The Bail Reform Act of 1984 (Act) requires courts to detain
prior to trial arrestees charged with certain serious felonies if
the Government demonstrates by clear and convincing evidence, after
an adversary hearing, that no release conditions "will reasonably
assure . . . the safety of any other person and the community." 18
U.S.C. § 3142(e) (1982 ed., Supp. III). The Act provides arrestees
with a number of procedural rights at the detention hearing,
including the right to request counsel, to testify, to present
witnesses, to proffer evidence, and to cross-examine other
witnesses. The Act also specifies the factors to be considered in
making the detention decision, including the nature and seriousness
of the charges, the substantiality of the Government's evidence,
the arrestee's background and characteristics, and the nature and
seriousness of the danger posed by his release. Under the Act, a
decision to detain must be supported by written findings of fact
and a statement of reasons, and is immediately reviewable. After a
hearing under the Act, the District Court ordered the detention of
respondents, who had been charged with 35 acts of racketeering
activity. The Court of Appeals reversed, holding that § 3142(e)'s
authorization of pretrial detention on the ground of future
dangerousness is facially unconstitutional as violative of the
Fifth Amendment's substantive due process guarantee.
1. Given the Act's legitimate and compelling regulatory purpose
and the procedural protections it offers, § 3142(e) is not facially
invalid under the Due Process Clause. Pp. 481 U. S.
(a) The argument that the Act violates substantive due process
because the detention it authorizes constitutes impermissible
punishment before trial is unpersuasive. The Act's legislative
history clearly indicates that Congress formulated the detention
provisions not as punishment for dangerous individuals, but as a
potential solution to the pressing societal problem of crimes
committed by persons on release. Preventing danger to the community
is a legitimate regulatory goal. Moreover, the incidents of
detention under the Act are not excessive in relation to that goal,
since the Act carefully limits the circumstances under which
detention may be sought to the most serious of crimes, the arrestee
is entitled to a prompt hearing, the maximum length of
Page 481 U. S. 740
is limited by the Speedy Trial Act, and detainees must be housed
apart from convicts. Thus, the Act constitutes permissible
regulation, rather than impermissible punishment. Pp. 481 U. S.
(b) The Court of Appeals erred in ruling that the Due Process
Clause categorically prohibits pretrial detention that is imposed
as a regulatory measure on the ground of community danger. The
Government's regulatory interest in community safety can, in
appropriate circumstances, outweigh an individual's liberty
interest. Such circumstances exist here. The Act narrowly focuses
on a particularly acute problem -- crime by arrestees -- in which
the Government's interests are overwhelming. Moreover, the Act
operates only on individuals who have been arrested for particular
extremely serious offenses, and carefully delineates the
circumstances under which detention will be permitted. Pp.
481 U. S.
(c) The Act's extensive procedural safeguards are specifically
designed to further the accuracy of the
likelihood-of-future-dangerousness determination, and are
sufficient to withstand respondents' facial challenge, since they
are more than "adequate to authorize the pretrial detention of at
least some [persons] charged with crimes." Schall v.
Martin, 467 U. S. 253
467 U. S. 264
Pp. 481 U. S.
2. Section 3142(e) is not facially unconstitutional as violative
of the Excessive Bail Clause of the Eighth Amendment. The
contention that the Act violates the Clause because it allows
courts essentially to set bail at an infinite amount for reasons
not related to the risk of flight is not persuasive. Nothing in the
Clause's text limits the Government's interest in the setting of
bail solely to the prevention of flight. Where Congress has
mandated detention on the basis of some other compelling interest
-- here, the public safety -- the Eighth Amendment does not require
release on bail. Pp. 481 U. S.
794 F.2d 64, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
p. 481 U. S. 755
STEVENS, J., filed a dissenting opinion, post,
481 U. S.
Page 481 U. S. 741
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
The Bail Reform Act of 1984 (Act) allows a federal court to
detain an arrestee pending trial if the Government demonstrates by
clear and convincing evidence after an adversary hearing that no
release conditions "will reasonably assure . . . the safety of any
other person and the community." The United States Court of Appeals
for the Second Circuit struck down this provision of the Act as
facially unconstitutional, because, in that court's words, this
type of pretrial detention violates "substantive due process." We
granted certiorari because of a conflict among the Courts of
Appeals regarding the validity of the Act. [Footnote 1
] 479 U.S. 929 (1986). We hold that, as
against the facial attack mounted by these respondents, the Act
fully comports with constitutional requirements. We therefore
Page 481 U. S. 742
Responding to "the alarming problem of crimes committed by
persons on release," S.Rep. No. 98-225, p. 3 (1983), Congress
formulated the Bail Reform Act of 1984, 18 U.S.C. § 3141 et
(1982 ed., Supp. III), as the solution to a bail crisis
in the federal courts. The Act represents the National
Legislature's considered response to numerous perceived
deficiencies in the federal bail process. By providing for sweeping
changes in both the way federal courts consider bail applications
and the circumstances under which bail is granted, Congress hoped
"give the courts adequate authority to make release decisions
that give appropriate recognition to the danger a person may pose
to others if released."
S.Rep. No. 98-225, at 3.
To this end, § 3141(a) of the Act requires a judicial officer to
determine whether an arrestee shall be detained. Section 3142(e)
"[i]f, after a hearing pursuant to the provisions of subsection
(f), the judicial officer finds that no condition or combination of
conditions will reasonably assure the appearance of the person as
required and the safety of any other person and the community, he
shall order the detention of the person prior to trial."
Section 3142(f) provides the arrestee with a number of
procedural safeguards. He may request the presence of counsel at
the detention hearing, he may testify and present witnesses in his
behalf, as well as proffer evidence, and he may cross-examine other
witnesses appearing at the hearing. If the judicial officer finds
that no conditions of pretrial release can reasonably assure the
safety of other persons and the community, he must state his
findings of fact in writing, § 3142(i), and support his conclusion
with "clear and convincing evidence," § 3142(f).
The judicial officer is not given unbridled discretion in making
the detention determination. Congress has specified the
considerations relevant to that decision. These factors include the
nature and seriousness of the charges, the substantiality of the
Government's evidence against the arrestee, the
Page 481 U. S. 743
arrestee's background and characteristics, and the nature and
seriousness of the danger posed by the suspect's release. §
3142(g). Should a judicial officer order detention, the detainee is
entitled to expedited appellate review of the detention order. §§
Respondents Anthony Salerno and Vincent Cafaro were arrested on
March 21, 1986, after being charged in a 29-count indictment
alleging various Racketeer Influenced and Corrupt Organizations Act
(RICO) violations, mail and wire fraud offenses, extortion, and
various criminal gambling violations. The RICO counts alleged 35
acts of racketeering activity, including fraud, extortion,
gambling, and conspiracy to commit murder. At respondents'
arraignment, the Government moved to have Salerno and Cafaro
detained pursuant to § 3142(e), on the ground that no condition of
release would assure the safety of the community or any person. The
District Court held a hearing at which the Government made a
detailed proffer of evidence. The Government's case showed that
Salerno was the "boss" of the Genovese crime family of La Cosa
Nostra, and that Cafaro was a "captain" in the Genovese family.
According to the Government's proffer, based in large part on
conversations intercepted by a court-ordered wiretap, the two
respondents had participated in wide-ranging conspiracies to aid
their illegitimate enterprises through violent means. The
Government also offered the testimony of two of its trial
witnesses, who would assert that Salerno personally participated in
two murder conspiracies. Salerno opposed the motion for detention,
challenging the credibility of the Government's witnesses. He
offered the testimony of several character witnesses, as well as a
letter from his doctor stating that he was suffering from a serious
medical condition. Cafaro presented no evidence at the hearing, but
instead characterized the wiretap conversations as merely "tough
The District Court granted the Government's detention motion,
concluding that the Government had established by
Page 481 U. S. 744
clear and convincing evidence that no condition or combination
of conditions of release would ensure the safety of the community
or any person:
"The activities of a criminal organization such as the Genovese
Family do not cease with the arrest of its principals and their
release on even the most stringent of bail conditions. The illegal
businesses, in place for many years, require constant attention and
protection, or they will fail. Under these circumstances, this
court recognizes a strong incentive on the part of its leadership
to continue business as usual. When business as usual involves
threats, beatings, and murder, the present danger such people pose
in the community is self-evident."
(SDNY 1986). [Footnote 2
Respondents appealed, contending that, to the extent that the
Bail Reform Act permits pretrial detention on the ground that the
arrestee is likely to commit future crimes, it is unconstitutional
on its face. Over a dissent, the United States Court of Appeals for
the Second Circuit agreed. 794 F.2d 64 (1986). Although the court
agreed that pretrial detention could be imposed if the defendants
were likely to intimidate witnesses or otherwise jeopardize the
trial process, it found
"§ 3142(e)'s authorization of pretrial detention [on the ground
of future dangerousness] repugnant to the concept of substantive
due process, which we believe prohibits the total deprivation of
liberty simply as a means of preventing future crimes."
at 71-72. The court concluded that the Government
could not, consistent with due process, detain persons who had not
been accused of any crime merely because they were thought to
present a danger to the community. Id.
at 72, quoting
United States v. Melendez-Carrion,
Page 481 U. S. 745
984, 1000-1001 (CA2 1986) (opinion of Newman, J.). It reasoned
that our criminal law system holds persons accountable for past
actions, not anticipated future actions. Although a court could
detain an arrestee who threatened to flee before trial, such
detention would be permissible because it would serve the basic
objective of a criminal system -- bringing the accused to trial.
The court distinguished our decision in Gerstein v. Pugh,
420 U. S. 103
(1975), in which we upheld police detention pursuant to arrest. The
court construed Gerstein
as limiting such detention to the
"administrative steps incident to arrest.'" 794 F.2d at 74,
quoting Gerstein, supra, at 114. The Court of Appeals also
found our decision in Schall v. Martin, 467 U.
S. 253 (1984), upholding postarrest, pretrial detention
of juveniles, inapposite because juveniles have a lesser interest
in liberty than do adults. The dissenting judge concluded that, on
its face, the Bail Reform Act adequately balanced the Federal
Government's compelling interests in public safety against the
detainee's liberty interests.
A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger
must establish that no set of circumstances exists under which the
Act would be valid. The fact that the Bail Reform Act might operate
unconstitutionally under some conceivable set of circumstances is
insufficient to render it wholly invalid, since we have not
recognized an "overbreadth" doctrine outside the limited context of
the First Amendment. Schall v. Martin, supra,
at 269, n.
18. We think respondents have failed to shoulder their heavy burden
to demonstrate that the Act is "facially" unconstitutional.
Page 481 U. S. 746
Respondents present two grounds for invalidating the Bail Reform
Act's provisions permitting pretrial detention on the basis of
future dangerousness. First, they rely upon the Court of Appeals'
conclusion that the Act exceeds the limitations placed upon the
Federal Government by the Due Process Clause of the Fifth
Amendment. Second, they contend that the Act contravenes the Eighth
Amendment's proscription against excessive bail. We treat these
contentions in turn.
The Due Process Clause of the Fifth Amendment provides that "No
person shall . . . be deprived of life, liberty, or property,
without due process of law. . . ." This Court has held that the Due
Process Clause protects individuals against two types of government
action. So-called "substantive due process" prevents the government
from engaging in conduct that "shocks the conscience," Rochin
v. California, 342 U. S. 165
342 U. S. 172
(1952), or interferes with rights "implicit in the concept of
ordered liberty," Palko v. Connecticut, 302 U.
, 302 U. S.
-326 (1937). When government action depriving a
person of life, liberty, or property survives substantive due
process scrutiny, it must still be implemented in a fair manner.
Mathews v. Eldridge, 424 U. S. 319
424 U. S. 335
(1976). This requirement has traditionally been referred to as
"procedural" due process.
Respondents first argue that the Act violates substantive due
process because the pretrial detention it authorizes constitutes
impermissible punishment before trial. See Bell v.
Wolfish, 441 U. S. 520
441 U. S. 535
and n. 16 (1979). The Government, however, has never argued that
pretrial detention could be upheld if it were "punishment." The
Court of Appeals assumed that pretrial detention under the Bail
Reform Act is regulatory, not penal, and we agree that it is.
As an initial matter, the mere fact that a person is detained
does not inexorably lead to the conclusion that the government has
imposed punishment. Bell v. Wolfish, supra,
Page 481 U. S. 747
537. To determine whether a restriction on liberty constitutes
impermissible punishment or permissible regulation, we first look
to legislative intent. Schall v. Martin,
467 U.S. at
467 U. S. 269
Unless Congress expressly intended to impose punitive restrictions,
the punitive/regulatory distinction turns on
"'whether an alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and whether it
appears excessive in relation to the alternative purpose assigned
quoting Kennedy v. Mendoza-Martinez,
372 U. S. 144
372 U. S.
We conclude that the detention imposed by the Act falls on the
regulatory side of the dichotomy. The legislative history of the
Bail Reform Act clearly indicates that Congress did not formulate
the pretrial detention provisions as punishment for dangerous
S.Rep. No. 98-225, at 8. Congress instead
perceived pretrial detention as a potential solution to a pressing
societal problem. Id.
at 4-7. There is no doubt that
preventing danger to the community is a legitimate regulatory goal.
Schall v. Martin, supra.
Nor are the incidents of pretrial detention excessive in
relation to the regulatory goal Congress sought to achieve. The
Bail Reform Act carefully limits the circumstances under which
detention may be sought to the most serious of crimes. See
18 U.S.C. § 3142(f) (detention hearings available if case involves
crimes of violence, offenses for which the sentence is life
imprisonment or death, serious drug offenses, or certain repeat
offenders). The arrestee is entitled to a prompt detention hearing,
and the maximum length of pretrial detention is
limited by the stringent time limitations of the Speedy Trial Act.
U.S.C. § 3161 et seq.
(1982 ed. and Supp. III). Moreover,
as in Schall v. Martin,
the conditions of confinement
envisioned by the Act "appear to reflect the regulatory purposes
relied upon by the" Government.
Page 481 U. S. 748
467 U.S. at 467 U. S. 270
As in Schall,
the statute at issue here requires that
detainees be housed in a "facility separate, to the extent
practicable, from persons awaiting or serving sentences or being
held in custody pending appeal." 18 U.S.C. § 3142(i)(2). We
conclude, therefore, that the pretrial detention contemplated by
the Bail Reform Act is regulatory in nature, and does not
constitute punishment before trial in violation of the Due Process
The Court of Appeals nevertheless concluded that
"the Due Process Clause prohibits pretrial detention on the
ground of danger to the community as a regulatory measure, without
regard to the duration of the detention."
794 F.2d at 71. Respondents characterize the Due Process Clause
as erecting an impenetrable "wall" in this area that "no
governmental interest -- rational, important, compelling or
otherwise -- may surmount." Brief for Respondents 16.
We do not think the Clause lays down any such categorical
imperative. We have repeatedly held that the Government's
regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual's liberty interest. For
example, in times of war or insurrection, when society's interest
is at its peak, the Government may detain individuals whom the
Government believes to be dangerous. See Ludecke v.
Watkins, 335 U. S. 160
(1948) (approving unreviewable executive power to detain enemy
aliens in time of war); Mover v. Peabody, 212 U. S.
, 212 U. S. 84
(1909) (rejecting due process claim of individual jailed without
probable cause by Governor in time of insurrection). Even outside
the exigencies of war, we have found that sufficiently compelling
governmental interests can justify detention of dangerous persons.
Thus, we have found no absolute constitutional barrier to detention
of potentially dangerous resident aliens pending deportation
proceedings. Carlson v. Landon, 342 U.
, 342 U. S.
-542 (1952); Wong Wing v. United States,
163 U. S. 228
(1896). We have also held that the government may detain mentally
unstable individuals who present a danger
Page 481 U. S. 749
to the public, Addington v. Texas, 441 U.
(1979), and dangerous defendants who become
incompetent to stand trial, Jackson v. Indiana,
406 U. S. 715
406 U. S.
-739 (1972); Greenwood v. United States,
350 U. S. 366
(1956). We have approved of postarrest regulatory detention of
juveniles when they present a continuing danger to the community.
Schall v. Martin, supra.
Even competent adults may face
substantial liberty restrictions as a result of the operation of
our criminal justice system. If the police suspect an individual of
a crime, they may arrest and hold him until a neutral magistrate
determines whether probable cause exists. Gerstein v.
Pugh, 420 U. S. 103
(1975). Finally, respondents concede and the Court of Appeals noted
that an arrestee may be incarcerated until trial if he presents a
risk of flight, see Bell v. Wolfish,
441 U.S. at
441 U. S. 534
or a danger to witnesses.
Respondents characterize all of these cases as exceptions to the
"general rule" of substantive due process that the government may
not detain a person prior to a judgment of guilt in a criminal
trial. Such a "general rule" may freely be conceded, but we think
that these cases show a sufficient number of exceptions to the rule
that the congressional action challenged here can hardly be
characterized as totally novel. Given the well-established
authority of the government, in special circumstances, to restrain
individuals' liberty prior to or even without criminal trial and
conviction, we think that the present statute providing for
pretrial detention on the basis of dangerousness must be evaluated
in precisely the same manner that we evaluated the laws in the
cases discussed above.
The government's interest in preventing crime by arrestees is
both legitimate and compelling. De Veau v. Braisted,
363 U. S. 144
363 U. S. 155
(1960). In Schall, supra,
we recognized the strength of
the State's interest in preventing juvenile crime. This general
concern with crime prevention is no less compelling when the
suspects are adults. Indeed, "[t]he
Page 481 U. S. 750
harm suffered by the victim of a crime is not dependent upon the
age of the perpetrator." Schall v. Martin, supra,
467 U. S.
-265. The Bail Reform Act of 1984 responds to an even
more particularized governmental interest than the interest we
sustained in Schall.
The statute we upheld in
permitted pretrial detention of any juvenile
arrested on any charge after a showing that the individual might
commit some undefined further crimes. The Bail Reform Act, in
contrast, narrowly focuses on a particularly acute problem in which
the Government interests are overwhelming. The Act operates only on
individuals who have been arrested for a specific category of
extremely serious offenses. 18 U.S.C. § 3142(f). Congress
specifically found that these individuals are far more likely to be
responsible for dangerous acts in the community after arrest.
S.Rep. No. 98-225, at 6-7. Nor is the Act by any means
a scattershot attempt to incapacitate those who are merely
suspected of these serious crimes. The Government must first of all
demonstrate probable cause to believe that the charged crime has
been committed by the arrestee, but that is not enough. In a
full-blown adversary hearing, the Government must convince a
neutral decisionmaker by clear and convincing evidence that no
conditions of release can reasonably assure the safety of the
community or any person. 18 U.S.C. § 3142(f). While the
Government's general interest in preventing crime is compelling,
even this interest is heightened when the Government musters
convincing proof that the arrestee, already indicted or held to
answer for a serious crime, presents a demonstrable danger to the
community. Under these narrow circumstances, society's interest in
crime prevention is at its greatest.
On the other side of the scale, of course, is the individual's
strong interest in liberty. We do not minimize the importance and
fundamental nature of this right. But, as our cases hold, this
right may, in circumstances where the government's interest is
sufficiently weighty, be subordinated
Page 481 U. S. 751
to the greater needs of society. We think that Congress' careful
delineation of the circumstances under which detention will be
permitted satisfies this standard. When the Government proves by
clear and convincing evidence that an arrestee presents an
identified and articulable threat to an individual or the
community, we believe that, consistent with the Due Process Clause,
a court may disable the arrestee from executing that threat. Under
these circumstances, we cannot categorically state that pretrial
detention "offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental." Snyder v. Massachusetts, 291 U. S.
, 291 U. S. 105
Finally, we may dispose briefly of respondents' facial challenge
to the procedures of the Bail Reform Act. To sustain them against
such a challenge, we need only find them "adequate to authorize the
pretrial detention of at least some [persons] charged with crimes,"
467 U. S. 264
, whether or not they might be insufficient
in some particular circumstances. We think they pass that test. As
we stated in Schall,
"there is nothing inherently
unattainable about a prediction of future criminal conduct." 467
U.S. at 467 U. S. 278
see Jurek v. Texas, 428 U. S. 262
428 U. S. 274
(1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.);
at 428 U. S. 279
(WHITE, J., concurring in judgment).
Under the Bail Reform Act, the procedures by which a judicial
officer evaluates the likelihood of future dangerousness are
specifically designed to further the accuracy of that
determination. Detainees have a right to counsel at the detention
hearing. 18 U.S.C. § 3142(f). They may testify in their own behalf,
present information by proffer or otherwise, and cross-examine
witnesses who appear at the hearing. Ibid.
officer charged with the responsibility of determining the
appropriateness of detention is guided by statutorily enumerated
factors, which include the nature and the circumstances of the
charges, the weight of the evidence, the history and
characteristics of the putative offender,
Page 481 U. S. 752
and the danger to the community. § 3142(g). The Government must
prove its case by clear and convincing evidence. § 3142(f).
Finally, the judicial officer must include written findings of fact
and a written statement of reasons for a decision to detain. §
3142(i). The Act's review provisions, § 3145(c), provide for
immediate appellate review of the detention decision.
We think these extensive safeguards suffice to repel a facial
challenge. The protections are more exacting than those we found
sufficient in the juvenile context, see Schall, supra,
467 U. S.
-281, and they far exceed what we found necessary to
effect limited postarrest detention in Gerstein v. Pugh,
420 U.S. 420 U. S. 103
(1975). Given the legitimate and compelling regulatory purpose of
the Act and the procedural protections it offers, we conclude that
the Act is not facially invalid under the Due Process Clause of the
Respondents also contend that the Bail Reform Act violates the
Excessive Bail Clause of the Eighth Amendment. The Court of Appeals
did not address this issue, because it found that the Act violates
the Due Process Clause. We think that the Act survives a challenge
founded upon the Eighth Amendment.
The Eighth Amendment addresses pretrial release by providing
merely that "[e]xcessive bail shall not be required." This Clause,
of course, says nothing about whether bail shall be available at
all. Respondents nevertheless contend that this Clause grants them
a right to bail calculated solely upon considerations of flight.
They rely on Stack v. Boyle, 342 U. S.
, 342 U. S. 5
(1951), in which the Court stated that
"[b]ail set at a figure higher than an amount reasonably
calculated [to ensure the defendant's presence at trial] is
'excessive' under the Eighth Amendment."
In respondents' view, since the Bail Reform Act allows a court
essentially to set bail at an infinite amount for reasons not
related to the risk of flight, it
Page 481 U. S. 753
violates the Excessive Bail Clause. Respondents concede that the
right to bail they have discovered in the Eighth Amendment is not
absolute. A court may, for example, refuse bail in capital cases.
And, as the Court of Appeals noted and respondents admit, a court
may refuse bail when the defendant presents a threat to the
judicial process by intimidating witnesses. Brief for Respondents
21-22. Respondents characterize these exceptions as consistent with
what they claim to be the sole purpose of bail -- to ensure the
integrity of the judicial process.
While we agree that a primary function of bail is to safeguard
the courts' role in adjudicating the guilt or innocence of
defendants, we reject the proposition that the Eighth Amendment
categorically prohibits the government from pursuing other
admittedly compelling interests through regulation of pretrial
release. The above-quoted dictum in Stack v. Boyle
too slender a reed on which to rest this argument. The Court in
had no occasion to consider whether the Excessive
Bail Clause requires courts to admit all defendants to bail,
because the statute before the Court in that case in fact allowed
the defendants to be bailed. Thus, the Court had to determine only
whether bail, admittedly available in that case, was excessive if
set at a sum greater than that necessary to ensure the arrestees'
presence at trial.
The holding of Stack
is illuminated by the Court's
holding just four months later in Carlson v. Landon,
342 U. S. 524
(1952). In that case, remarkably similar to the present action, the
detainees had been arrested and held without bail pending a
determination of deportability. The Attorney General refused to
release the individuals,
"on the ground that there was reasonable cause to believe that
[their] release would be prejudicial to the public interest and
would endanger the welfare and safety of the United
at 342 U. S. 529
(emphasis added). The detainees brought the same challenge that
respondents bring to us today: the Eighth Amendment
Page 481 U. S. 754
required them to be admitted to bail. The Court squarely
rejected this proposition:
"The bail clause was lifted with slight changes from the English
Bill of Rights Act. In England, that clause has never been thought
to accord a right to bail in all cases, but merely to provide that
bail shall not be excessive in those cases where it is proper to
grant bail. When this clause was carried over into our Bill of
Rights, nothing was said that indicated any different concept. The
Eighth Amendment has not prevented Congress from defining the
classes of cases in which bail shall be allowed in this country.
Thus, in criminal cases, bail is not compulsory where the
punishment may be death. Indeed, the very language of the Amendment
fails to say all arrests must be bailable."
at 342 U. S.
-546 (footnotes omitted).
Carlson v. Landon
was a civil case, and we need not
decide today whether the Excessive Bail Clause speaks at all to
Congress' power to define the classes of criminal arrestees who
shall be admitted to bail. For even if we were to conclude that the
Eighth Amendment imposes some substantive limitations on the
National Legislature's powers in this area, we would still hold
that the Bail Reform Act is valid. Nothing in the text of the Bail
Clause limits permissible Government considerations solely to
questions of flight. The only arguable substantive limitation of
the Bail Clause is that the Government's proposed conditions of
release or detention not be "excessive" in light of the perceived
evil. Of course, to determine whether the Government's response is
excessive, we must compare that response against the interest the
Government seeks to protect by means of that response. Thus, when
the Government has admitted that its only interest is in preventing
flight, bail must be set by a court at a sum designed to ensure
that goal, and no more. Stack v. Boyle, supra.
that, when Congress has mandated detention on the basis of a
compelling interest other than prevention
Page 481 U. S. 755
of flight, as it has here, the Eighth Amendment does not require
release on bail.
In our society, liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception. We hold
that the provisions for pretrial detention in the Bail Reform Act
of 1984 fall within that carefully limited exception. The Act
authorizes the detention prior to trial of arrestees charged with
serious felonies who are found after an adversary hearing to pose a
threat to the safety of individuals or to the community which no
condition of release can dispel. The numerous procedural safeguards
detailed above must attend this adversary hearing. We are unwilling
to say that this congressional determination, based as it is upon
that primary concern of every government -- a concern for the
safety and indeed the lives of its citizens -- on its face violates
either the Due Process Clause of the Fifth Amendment or the
Excessive Bail Clause of the Eighth Amendment.
The judgment of the Court of Appeals is therefore
Every other Court of Appeals to have considered the validity of
the Bail Reform Act of 1984 has rejected the facial constitutional
challenge. United States v. Walker,
805 F.2d 1042 (CA11
1986); United States v. Rodriguez,
803 F.2d 1102 (CA11
1986); United States v. Simpkins,
255 U.S.App.D.C. 306,
801 F.2d 520 (1986); United States v. Zannino,
544 (CA1 1980); United States v. Perry,
788 F.2d 100
(CA3), cert. denied,
479 U.S. 864 (1986); United
States v. Portes,
786 F.2d 758 (CA7 1985).
Salerno was subsequently sentenced in unrelated proceedings
before a different judge. To this date, however, Salerno has not
been confined pursuant to that sentence. The authority for
Salerno's present incarceration remains the District Court's
pretrial detention order. The case is therefore very much alive,
and is properly presented for our resolution.
We intimate no view on the validity of any aspects of the Act
that are not relevant to respondents' case. Nor have respondents
claimed that the Act is unconstitutional because of the way it was
applied to the particular facts of their case.
We intimate no view as to the point at which detention in a
particular case might become excessively prolonged, and therefore
punitive, in relation to Congress' regulatory goal.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins,
This case brings before the Court for the first time a statute
in which Congress declares that a person innocent of any crime may
be jailed indefinitely, pending the trial of allegations which are
legally presumed to be untrue, if the Government shows to the
satisfaction of a judge that the accused is likely to commit
crimes, unrelated to the pending charges, at any time in the
future. Such statutes, consistent with the usages of tyranny and
the excesses of what bitter experience teaches us to call the
police state, have long been thought incompatible with the
fundamental human rights protected by our Constitution. Today a
majority of this Court holds otherwise. Its decision disregards
basic principles of justice
Page 481 U. S. 756
established centuries ago and enshrined beyond the reach of
governmental interference in the Bill of Rights.
A few preliminary words are necessary with respect to the
majority's treatment of the facts in this case. The two paragraphs
which the majority devotes to the procedural posture are
essentially correct, but they omit certain matters which are of
substantial legal relevance.
The Solicitor General's petition for certiorari was filed on
July 21, 1986. On October 9, 1986, respondent Salerno filed a
response to the petition. No response or appearance of counsel was
filed on behalf of respondent Cafaro. The petition for certiorari
was granted on November 3, 1986.
On November 19, 1986, respondent Salerno was convicted after a
jury trial on charges unrelated to those alleged in the indictment
in this case. On January 13, 1987, Salerno was sentenced on those
charges to 100 years' imprisonment. As of that date, the Government
no longer required a pretrial detention order for the purpose of
keeping Salerno incarcerated; it could simply take him into custody
on the judgment and commitment order. The present case thus became
moot as to respondent Salerno. [Footnote 2/1
Page 481 U. S. 757
The situation with respect to respondent Cafaro is still more
disturbing. In early October, 1986, before the Solicitor General's
petition for certiorari was granted, respondent Cafaro became a
cooperating witness, assisting the Government investigation "by
working in a covert capacity." [Footnote 2/2
] The information that Cafaro was
cooperating with the Government was not revealed to his
codefendants, including respondent Salerno. On October 9, 1986,
respondent Cafaro was released, ostensibly "temporarily for medical
care and treatment," with the Government's consent. Docket, SS 86
Cr. 245-2, p. 6 (MJL) (SDNY) (Lowe, J.). [Footnote 2/3
] This release was conditioned upon
execution of a personal recognizance bond in the sum of $1 million,
under the general pretrial
Page 481 U. S. 758
release provisions of 18 U.S.C. § 3141 (1982 ed., Supp. III). In
short, respondent Cafaro became an informant, and the Government
agreed to his release on bail in order that he might better serve
the Government's purposes. As to Cafaro, this case was no longer
justiciable even before certiorari was granted, but the information
bearing upon the essential issue of the Court's jurisdiction was
not made available to us.
The Government thus invites the Court to address the facial
constitutionality of the pretrial detention statute in a case
involving two respondents, one of whom has been sentenced to a
century of jail time in another case and released pending appeal
with the Government's consent, while the other was released on bail
in this case,
with the Government's consent, because he
had become an informant. These facts raise, at the very least, a
substantial question as to the Court's jurisdiction, for it is far
from clear that there is now an actual controversy between these
parties. As we have recently said,
"Article III of the Constitution requires that there be a live
case or controversy at the time that a federal court decides the
case; it is not enough that there may have been a live case or
controversy when the case was decided by the court whose judgment
we are reviewing."
Burke v. Barnes, 479 U. S. 361
479 U. S. 363
(1987); see Sosna v. Iowa, 419 U.
, 419 U. S. 402
(1975); Golden v. Zwickler, 394 U.
, 394 U. S. 108
(1969). Only by flatly ignoring these matters is the majority able
to maintain the pretense that it has jurisdiction to decide the
question which it is in such a hurry to reach.
The majority approaches respondents' challenge to the Act by
dividing the discussion into two sections, one concerned with the
substantive guarantees implicit in the Due Process Clause and the
other concerned with the protection afforded by the Excessive Bail
Clause of the Eighth Amendment. This is a sterile formalism, which
divides a unitary argument
Page 481 U. S. 759
into two independent parts and then professes to demonstrate
that the parts are individually inadequate.
On the due process side of this false dichotomy appears an
argument concerning the distinction between regulatory and punitive
legislation. The majority concludes that the Act is a regulatory,
rather than a punitive, measure. The ease with which the conclusion
is reached suggests the worthlessness of the achievement. The major
premise is that
"[u]nless Congress expressly intended to impose punitive
restrictions, the punitive/regulatory distinction turns on
"whether an alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and whether it
appears excessive in relation to the alternative purpose assigned
at 481 U. S. 747
(citations omitted). The majority finds that "Congress did not
formulate the pretrial detention provisions as punishment for
dangerous individuals," but instead was pursuing the "legitimate
regulatory goal" of "preventing danger to the community."
Concluding that pretrial detention is not an excessive solution to
the problem of preventing danger to the community, the majority
thus finds that no substantive element of the guarantee of due
process invalidates the statute.
Page 481 U. S. 760
This argument does not demonstrate the conclusion it purports to
justify. Let us apply the majority's reasoning to a similar,
hypothetical case. After investigation, Congress determines (not
unrealistically) that a large proportion of violent crime is
perpetrated by persons who are unemployed. It also determines,
equally reasonably, that much violent crime is committed at night.
From amongst the panoply of "potential solutions," Congress chooses
a statute which permits, after judicial proceedings, the imposition
of a dusk-to-dawn curfew on anyone who is unemployed. Since this is
not a measure enacted for the purpose of punishing the unemployed,
and since the majority finds that preventing danger to the
community is a legitimate regulatory goal, the curfew statute
would, according to the majority's analysis, be a mere "regulatory"
detention statute, entirely compatible with the substantive
components of the Due Process Clause.
The absurdity of this conclusion arises, of course, from the
majority's cramped concept of substantive due process. The majority
proceeds as though the only substantive right protected by the Due
Process Clause is a right to be free from punishment before
conviction. The majority's technique for infringing this right is
simple: merely redefine any measure which is claimed to be
punishment as "regulation," and, magically, the Constitution no
longer prohibits its imposition.
Because, as I discuss in 481 U. S.
the Due Process Clause protects other substantive
rights which are infringed by this legislation, the majority's
argument is merely an exercise in obfuscation.
The logic of the majority's Eighth Amendment analysis is equally
unsatisfactory. The Eighth Amendment, as the majority notes, states
that "[e]xcessive bail shall not be required." The majority then
declares, as if it were undeniable, that: "[t]his Clause, of
course, says nothing about whether bail shall be available at all."
at 481 U. S. 752
If excessive bail is imposed, the defendant stays in jail. The same
result is achieved if bail is denied altogether. Whether the
Page 481 U. S. 761
magistrate sets bail at $1 billion or refuses to set bail at
all, the consequences are indistinguishable. It would be mere
sophistry to suggest that the Eighth Amendment protects against the
former decision, and not the latter. Indeed, such a result would
lead to the conclusion that there was no need for Congress to pass
a preventive detention measure of any kind; every federal
magistrate and district judge could simply refuse, despite the
absence of any evidence of risk of flight or danger to the
community, to set bail. This would be entirely constitutional,
since, according to the majority, the Eighth Amendment "says
nothing about whether bail shall be available at all."
But perhaps, the majority says, this manifest absurdity can be
avoided. Perhaps the Bail Clause is addressed only to the
Judiciary. "[W]e need not decide today," the majority says,
"whether the Excessive Bail Clause speaks at all to Congress'
power to define the classes of criminal arrestees who shall be
admitted to bail."
at 481 U. S. 754
The majority is correct that this question need not be decided
today; it was decided long ago. Federal and state statutes which
purport to accomplish what the Eighth Amendment forbids, such as
imposing cruel and unusual punishments, may not stand. See,
e.g., Trop v. Dulles, 356 U. S. 86
(1958); Furman v. Georgia, 408 U.
(1972). The text of the Amendment, which provides
simply that "[e]xcessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted,"
provides absolutely no support for the majority's speculation that
both courts and Congress are forbidden to inflict cruel and unusual
punishments, while only the courts are forbidden to require
excessive bail. [Footnote 2/5
Page 481 U. S. 762
The majority's attempts to deny the relevance of the Bail Clause
to this case are unavailing, but the majority is nonetheless
correct that the prohibition of excessive bail means that, in
"to determine whether the Government's response is excessive, we
must compare that response against the interest the Government
seeks to protect by means of that response."
at 481 U. S. 754
The majority concedes, as it must, that,
"when the Government has admitted that its only interest is in
preventing flight, bail must be set by a court at a sum designed to
ensure that goal, and no more."
But, the majority says,
"when Congress has mandated detention on the basis of a
compelling interest other than prevention of flight, as it has
here, the Eighth Amendment does not require release on bail."
at 481 U. S.
-755. This conclusion follows only if the
"compelling" interest upon which Congress acted is an interest
which the Constitution permits Congress to further through the
denial of bail. The majority does not ask, as a result of its
disingenuous division of the analysis, if there are any substantive
limits contained in both the Eighth Amendment and the Due Process
Clause which render this system of preventive detention
unconstitutional. The majority does not ask, because the answer is
apparent and, to the majority, inconvenient.
The essence of this case may be found, ironically enough, in a
provision of the Act to which the majority does not refer. Title 18
U.S.C. § 3142(j) (1982 ed., Supp. III) provides that "[n]othing in
this section shall be construed as modifying or limiting the
presumption of innocence." But the very pith
Page 481 U. S. 763
and purpose of this statute is an abhorrent limitation of the
presumption of innocence. The majority's untenable conclusion that
the present Act is constitutional arises from a specious denial of
the role of the Bail Clause and the Due Process Clause in
protecting the invaluable guarantee afforded by the presumption of
"The principle that there is a presumption of innocence in favor
of the accused is the undoubted law, axiomatic and elementary, and
its enforcement lies at the foundation of the administration of our
Coffin v. United States 156 U.
, 156 U. S. 453
(1895). Our society's belief, reinforced over the centuries, that
all are innocent until the state has proved them to be guilty, like
the companion principle that guilt must be proved beyond a
reasonable doubt, is "implicit in the concept of ordered liberty,"
Palko v. Connecticut, 302 U. S. 319
302 U. S. 325
(1937), and is established beyond legislative contravention in the
Due Process Clause. See Estelle v. Williams, 425 U.
, 425 U. S. 503
(1976); In re Winship, 397 U. S. 358
397 U. S. 364
(1970). See also Taylor v. Kentucky, 436 U.
, 436 U. S. 483
(1978); Kentucky v. Whorton, 441 U.
, 441 U. S. 790
(1979) (Stewart, J., dissenting).
The statute now before us declares that persons who have been
indicted may be detained if a judicial officer finds clear and
convincing evidence that they pose a danger to individuals or to
the community. The statute does not authorize the Government to
imprison anyone it has evidence is dangerous; indictment is
necessary. But let us suppose that a defendant is indicted and the
Government shows by clear and convincing evidence that he is
dangerous and should be detained pending a trial, at which trial
the defendant is acquitted. May the Government continue to hold the
defendant in detention based upon its showing that he is dangerous?
The answer cannot be yes, for that would allow the Government to
imprison someone for uncommitted crimes based upon "proof" not
beyond a reasonable doubt. The result must therefore be that, once
the indictment has failed, detention
Page 481 U. S. 764
cannot continue. But our fundamental principles of justice
declare that the defendant is as innocent on the day before his
trial as he is on the morning after his acquittal. Under this
statute, an untried indictment somehow acts to permit a detention,
based on other charges, which after an acquittal would be
unconstitutional. The conclusion is inescapable that the indictment
has been turned into evidence, if not that the defendant is guilty
of the crime charged, then that, left to his own devices, he will
soon be guilty of something else. "
f it suffices to accuse, what will become of the innocent?'"
Coffin v. United States, supra,
at 156 U. S. 455
(quoting Ammianus Marcellinus, Rerum Gestarum Libri Qui Supersunt,
L. XVIII, c. 1, A. D. 359).
To be sure, an indictment is not without legal consequences. It
establishes that there is probable cause to believe that an offense
was committed, and that the defendant committed it. Upon probable
cause, a warrant for the defendant's arrest may issue; a period of
administrative detention may occur before the evidence of probable
cause is presented to a neutral magistrate. See Gerstein v.
Pugh, 420 U. S. 103
(1975). Once a defendant has been committed for trial, he may be
detained in custody if the magistrate finds that no conditions of
release will prevent him from becoming a fugitive. But, in this
connection, the charging instrument is evidence of nothing more
than the fact that there will be a trial, and
"release before trial is conditioned upon the accused's giving
adequate assurance that he will stand trial and submit to sentence
if found guilty. Like the ancient practice of securing the oaths of
responsible persons to stand as sureties for the accused, the
modern practice of requiring a bail bond or the deposit of a sum of
money subject to forfeiture serves as additional assurance of
Page 481 U. S. 765
presence of an accused."
Stack v. Boyle, 342 U. S. 1
342 U. S. 4
(1951) (citation omitted). [Footnote
] The finding of probable cause conveys power to try, and
the power to try imports of necessity the power to assure that the
processes of justice will not be evaded or obstructed. [Footnote 2/7
"Pretrial detention to prevent future crimes against society at
large, however, is not justified by any concern for holding a trial
on the charges for which a defendant has been arrested."
794 F.2d 64, 73 (CA2 1986) (quoting United States v.
790 F.2d 984, 1002 (CA2 1986) (opinion of
Newman, J.)). The detention purportedly authorized by this statute
bears no relation to the Government's power to try charges
supported by a finding of probable cause, and thus the interests it
serves are outside the scope of interests which may be considered
in weighing the excessiveness of bail under the Eighth
Page 481 U. S. 766
It is not a novel proposition that the Bail Clause plays a vital
role in protecting the presumption of innocence. Reviewing the
application for bail pending appeal by members of the American
Communist Party convicted under the Smith Act, 18 U.S.C. § 2385,
Justice Jackson wrote:
"Grave public danger is said to result from what [the
defendants] may be expected to do, in addition to what they have
done since their conviction. If I assume that defendants are
disposed to commit every opportune disloyal act helpful to
Communist countries, it is still difficult to reconcile with
traditional American law the jailing of persons by the courts
because of anticipated, but as yet uncommitted, crimes.
Imprisonment to protect society from predicted but unconsummated
offenses is . . . unprecedented in this country and . . . fraught
with danger of excesses and injustice. . . ."
Williamson v. United States,
95 L. Ed. 1379, 1382
(1950) (opinion in chambers) (footnote omitted). As Chief Justice
Vinson wrote for the Court in Stack v. Boyle, supra:
"Unless th[e] right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle,
would lose its meaning."
342 U.S. at 342 U. S. 4
There is a connection between the peculiar facts of this case
and the evident constitutional defects in the statute which the
Court upholds today. Respondent Cafaro was originally incarcerated
for an indeterminate period at the request of the Government, which
believed (or professed to believe) that his release imminently
threatened the safety of the community. That threat apparently
vanished, from the Government's point of view, when Cafaro agreed
to act as a covert agent of the Government. There could be no more
eloquent demonstration of the coercive power of authority to
imprison upon prediction, or of the dangers which the almost
Page 481 U. S. 767
inevitable abuses pose to the cherished liberties of a free
"It is a fair summary of history to say that the safeguards of
liberty have frequently been forged in controversies involving not
very nice people."
United States v. Rabinowitz, 339 U. S.
, 339 U. S. 69
(1950) (Frankfurter, J., dissenting). Honoring the presumption of
innocence is often difficult; sometimes we must pay substantial
social costs as a result of our commitment to the values we
espouse. But at the end of the day, the presumption of innocence
protects the innocent; the shortcuts we take with those whom we
believe to be guilty injure only those wrongfully accused and,
Throughout the world today there are men, women, and children
interned indefinitely, awaiting trials which may never come or
which may be a mockery of the word, because their governments
believe them to be "dangerous." Our Constitution, whose
construction began two centuries ago, can shelter us forever from
the evils of such unchecked power. Over 200 years it has slowly,
through our efforts, grown more durable, more expansive, and more
just. But it cannot protect us if we lack the courage, and the
self-restraint, to protect ourselves. Today a majority of the Court
applies itself to an ominous exercise in demolition. Theirs is
truly a decision which will go forth without authority, and come
back without respect.
Had this judgment and commitment order been executed
immediately, as is the ordinary course, the present case would
certainly have been moot with respect to Salerno. On January 16,
1987, however, the District Judge who had sentenced Salerno in the
unrelated proceedings issued the following order, apparently with
the Government's consent:
"Inasmuch as defendant Anthony Salerno was not ordered detained
in this case, but is presently being detained pretrial in the case
of United States v. Anthony Salerno, et al.,
SS 86 Cr. 245
"IT IS HEREBY ORDERED that the bail status of defendant Anthony
Salerno in the above-captioned case shall remain the same as it was
prior to the January 13, 1987, sentencing, pending further order of
Order in SS 85 Cr. 139 (RO) (SDNY) (Owen, J.). This order is
curious. To release on bail pending appeal "a person who has been
found guilty of an offense and sentenced to a term of
imprisonment," the District Judge was required to find
"by clear and convincing evidence that the person is not likely
to flee or pose a danger to the safety of any other person or the
community if released. . . ."
18 U.S.C. § 3143(b)(1) (1982 ed., Supp. III). In short, the
District Court which had sentenced Salerno to 100 years'
imprisonment then found, with the Government's consent, that he was
not dangerous, in a vain attempt to keep alive the controversy as
to Salerno's dangerousness before this Court.
This characterization of Cafaro's activities, along with an
account of the process by which Cafaro became a Government agent,
appears in an affidavit executed by a former Assistant United
States Attorney and filed in the District Court during proceedings
in the instant case which occurred after the case was submitted to
this Court. Affidavit of Warren Neil Eggleston, dated March 18,
1987, SS 86 Cr. 245, p. 4 (MJL) (SDNY).
Further particulars of the Government's agreement with Cafaro,
including the precise terms of the agreement to release him on
bail, are not included in the record, and the Court has declined to
order that the relevant documents be placed before us.
In his reply brief in this Court, the Solicitor General
"On October 8, 1986, Cafaro was temporarily released for medical
treatment. Because he is still subject to the pretrial detention
order, Cafaro's case also continues to present a live
Reply Brief for United States 1-2, n. 1. The Solicitor General
did not inform the Court that this release involved the execution
of a personal recognizance bond, nor did he reveal that Cafaro had
become a cooperating witness. I do not understand how the Solicitor
General's representation that Cafaro was "still subject to the
pretrial detention order" can be reconciled with the fact of his
release on a $1 million personal recognizance bond.
Preventing danger to the community through the enactment and
enforcement of criminal laws is indeed a legitimate goal, but, in
our system, the achievement of that goal is left primarily to the
States. The Constitution does not contain an explicit delegation to
the Federal Government of the power to define and administer the
general criminal law. The Bail Reform Act does not limit its
definition of dangerousness to the likelihood that the defendant
poses a danger to others through the commission of federal
crimes. Federal preventive detention may thus be ordered under the
Act when the danger asserted by the Government is the danger that
the defendant will violate state law. The majority nowhere
identifies the constitutional source of congressional power to
authorize the federal detention of persons whose predicted future
conduct would not violate any federal statute, and could not be
punished by a federal court. I can only conclude that the Court's
frequently expressed concern with the principles of federalism
vanishes when it threatens to interfere with the Court's attainment
of the desired result.
The majority refers to the statement in Carlson v.
Landon, 342 U. S. 524
342 U. S. 545
(1952), that the Bail Clause was adopted by Congress from the
English Bill of Rights Act of 1689, 1 Wm. & Mary, Sess. 2, ch.
II, §I(10), and that,
"[i]n England, that clause has never been thought to accord a
right to bail in all cases, but merely to provide that bail shall
not be excessive in those cases where it is proper to grant
A sufficient answer to this meager argument was made at the time
by Justice Black: "The Eighth Amendment is in the American Bill of
Rights of 1789, not the English Bill of Rights of 1689."
Carlson v. Landon, supra,
at 342 U. S. 557
(dissenting opinion). Our Bill of Rights is contained in a written
Constitution, one of whose purposes is to protect the rights of the
people against infringement by the Legislature, and its provisions,
whatever their origins, are interpreted in relation to those
The majority states that denial of bail in capital cases has
traditionally been the rule, rather than the exception. And this,
of course, is so, for it has been the considered presumption of
generations of judges that a defendant in danger of execution has
an extremely strong incentive to flee. If, in any particular case,
the presumed likelihood of flight should be made irrebuttable, it
would in all probability violate the Due Process Clause. Thus, what
the majority perceives as an exception is nothing more than an
example of the traditional operation of our system of bail.
It is also true, as the majority observes, that the Government
is entitled to assurance, by incarceration if necessary, that a
defendant will not obstruct justice through destruction of
evidence, procuring the absence or intimidation of witnesses, or
subornation of perjury. But, in such cases, the Government benefits
from no presumption that any particular defendant is likely to
engage in activities inimical to the administration of justice, and
the majority offers no authority for the proposition that bail has
traditionally been denied prospectively
that witnesses would be tampered with. Cf. Carbo v. United
82 S. Ct. 662, 7 L. Ed. 2d 769 (1962) (Douglas, J., in
chambers) (bail pending appeal denied when more than 200
intimidating phone calls made to witness, who was also severely
JUSTICE STEVENS, dissenting.
There may be times when the Government's interest in protecting
the safety of the community will justify the brief detention of a
person who has not committed any crime, see ante
481 U. S.
-749, see also United States v. Greene,
F.2d 1068, 1088-1089 (CA7 1974) (Stevens, J., dissenting).
Page 481 U. S. 768
use Judge Feinberg's example, it is indeed difficult to accept
the proposition that the Government is without power to detain a
person when it is a virtual certainty that he or she would
otherwise kill a group of innocent people in the immediate future.
United States v. Salerno,
794 F.2d 64, 77 (CA2 1986)
(dissenting opinion). Similarly, I am unwilling to decide today
that the police may never impose a limited curfew during a time of
crisis. These questions are obviously not presented in this case,
but they lurk in the background, and preclude me from answering the
question that is presented in as broad a manner as JUSTICE MARSHALL
has. Nonetheless, I firmly agree with JUSTICE MARSHALL that the
provision of the Bail Reform Act allowing pretrial detention on the
basis of future dangerousness is unconstitutional. Whatever the
answers are to the questions I have mentioned, it is clear to me
that a pending indictment may not be given any weight in evaluating
an individual's risk to the community or the need for immediate
If the evidence of imminent danger is strong enough to warrant
emergency detention, it should support that preventive measure
regardless of whether the person has been charged, convicted, or
acquitted of some other offense. In this case, for example, it is
unrealistic to assume that the danger to the community that was
present when respondents were at large did not justify their
detention before they were indicted, but did require that measure
the moment that the grand jury found probable cause to believe they
had committed crimes in the past. [Footnote 3/2
] It is equally unrealistic to assume that
the danger will vanish if a jury happens to acquit them.
Page 481 U. S. 769
JUSTICE MARSHALL has demonstrated that the fact of indictment
cannot, consistent with the presumption of innocence and the Eighth
Amendment's Excessive Bail Clause, be used to create a special
class, the members of which are, alone, eligible for detention
because of future dangerousness.
Several factors combine to give me an uneasy feeling about the
case the Court decides today. The facts set forth in Part I of
JUSTICE MARSHALL's opinion strongly support the possibility that
the Government is much more interested in litigating a "test case"
than in resolving an actual controversy concerning respondents'
threat to the safety of the community. Since Salerno has been
convicted and sentenced on other crimes, there is no need to employ
novel pretrial detention procedures against him. Cafaro's case is
even more curious, because he is apparently at large, and was
content to have his case argued by Salerno's lawyer even though his
interests would appear to conflict with Salerno's. But if the
merits must be reached, there is no answer to the arguments made in
Parts II and III of JUSTICE MARSHALL's dissent. His conclusion, and
not the Court's, is faithful to the "fundamental principles as they
have been understood by the traditions of our people and our law."
Lochner v. New York, 198 U. S. 45
198 U. S. 76
(1905) (Holmes, J., dissenting). Accordingly, I respectfully
"If the evidence overwhelmingly establishes that a skyjacker,
for example, was insane at the time of his act, and that he is
virtually certain to resume his violent behavior as soon as he is
set free, must we then conclude that the only way to protect
society from such predictable harm is to find an innocent man
guilty of a crime he did not have the capacity to commit?"
United States v. Greene,
497 F.2d at 1088.
The Government's proof of future dangerousness was not dependent
on any prediction that, as a result of the indictment, respondents
posed a threat to potential witnesses or to the judicial