Amicus Curiae Brief — United States v. Salerno

AN

J

0

‘ No. 86-87

IN THE | .

Supreme Court of the United States

OCTOBER TERM, 1986

UNITED STATES OF AMERICA,

Petitioner,

V.

ANTHONY SALERNO and VINCENT CAFARO,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

PUBLIC DEFENDER SERVICE

FOR THE DISTRICT OF COLUMBIA

IN SUPPORT OF RESPONDENTS

CHERYL M. LONG

Director

JAMES KLEIN *

Chief, Appellate Division

DAviD A. REISER

ELIZABETH TAYLOR

JO-ANN WALLACE

PAUL A. LEDER

Staff Attorneys

PUBLIC DEFENDER SERVICE

451 Indiana Avenue, N.W.

Washington, D.C. 20001

* Counsel of Record (202) 628-1200

WILSON - Eres PrinTiNG Co. Inc. - 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES SSH ii

INTEREST OF AMICUS CURIAE 200...0.....ccccceccccceeeeee 1

SUMMARY OF ARGUMENT 2

ARGUMENT:

SECTION 3142 VIOLATES DUE PROCESS BE-

CAUSE IT PROVIDES INADEQUATE SAFE-

GUARDS AGAINST ERRONEOUS DETENTION.. 4

Ae 8

B. The Interest of the Accused dd 12

C. The Risk of Error and the Value of Additional

I 16

1. Procedures to Minimize the Risk of Errone-

ous Detentions of the Innocent 17

a. Standard of Proof 2220.00.00... cece eee 17

b. Opportunity for Confrontation 19

2. Procedures to Minimize the Risk of Errone-

ous Detentions of the Nondangerous .............. 21

a. Standard of Proof. q 23

TTT 24

c Opportunity for Confrontation 25

D. The Government's Interest in Unreliable Pro-

—æ 7 dis 26

CRIES ———̃ —„—-—-—¼— 28

ii

TABLE OF AUTHORITIES

Cases: Page

Addington v. Texas, 441 U.S. 418 (1979) ...... 14, 18, 19, 24

Allen v. Illinois, —— U.S. ——, 106 S.Ct. 2990

EE EEE ee 18

Barefoot v. Estelle, 463 U.S. 880 (1983) ................. 23

Barker v. Wingo, 407 U.S. 514 (1972777 12, 13

Bell v. Wolfish, 441 U.S. 520 (1979) ...................... — 6,12

Bivens v. Six Unknown Agents, 403 U.S. 388

EEL EES EE, eer OO 26

Black v. Romano, 471 U.S. 606 (1985) 4

Briscoe v. Lahue, 460 U.S. 725 (1983 26

Carbo v. United States, 82 S.Ct. 662 (1962) ............. 10

Coleman v. Burnett, 477 F.2d 1187 (D.C. Cir.

, / / , ! ,.... 20, 26, 27

Connally v. General Construction Co., 269 U.S. 393

F ... 6

Dennis v. United States, 384 U.S. 855 (1966) 27

De Veau v. United States, 454 A. 2d 1308 (D.C.

r EEE ET nat A 9

Gerstein v. Pugh, 420 U.S. 103 (1975) 9, 10

Greenholtz v. Inmares of Nebraska Penal Complez,

r 23

Greenwood v. United States, 350 U.S. 366 (1956) 10

Hirabayashi v. United States, 320 U.S. 81 (1943) 7

Hohri v. United States, 782 F.2d 227 (D.C. Cir.

1986), cert. granted, —— U.S. —— (Nov. 17,

EE EEE .. —

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

vacated as moot sub nom Murphy v. Hunt, 455

r

Illinois v. Gates, 462 U.S. 213 (19833

Imbler v. Pachtman, 424 U.S. 409 (1976)

Jones v. United States, 463 U.S. 354 (1983 6,

Jurek v. Texas, 428 U.S. 262 (1976) 0.0000.

Kolender v. Lawson, 461 U.S. 352 (1983)

Korematsu v. United States, 323 U.S. 214 (1944)

Massachusetts v. Upton, 466 U.S. 727 (1984)

Mathews v. Eldridge, 424 U.S. 319 (1976)

McCray v. Illinois, 386 U.S. 300 (1967) 25

—

ise} oo

Bm aw

nono

iii

TABLE OF AUTHORITIES—Continued

Page

Morrissey v. Brewer, 408 U.S. 471 (19727 20, 21, 27

Parratt v. Taylor, 451 U.S. 527 (19817) 26

Rose v. Mitchell, 443 U.S. 545 (1979) 26

Schall v. Martin, 467 U.S. 253 (1984) 2, 6, 10, 11, 20

Stack v. Boyle, 342 U.S. 1 (1961) .............................. 4

Stump v. Sparkman, 435 U.S. 349 (1979 ‘ 26

Ulster County Court v. Allen, 442 U.S. 140 (1979) 23

United States v. Colombo, 777 F.2d 96 (2d Cir.

Se 15

United States v. Contreras, 776 F.2d 51 (2d Cir.

1 —— ee 17

United States v. Edwards, 430 A. 2d 1321 (D.C.

1981) (en banc), cert. denied, 455 U.S. 1022

TTT passim

United States v. King, 482 F.2d 768 (D.C. Cir.

t 21

United States v. Matlock, 415 U.S. 164 (1974 25

United States v. Melendez-Carrion, 790 F.2d 984

EE ee 15, 16

United States v. Perry, 788 F.2d 100 (3d Cir.

c C——TTVVVVVVVVVVVVTVK„L„Crb 10, 20

United States v. Raddatz, 447 U.S. 667 (1980) 25

United States v. Salerno, 794 F.2d 64 (2d Cir.

. — 15

Vitek v. Jones, 445 U.S. 480 (1980) 14

Williamson v. United States, 184 F.2d 280 (2d Cir.

c 21

In ve Winship, 397 U.S. 358 (1969) 13

W. ers v. New York, 333 U.S 507 (194 6

Wolff v. McDonnell, 418 U.S. 539 (1974) —.............. 24

Federal Statutes and Rules:

r 22 c 26

TT passim

r ones 15, 16

r . » 6

— 18, 20

Fed. R. Cr. P. 12. I — — iia 27

08... 27

iv

TABLE OF AUTHORITIES—-Continued

Page

State Statutes and Constitutional Provisions:

, ereeesntiains 11, 19

Ariz. Rev. Stat. Ann. § 13-3961B (Supp. 1985) 11

( e 11,19

2 ea 11,19

Colo. Const. Art. II § 19(C) ( 15

D.C. Code $§ 28-1321 et %% 11

e ̃ ß. passim

D.C. Code § 28-1822.(d) (2) (A) .........................-........ 15

r -- 11,19

Fia. Stat. Ann. § 907.041 (4) .................................-0.0... 11

Fla. Stat. Ann. § 907.041 (4) (tv 15

Ga. Code Ann. § 17-6-1(b) (1)-(2) (Supp. 1986) 11

‘Haw. Rev. Stat. § 804-3 (b) (Supp. 1983) 11

Ill. Rev. Stat. Ch. 28 para. 110-4(a)_...... 11

e 11

e 11

Nev. Rev. Stat. §§ 178.484 et Sg 11

CF IT AAS 11

r . 11

Ore. Rev. Stat. § 185.200 (22 11

rr CE 11

r 11

ee . 11

r : 11

Wisc. Stat. Ann. § 969.035 (2) 11

Wisc. Stat. Ann. § 969.085 (6) 19

Wisc. Stat. Ann. § 969.035 ((2—TE“'J 15-16

Legislative History:

Reform of the Federal Criminal Laws: Hearings

before the Senate Committee on the Judiciary,

96th Cong., Ist Sess. (1979) ................................... 5

Report of Attorney General’s Task Force on Vio-

lent Crime: Hearings before the Subcommittee

on Crime of the House Committee on the Judici-

ary, 97th Cong., Ist Sess. (1981777 5

v

TABLE OF AUTHORITIES—Continued

Page

Bail Reform Act—1982-1982: Hearings on H.R.

3006, 4264, 4362 before House Subcommittee on

Crime, House Judiciary Committee, 97th Cong.,

eee. . 0%. 5

S. Rep. No. 98-225, 98th Cong., Ist — (1983) .... passim

H.R. Rep. No. 98-1121, 98th Cong., 2d Sess. (1984). 5, 21

I T 15

Miscellaneous:

ABA, Standards for Criminal Justice Pretrial Re-

lease (2d ed. 1980, revised 1985) 5, 14, 21, 24, 26

Ares, Rankin & Sturz, “The Manhattan Bail

Project: An Interim Report on Use of Pretrial

Parole,” 38 N. V. U. L. Rev. 67 (1963))))) 13

Attorney General's Committee on Poverty and The

Administration of Criminal Justice, Poverty

and the Administration of Federal Criminal

Justice,” reprinted in part in Hearings Before

the Subcommittee on Constitutienal Rights, Sen-

ate Judiciary Committee, 88th Cong., 2d Sess.

7 13

Duker, The Right to Bail: A Historical Inquiry,“

r RT arene 19

Ervin, “Foreword: Preventive Lctention—A Step

Backward for Criminal Justice,” 6 Harv. Civ.

Rts.—Civ. Lib. L. Rev. 291 (1971) ....................... 7

Ewing, “Schall v. Martin: Preventive Detention

Through the Looking Glass,” 34 Buff. L. Rev. 173

—— a ee ee 8, 22

Fishbein, “Unconstitutionality of Rebuttable Pre-

sumptions in the Bail Reform Act of 1984” (Ms.

% 24

8 Moore’s Fed. Practice para. 5.1.02 [1] (2d ed.

Ferre 17

Natalini, Comment: Preventive Detention and

Presuming Dangerousness under the Bail Re-

form Act of 1984,” 134 U. Pa. L. Rev. 225

rene ne eens eoenions 23, 24

vi

TABLE OF AUTHORITIES—Continued

Note, “Preventive Detention: An Empirical Analy-

sis,” 6 Harv. Civ. Rts.—Civ. Lib. L. Rev. 298

1c

Note, Problems with Granting Prosecutors’ Re-

quests for Continuances of Detention Hearings,”

39 Stan. L. Rev. 701 (forthcoming 1987) .............

Rankin, “The Effect of Pretrial Detention,” 39

EOS eee

Roth & Wice, “Pretrial Release and Misconduct in

the District of Columbia,” [“INSLAW Study“

717

U.S. Dept. of Justice, Bureau of Justice Statistics,

Pretrial Release and Misconduct (1988)

Wald, Pretrial Detention and Ultimate Freedom:

“A Statistical Study” 39 N.Y.U. L. Rev. 631

— .

Page

13, 22

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1986

No. 86-67

UNITED STATES OF AMERICA,

Petitioner,

v.

ANTHONY SALERNO and VINCENT CAFARO,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICUS CURIAE

PUBLIC DEFENDER SERVICE

FOR THE DISTRICT OF COLUMBIA

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

The Public Defender Service is an agency of the

District of Columbia established to represent indigent

persons charged with crimes in the United States District

Court and the Superior Court for the District of Colum-

bia. 1 D.C. Code § 2701 et seg. (1981). As counsel for a

large proportion of those accused of serious crimes in the

Superior Court, the Public Defender Service has acquired

considerable experience with the practical operation of

2

the preventive detention statute, 23 D.C. Code § 1322

(1981), which provided the blueprint for the federal law

now under consideration by this Court, and with the

devastating effect of preventive detention upon the rights

of the accused.

Preventive detention is new to the federal system, but

it has been authorized by statute in the District of Co-

lumbia since 1970. 84 Stat. 644, Pub. L. 91-358. In con-

sidering the bail reform legislation which resulted in 18

U.S.C. § 3142(e), Congress relied heavily upon testimony

and data drawn from the District’s experience, and upon

the reasoning of the District of Columbia Court of Ap-

peals upholding the preventive detention law. Edwards

v. United States, 430 A.2d 1321 (D.C. 1981) (en banc),

cert. denied, 455 U.S. 1022 (1982). Our experience is

therefore directly relevant to the factual and legal prem-

ise of Section 3142 (e).

SUMMARY OF THE ARGUMENT

We agree with the court below, and with the Respond-

ent, that preventive detention is contrary to fundamental

constitutional principles regardless of the procedures

adopted to make detention decisions in particular cases.

Our brief, however, will address a second aspect of the

facial validity of Section 3142(e): whether the statute

is capable of being interpreted and applied so as to pro-

vide sufficient protection against the wrongful pretrial

detention of innocent and nondangerous persons to satisfy

the due process clause of the Fifth Amendment.? * Sec-

tion 3142 e provides even less protection against erro-

The parties have consented to the filing of this Brief. Letters

of consent have been filed with the Clerk. Supreme Court Rule 36.2.

2 This Court need not reach the procedural issue, which was not

squarely considered below. See Schall v. Martin, 467 U.S. 253,

274 n.24 (1984) (court below intimated that it would reach same

result on procedural grounds).

ee ee

neous and prolonged incarceration before trial than its

model, 23 D.C. Code § 1322. We believe the lesson to be

drawn from the District of Columbia’s experiment with

preventive detention is that the government’s “regula-

tory” power to detain persons accused of crime solely

because they are believed to be dangerous, may be exer-

cised, if at all, only with the most scrupulous regard for

the liberty interests of the accused. This brief outlines

the minimal procedural safeguards our experience shows

are necessary to ensure that these determinations are

fair and accurate.

The principles which must guide this Court’s analysis

of the procedural mechanism Section 3142 creates are

straightforward and not in dispute. The issue is “whether

the procedural protections embodied in the pretrial de-

tention provisions provide ‘sufficient protection against

erroneous and unnecessary deprivations of liberty.’”

Brief for the United States (Pet. Br.) at 35, quoting

Schall v. Martin, 467 U.S. 253, 274 (1984). There are

two types of error which must be avoided: the detention

of persons innocent of the crime of which they have been

accused, regardless of their supposed dangerousness, and

the detention of nondangerous persons, regardless of their

guilt. Section 3142 fails to provide essential safeguards

against these errors, although the government has no

legitimate interest regulatory“ or otherwise—in im-

prisoning the innocent and nondangerous.

Perhaps the most significant shortcoming of the federal

law is that the factual showing of guilt the government

must make to justify pretrial detention is no greater than

the showing required to support an arrest. This flaw

results from congressional réliance on Edwards, which

applied Fourth Amendment principles rather than this

Court’s extensive procedural due process jurisprudence.

This Court’s due process decisions make clear that the

standard of proof required to support the deprivation of

the liberty interest at stake here is clear and convincing

4

evidence, not the minimal showing of probable cause

which suffices under the Fourth Amendment. Even if

this alone were insufficient to doom Section 3142 (e

under the due process clause, the statute also omits other

important safeguards crucial to the protection of the

fundamental liberty interest at stake here. The defend-

ant is denied notice of the specific allegations relied on to

prove dangerousness and the right to confront adverse

witnesses. See Black v. Romano, 471 U.S. 606, 612

(1985) (procedural safeguards in probation revocation

hearing). Moreover, in contrast to the District of Colum-

bia statute, Section 3142 (e), read in conjunction with the

federal Speedy Trial Act, 18 U.S.C. § 3161 et seg., does

not adequately limit the duration of the confinement and

loss of liberty to which a federal defendant is exposed.

ARGUMENT

SECTION 3142 VIOLATES DUE PROCESS BE-

CAUSE IT PROVIDES INADEQUATE SAFEGUARDS

AGAINST ERRONEOUS DETENTIONS

The Bail Reform Act of 1984 was, as Congress recog-

nized, a “significant departure” from American tradition.

“Comprehensive Crime Control Act of 1983,” S. Rep. 98-

225, 98th Cong., Ist Sess. 3 (1983). As this Court ex-

plained in Stack v. Boyle, 342 U.S. 1, 4 (1951) (cita-

tion omitted) :

This traditional right to freedom before conviction

permits the unhampered preparation of a defense,

and serves to prevent the infliction of punishment

prior to conviction. Unless this right to bail before

trial is preserved, the presumption of innocence, se-

cured after centuries of struggle, would lose its

meaning.

Until the enactment of the District of Columbia preven-

tive detention statute in 1970, the suspected dangerous-

5

ness of a person accused of a crime was not a legitimate

consideration in the setting of pretrial release conditions.“

3 The Bail Reform Act of 1984 was intended, in part, to remedy

the covert practice of detaining those suspected of dangerousness

by setting money bonds in an amount higher than required to

assure the defendant’s appearance at trial. S.Rep. 98-225 at 5, 11.

Because the Act retains the use of money bonds, however, the Bail

Reform Act allows this practice to continue, so that “dangerous”

persons may still be detained without resort to the statutory pre-

ventive detention procedures, and in cases where the showing re-

quired by the statute cannot be made.

4This case does not present the broader question, whether a

court may take dangerousness into account in setting release con-

ditions. Consequently, this Court could strike down Section 3142 (e)

without invalidating alternative bills proposed in Congress which

would allow dangerousness to play a part in the release decision

without authorizing preventive detention. E. g., House Rep. 98-

1121 60 (1984) (additional views of Rep. Kastenmeier, explaining

proposed substitute). See ABA Standards, Pretrial Release, 10-5.9

(b) (ii) (A), (B) (2d ed. 1980) (the ABA in 1985 revised its Stand-

ards to endorse limited preventive detention following a more ex-

tensive hearing than is permitted under 18 U.S.C. § 3142); Hear-

ings before House Subcommittee on Crime House Judiciary Com-

mittee, 97th Cong., Ist Sess. 66-70 (1982) (testimony of Judge

Sylvia Bacon, D.C. Superior Court) (ABA “does not favor the use

of preventive detention based solely upon a defendant’s past con-

duct as upon a general prediction of future dangerousness“ al-

though it does favor consideration of dangerousness); Hearings

before Senate Judiciary Committee, 97th Cong., 1st Sess. 11889-90

(1983) (same); Hearings before Senate Judiciary Committee, 96th

Cong., Ist Sess. 10328 (1979) (testimony of Prof. Dershowitz),

10340 (testimony of Bruce Beaudin, then director of D.C. Pretrial

Services Agency); 10912 (letter Prof. William Greenhalgh to Sen.

Kennedy stating ABA position) ; Hearings before Subcommittee on

Courts, Civil Liberties and the Administration of Justice, House

Judiciary Committee, 97th Cong., Ist & 2d Sess. 84, 95 (1983) (testi-

mony of Judge Tjoflat); 129 (testimony of Prof. George, stating

ABA position). Nor does this case require the Court to address the

constitutionality of statutes which permit detention of a defendant

who has violated a specific condition of release, such as an in-

struction not to violate any law. See, e.g., ABA Standards, Pretrial

Release, 10-5.4(b) (i) (revised 1985).

6

The presumption of innocence carried with it a presump-

tion of freedom from the loss of liberty and stigma asso-

ciated with a criminal conviction. In Bell v. Wolfish, 441

U.S. 520 (1979), this Court held that the presumption of

innocence does not limit the conditions of confinement

which may be imposed upon pretrial detainees. Wolfish

does not address the question presented here: whether

the government may curtail the fundamental liberty in-

terest of a presumptively innocent person accused of a

crime on the grounds of future dangerousness? See Wolf-

en, 441 U.S. at 534 n.15.

The government asks the Court to write the whole

issue of innocence out of its analysis of preventive de-

tention by asserting an expansive “regulatory” power to

imprison for suspected future dangerousness alone. Pet.

Br. at 11. But if a person innocent of wrongdoing could

be imprisoned solely because of likely future misconduct,

all of the constitutiona! protections now available to crim-

inal defendants would be surplusage; rarely would the

government seek to prove guilt beyond a reasonable doubt

This is especially true because of the breadth of the term

“safety of the community.” For example, this Court has held that

a non-violent petty theft is “dangerous” conduct for purposes of

involuntary commitment of an insanity acquittee to a mental hos-

pital. Jones v. United States, 463 U.S. 354, 365 n.14 (1983). Im-

prisonment of the dangerous would eviscerate not only the proce-

dural safeguards in the Bill of Rights, but the principle of legality

which constrains the exercise of the state’s ultimate coercive power.

An individual would have no way to be sure his or her future

conduct would not be deemed dangerous. Nor would a judge have

a sufficient basis for deciding which persons are dangerous and-

which are not. See Connally v. General Construction Co., 269 U.S.

385, 395 (1926); Winters v. New York, 333 U.S. 507 (1948). Fair

notice and the control of arbitrariness are the two fundamental

objectives of the void-for-vagueness doctrine. Kolender v. Lawson,

461 U.S. 352, 357 (1983). Whether imprisonment can be based

solely on “dangerousness” is a different question than whether

this factor can play a part in sentencing the convicted, for ex-

ample, as a “dangerous special offender” under 18 U.S.C. § 3575.

See Schall v. Martin, 467 U.S. at 278 n.30.

7

when it could incapacitate a citizen by establishing a risk

of future harm to the community in a civil regulatory

proceeding. Our constitutional heritage does not support

the government’s radical claim of such sweeping police

power. Hirabayashi v. United States, 320 U.S. 81

(1943), and Korematsu v. United States, 323 U.S. 214

(1944), reflect at best the ease with which such an all-

encompassing regulatory power may be abused.“ Indeed,

Congress has not authorized regulatory detention based

only on predicted criminality. Congress believed, how-

ever, that there exists a “small but identifiable” segment

of the population whose members are both guilty of past

criminal conduct and likely to be dangerous. S. Rep. 98-

225 at 6-7.

We agree with the Court of Appeals below, that the

imprisonment of this “small but identifiable” segment be-

fore trial violates our fundamental law because the gov-

ernment cannot show a compelling interest in detention

which overcomes the citizen’s fundamental interest in

„ Iiberty from bodily restraint” Greenholtz v. Nebraska

Inmates, 442 U.S. 1, 18 (Powell, J., concurring in part

New evidence has shown that the fears which inspired the

decision to detain Japanese-Americans were exaggerated. Hohri v.

United States, 782 F.2d 227 (D.C. Cir. 1986), cert. granted on other

grounds, U.S. —— (Nov. 17, 1986). The same is true of the

evidence supporting the preventive detention legislation at issue

here. As Senator Ervin wrote, “Preventive detention legislation

is an illustration of what happens when politics, public fear, and

creative hysteria join together to find a simple solution to a com-

plex problem.” “Foreword: Preventive Detention—A Step Back-

ward for Criminal Justice,” 6 Harv. C.R.-C.L. L.Rev. 291 (1971).

Just as subsequent evidence has undermined the premise of the

order for the detention of Japanese-Americans during World War

II, studies have shown that the “alarming problem” of crime com-

mitted by persons on pretrial release was not, as Congress appar-

ently thought in 1970, due to the liberal release provisions of the

1966 Bail Reform Act. Rather, it reflected national trends in crime

and demography. Roth & Wice, “Pretrial Release and Misconduct

in the District of Columbia,” [“INSLAW Study”] 3 (1980).

8

and dissenting in part). But even if the long tradition

described in Stack v. Boyle does not absolutely bar pre-

ventive detention, it does warrant this Court in seru—

tinizing the Bail Reform Act with scrupulous care.“

Judged by any standard, Section 3142 deprives pretrial

detainees of their liberty without due process of law.

A. The Framework

For over a decade, this Court has consistently followed

the analysis set forth in Mathews v. Eldridge, 424 US.

319, 335 (1976).

Identification of the specific dictates of due process

generally requires consideration of three distinct fac-

tors: First, the private interest that will be affecied

by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

7 The government argues, and we agree, that this Court generally

owes a large measure of respect to decisions by the legislative

branch. Pet. Br. at 15. This restraint must be balanced in this

case, however, by a vigilance for the rights of citizens who lack

a meaningful voice in the legislative process. A higher level of

scrutiny is also appropriate here because the legal basis for Sec-

tion 3142(e) is a court decision which this Court has not reviewed.

See S. Rep. 98-225 at 8 (discussing significance of Edwards). Since

Edwards, we submit, was wrongly decided on several important

points, the entire statute is based upon a faulty judicial premise

rather than independent congressional judgment. Finally, Congress

relied upon two empirical studies concerning pretrial recidivism

to support its view that this small group of dangerous criminal

defendants was also “identifiable.” S. Rep. 98-225 at 6 nn.14, 15.

These studies prove the opposite. They show, as do other studies,

that predictions of dangerousness are extremely unreliable, and

that any rule for detaining dangerous persons before trial will

necessarily entrap many other nondangerous and presumptively

innocent persons. Ewing, “Schall v. Martin; Preventive Detention

and Dangerousness Through The Looking Glass,” 34 Buff. L. Rev.

173, 181-196 (1985) (surveying studies); Note, Preventive De-

tention: An Empirical Analysis 6 Harv. C.R.-C.L. L. Rev. 298,

314 (1971).

substitute procedural safeguards; and finally, the

Government’s interest, including the function involved

and the fiscal and administrative burdens that the

additional or substitute procedural requirements

would entail.

The government agrees that Mathews’ due process anal-

ysis is appropriate. Pet. Br. at 35-36. Congress, how-

ever, relied on the District of Columbia Court of Appeals

decision in Edwards, which, in turn derived its pro-

cedural standard from Gerstein v. Pugh, 420 U.S. 103

(1975), rather than from this Court’s due process deci-

sions.

In Gerstein, this Court held that before a person ac-

cused of a crime may be detained pending further judi-

cial proceedings, a neutral and detached magistrate must

find probable cause to believe that he or she committed

the offense charged. The only issue decided in Gerstein

was what the Fourth Amendment required in order to

continue the warrantless seizure of a person past the ini-

tial appearances before a magistrate. Gerstein, 420 U.S.

at 125 n.27. Gerstein does not purport to decide what

protections the Due Process Clause requires before an

individual may be deprived of liberty on the basis of an

asserted government interest in preventing dangerous-

ness.“

The Gerstein standard is the same “practical, common

sense decision” Illinois v. Gates, 462 U.S. at 238, which

8 See United States v. Edwards, 430 A.2d at 1336-37. Judge

Ferren made this point in his dissent, id. at 1353-54. In DeVeau

v. United States, 454 A.2d 1808, 1315 (D.C. 1982), a panel of the

same court relied on Edwards for the proposition that “if a process

is adequate for Fourth Amendment purposes, there is no reason why

it should not be adequate for Fifth Amendment purposes.”

o This Court’s recent decisions in Illinois v. Gates, 462 U.S. 213

(1983) and Massachusetts v. Upton, 466 U.S. 727 (1984) reduce

the government’s burden in showing probable cause to support an

arrest or search warrant and cast additional doubt on the ade-

10

governs issuance of arrest warrants, and determines

whether a person may be held for trial. This Court need

not decide whether Gerstein’s Fourth Amendment holding

also satisfies the requirements of the Due Process Clause

to justify pretrial detention on the basis of risk of flight.

Detention under Section 3142 is a different matter

entirely. The government asserts the authority to detain

not by necessary implication from its power to bring an

individual to trial, but under a general “regulatory”

power to detain.“ By definition, the constitutional issue

here does not arise when an individual is unlikely to ap-

pear and may be detained for that reason. Therefore,

the government’s weighty interest in obtaining a deter-

mination of guilt or innocence cannot be used to justify

detention under Section 3142. Gerstein cannot supply the

measure of the process which is due; yet Gerstein is the

only process which Section 3142 provides to protect

against detention of an innocent person.

Schall v. Martin, 467 U.S. 253 (1984) applied the

Mathews v. Eldridge calculus to a New York statute

authorizing the brief detention of juveniles charged with

acts of delinquency rather than relying exclusively on

Fourth Amendment standards derived from Gerstein.

Schall did not place this Court’s imprimatur on preven-

tive detention in every form; indeed, Schall itself illus-

quacy of a Gerstein proffer to satisfy the requirements of due

process in a preventive detention hearing.

1 Since the United States does not have a general “police

power,” any “regulatory” detention must be related to some specific

power or function of the federal government. See Greenwood v.

United States, 350 U.S. 366 (1956); United States v. Perry, 788

F.2d 100, 109-11 (3d Cir. 1986). This distinction also differentiates

preventive detention of the supposedly dangerous from the detention

of those who pose specific threats to evidence or witnesses, see

Carbo v. United States, 82 S.Ct. 662 (1962) (Douglas, Cir. J.) or

mentally incompetent defendants pending trial. Greenwood, supra.

11 In Schall itself, the Court said, “[i]t may be, of course, that in

some circumstances detention of a juvenile would not pass constitu-

11

trates why the minimal safeguards available under Sec-

tion 3142 cannot satisfy the due process clause. The lib-

erty interest of the juvenile respondents in Schall was

slight in comparison to the interests of the adult criminal

defendants detained under Section 3142. Unlike a ju-

venile, an adult is not “always in some form of custody.”

Schall v. Martin, 467 U.S. at 265 Detention is not lim-

ited, as it was under the statute at issue in Schall, to a

maximum of seventeen days. 467 U.S. at 270. Nor, in

the case of adults, can the state’s parens patriae interest

add weight to the government’s side of the scales as it

did in Schall. 467 U.S. at 271.

tional muster.” 467 U.S. at 273. In contrast to the broad support of

preventive detention for juveniles noted in Schall, only four states

and the District of Columbia permit preventive detention of adults

solely on the basis of predicted future behavior. See Ariz. Const.

art. II, §22(3); Ariz. Rev. Stat. Ann. §13-3961B (Supp. 1985) ;

Cal. Const. art. I, §12(b); D.C. Code §1322; Code of Va.

§ 19.2-120(2); Wise. Stat. Ann. § 969.035(2), (6). Two states

permit preventive detention of adults based upon future dangerous-

ness only when the defendant has previous charges or convictions.

See Colo. Const. art. II, §19(b); Fla. Const. art. 1 § 14; Fla. Stat.

Ann. § 907.041(4). Ten other states authorize pretrial detention

when the defendant is accused of committing or previously has

been convicted of certain serious (non-capital) offenses. See Ga.

Code Ann. § 17-6-1(b)(1)-(2) (Supp. 1986); Haw. Rev. Stat.

§ 804-3(b) (Supp. 1984); Ill. Rev. Stat. ch. 38 para. 110-4 (a);

Mich. Const. art. I, §15; Neb. Const. art. 1, §9; Nev. Rev. Stat.

§§ 178.484 et seq.; N. M. Const. art. II, § 13; Ore. Const. art. I, § 14;

Ore. Rev. Stat. § 135.240 (2); R.I. Const. art. 1, §9; R.I. Gen.

Laws § 12-13-1.1; Tex. Const. art. I, § 11a. Certainly, [t]) he fact

that a practice is followed by a large number of states is not con-

clusive in a decision as to whether the practice accords with due

process, but it is plainly worth considering in determining whether

the practice ‘offends some principle of justice so rooted in the tradi-

tions and conscience of our people as to be ranked as fundamental.“

Schall, 467 U.S. at 268, quoting, Snyder v. Massachusetts, 291 U.S.

97, 105 (1934). The absence of a comparable consensus in support

of preventive detention of adults argues against its validity.

12

As the Court recognized in Schall, the proper analysis

is that set out in Mathews v. Eldridge. When the

Mathews test is applied to the preventive detention of

adults authorized under Section 3142, the balance of in-

terests necessarily is different from that struck by the

Court in Schall. Accordingly, we turn now to a discus-

sion of those interests.

B. The Interest of the Accused

The foremost interest of a person accused of a crime

is in retaining his freedom of movement before trial.

For the innocent, especially, but for every person accused

of a crime, the time before trial is a period of intense

emotional strain, when the support of family and friends

is badly needed. Imprisonment cuts the accused person

off from all that makes his life meaningful, and places

him in an often frightening and demeaning environ-

ment.“ For a person who has never been in prison be-

fore, pretrial detention may be the first step in the

“hardening” process which produces career criminals."

“Lengthy exposure to these conditions ‘has a destructive

effect on human character and makes the rehabilitation

of the individual offender much more difficult.’” Barker

v. Wingo, 407 U.S. 514, 520 n.12 (1972).

A pretrial detainee is likely to lose his job and liveli-

hood, which will adversely influence his future in two

distinct ways. First, it will make him a worse candidate

for probation if convicted, because he no longer has a

source of income or as stable a base in the community

as he did before he was arrested. The loss of employ-

12 Bell v. Wolfish upheld prison regulations restricting visits

and receipt of publications, and allowed double bunking and body

cavity searches.

13 A person with no prior criminal record may well be detained

if charged with a drug or weapons offense resulting in a presump-

tion under 18 U.S.C. § 3142(e) that no conditions of release will

assure the safety of the community.

13

ment may impair an accused person’s ability to prepare

a defense, since the loss of income limits his or her abil-

ity to hire an attorney and to pay the necessary costs of

investigation, expert witnesses, laboratory analysis, and

the like. Pretrial imprisonment may also have a more

direct effect on the ability to prepare a defense. See

Barker v. Wingo, 407 U.S. at 533, & n.35. A client who

is imprisoned is unable to assist counsel in gathering

evidence and identifying potential witnesses. Not infre-

quently, clients will know of witnesses by sight or nick-

name. Without a client’s assistance, these witnesses—

who are essential to the presentation of the defense—

cannot be located. The dramatic effects of pretrial incar-

ceration on both conviction rates and sentencing has been

documented in numerous studies, which demonstrate that

the loss of liberty before trial is strongly correlated to the

loss of liberty after trial.“

In addition to his loss of physical liberty, and concom-

itant isolation from family, friends, work, and his coun-

sel, the accused person who is detained under Section

3142 suffers a devastating loss of reputation as well.

This Court has recognized that the stigma of a label such

as “mentally ill” is a factor to be considered in weigh-

ing the individual’s liberty interest. In re Winship, 397

U.S. 358, 363 (1969) (state must prove juvenile’s guilt

beyond a reasonable doubt “both because of the possi-

14 Wald, “Pretrial Detention and Ultimate Freedom: A Statistical

Study” 39 N.Y.U. L. Rev. 631 (1964). U.S. Dept. of Justice, Bureau

of Justice Statistics, Pretrial Release and Misconduct 5 (1985). At-

torney General’s Committee on Poverty and The Administration of

Criminal Justice “Poverty and The Administration of Federal Crim-

ina! Justice,” reprinted in part in “Hearings before Subcommittee

on Constitutional Rights, Senate Judiciary Committee, 88th Cong.,

2d Sess. 218-220 (1964); Rankin, The Effect of Pretrial Deten-

tion,” 39 N.Y.U. L. Rev. 641 (1964); Ares, Rankin & Sturz, “The

Manhattan Bail Project: An Interim Report on the Use of Pretrial

Parole,” 38 N.Y.U. L. Rev. 67 (1963).

14

bility that he may lose his liberty upon conviction and

because of the certainty that he would be stigmatized by

the conviction”) ; Addington v. Texas, 441 U.S. 418, 426

(1979) ; Vitek v. Jones, 445 U.S. 480, 488 (1980). To be

labeled a member of the “small but identifiable group of

particularly dangerous defendants” is stigmatizing to a

degree completely independent of any loss of reputation

from the criminal charge itself.“ The accused therefore

has a greater interest in avoiding preventive detention

than he does in being free from pretrial detention of

comparable length to prevent flight.“

The individual’s liberty interest in avoiding detention

increases with the duration of pretrial incarceration. Un-

der Section 3142, detention lasts far longer than the maxi-

mum of seventeen days possible under the statute this

Court considered in Schall.“ The “costs” of an erroneous

15 There is certainly reason to believe that this labelling process

will also have an independent adverse effect on the defendant in

sentencing, if he is convicted.

16 Vitek v. Jones illustrates why Gerstein cannot provide the

standard of proof in a preventive detention case. In Vitek, the

Court held that additional process was required before a con-

victed prisoner could be transferred from a state prison to a

state mental hospital. Vitek upheld a District Court injunction re-

quiring a pre-transfer hearing, with notice, an opportunity to pre-

pare, an independent decisionmaker, counsel, a right to confront and

cross-examine witnesses except for good cause, a right to present

witnesses, and written findings. 445 U.S. at 494-95. Thus, even if

an accused person were detained under Gerstein in lieu of bond,

additional process would be due before that person could be “trans-

ferred” to preventive detention. Cf. ABA Standards, Pretrial Re-

lease, 10-5.4(b) (i) (B) (additional procedures required for deten-

tion of person already held because of risk of flight).

17 The Administrative Office of the Courts has collected statistics

which reflect the total number of detention hearings in reporting

districts (10,209 as of October, 1986), and the number of persons

detained (7,841). These data reflect only 63 of 92 judicial districts.

No separate statistics are kept on the average length of detention

15

determination are commensurately greater. Congress re-

jected proposals to adopt a specific time limit for de-

tention under Section 3142, comparable to those enacted

in the District of Columbia and other states allowing

detention on the basis of predicted dangerousness.”

of those detained under Section 3142(e). Telephone conversation

with Mr. Guy Willets, Chief, Pretrial Services Branch, Dec. 4, 1986.

Cases such as United States v. Salerno, 794 F.2d 64 (2d Cir.

1986) and United States v. Melendez-Carrion, 790 F.2d 984 (2d

Cir. 1986), reflect the fact that prosecutions resulting in preventive

detention are often complex and unlikely to be resolved without sig-

nificant exclusions of time under the Speedy Trial Act. 18 U.S.C.

§3161(h). See United States v. Colombo, 777 F.2d 96, 100-101

(2d Cir. 1985). Although Congress recognized that under the

Speedy Trial Act in theory cases come to trial within ninety days

after arrest, see Sen. Rep. No. 98-225 at 22 n.63, excludable time

may prolong pretrial detention for a year or more.

18 As Senator Mitchell, the former United States Attorney for

Maine, noted, the District of Columbia Court of Appeals in Edwards

viewed ‘the sixty day time limit as an integral part of the cir-

cumstances in which preventive detention does not contravene con-

stitutional guarantees.” 130 Cong. Rec. S938 (Feb. 3, 1984) (re-

marks of Sen. Mitchell). In the absence of such a provision, “we

run the risk of having many Americans in jail who have not been

convicted of anything, who are not in fact guilty of anything, and

without any standard limit on their detention.” Jd. at $939.

Senator Mitchell was speaking in support of an amendment to

the Bail Reform Act co-sponsored by Sen. Arlen Specter to add

a sixty day time limit to the Act. Id. at 8924. The amendment was

defeated. Jd. at $945.

1 The original statute passed in 1970 required the United States

Attorney to bring preventive detention cases to trial within sixty

days. 23 D.C. Code § 1322 (d) (2) (A). The Council of the District

of Columbia amended the statute in 1982 to permit an extension of

up to thirty days. 23 D.C. Code § 1322 (d) (4) (Supp. 1986], D.C.

Law 4-152.

Most of the states which permit preventive detention based upon

future dangerousness place specific time limitations on detention. See

Colo. Const. art. II, §19(c) (2) (90 days); D.C. Code § 1322 (d) (2)

(A) (60 days); Fla. Stat. Ann. 907.041 (4) (i) (90 days); Wisc.

16

Whether or not the length of detention authorized under

the Speedy Trial Act alone is sufficient to violate the

strictures of the Due Process Clause, see United States v.

Melendez-Carrion, 790 F.2d 984, 1007 (2d Cir. 1986)

(Feinberg, C.J., concurring), the length of detention au-

thorized under Section 3142 heightens the need for pro-

cedural protections.

C. The Risk of Error and the Value of Additional

Procedures

The second factor to be considered under Mathews is

the risk of an erroneous deprivation of the private in-

terest. There are two types of errors which must be

minimized if Section 3142 is to survive scrutiny under

the Due Process Clause. The first is the detention of a

person who is innocent of the charges brought against

him. Because Congress recognized that “regulatory” de-

tention could not be justified on the basis of predicted

dangerousness alone, a person who is acquitted of the

charges against him must be released, regardless of his

predicted future conduct. The “small but identifiable

group” Congress sought to detain was composed of per-

sons who were both guilty of past criminal conduct and

believed to be likely to commit future offenses. A sig-

nificant risk of error, therefore, is that an innocent person

may be detained for an extended period before his in-

nocence is established at trial. The second error which

must be avoided is the detention of a person who, even

if guilty as charged, is not likely to present a danger to

the community. This individual too, falls outside the net

which Congress intended to cast.

Stat. § 969.035(8) (60 days). Arizona, California and Virginia do

not specifically incorporate time restrictions on pretrial detention,

relying instead on their respective speedy trial provisions.

Of course, any time limits must be applied in such a way as to

ensure adequate opportunity for defense preparation. Cf. 18 U.S.C.

§ 3161 (e) (2).

17

Although the government baldly asserts, quoting Schall,

“There are simply no ‘additional procedures that would

significantly improve the accuracy of the determination

without unduly impinging on the achievement of legiti-

mate state purposes.’” Pet. Br. at 39, a quick review

of the procedures available under Section 3142 belies this

claim.

1. Procedures to Minimize the Risk of Erroneous

Detentions of the Innocent.

a. Standard of Proof

Despite the gravity of the 1 iterest at stake, Congress

has provided nothing more than the requirement of a find-

ing of probable cause to protect against the detention of

innocent persons. Even the District of Columbia law re-

quires a showing of a “substantial proability” that the

defendant committed the offense. 23 D.C. Code § 1322 (b

(2) (C), presumably more than the mere probable cause

Section 3142 requires. See United States v. Edwards,

430 A.2d at 1339 (analogizing standard to “likelihood of

success” standard to obtain civil injunction). Congress

rejected this higher standard although it “might give

some additional measure of protection against the possi-

bility of allowing pretrial detention of defendants who are

ultimately acquitted,” Sen. Rep. 98-225 at 18, because it

relied on the holding in Edward that probable cause was

constitutionally sufficient. In the case of a defendant who

is arrested following a grand jury indictment, which

serves as a determination of probable cause, United

States v. Contreras, 776 F.2d 51 (2d Cir. 1985); 8

Moore’s Fed. Practice F 5.102 [1] n.2 at 5.1-6-7 (2d ed.

1985), this means no hearing at all, on the issue of guilt

or innocence.” At best, even after a preliminary hearing,

20 These, of course, are the very cases in which the government’s

interest in avoiding a hearing is weakest, since the government

has had ample opportunity to gather its evidence. Moreover, in

these cases, the government has little bona fide interest in objecting

18

Fed. R. Cr. P. 5.1(a), a “probable cause” determination

means an intolerable risk of error when the stakes are as

high as they are under Section 3142.*' In several recent

eases, this Court has stressed the importance of a high

threshold of proof justifying deprivations of liberty like

those at issue here. Addington v. Texas (clear and con-

vineing evidence of mental illness and dangerousness re-

quired for involuntary civil commitment) ; Allen v. Illi-

nois, —— U.S. , 106 S.Ct. 2990, 2993 (1986) (not-

ing that dangerous sexual psychopath’s commission of

specific criminal acts must be proved beyond a reasonable

doubt) ; Jones v. United States, 463 U.S. 354, 367 (1984

(person found not guilty by reason of insanity has had

commission of criminal act proved beyond a reasonable

doubt; risk of error in proof of mental illness by a pre-

ponderance of the evidence diminished by the defendant’s

concession that he is mentally ill).

In Addington, this Court rejected arguments that the

standard of proving mental illness and dangerousness to

justify involuntary hospitalization should be the same as

the standard in a criminal trial. The Court noted that

civil commitment is “not punitive” 441 U.S. at 428, and

to providing “discovery” to the defense, since the government’s dis-

closure obligations under Fed. R. Cr. P. i6 are already in effect.

21“ When applied literally,” as it has been in some districts,

“subsection (f) automatically allows a prosecutor three extra days

for investigation and preparation for the detention hearing. As a

result, the statute provides for the possible detention without bail

of every person charged with a federal crime.” Note, “Problems

with Granting Prosecutors’ Requests for Continuances of Detention

Hearings,” 39 Stan. L. Rev. 701, (forthcoming 1987). This prac-

tice refutes the government's claim that Section 3142 provides more

procedural safeguards than the statute in Schall because “the juve-

nile detention procedures did not require a preliminary finding of

probable cause.” Pet. Br. n.21 at 39. As this Court noted in Schall,

„if a juvenile is detained at his initial appearance and has de-

nied the charges against him, he is entitled to a probable cause

hearing to be held not more than three days after the conclusion

of the initial appearance or four days after the filing of the peti-

tion, whichever is sooner.”

19

that the nature of the inquiry is fundamentally different

than the proof of facts in a criminal case. Id. at 429.

The Court squarely rejected, however, the preponderance

of the evidence standard:

The individual should not be asked to share equally

with society the risk of error when the possible injury

to the individual is significantly greater than any

possible harm to the state.

441 U.S. at 427. The same is true here. As in Adding-

ton, the government should be required to provide “clear

and convincing” proof of guilt before the court may order

preventive detention. The existing procedure is little

better than a coin toss.

b. Opportunity for Confrontation

A higher standard of proof would be virtually mean-

ingless without a real opportunity to test the government’s

case and to offer exculpatory evidence. The interest of the

accused in retaining his freedom is even greater than that

of the parolee is retaining his conditional liberty on

= History and current practice support this requirement. Early

colonial laws allowed the denial of bail in capital cases “where the

proof is evident, or the presumption great.” Duker, “The Right

to Bail: A Historical Inquiry,” 42 Alb. L. Rev. 33, 80-81 (1977).

See also Hunt v. Roth, 648 F.2d 1148, 1159 (8th Cir. 1981), vacated

as moot sub nom. Murphy v. Hunt, 455 U.S. 478 (1982). Although

bail was denied in capital cases because of risk of flight rather than

probable dangerousness, United States v. Edwards, 430 A.2d 1326

n.6, it was understood early that even in capital cases, a special

showing was required to justify making an exception to a general

rule favoring release on bail.

With one exception, see Code of Va. §19.2-120(2), the states

which permit pretrial detention for non-capital offenses on the

basis of dangerousness require more than probable cause of guilt

before a defendant may be detained. See Ariz. Const. art. II,

§ 22(3) (Cal. Const. art. I 5 12 (b) (fact evident presumption

great); Colo. Const. art. II, §19(b) (proof evident presumption

great); D.C. Code § 23-1322 (b) (2) (C) (substantial probability);

Fla. Stat. § 907.041 (4) (b) (substantial probability); Wisc. Stat.

Ann. § 969.035(6) (a) (clear and convincing).

20

parole release. In Morrissey v. Brewer, 408 U.S. 471, 489

(1972), this Court held that although not entitled to “the

full panoply of rights” due a criminal defendant, a parolee

must receive before revocation:

(a) written notice of the claimed violations of parole;

(b) disclosure to the parolee of evidence against him;

(e) opportunity to be heard in person and to present

witnesses and documentary evidence; (d) the right

to confront and cross-examine adverse witnesses (un-

less the hearing officer specifically finds good cause

for not allowing confrontation) ; (e) a “neutral and

detached” hearing body such as a traditional parole

board, members of which need not be judicial officers

or lawyers; and (f) a written statement by the

factfinders as to the evidence relied on and reasons

for revoking parole.

Astonishingly, a presumptively innocent person accused

of a crime receives less protection from an erroneous

deprivation of liberty than a parolee, who has already

been convicted and sentenced.

If he is lucky enough to have a preliminary hearing at

all, the accused will have no opportunity to confront the

witnesses against him, since the real witnesses will be in-

sulated by one or more layers of hearsay. Fed. R. Cr. P.

5.1 (a). Cf. Schall v. Martin, 467 U.S. at 275-76 (noting

that under New York statute probable cause must be

based on non-hearsay). Even though the risks arising

from confrontation of witnesses cannot reasonably be said

to be greater in a preventive detention hearing than they

are in a parole revocation hearing, under Section 3142 the

government bears no burden of justifying the denial of

confrontation by “good cause.” Questioning of witnesses

in preliminary hearings is often restricted even if the

question undermines the credibility of the government’s

evidence. See, e.g., Coleman v. Burnett, 477 F.2d 1187,

1200-1202 (D.C. Cir. 1973).* Nor does the defense have

23 For example, it is not uncommon for counsel to be denied an

opportunity to examine a witness on his opportunity to observe

21

a meaningful opportunity to counter the government’s

ease, least of all an innocent person accused of a crime

he did not commit who has ne opportunity to gather evi-

dence and to establish his innocence. At a minimum, a

pretrial detainee is entitled .o a hearing as full and reli-

able as the one which a parolee must receive before revoca-

tion of parole.

2. Procedures to Minimize the Risk of Erroneous

Detentions of the Nondangerous

In Williamson v. United States, 184 F.2d 280, 282-3

(2d Cir. 1950), Justice Jackson, as Circuit Justice, denied

the government’s motion to revoke the bond of allegedly

dangerous persons convicted of violating the Smith Act,

pending consideration of their petition for a writ of

certiorari. He wrote:

the person committing the crime, even though the unreliability of

the identification should be relevant to the existence of probable

cause. See e.g., United States v. King, 482 F.2d 768, 775 (D.C.

Cir. 1973).

Congress rejected a proposal to confer immunity on the de-

fendant’s testimony at the preventive detention hearing. H.R. 5865,

98th Cong., 2d Sess. See H. Rep. 98-1121 at 58 (additional views

of Reps. Frank and Glickman). See United States v. Perry, 788

F.2d at 115 (discussing dilemma and holding that judiciary may

confer immunity); ABA Standards, Pretrial Release, 80-5.10(c)

(1985); 23 D.C. Code § 1322 (d) (6) (1981) (testimony of defend-

ant inadmissible as evidence of guilt).

20 It is clear that the final revocation hearing contemplated by

Morrissey is more elaborate than the “preliminary hearing” con-

ducted to detain a parolee—temporarily—pending a revocation

hearing. See 408 U.S. at 487. But even at the initial hearing, “a

person who has given adverse information on which parole revoca-

tion is to be based is to be made available for questioning in his

presence. However, if the hearing officer determines that an in-

formant would be subjected to risk of harm of his identity were

disclosed, he need not be subjected to confrontation and cross

examination.” Id.

22

it is still difficult to reconcile with traditional Ameri-

can law the jailing of persons by the Court because

of anticipated but as yet uncommitted crimes. Im-

prisonment to protect society from predicted but un-

consumated offenses is so unprecedented in this coun-

try and so fraught with danger of excess and in-

justice, that I am loath to resort to it, even as a

discretionary judicial technique to supplement con-

viction of such offenses on those of which the de-

fendants stand convicted.”

This Court has said that, “from a legal point of view

there is nothing inherently unattainable about a predic-

tion of future criminal conduct.” Schall v. Martin, 467

U.S. at 278. But although it is possible to predict dan-

gerousness, those predictions are notoriously and intoler-

ably unreliable.“ See generally, Ewing, “Schall v.

Martin: Preventive Detention Through the Looking

Glass,” 54 Buff. L. Rev. 173 (1985). There may be legiti-

mate reasons for relying on such predictions in other

contexts—when we are dealing with persons who have

26 The convictions were ultimately affirmed. Dennis v. United

States, 341 U.S. 494 (1951).

27 Even the Justice Dep: rtment had its doubts about the reliability

of these predictions. In testimony before the House Committee on

Civil Rights, Civil Liberties, and the Administration of Justice,

Deputy Associate Attorney General Jeffrey Harris stated the gov-

ernment’s case as follows:

While surely predictions [of dangerousness] were not infalli-

ble, it is clear that the presence of certain combinations of

offense and offender characteristics . . have a strong positive

relationship to the probability that the defendant will commit

a new offense while on release.

Hearings at 164. Accord Sen. Rep. 98-225 at 9 (“strong positive

relationship to predicting the probability”). U.S. Dept. of Justice,

Bureau of Justice Statistics, “Pretrial Release and Misconduct” 4

(1985) (correlation between prior record and misconduct, but not

predictive enough to be more likely than not); INSLAW Study at

58. “A strong positive relationship to the probability” is not the

stuff of which clear and convincing evidence is made.

— u

23

already been convicted of a crime for purposes of sen-

tencing, e.g., Jurek v. Texas, 428 U.S. 262, 274 (1976)

(opinion of Stewart, Powell and Stevens, JJ.), Barefoot

v. Estelle, 463 U.S. 880, 890-902 (1983), or persons who

have been convicted and sentenced for purposes of parole,

e.g., Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,

6 (1979). Prediction is, by definition, the best we can do

and predicted dangerousness, however unreliable, is only

one of many factors which enter into these decisions. If

the prediction of dangerousness is to be the basis for

detaining a person pretrial, due process requires that the

inherent unreliability of such predictions be minimized to

the greatest extent practicable.

a. Standard of Proof

It is unclear what the government’s ultimate burden of

proof is under Section 3142. The statute requires clear

and convincing proof of the facts the judicial officer relies

on to find dangerousness. “The statute says nothing, how-

ever, regarding the degree of belief in dangerousness

these facts, once proven, must produce in the mind of the

judicial officer before the accused may be detained.” Nat-

alini, “Comment: Preventive Detention and Presuming

Dangerousness Under the Bail Reform Act of 1984,” 134

U. Pa. L. Rev. 225, 234 (1985).

Congress has cast additional doubt on the government’s

burden of establishing dangerousness by creating statu-

tory presumptions of dangerousness when the accused has

been charged with certain enumerated crimes. 18 U.S.C.

§ 3142 (e) (1), (2). Strangely, this presumption of “clear

and convincing” proof arises from a showing of probable

cause * that the defendant committed one of the specified

28 A presumption which bootstraps probable cause into clear and

convincing evidence is facially invalid. See Ulster County Court v.

Allen, 442 U.S. 140 (1979). This case, of course, does not present an

occasion specifically to consider the validity of the presumptions.

24

crimes. See generally Natalini, “Comment: Preventive

Detention and Presuming Dangerousness under the Bail

Reform Act of 1984,” 134 U. Pa. L. Rev. 225 (1985);

Fishbein, “Unconstitutionality of Rebuttable presump-

tions in the Bail Reform Act of 1984” (1986) (unpub-

lished ms. on file at the Yale Law Journal).

Unless the government shows that the accused will

prove a danger to the community by clear and convine-

ing evidence, the risk of erroneous determinations is ex-

cessive. There is nothing unattainable about this stand-

ard. See Addington v. Texas, 441 U.S. 418 (1979). To

the extent that Section 3142 accepts a lesser showing, it

violates the Due Process Clause.

b. Notice

Section 3142 is also deficient because it does not pro-

vide a person accused of a crime with notice and a mean-

ingful opportunity to rebut the claim that he is danger-

ous. See ABA Standards, Pretrial Release, 10.5.10(b)

(right to pre-hearing discovery) 10-5.4 (a) (ii) (prose-

cutor’s motion to detention must specify grounds for be-

lieving defendant meets standard for detention.”) “Safety

of the community,” is such an all-inclusive term, that a

defendant notified that the government is moving for

preventive detention will have no way to know what spe-

cific facts the government will try to establish at the

hearing, and which he must then try to rebut. Yet, even

in the dangerous and restrictive environment of a prison,

an inmate faced with internal disciplinary proceedings is

entitled, under the due process clause, to notice of the

facts the prison intends to reiy on at the disciplinary

hearing. Wolff v. McDonnell, 418 U.S. 539, 564 (1974).

The risk of error when the defendant is caught by sur-

The use of the presumptions does, however, cast some doubt on the

enforceability of the “clear and convincing” burden of proof in a

realm of inherently speculative and unreliable evidence.

prise and has no way to contradict the government’s evi-

dence is intolerable.” Yet, Section 3142 does not require

the government to provide the defense with notice of what

it intends to show at the hearing. This renders the de-

fendant’s right to seek a continuance of the hearing in

order to prepare, 18 U.S.C. § 3142(f), an empty formal-

ity in most cases.

c. Opportunity for Confrontation

The “clear and convincing” standard is meaningless,

if it is based entirely on hearsay evidence and proffer

which the defendant has no opportuntiy to test through

confrontation. Section 3142(f) suspends the normal rules

of evidence, and opens the gates to hearsay. Our experi-

ence in the District shows witnesses with personal knowl-

edge of the events to be proved may be removed from

the courtroom by one or more layers of hearsay.

The liberty interest at stake in a preventive detention

hearing is greater than that of a parolee in avoiding

revocation.” The right to confront and cross-examine

witnesses must be available here on the issue of future

dangerousness. This right cannot be limited, as it is in

Section 3142(f), to the cross-examination of “witnesses

who appear at the hearing,” when those witnesses are

2° Edwards held that notice of the prior acts relied on to estab-

lish a “pattern of behavior” manifesting dangerousness was consti-

tutionally required; the court found the notice on Edwards satisfied

constitutional standards, because Edwards’ counsel had received a

copy of his statement admitting several prior offenses before the

hearing, and because counsel attended a lineup. 430 A.2d at 1340-41.

% The higher standard for proving the facts relied on to predict

dangerousness requires a correspondingly greater opportunity to

investigate bias than is required in a suppression hearing where

the only issue is probable cause at the time of arrest. See United

States v. Raddatz, 447 U.S. 667, 679 (1980); United States v.

Matlock, 415 U.S. 164, 173-75 (1974); McCray v. Illinois, 386 U.S.

300 (1967).

mere conduits for unreliable and unsubstantiated charges.

See ABA Standards, Pretial Release 10-5.10(c) (normal

rules of evidence should apply at detention hearings).

Deprived of notice and the opportunity to gather evi-

dence, and the opportunity to contradict evidence by

cross-examination, an accused person faced with a pre-

ventive detention hearing is virtually powerless to over-

come the government’s allegations. The plight of the de-

fendant who must overcome a presumption of dangerous-

ness is even bleaker. Section 3142 omits safeguards

which are essential to the discovery of the truth.

D. The Government’s Interest in Unreliabie Procedures.

The government asserts an interest in detaining a

“small but identifiable’ group of dangerous persons

charged with federal crimes. But the government has no

valid interest in detaining the innocent or the nondan-

gerous under Section 3142.

To the extent that the government’s interest in avoid-

ing the procedures we have discussed is to prevent dis-

1 A person wrongfully detained under the 1984 Bail Reform Act

has no post-deprivation remedy for the loss of his employment, or

the physical and emotional suffering he has endured. The judge who

entered the detention order will be immune from liability, Stump

v. Sparkman, 435 U.S. 349 (1978), as will the prosecutor, Jmbler

v. Pachtman, 424 U.S. 409 (1976), and the witnesses who testified

against him, Briscoe v. Lahue, 460 U.S. 325 (1983). The govern-

ment has not waived its sovereign immunity with respect to such

claims. 28 U.S.C. § 2680. A detainee who is acquitted will not even

have the consolation of jail credit for time served.

This Court has considered the availability of post-deprivation

remedies in a number of contexts. E.g., Bivens v. Six Unknown

Agents, 403 U.S. 388, 420-21 (1971) (Burger, C.J., dissenting)

(effect of availability of civil remedy on 4th Amendment exclu-

sionary rule); Rose v. Mitchell, 443 U.S. 545, 583 n.4 (1978)

(Powell, J., concurring) (availability of civil injunctive relief,

criminal prosecution) ; Parratt v. Taylor, 451 U.S. 527, 543 (1981)

(post-deprivation remedy for loss of prisoner’s property).

27

closure of potential witness and evidence to the defense,

this interest is entitled to little weight. Increasingly, the

federal and state courts have rejected the “ambush”

model of trial, and have encouraged more complete dis-

covery before trial in criminal as well as civil cases. E. g.,

Fed. R. Cr. P. 26.2 (disclosure of witness statements) ;

Fed. R. Cr. P. 12.1 (notice of alibi defense). As this

Court said in Dennis v. United States, 384 U.S. 855, 871

(1966), [There is a] growing realization that disclosure

rather than suppression of relevant materials ordinarily

promotes the proper administration of criminal justice.”

The federal courts are well-equipped to limit examina-

tions to prevent improper efforts at discovery,” while

preserving the defendant’s rights to test the evidence on

which the government is relying to deprive him of his

liberty before trial. In comparison to the individual lib-

erty interest at stake, the government’s interest in avoid-

ing more reliable fact-finding procedures is insignifi-

cant.*

In fact, the government’s interest should be compatible

with the interest of the accused in reliable decision-mak-

ing. The imprisonment of the innocent impairs the pub-

lic interest in assuring all citizens the unfettered enjoy-

ment to life, liberty, and property, so long as they do not

32 See Coleman v. Burnett, supra. Any interest in avoiding harm

to a particular witness can be satisfied, on a showing of good cause,

by appropriate protective orders. The presumption, however, should

be in favor of full cross-examination, just as it is in parole revoca-

tion hearings. Morrissey v. Brewer, 408 U.S. at 489.

33 The government certainly has no interest in a lower standard

of proof simply because at an early stage in the case it has little

evidence. Although no one argues that the applicable standard

should be the same as that for conviction, the defendant’s liberty

interest requires that the evidence to detain for months or years

be more substantial than what is required to justify an arrest.

Moreover, as a practical matter, many federal detention hearings

will follow an extensive grand jury investigation and an indictment.

28

violate the law. The more erroneous preventive detention

decisions that are made, the greater the harm to the

sense of security from wrongful imprisonment which

every citizen should enjoy. The denial of procedural safe-

guards which would make preventive detention decisions

more accurate cannot be justified solely on the ground

that it will be easier for the government to win detention

hearings without them.

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

CHERYL M. LONG

Director

JAMES KLEIN *

Chief, Appellate Division

DAVID A. REISER

ELIZABETH TAYLOR

JO-ANN WALLACE

PAUL A. LEDER

Staff Attorneys

PUBLIC DEFENDER SERVICE

451 Indiana Avenue, N.W.

Washington, D.C. 20001

(202) 628-1200

* Counsel of Record

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