryland

366 U.S. 420 (1961)

Morrissey v. Brewer

408 U.S. 471 (1972)

Murdock v. Memphis

87 U.S. (20 Wall.) 590 (1870)

Parker v. Roth

202 Neb. 850

278 N.W.2d 106

cert. denied,

444 U.S. 920 (1979)

Petition of Humphrey

601 P.2d 103 (Okla Crim. 1979)

Raley v. Ohio

360 U.S. 423 (1959)

Reed v. Reed

404 U.S. 71 (1971)

Rummei v. Estelle

445 U.S. 263 (1980)

San Antonio Independent School

District v. Rodriguez

411 U.S. 1 (1973)

iv.

59

TABLE OF CASES CONT'D.

Schilb v. Kuebel

404 U.S. 357 (1971)

Scripto, Inc. v. Carson

362 U.S. 207 (1960)

Smith v. Hooey

393 U.S. 374 (1969)

Sosna v. Iowa

419 U.S. 393 (1975)

Stack v. Boyle

342 U.S. 1 (1951)

Stanley v. Illinois

405 U.S. 645 (1972)

Turner v. Department of Employment

Security of Utah

423 U.S. 44 (1975)

United States v. Beaman

631 F.2d 85 (6th Cir. 1980)

United States v. Edwards

430 A.2d 1321 (D.C. App. 1981)

United States v. Marion

404 U.S. 307 (1971)

Unites States v. Wind

527 F.2d 672 (6th Cir. 1975)

United States Department of

Agriculture v. Murry

413 U.S. 598 (1973)

Vv.

22

TABLE OF CASES CONT'D.

United States ex rel. Covington

v. Coparo

297 F.Supp. 203 (S.D.N.Y. 1969)

Usery v. Turner Elkhorn Mining Co.

428 U.S. 1 (1976)

Van Atta v. Scott

27 Cal.3d 424

166 Cal.Rptr. 149 (1980)

Vlandis v. Kline

412 U.S. 441 (1973)

Weinberger v. Salfi

422 U.S. 749 (1975)

vi.

43

24

36

21

25

TEXTS, STATUTES AND AUTHORITIES

Page

Ariz. Const., art. II, § 22 4

Cal. Const., art. I, § 6 43

Mich. Const., art. I, § 15

Neb. Const., art. I, § 9

Tex. Const., art. V, §& 1l(a)

U.S. Const., 8th Amend.

4

3

4

Utah Const., art. I, § 8 4

7

U.S. Const., 14th Amend. 3

4

Ackerman, The Conclusive Presumption

Shuffle, 125 U.Pa.L.Rev.

761-810 (1977) 24

Ares, Rankin & Sturz, The

Manhattan Bail Project: An

Interim Report on the Use of

Pre-trial Parole, 38 N.Y.U.L.

Rev. 67 (1963) 37

Bezanson, Some Thoughts on the

Emerging Irrebuttable

Presumption Coctrine, 7 Ind.

L.Rev. 644 (1974) 23

C. Wright, Handbook on the Law

of Federal Courts, 542-543

(3rd ed. 1976) 14

vii.

TEXTS, STATUTES AND AUTHORITIES CONT'D.

Page

Chase, “The Premature Demise of

Irrebuttable Presumptions"

47 U.Colo.L.Rev. 653 (1975-1976) 16

Comment, ge me the Innocent:

Pretrial Detention in our Nation's

Jails, 21 Buffalo L.Rev. 891 (1972) 36

Ennis & Litwack, Psychiatry and the

Presumption of Expertise: Flipping

Coins in the Courtroom, 62 Cal.

L.Rev. 693 (1974) 44

Gunther, The Supreme Court 1971

Term -- Foreword: In Search of

Evolving Doctrine on a Changing

Court: A Model for a Newer

Equal Protection, 86 Har.L.Rev. 1 59

Hickey, Preventive Detention and

the Crime of Being Dangerous,

58 Geo.L.Rev. 287 (1969) | 47

National Bureau of Standards,

Compilation and Use of Criminal

Court Data in Relation to the

Pre-trial Release of Defendants:

Pilot Study (1970) 135 52

New York Review of Rooks, March 13,

1969 at 24-25 49

Note, Irrebuttable Presumptions as

an Alternative to Strict Scrutiny:

From Rodriguez to LaFleur

62 Geo.L.J. 1173 (1974) 24

viii.

TEXTS, STATUTES AND AUTHORITIES CONT'D.

Note, The Conclusive Presumption

Doctrine: Equal Process or

Due Protection

72 Mich.L.Rev. 800 (1974)

Note, The Irrebuttable Presumption

Doctrine in the Supreme Court

87 Harv.L.Rev. 1534 (1974)

President's Commission on Law

Enforcement and the Administration

of Justice, Task Force Report:

Corrections

24 (1967)

Rankin, The Effect of Pre-trial

Detention

39 N.Y.U.L.Rev. 641 (1964)

Sewell, Conclusive and/or Substantive

Due Process of Law

27 Okla.L.Rev. 151 (1979)

Study, Preventive Detention:

An Empirical Analysis,

6 Harv.Civ.Rts. = Civ.Lib.L.Rev.

.289 (1971)

Thaler, Punishing the Innocent: —

The Need for Due Process and

the Presumption of Innocence

Prior to Trial,

1978 Wis.L.Rev. 441

The Supreme Court, 1974 Term,

89 Harv.L.Rev. 83-84 (1975)

ix.

Page

24

23

35

37

23

37

35

44

TEXTS, STATUTES AND AUTHORITIFS CONT'D.

Page

The Unconstitutional Administration

of Bail: Bellamy v. The Judges

of New York vag

8 Crim.L.Bull. 459 (1972) 37

Tribe, American Constitutional

Law, § 16-32, at 1095-1096

(let ed. 1978) 30

Tribe, Structural Due Process,

10 Harv.Civ.Rights, Civ.Lib.

L.Rev. 269 (1975) 24

Wenk, Robison & Smith, Can

Violence Be Predicted, 18

Crime and Delinquency 393

(1972) 44

U.S. Supreme Court

Rule 36 2

Black's Law Dictionary

(Sth ed. 1979) 128 ll

Minutes of Committee on Constitutional

Revision and Recreation, Hearings

Concerning Legislative Bill

L.B. 553, Jan. 26, 1978, p. 25 7

Nebraska Unicameral Legislative

debate of April 12, 1978 on

L.B. 553, p. 08925 17

No, 80-2165

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1980

JAMES M, MURPHY, DISTRICT JUDGE OF

THE FOURTH JUDICIAL DISTRICT OF

NEBRASKA,

APPELLANT,

vs.

EUGENE L. HUNT,

APPELLEE.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF THE STATE PUBLIC DEFENDER OF

CALIFORNIA AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

INTEREST OF AMICUS CURIAE AND CONSENT

The State Public Defender of

California is an agency of California

l.

state government which is charged with

the representation on appeal of indigent

criminal defendants. The outcome of the

instant case will have a substantial

impact upon the pretrial right to bail

of many persons being represented by

this office, now and in the future, as

well as upon the public as a whole.

Accordingly, the State Public Defender

of California is filing this brief

amicus curiae in support of the appellee

herein.

This brief is filed pursuant to

Rule 36 of the Rules ofthe Supreme Court

of the United States. Consent to the

filing of the brief has been given bv

the Office of the Attorney General of

the State of Nebraska and by the Office

of the Douglas County Public Defender,

Douglas County, Nebraska, counsel for

appellant and appellee, respectively.

2.

Letters reflecting such consent have

been mailed to the Clerk of this Court

under separate cover, and should be on

file in the Clerk's office.

ARGUMENT

THE 1978 NEBRASKA CONSTITUTIONAL

AMENDMENT PRECLUDING BAIL FOR

ALL PERSONS ACCUSED OF FORCIBLE

SEXUAL ASSAULT, WHERE THE PROOF

IS EVIDENT OR THE PRESUMPTION

GREAT, VIOLATES THE DUE PROCESS

CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES

CONSTITUTION, BY CREATING A

CONCLUSIVE PRESUMPTION THAT

RISKS IMPERMISSIBLY AN

ERRONEOUS DEPRIVATION OF THE

ACCUSED'S VITAL INTEREST IN

PRETRIAL LIBERTY

Introduction

Article I, Section 9 of the

1

Nebraska Constitution” presents this

l. Article I, Section 9 provides:

"All persons shall be

bailable by sufficient sure-

ties, except for treason,

sexual offenses involvin

netration by force or

against the tii of the vic-

tim, anc murder, where the

3.

Court with an unusual state provision

affecting pretrial bail in non-capital

cases. A few jurisdictions, to

counsel's knowledge, have enacted

“preventive detention" statutes or

constitutional provisions that restrict

bail for certain multiple offenders or

allow trial courts to consider as a fac-

tor the “dangerousness" of the indivi-

2/

dual defendant. However, no state,

1. (Fn. Cont.)

proof is evident or the pre-

sumption great. Excessive

bail shall not be required,

nor excessive fines imposed,

nor cruel and unusual punish-

ment inflicted." [Emphasis

supplied.)

The emphasized words were added by

amendment in 1978.

Ariz. Const. Art. II, § 22; Tex. Const.

Art. V, § ll(a); Utah Const. Art. I,

§ 8; and Mich. Const. Art. I, § 15. See

Petition of Humphrey, 601 P.2d 103,

108-111 (Okla. Crim. 1979) (appendix

listing state constitutional and statu-

tory provisions).

4.

save Nebraska, has sought to deny bail

outright to a class of non-capital

defendants, based on the nature of the

charged offense alone. Furthermore,

states will traditionally assert the

need to assure a defendant's presence at

his trial as a reason for denying bail;

in this case, the State of Nebraska

makes no attempt at all to show that a

person accused of a serious felony sex

offense is more likely to flee than

other non-capital defendants.

Rather, Nebraska seeks to justify

the disparate, class-wide denial of

bail in this case on the sole basis that

the proponents of the 1978 amendment

reasonably believed, and the voters so

affirmed, that "sex offenders are prone

to repeat sex offenses," and the purpose

of denying bail to persons accused of

such offenses was thus to protect

5.

"society from repetition of these types

of heinous crimes" (Appellant's Br. on

Merits 28). The denial of bail for such

persons, we are told, is “relevant to

the legitimate state purpose of pro-

tecting society” (Appellant's Br. on

Merits 32; emphasis supplied) .

Whether this state purpose (or any other

purpose apart from ensuring présence at

trial) may constitutionally justify

pretrial detention in the first instance

is, of course, the question expressly

reserved by the Court in Bell v.

Wolfish, 441 U.S. 520, 534 n. 15 (1979).

Yet, as the Eighth Circuit ultimately

3. The state's posture was the

same before the Court of Appeals, see

Hunt v. Roth, 648 F.2d 1148, 1162 (8th

Cir. 1981), and before the Nebraska

Supreme Court, which had previously

upheld the 1978 bail amendment against

all constitutional attack, see Parker v.

Roth, 202 Neb. 850, 278 N.W.2d 106, 113-

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

concluded in its Eighth Amendment analy-

sis, the Nebraska provision effectively

mandates that anyone accused of a forc-

ible sex offense is to be considered

dangerous, and indeed too dangerous as a

potential recidivist, to allow his

release on bail before trial. Hunt v.

Roth, supra, 648 F.2d at 1164-1165. In

sum, after concluding both that the

Excessive Bail Clause of the Eighth

Amendment applies to the States through

the Fourteenth Amendment, 648 F.2d at

1155-1156, and that the Clause prohibits

an unreasonable and arbitrary denial of

bail as well as an excessive monetary

amount, 698 F.2d at 1151-1162, the court

below held that the "irrebuttable

presumption" created by the Nebraska

provision is indeed unreasonable and

arbitrary, and on that ground violative

of the Eighth Amendment, 648 F.2d at

7.

1164-1165.

As amicus curiae we contend that

the Nebraska 1978 amendment constitutes

an impermissible conclusive presumption,

but our argument is directed to the

Fourteenth Amendment's Due Process

Clause, not the Eighth Amendment as

such, We submit that the Nebraska pro-

vision, as it pertains to the non-

capital sub-class of defendants accused

of forcible sex offenses, is indeed an

irrebuttable or conclusive presumption.

Moreover, even given the legitimacy, in

the abstract, of Nebraska's end of pro-

tecting society, the presumption is an

impermissible one, not merely because of

its over-inclusive nature, but because

of the pretrial detainee's significant

interest in liberty and the extreme risk

of an erroneous deprivation of that

liberty occasioned by the means Nebraska

4/

has employed. The Nebraska provision

therefore denies due process of law.

A. Nebraska's 1978 Bail

Amendment Creates A

Conclusive Presumption

That Anyone Accused Of

A Forcible Sex Offense Is

Too Dangerous To Release

Before Trial (I.e., Will

Commit Such An Offense If

Released)

The threshold question to be

answered is whether the 1978 Bail

Amendment creates a conclusive presump-

tion. Does it provide, in effect, that

anyone accused of a forcible sex

offense, “where the proof is evident or

the presumption great," shall not be

admitted to bail because of his conclu-

4. The issue of the 1978 bail

amendment being a conclusive presumption

violating due process was raised below

(Plaintiff-Appellant Hunt's Brief in

Eighth Cir. 29-34), was considered by

the court below, albeit in an Eighth

Amendment context, and has been raised

explicitly by counsel for appellant

before this Court (Appellant's Br. on

Merits 30-32).

sively presumed dangerousness? The

answer is "Yes."

Nebraska now claims, apparently for

the first time, that even if the state

judge makes the preliminary findings of

proof being “evident” or the presumption

“great,” he has discretion to grant bail

nonetheless. (Appellant's Br. on Merits

31.) This is clearly wrong, for two

reasons. First, the plain meaning of

the words of the Nebraska provision

(Nebraska Const., Art. I, § 9, n. l,

supra) is that where the trial court

preliminarily finds that the “proof is

evident or the presumption great," the

accused forcible sex offender is not to

be granted bail under any circumstances,

The key words are: "All persons shall

be bailable ..., except...”

(Emphasis supplied.) "“Bailable"” means

"capable of being bailed," and a

10.

"“bailable offense" is “one for which the

prisoner may be admitted to bail."

Black's Law Dictionary (5th ed. 1979)

128. "Shall" is, of course, “generally

imperative or mandatory)" "it has the

invariable significance of excluding the

idea of discretion." Black's op. cit.

Supra, at 1233. And “except” means “but

for," “not including,” or “other than."

Black's, op. cit. supra, at 501.

Putting these meanings together, the

key phrase means: "All persons are

deemed ‘capable of being bailed,’ ‘other

than’ accused traitors, forcible sex

offenders, and murderers." Thus, while

Article I, Section 9 does not expressly

state that the defendants falling under

the exception are not “capable of being

bailed,” that is the evident meaning.

The language is a good example of an

unambiguous "negative pregnant." Also,

ll.

if the language were not so construed,

the exception would be mere surplusage,

since under the state's interpretation

the trial judge always retains discre- ~

tion in any event. That is a disfavored

result.

Even aside from the plain meaning

of the words of Article I, section 9,

however, the Nebraska Supreme Court

appears to have rejected authoritatively

the position now taken by Nebraska, in

its opinion in Parker v. Roth, supra,

202 Neb. 850, 278 N.W.2d 106, 109, 113.

We submit that the following expressions

by the state's highest court, in the

state court litigation immediately pre-

ceding this case, show that persons

falling under the exception are automat-

ically denied bail, where the proof is

evident or the presumption great:

"On April 21, 1978, L.B.

12.

553 was enacted by the

Nebraska Legislature, pro-

posing, subject to approval by

the electorate, that Article

I, section 9, of the

Constitution of the State of

Nebraska be amended to further

exclude from bail rsons

charged with Vaawcat offenses

involving penetration by force

or against the will of the

victim' where the proof was

evident or the presumption

great." 278 N.W.2d at 109;

emphasis supplied.

2 "an ee sacs one so

charged to be ineligible for

bail, it must appear to the

trial court that either the

proof of the charge is evident

or the presumption great. In

any instance in which the

court is not convinced that

either the proof is evident or

the presumption great, then

the court is not prohibited

from granting bali wi

We are therefore left

with the question of whether

the Legislature in the first

instance, and the people

thereafter, acted rationally

and reasonably in concluding

that, where the proof was evi-

dent or the presumption great

that an individual had com-

mitted a sexual offense

involving penetration by force

orragainst the will of the

13.

individual, such person

should not be free on bail

pending Eclat.” 278 N.W.2d at

+ emphasis supplied.

While this Court may review a state

supreme court's federal constitutional

holding as to a state statute or consti-

tution, Raley v. Ohio, 360 U.S. 423, 436

(1959), the Court will not revise the

state court's threshold interpretation

of what its own organic law means, for

that is merely a question of state law.

E.g., Scripto, Inc. v. Carson, 362 U.S.

207, 210 (1960); Murdock v. Memphis, 87

U.S. (20 Wall.) 590, 626, 635-636

(1870); see generally C. Wright,

Handbook on the Law of Federal Courts

542-543 (3rd ed. 1976). Thus, even

assuming arguendo that Nebraska's

eleventh-hour view of the Nebraska pro-

vision, as permitting residual judicial

discretion, commended itself to this

14,

Court, this Court would still not

substitute its own interpretation for

that of the Nebraska Supreme Court.

Thus the 1978 bail amendment does

conclusively presume that an accused

forcible sex offender shall be ineli-

gible for bail, period. However, there

is a more fundamental conclusive pre-

sumption here, lying just underneath the

surface of the amendment: This category

of non-capital felony defendants is too

dangerous to society to be allowed

release before trial, because the defen-

dant will commit a forcible rape or like

offense if released. This Court has in

the past uncovered the true conclusive

presumption underlying challenged

legislation by “peeling away" one

asserted governmental purpose, so as to

assess other state objectives. E.g.,

Cleveland Board of Education v. LaFleur,

15.

414 U.S. 632, 647 (1974); cf. McGowan v.

Maryland , 366 U.S. 420, 426 (1961).

See Chase, "The Premature Demise of

Irrebuttable Presumptions," 47 U. Colo.

L. Rev. 653, 688 ff. (1975-1976)

{hereinafter Chase]. However, in this

instance the Court does not need to

"search" for the "real" or "objective"

purpose underlying the 1978 amendment,

since Nebraska has already stated very

Clearly what it is. Appellant's counsel

has expressly identified the need to

protect society from the repetition of

"these types of heinous crimes" as the

only purpose of the amendment.

(Appellant's Br. on Merits 28.) Both

the Eighth Circuit and the Nebraska

Supreme Court, in their respective opin-

ions, referred to the amendment's goal

as being the protection of society from

persons who were presumed to be sexual

16.

recidivists and thus dangerous. Hunt v.

Roth, supra, 648 F.2d at 1162-1165;

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

113-114. The legislative history of the

bail amendment also demonstrates that

the prevention of repeated forcible sex

offenses was the sole objective of the

5/

tend, nor did it in the court below,

proponents. The state does not con-

that an absolute denial of bail to all

persons charged with forcible rape or

like offenses is necessary, or even

rationally related, to assuring the

5. Minutes of Committee on

Constitutional Revision and Recreation,

Hearings Concerning Legislative Bill

L.B. 553 (Proposed Amendment to Nebraska

Constitution, Art. I, § 9,) on Jan. 26,

1978, at p. 25 (statement of Sen.

Herbert J. Duis, introducer); Nebraska

Unicameral Legislature debate of

April 12, 1978 on L.B. 553, at p. 08925

(incorporated in Exh. No. 10 of U.S.

District Court Record in proceedings

below, Civ. Nos. 80-0-361, 80-0-377,

part of certified record in this Court).

17.

presence of such persons, as a class, at

trial. Hunt v. Roth, supra, 648 F.2d at

1162.

In sum, the 1978 bail amendment

does establish a conclusive presumption:

Anyone accused in Nebraska of forcible

sexual assault, such as forcible rape,

where the "prvof is evident or the pre-

sumption great" as to the pending

charge, is always too dangerous to be

released before trial, in that he will

commit such an offense while on bail.

The State's characterization of the bail

amendment to this Court, as continuing

to allow judicial discretion in such

cases, belies the plain meaning of the

words, is contrary to binding state

court construction, and is nowhere found

in the legislative history. The basic

issue now arises as to whether this

conclusive presumption denies due

18.

process of law for the affected

defendants.

B. The Conclusive Presumption

Of Dangerousness As To All

Persons Accused Of Forcible

Sex Offenses Denies Due

Process Of Law As Guaranteed

By The Fourteenth Amendment,

In That The Pretrial Detainee's

Basic Interest In Liberty Is

Infringed Outright, The Risk

Of Erroneous Deprivation Of

That Interest Is Great, And

The State's Interest, While

Legitimate, Is Too Specu-

lative To Have Sufficient

Countervailing Force

The subject of conclusive or irre-

buttable presumptions in due process

adjudication has received considerable

attention over the last decade. A brief

review of this Court's opinions con-

cerning this concept is thus pertinent

in determining the constitutionality,

under the Fourteenth Amendment's Due

Process Clause, of the presumption in

the case at bench.

19.

1. Development of the

Conclusive Presumption

Doctrine Generally

From 1971 to 1974 this Court, by

varying margins, struck down conclusive

presumptions in a series of cases as

violating due process. In Bell v.

Burson, 402 U.S. 535, 541, (1971), the

Court invalidated a Georgia law that

appeared to presume conclusively an

uninsured motorist's liability, for pur-

poses of suspending a driver's license,

if he failed to provide security for

damages claimed due to an accident. In

Stanley v. Illinois, 405 U.S. 645,

654-658 (1972), the Court held, by a 5-2

vote (Powell and Rehnquist, JJ., not

participating,) that Illinois could not

conclusively presume, for the sake of

administrative convenience, that any

unwed father was upon the death of the

mother unfit to be a parent of his

20.

children, thus mandating the termination

of parental rights. While the state's

goal of protecting children from unfit

parents was legitimate, as was the goal

in Bell, the state was required by due

process to give the individual father an

opportunity to show his fitness as a

parent, because of the undeniably impor-

tant private interest at stake. Id., at

654-658. In Vlandis v. Kline, 412 U.S.

441, 448-452 (1973), the Court, by a 6-3

vote, struck down as an impermissible

conclusive presumption a Connecticut

statute permanently characterizing a

student, for purposes of charging higher

tuition rates, as residing out-of-state

based on his residence at the time of

his admission application. The next

year, in Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 643-648 (1974),

the Court concluded, by a 7-2 margin,

21.

that pregnant public school teachers

could not uniformly be required to take

maternity leave five months before the

expected birth, since there was a vital

private interest in family autonomy at

issue, and the purpose of keeping

disabled teachers out of the classroom

could not justify a fixed presumption of

disability for all on a rigid date,

Finally, in United States Department of

Agriculture v. Murry, 413, U.S. 508, 514

(1973), the Court held by a 5-4 vote

that a person seeking food stamps, who

had previously been declared as a tax

dependent by another, non-needy house-

hold member, could not arbitrarily be

declared ineligible but should be

allowed to show that he is indeed needy.

All these cases, save Bell v.

Burson, were marked by dissents

expressing doubts as to how far the

22.

conclusive presumption doctrine and the

preference for individualized hear ings

might go in overruling legislative

classifications. See Stanley v.

Illinois, supra, 405 U.S. at 665-666

(Burger, C.J. dissenting); Vlandis v.

Kline, supra, 412 U.S. at 460 (Burger,

C.J., dissenting); Cleveland Board of

Education v. LaFleur, supra, 414 U.S. at

657 (Rehnquist, J., dissenting); U.S.

Dept. of Agriculture v. Murry, supra,

413 U.S. at 525 (Rehnquist, J.

dissenting). This concern has been

echoed by some commentators, but others

&/

have defended the doctrine.

6. See, e.g., Bezanson, Some

Thoughts on the Emerging Irrebuttable

Presumption Doctrine, 7 Ind. L. Rev.

644, ee1-654 (1974); Sewell, Conclusive

and/or _§ Substantive Due Process of Law,

L. Rev. 53- ( 3

Note, The Irrebuttable Presumption

Doctrine in the Supreme Court, Harv.

L. Rev. 1534 (1374) [hereinafter Harvard

Note]; Note, The Conclusive Presumption

23.

More recently, the Court has upheld

a state's one-year residency requirement

for obtaining a divorce, Sosna v. Iowa,

419 U.S. 393 (1975) (distinguishing

Vlandis), a federal conclusive presump-

_ tion of complicated pneumoconiosis

arising out of coal mine employment,

Usery v. Turner Elkhorn Mining Co., 428

U.S. 1 (1976) (distinguishing Vlandis

and Stanley), and a federal statute pro-

hibiting widows and their children from

receiving Social Security survivors’

6. (Fn. Cont.)

Doctrine: Equal Process or Due

Protection, Mich. L.Rev. (1974).

But see Tribe, Structural Due Process,

10 Harv. Civ. Rights -- Civ. Lib. L.Rev.

269, 305-313 (1975) [hereinafter Tribe];

Ackerman, The Conclusive Presumption

Shuffle, 1 U. Pa. L. Rev. 7 wy

) (hereinafter Ackerman]; Chase,

Supra, 47 Colo. L. Rev. 633-705 (1976);

Note, Irrebuttable Presumptions as an

Alternative to Strict Scrutiny: From

Rode iques to LaFleur, 62 Geo. L.J. 1173,

24.

benefits unless they were related to the

deceased wage earner at least nine

months before his death, Weinberger v.

Salfi, 422 U.S. 749 (1975)

(distinguishing Vlandis, Stanley, and

LaFleur). In Salfi, the Court empha-

sized that the challenged law was in the

sphere of economic and social welare

legislation, and thus individual deter-

minations of eligibility were not

required, even though some affected

spouses who had married in good faith

could not rebut the Congressional pre-

sumption that the short-lived marriage

was a sham. 422 U.S. at 776-777. But

lest one conclude for present purposes

that Salfi read the conclusive presump-

tion doctrine out of existence, it is

vital to keep in mind the Salfi Court's

grounds for distinguishing Stanley and

LaFleur:

25.

"Unlike the claims involved in

Stanley [essential interest in

c rearing] and in LaFleur

{freedom of choice in matters

of marriage and family life],

a noncontractual claim to

receive funds from the public

treasury enjoys no constitu-

tionally protected status."

This distinction was driven home

7. Justice Rehnquist was less success-

ful in Salfi in distinguishing

Vlandis v. Kline, supra: “Unlike the

Statutory scheme in Hiandis e ce « the

Social Security Act does not purport to

speak in terms of the bona fides of the

parties to a marriage, but then make

plainly relevant evidence of such bona

fides inadmissible." 422 U.S. at 772.

However, since the operative definitions

of “residency” in Salfi and Vlandis are

precisely parallel, as Justice Brennan

notes in dissent, 422 U.S. at 803, the

distinction is hardly tenable. If on

the other hand Justice Rehnquist was

asserting that the Social Security Act

did not involve a conclusive presumption

because the statute did not by its own

terms make “bona fide marriage" the

ultimate fact, nevertheless prior cases,

such as LaFleur, make clear that the

existence or non-existence of a conclu-

sive presumption is to be determined not

merely by the terms of the statute, but

by reference to its legislative objec-

tive. Harvard Note, supra n. 6, at

; Chase, supra n. 6, at 689-690.

26.

by Turner v. Department of Employment

Security of Utah, 423 U.S. 44 (1975), a

per curiam opinion handed down only five

months after Salfi. The Turner Court

invalidated Utah's conclusive presump-

tion, for purposes of finding ineligi-

bility for unemployment benefits, that

all pregnant women are unable to work

for a specified period surrounding the

expected birth. Stressed the Court,

analogizing to LaFleur:

"The Fourteenth Amendment

requires that unemployment

compensation boards no less

than school boards must

achieve legitimate state ends

through more individualised

means when basic human 1

ties are at stake.* 423 0 a.

at 46; emphasis added.

From this development, certain due

process principles as to the conclusive

presumption doctrine in this Court may

be distilled. First, such a presumption

may be impermissible when the private

27.

interest involved is a basic human

liberty. Stanley v. Illinois, supra,

405 U.S. at 650-651; Cleveland Board of

Education v. Lafleur, supra, 414 U.S. at

648; U.S. Dept. of Agriculture v. Murry,

supra, 413 U.S. at 518 (Marshall, J.,

concurring); Turner v. Dept. of

Employment Security of Utah, supra, 423

U.S. at 46. Second, such a presumption

may be invalid when its purported

underlying purpose appears to be

defeated through arbitrary application.

Bell v. Burson, supra, 402 U.S. at 541;

Vlandis v. Kline, supra, 412 U.S. at

452; cf. Weinberger v. Salfi, supra, 422

U.S. at 772 (maj. opn.), 803 (Brennan,

J., dissenting). Finally, to summarize,

a conclusive presumption requires courts

to weigh carefully the private and

governmental interests involved, the

risk of erroneous deprivations of the

28.

private interest, and the acceptability

of the greater adminstrative burden

created by individualized determinations,

LaFleur, supra, 414 U.S. at 648; Murry,

supra, 414 U.S. at 518-519 (Marshall,

J., concurring); Turner, supra, 423 U.S.

at 46; Salfi, supra, 422 U.S. at

771-772. This test as to the need for

individualized determinations of ulti-

mate factual issues merely involves an

application of the overarching due pro-

cess analysis of Mathews v. Eldridge,

424 U.S. 319 (1976), which governs any

statutory attempt to infringe on an

interest protected by due process. As

was said in Mathews, the factors to be

balanced are:

"(Fjirst, the private interest

that will be affected by the

official action; second, the

risk of an erroneous depriva-

tion of such interest through

the procedures used, and the

probable value, if any, of

29.

additional or substitute pro-

cedural safeguards; and

finally the Government's

interest, including the func-

tion involved and the fiscal

and administrative burdens

that the additional or substi-

tute procedural requirement

would entail." Id. at 335. 8/

2. Due Process Analysis of

the Conclusive Presumption

In the Case at Bench

Thus far we have shown that the

Nebraska 1978 bail provision does indeed

8. As some commentators have

suggested, the use of such an analysis

to determine the validity of conclusive

presumptions is really a "new" proce-

dural due process; there is no attempt

oO say that the legislature's statutory

purpose is irrational, and we are not

suggesting a return to outmoded substan-

tive due process, Lochner style. See

Ackerman, supra n. 6, at 779-798,

808-811; Chase, supra n. 6, at 665-670,

685-705; Tribe, American Constitutional

Law, § 16-32, at - st ed,

1978); Tribe, supra n. 6, at 284-289

(1975). This restrictive use of conclu-

sive presumption analysis -- i.e., only

when vital human interests are at stake

~~ will derail the “virtual engine of

destruction" of legislative classifica-

tions that Justice Rehnquist, writing for

the Salfi Court, felt the doctrine was

in danger of becoming, 422 U.S. at 772.

30.

create a conclusive presumption of the

unacceptable dangerousness of accused

forcible sex offenders, and we have

argued that conclusive presumption

analysis as it has developed from Bell

through Salfi and Turner is an entirely

worthy doctrine in a case of this nature.

We now proceed to a discussion of the

constitutionality of the particular

conclusive presumption before the Court,

considering the significance of the

detainee's interests, the state's

interest in being able "to presume

rather than prove," and the risk of

erroneous deprivation of the detainee's

interest by the procedure currently

employed. See Mathews v. Eldridge,

Supra, 424 U.S. at 335. We submit that

th trial phase of a criminal

case, where a vital human interest

ff n i is at stake and there

31.

has been as yet no legal adjudication

of guilt, the Fourteenth Amendment's

Due Process Clause requries indivi-~

dualized hearings to protect that

interest adequately.

Employing the three-fold test of

Mathews v. Eldridge, supra, 424 at U.S.

at 335, it is evident, first, that the

pretrial detainee's interest in liberty

is indeed vitally important, assuming

arguendo that it does not attain the

9. This suggested due process

principle thus would not by its terms

apply to statutory conclusive presump-

tions following conviction, such as

mandatory minimum prison sentences,

mandatory denials of probation, or habit-

ual offender statutes. Such mandatory

post-conviction statutes generally raise

questions of a different sort, such as

Eighth Amendment issues of cruel and

unusual punishment. Compare Rummel v.

pater 445 U.S. 263, Le (1980)

recidivist offender statute, raising

issue of cruel and unusual punishment)

with Bell v. Wolfish, supra, 441 U.S. at

535 (pretrial conditions of confinement

raising issue of due process).

32.

status of a constitutionally guaranteed

“fundamental right." “Liberty from

bodily restraint always has been

recognized as the core of the liberty

protected by the Due Process Clause from

arbitrary governmental action."

Greenholtz v. Inmates of the Nebraska

Penal & Correctional Complex, 442 U.S.

1, 18 (1979) (Powell, J., concurring in

part and dissenting in part). As this

Court has said, "Bail... is basic to

our system of law," Schilb v. Kuebel,

404 U.S. 357, 365 (1971), and,

"[t)his traditional right to

freedom before conviction per-

mits the unhampered prepara-

tion of a defense, and serves

to prevent the infliction of

punishment prior to convic-

tion. ae Since the func-

tion of bail is limited, the

fixing of bail for any indi-

vidual defendant must be based

upon standards relevant to the

purpose of assuring the pres-

ence of that defendant. To

infer from the fact of indict-

ment alone a need for bail in

33.

an unusually high amount is an

arbitrary act." Stack v.

Boyle, 342 U.S. 1, 4-6

) (dictum).

Moreover, the interest in liberty

is all the more significant for an

accused person, because once he is

legally detained, constitutional protec-

tion as to his conditions of confinement

is diminished. At that point, the due

process guarantee for an accused pre-

vents only conditions of confinement

that amount to “punishment,” a term this

Court now defines by reference to the

government's purpose, not the impact on

the accused. Bell v. Wolfish, supra,

441 U.S. at 538. Therefore, assuming

arguendo the legality of the initial

decision to detain, the accused may be

imprisoned for month after month before

coming to trial, traditionally in a

detention facility or local jail, which

34.

most authorities agree may be the worst

of all penal environments, inferior to

prison itself. See President's

Commission on Law Enforcement and the

Administration of Justice, Task Force

Report: Corrections 24 (1967); Thaler,

Punishing the Innocent: The Need For

Due Process and the Presumption of

Innocence Prior to Trial, 1978 Wis.L.

Rev. 441, 452, and other authorities

cited therein.

Beyond the gross impact of the

incarceration itself, the pretrial

detainee suffers other sorts of

“grievous loss,” cf. Morrissey v.

Brewer, 408 U.S. 471, 4821 (1972). He

is likely to lose his job if he has one,

be deprived of income, and be injured in

his relationships with his family. See

Gerstein v. Pugh, 420 U.S. 103, 114

(1975); United States v. Marion, 404

35.

U.S. 307, 320 (1971); Thaler, supra, at

452; Comment, Incarcerating the

Innocent: Pretrial Detention in Our

Nation's Jails, 21 Buffalo L.Rev. 891,

901 (1972). He suffers the stigma that

attaches from the mere fact of deten-

tion. Thaler, supra, at 452-454. But

perhaps the most significant effects of

pretrial detention for an accused relate

to his ability to prepare for the

upcoming trial, his access to counsel,

and the final results. A detainee's

ability to prepare an adequate defense

is greatly impaired, and consultation

with an attorney and general access to

counsel becomes much more difficult.

See Stack v. Boyle, supra, 342 U.S. at

8; Smith v. Hooey, 393 U.S. 374, 379-380

(1969); Van Atta v. Scott, 27 Cal.3d

424, 435 nn. 9, 10, 166 Cal.Rptr.149

(1980), and authorities cited,

36.

Finally, several statistical studies

share the conclusion that the defendant

at liberty pending trial stands a better

chance of not being convicted or, if

convicted, of not receiving a prison

sentence. Ares, Rankin & Sturz, The

Manhattan Bail Project: An Interim

Report on the Use of Pre-Trial Parole,

38 N.Y.U.L.Rev. 67, 86 (1963)

{hereinafter Ares Study]; Rankin, The

Effect of Pre-Trial Detention, 39

after Rankin Study]; Study, Preventive

Detention: An Empirical Analysis, 6

Harv.Civ.Rts. ame Civ.Lib.L.Rev. 289, 347

(1971) [hereinafter Harvard Study]; The

Unconstitutional Administration of

Bail: Bellamy v. The Judges of New

York City, 8 Crim.L. Bull. 459, 468

(1972) [hereinafter Bellamy Study]; see

generally Thaler, supra, at 455-459

37.

For example, Rankin's study, supra,

found that only one factor -- status as

a detainee -- not considerations such

as previous record, amount of bail,

quality of counsel, or stable

employment, was tied disproportionately

to an unfavorable outcome. 39 N.Y.U.L.

Rev. at 652-655. One commentator has

concluded that this disparity in convic-

tion rates resulting from pretrial

detention as such is due most of all to

the widespread use of plea bargaining,

in which the incarcerated defendant is

willing to plead guilty in return for a

sentence of “credit for time served".

Thaler, supra, at 455-459.

In sum, the accused has a vitally

important liberty interest in not being

arbitrarily labeled as dangerous and

thus not bailable as a matter of law.

At the very least, this pretrial

38.

interest in liberty, while conditioned

on reasonable bail under the Eighth

Amendment, is worthy of zealous protec-

tion by the courts, and thus is entitled

to at least an “intermediate” level of

review. Cf. Turner v. Department of

Employment Security of Utah, 423 U.S. at

46; Hampton v. Mow Sun Wong, 426 U.S.

88, 102-103 (1976) (aliens deprived of

federal civil service employment; inter-

mediate standard of review employed to

assess issue of due process violation) ;

United States Department of Agriculture

v. Murry, supra, 413 U.S. at 518-519

(Marshall, J., concurring); see

generally Tribe, American Constitutional

Law, supra, § 16-31, at pp. 1089-1092.

With respect to the strength of the

governmental interest involved -- the

protection of society from recidivist

rapists and other forcible sex offenders

39.

-- there can be no question that this

interest is substantial and totally

10/

Coker v. Georgia, 433 U.S. 584, 597

legitimate. As this Court stated in

(1977), and as the Court of Appeals

below concluded, Hunt v. Roth, supra,

648 F.2d at 1162, forcible rape is a

highly reprehensible and serious crime.

There is no question that society should

be able to protect itself from rapists

and like offenders, considering the end

in itself.

The basic due process issue here

concerns neither the strength of the

detainee's interest in liberty noz

10. By this we mean the protection

of society from recidivism by persons

already convicted of such offenses. We

are not referring at this juncture to

the ultimate question of whether the

dangerousness of an accused may ever be

considered as a factor in the bail deci-

sion, an issue this Court need not

decide in this case. See also n. ll,

supra.

40.

Nebraska's desire to prevent future.

forcible rapes and similar crimes, for

both interests are highly important.

Rather, the issue is the particular

procedure employed by Nebraska to

accomplish its objective. In light of

the accused's vital interest in his

freedom, which requires a close, if not

strict, scrutiny by this Court of a law

infringing upon it (Turner, supra; cf.

Mow Sun Wong and Salfi, supra), must

Nebraska's legitimate end of societal

protection be achieved through more

individualized means? Under the test of

Mathews v. Eldridge, supra, we submit

that the key questions are first,

whether Nebraska's wholesale denial of

bail to accused forcible sex offenders,

where the proof is evident or the pre-

sumption great, creates an unacceptable

risk of erroneous deprivation of the

41.

detainee's liberty, and second, whether

an individualized hearing procedure that

did not presume the ultimate fact at

issue -- the purported dangerousness of

the accused -- would be administratively

feasible. Mathews v. Eldridge, supra,

424 U.S. at 335; U.S. Department of

Agriculture v. Murry, supra, 413 U.S. at

518 (Marshall, J., concurring).

To assess properly the risk of

erroneous deprivations of liberty posed

by the Nebraska 1978 bail amendment, it

must be recognized that there are three

related riddles of prediction involved

in this conclusive presumption of the

dangerousness of accused rapists and

like offenders if released before trial.

Each riddle is fraught with difficulty.

First, predictions of dangerousness

or future violence on the part of an

individual are generally unreliable as

42.

an empirical matter, even when studying

already convicted offenders, whether by

resort to comparisons of recidivism

rates, psychiatric "expertise", or other

11/

factors.

ll. As already discussed, see

discussion at n. 10, supra, and as the

Eighth Circuit has pointed out, Hunt v.

Roth, supra, 648 F.2d at 1164, we do not

reach, and this Court need not reach,

the difficult question of whether the

dangerousness of the individual defen-

dant, if capable of determination, can

ever be considered as a factor in a

pretrial release decision by a judge who

is exercising independent discretion.

The courts have divided over this issue.

Compare United States v. Wind, 527 F.2d

672 téth Cir. 1975), and United States

ex rel. Covington v. Coparo,

-Supp. ’ (S.D.N.Y¥Y. 1969), with

United States v. Beaman, 631 F.2d 85, 87

(6th Cir. 1980), and In re Underwood, 9

Cal.3d 345, 348-349, 107 Cal. Rptr. 401

(1973) (based on Cal. Const., Art. l,

§ 6). Since in this case the Nebraska

constitutional provision precludes any

exercise of discretion on the danger-

ousness issue with respect to forcible

sex offenders, but rather mandates that

dangerousness be presumed for such

defendants, we consider here the general

issue of predicting dangerousness

solely with respect to the reasonable-

ness of the ‘FTe" between means and

43.

The conclusion of one study is that

predictions of dangerousness by

psychiatrists in civil commitment pro-

ceedings are 65% to 85% wrong. See

Ennis & Litwack, Psychiatry and the

Presumption of Expertise: Flipping

Coins in the Courtroom, 62 Cal.L.Rev.

693, 713 (1974). Another study of over

4,000 California Youth Authority wards

could not identify any “operationally

practical" means to predict assaultive

potential. See Wenk, Robison & Smith,

Can Violence Be Predicted, 18 Crime &

Delinquency 393 (1972). A Harvard study

found no correlation between the type of

crime for which a person was first

ll. (Fn. Cont.)

ends that is involved in Nebraska's

conclusive presumption. See e

Harvard Note, s Supra n. 6, at 51-1556;

The Supreme arts 1974 Term, 89

arv.ble Vv. y or De

44.

arrested and the severity of the second

offense if there was one. Harvard

Study, supra, 6 Harv. Civ. Rights --

Civ. Lib. L.Rev. at 342.

A second difficulty inherent in

Nebraska's conclusive presumption is the

prediction of dangerousness as an

empirical matter for those who have only

been accused, and not yet convicted of

crimes. If such predictions are based

on anything, then presumably they rest

on the two-part notion that, at least in

certain identifiable cases, the accusa-

tion is true (i.e., the defendant com-

mitted the crime in question), and

second, the commission of the crime for

which charges are pending means that the

person will commit another similar crime

if given the opportunity. This two-step

premise often founders, however, at the

first step. The well-known Bellamy

45.

study of the effect of pretrial deten-

tion on conviction rates in New York

City showed that 20% of the defendants

who remained confined over the period of

the study received a dismissal (compared

to a 50% dismissal rate for those who

were released before trial). Bellamy

Study, supra, 8 Crim.L.Bull. at 468.

Thus, for at least the 20% who received

dismissals the presumption of recidivism

by detainees breaks down, to the extent

that it is based on the fact of convic-

tion. As to the second step, while

statistics as to the amount of recidi-

vist crime on bail remain elusive, one

commentator has summarized the results

of certain studies during the 1960's as

follows:

“Thus, while certainty is

unattainable, present indica-

tions are that the total

number of felony defendants

indicted for other felonies

46.

allegedly committed on

pretrial release is less than

10% of all accused felons on

pretrial release. Further-

more, the number of defendants

charged with and convicted of

violent crimes on bail, what-

ever the nature of the origi-

nal felony charge, is probably

only about 3 to 5%." Hickey,

Preventive Detention and the

Crime of Being Dangerous, 56

Geo.L. Rev. 38, 303 (1969)

{hereinafter Hickey].

Also, even assuming arguendo that

preventive detention, if properly

imposed at all, should be limited only

to those situations where there is a

significant likelihood of the commission

of a serious crime while on bail, it is

extremely difficult to predicate the

commission of serious crime on bail upon

the seriousness of the pending charged

offense. No study of crime on bail, to

counsel's knowledge, has yet demon-

strated any significant correlation

between the seriousness of the crime

47.

charged and the seriousness of the

crime, if any, committed on bail. See

Hickey, supra, at 304-308. Professor

Dershowitz has summarized well the

intractability of the problems posed in

predicting violent crime on bail:

"Predictions of human conduct

are difficult to make, for man

is a complex entity and the

world he inhabits is full of

unexpected occurrences.

Predictions of rare human

events are even more dif-

ficult. And predictions of

rare events occurring within a

short span of time are the

most difficult of all. Acts

of violence by persons

released while awaiting trial

are relatively rare events

(though more frequent among

certain categories of

suspects), and the relevant

time span is short. Accord-

ingly, the kind of predictions

under consideration begin with

heavy odds against their

accuracy. A predictor is

likely to be able to spot a

large number of persons who

would actually commit acts of

violence only if he is also

willing to imprison a very

much larger number of defen-

dants who would not, in fact,

48.

engage in violence if

released.” Dershowitz,

"Preventing ‘Preventive

Detention'", New York Review

of Books, March 13, 1969, at

puocay or ses ne CE”

Indeed, perhaps the worst reason for a

preventive detention statute, which

obviously focuses on the issue of crime

on bail, is alarm over a rising crime

rate in general, which may bear very

little correlation to the crime rate on

bail. See Hickey, supra, at 303.

The third predictive riddle

involved in the Nebraska scheme relates

to the “singling out" of accused forc-

ible sex offenders, as opposed to others

accused of violent non-capital crimes,

- for special “wholesale” treatment. That

is to say, even if this Court finds a

sufficient basis of accuracy for the

first two levels of prediction, there is

the further issue inherent in this

49.

conclusive presumption: i.e., the

labeling of accused forcible sex offen-

ders as being more dangerous if released

before trial than others accused of non-

capital violent felonies. Again, the

Harvard Study, referred to supra, showed

no correlation between the type of crime

of the first offense and the severity of

the second offense, if there was one. 6

Harv.Civ.Rts. -- Civ.Lib.L.Rev. at 342.

Also, the Harvard study attempted to

correlate 26 different variables to the

commission of crime on bail, but the

conclusion was that none of them evi-

denced a significant correlation, The

correlation coefficients if the defen-

dant had committed dangerous crimes in

the past ten years, or had used violence

in the initial crime for which charges

were pending, or had used a weapon in

the initial crime for which charges were

50.

pending, were .219, .062, and .054,

respectively. Harvard Study, supra, at

392.

Moreover, Nebraska's interest in

protecting society through the means it

has employed herein can only be

justified, even conceivably, if this

particular class of accused forcible

sex offenders is more likely to commit

further violent crime on bail than all

other classes of defendants accused of

non-capital violent crimes. However,

the only relevant evidence known to this

counsel indicates to the contrary.

According to a detailed study conducted

by the National Bureau of Standards in

1970, analyzing comparative recidivism

rates of those released pending trial,

persons accused of sexual assault

actually have a lower incidence of re-

arrest while on bail than those accused

51.

of many other crimes. The study also

found that of those persons accused of

sexual assault, released on bail, and

then subsequently re-arrested, there

were no subsequent re-arrests for

further sexual assaults or other sex

offenses. National Bureau of Standards,

Compilation and Use of Criminal Court

Data in Relation to the Pre-trial

Release of Defendants: Pilot Study

(1970), at 135, 168.

In sum, we submit that the risk of

erroneous deprivation of pre-trial

liberty among the class of defendants at

issue in this case is substantially and

unacceptably high. That is to say,

there is a large potential number of

such defendants who would not commit

serious crimes, particularly forcible

sex offenses, if released before trial.

Moreover, the fact that Nebraska's

52.

conclusive presumption against bail

applies only “where the proof is evident

or the presumption great" does not save

it from the above-described predictive

difficulties. That criterion merely

requires the trial court to find a cer-

tain degree of likelihood that the

defendant committed the forcible sex

offense for which charges are pending.

There is no requirement in the provi-

sion, however, that the trial court also

find, in light of the likelihood of com-

mission of the charged offense, that the

defendant will also commit further

serious crime if released. Indeed, even

if a trial court felt it could make such

a determination in individual cases,

predictions of future offenses that flow

from the likelihood of a recent offense

being committed are inherently unre-

liable as a general proposition. Thus,

53.

under the “proof is evident or presump-

tion great" language, the trial court is

neither making a prediction about the

future, nor could he do so in any scien-

tific manner. Nebraska's requirement

that such proof or presumption be found

obviously limits to some extent the

number of accused rapists and like

offenders who would otherwise be auto-

matically detained, but it is quite

irrelevant to the ultimate prediction

which Nebraska has mandated in all such

cases, and thus it does not cure the

fatal defect of gross over-inclusiveness.

By contrast, there are only slight

administrative burdens posed by

requiring Nebraska to prove, rather than

to presume, the dangerousness of the

accused to society if he were to be

released on bail. Obviously, under the

present Nebraska scheme the trial court

54.

must hold a bail hearing in any event,

so as to determine whether the “proof is

evident or the presumption great” as to

the charged offense. The elimination of

the conclusive presumption of danger-

ousness will simply require the prosecu-

tion to show, and the court to find,

that the defendant as an individual is

sufficiently dangerous, in terms of

future potential offenses, to be ineli-

12

gible for release pending trial.

12. Clearly there are additional

questions posed if the conclusive pre-

sumption is eliminated. We are not

suggesting, instead of the present irre-

buttable presumption, that there be a

"rebuttable" presumption of dangerous-

ness, which the forcible sex defendant

would have to overcome through some form

of showing. Rather, since it is the

state that has the interest of pro-

tecting society, that desires to have

the accused detained to serve that

interest, and that has best access to

the damaging evidence drawn from the

investigation of the offense which pro-

portedly shows dangerousness, the state

should retain the burden of proof on

that issue. As to the standard of

55.

Furthermore, the additional burden

generated by this widening of the scope

of Nebraska's present pretrial bail

12. (Fn. Cont.)

proof, we submit that the prosecution

should be required, at the very least,

to show the "“dangerousness" of the

accused by clear and convincing evi

dence. See United States v. war

"1321, 1358-1360 (D. ccApp. 19 981)

(Ferren, J., concurring in part and

dissenting in part) (concerning burden

of ep issue ~ District of Columbia

pretrial detention law); cf. Addington

v. Texas, 441 U.S. 418, 435-433 (1978)

(clear and convincing evidence standard

is sufficient for imposing involuntary

civil commitment, to protect the com-

munity from dangerous tendencies of some

who are mentally ill). If as we suggest

this Court strikes down Nebraska's

conclusive presumption, but does not

reach the final question of whether

dangerousness may ever be considered as

a factor for denying bail, then, of

course, Nebraska will have a further

opportunity to pass statutes providing

for the burden of proof, notice,

confrontation, and the like. See

enerally United States v. Edwards,

supra, 70 App.2nd 1321 (interpreting

District of Columbia pretrial detention

pitch Therefore, consideration of

these questions now ts not necessary to

the resolution of the case at bench.

56.

hearing is a tolerable one. While an

evidentiary hearing will be required,

instances of past or present conduct on

which the state proposes to rely to show

dangerousness should not be difficult to

ascertain, since the state has full

access to arrest and conviction records,

etc. In addition, Nebraska has a coun-

tervailing interest, although Nebraska

itself might not agree, in also ensuring

the basic fairness of adjudication and

the accuracy of findings on such an

important issue as dangerousness -- "in

short, an interest in not imprisoning

anyone unnecessarily. [citations

omitted.]" U.S. v. Edwards, supra, 430

App.2d at 1356 (Ferren, J., concurring

in part and dissenting in part).

We submit that, in light of the

pretrial detainee's vital interest in

liberty which is being infringed, and

57.

the requirement of heightened scrutiny

by this Court which flows from that

fact, the application of the doctrine is

entirely appropriate in this case. The

' use of the conclusive presumption

doctrine as a tool to review only those

statutes infringing on vital human

interests may have appeal to this Court,

as compared to the traditionally rigid,

two-tiered "strict scrutiny" and

“rational basis standards" for equal

protection review. It is evident that

conclusive presumption analysis, at

least in instances like the case at

bench, or Stanley, or LaFleur, has equal

protection components. After all, a

particular group -- pretrial detaineees

accused of forcible sex offenses, or

unwed fathers, or pregnant schoolteachers

-- are being singled out for arbitrary

treatment, in comparison to persons

58.

similarly situated, in situations where

arguably "fundamental" rights are impli-

cated. According to traditional equal

protection doctrine, a classification

that has a disparate impact on fundamen-

tal rights (either those expressly or

impliedly guaranteed by the those

expressly or impliedly guaranteed by the

13/

Constitution) must be subjected to

strict scrutiny, with the very likely

consequence of outright substantive

14/

invalidation. However, just as equal

protection analysis has become more

flexible in recent years, providing for

an “intermediate” standard of review in

13. See San Antonio Independent

School Dist. v. Rodriguez, -S. 1,38

14. See, e.g., Gunther, The Supreme

Court 1971 Term --Foreword: In Search o

Evolving Doctrine on a Changing Court:

A Model For A Newer Equal Protection, 86

Harv.L.Rev. 1, 6.

59.

cases of sex discrimination, for

example, ~~ this case, like Stanley and

LaFleur, provides the Court with an

opportunity to employ an in*ermediate

standard for purposes of due process.

Let us assume arguendo that a

pretrial detainee's interest in liberty

(which in the American criminal justice

system traditionally means his oppor-

tunity for bail) is vital enough to

invalidate a conclusive presumption

against it, but is not so fundamental in

the constitutional scheme so as to

trigger a "strict scrutiny/compelling

state interest" test. All that signi-

fies is that the state must allow the

detainee a hearing where he has the

chance to point to all pertinent factors

15. E.g., Reed v. Reed, 404 U.S.

71, 76 (1971); Craig v. Boren, 429 U.S.

190, 204 (1976).

60.

demonstrating that he as an individual

is an acceptable bail risk. As

Professor Tribe puts it, the true import

of Weinberger v. Salfi, supra, is:

". . ethat the invalidation of

irrebuttable presumptions [is]

but one of several techniques

included in intermediate

scrutiny, and that the tech-

niques, far from representing

a death-knell for the legisla-

tive use of per se rules,

simply requires legislatures

to proceed on a less whole-

sale basis if possible when

certain sensitive matters are

at stake. If it is understood

that this approach is taken

only when a Court might

Otherwise have invalidated the

legislation more sweepingly,

it emerges not as a area 2

legislative flex ut

as a restrained core oP Inter-

vention compared with the more

ee eat form of total

invalidation. |[fn. omitted,.]"

Tribe, American Constitutional Law,

supra, §§ 16-30, pp. 1088-1089; emphasis

added. See also Ackerman, supra n. 6,

at 773-776; Chase, supra n. 6 at 680-

684. However, we enter a basic caveat:

61.

as amicus curiae we offer conclusive

presumption analysis as an alternative

argument. If this Court were to hold, as

counsel for appellee is arguing, that

appellee Hunt and others similarly

situated have a fundamental constitu-

tional right to bail, and under the

strict scrutiny standard thus triggered

the state lacks a compelling state

interest (i.e., anticipated dangerous-

ness of sex offenders per se will never

suffice), then there has been a denial

of equal protection of the laws

requiring an outright invalidation of

the state's proferred purpose, as well

as the particular Nebraska provision at

issue. That is to say, under such a

holding consideration of the potential

dangerousness of only accused forcible

sex offenders, as opposed to defendants

accused of other non-capital violent

62.

crimes, would never be a valid state

objective, whether accomplished through

individual determinations or not. But

if this Court is not willing to go that

far, and finds that the detainee's

interest in liberty on bail is impor-

tant, but not constitutionally

guaranteed, then the due process issue

of the conclusive presumption herein

become not only pertinent, but an issue

that the Court must decide.

Having in mind the nature and

extent of that liberty interest, the

inherent weaknesses underlying the

general predictive assumptions of the

Nebraska provision, and the rather enor-

mous risk of erroneous deprivations of

the detainee's liberty, this conclusive

presumption must fall. As in Vlandis v.

Kline, supra, 412 U.S. at 452, if

Nebraska purports to be truly concerned

63.

with future dangerousness, the

Fourteenth Amendment's Due Process

Clause requires Nebraska to allow the

individual accused forcible sex

offender, like those accused of other

non-capital violent crimes, to show that

he is indeed not a dangerous risk to the

community if released before trial.

Assuming arguendo that the protection of

society may be a legitimate reason to

deny bail, individualized hearings are

required, as in Stanley v. Illinois,

Supra, 405 U.S. at 654-658, Cleveland

Board of Education v. LaFleur 414 U.S.

at 647-648, and Turner v. Department of

Employment Security of Utah, supra, 423

U.S. at 46, since the additional admin-

istrative burden does not compare in

significance to the basic human liberites

at stake (see Escandar v. Ferguson, 441

F.Supp. 53, 59-60 (S.D.Fla. 1977). In

64.

this context, the essential arbitrari-

ness of the Nebraska provision violates

due process.

CONCLUSION

For the foregoing reasons, the

decision below should be affirmed.

DATED: December 18, 1981

Respectfully submitted,

QUIN DENVIR

State Public Defender

of California

DAVID R. LIPSON

Deputy State Public

Defender

Attorneys for Amicus Curiae

65.