# Amicus Brief — Murphy v. Hunt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 478

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2332%3A07. Public record. Not legal advice.