A provision of the Bail Reform Act of 1984, 18 U.S.C. § 3142(e),
requires that a suspect held in pretrial custody on federal
criminal charges be detained if, "after a hearing pursuant to . . .
subsection (f)," he is found to pose a risk of flight and a danger
to others or the community and if no condition of release can give
reasonable assurances against these contingencies. Section 3142(f)
provides that, before detention can occur, a judicial officer
"shall" conduct a hearing "immediately upon the person's first
appearance before the . . . officer" unless he grants a
continuance. Respondent was arrested on federal drug charges, and a
Magistrate, at a detention hearing held after respondent's "first
appearance" and after continuances granted beyond the period
permitted by the Act, ordered his release on bond. The District
Court, while finding that no conditions reasonably could assure his
appearance or the community's safety, held that the detention
hearing had not been held upon respondent's first appearance, and
that pretrial release was the appropriate remedy for violation of
the statutory requirement. The Court of Appeals affirmed. Upon
issuance of the court's mandate, respondent was released, took
flight, and remains at large. He is, however, represented by
counsel before this Court.
Held:
1. Respondent's flight does not render the case moot, for the
resolution of this dispute determines the course of proceedings if
and when he is rearrested on the charges now pending. P.
495 U. S.
713.
2. In light of the disposition of this case, the Government may
detain respondent at once upon his rearrest without first seeking
revocation of the existing release order. Pp.
495 U. S.
713-714.
3. The failure to comply with the Act's prompt hearing provision
does not require release of a person who should otherwise be
detained. Pp.
495 U. S.
716-722.
(a) Neither the time requirements nor any other part of the Act
indicates that compliance with the first appearance requirement is
a precondition to holding the hearing or that failure to comply so
subverts § 3142(f)'s procedural scheme as to invalidate the
hearing. There is no presumption or rule that, for every mandatory
duty imposed upon the court or the Government or its prosecutors,
there must exist some corollary
Page 495 U. S. 712
punitive sanction for departures or omissions, even if
negligent.
See French v.
Edwards, 13 Wall. 506,
80 U. S. 511;
Brock v. Pierce County, 476 U. S. 253,
476 U. S. 260.
If Congress' mere use of the word "shall" operated to bar all
authority to seek pretrial detention once the time limit had
passed, then any other violation of subsection (f)'s procedures --
such as the right to be represented by counsel, present witnesses
and evidence, testify, and cross-examine witnesses -- no matter how
insignificant, would also prevent a hearing from being "a hearing
pursuant to" the statute. Respondent's argument that these other
infringements could be subject to a harmless error analysis cannot
be reconciled with his contention that absolute compliance with the
timely hearing requirement is necessary. Pp.
495 U. S.
716-719.
(b) Automatic release contravenes the statutory purpose of
providing fair bail procedures while protecting the public's safety
and assuring a defendant's appearance at trial. There is no reason
to bestow a windfall upon the defendant and visit a severe penalty
upon the Government and citizens every time some deviation occurs
where the Government and the courts have made diligent efforts, or
even where the Government bears some of the responsibility for the
hearing's delay. An order of release in the face of the
Government's ability to prove that detention is required has
neither causal nor proportional relation to any harm caused by the
delay in holding the hearing, since release would not restore the
benefits of a timely hearing to a defendant who has already
suffered from the inconvenience and uncertainty of the delay. Thus,
once the Government discovers that the time limits have expired, it
may ask for a prompt detention hearing and make its case to detain.
P.
495 U. S.
719-722.
(c) This ruling is consistent with the rule of
Bank of Nova
Scotia v. United States, 487 U. S. 250,
487 U. S. 256,
that a nonconstitutional error is harmless unless it has a
"substantial influence" on the outcome of the proceedings. Here,
detention was harmless because respondent, as an individual likely
to flee, would have been detained if his hearing had been held upon
his first appearance, rather than a few days later. P.
495 U. S.
722.
876 F.2d 826 (CA 10 1989), reversed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined,
post, p.
495 U. S.
722.
Page 495 U. S. 713
Justice KENNEDY delivered the opinion of the Court.
Both the District Court,
713 F.
Supp. 1407 (NM 1989), and the Court of Appeals for the Tenth
Circuit, 876 F.2d 826 (1989), found that one Montalvo-Murillo, a
suspect held in pretrial custody on federal criminal charges, posed
a risk of flight and a danger to the community. Because no
condition of release could give reasonable assurances against these
contingencies, detention was required by the Bail Reform Act of
1984, 18 U.S.C. § 3142(e). The District Court and Court of Appeals
held, nevertheless, that respondent must be released because there
had been a failure to observe the Act's directions for a timely
hearing. 18 U.S.C. § 3142(f). To no one's great surprise, the
suspect became a fugitive after his release, and is still at
large.
We granted certiorari, 493 U.S. 807 (1989), to resolve a split
among the Courts of Appeals on whether failure to comply with the
prompt hearing provision of the Act requires the release of a
person who is a flight risk or a danger to other persons or the
community.
** We decide that
the Act does not require release, and so we reverse the Court of
Appeals. Montalvo-Murillo, though now a fugitive, is the respondent
here and is represented by appointed counsel. Respondent's flight
does not render the case moot, for our resolution of the dispute
determines the course of proceedings if and when he is rearrested
on the charges now pending. Since we reverse, the Government may
detain respondent at once upon
Page 495 U. S. 714
his rearrest without first seeking revocation of the existing
release order.
See 18 U.S.C. § 3148(b).
I
Two provisions of the Bail Reform Act are relevant. The
substantive provisions that allow detention are contained in
subsection (e):
"DETENTION -- If, after a hearing pursuant to the provisions of
subsection (f) of this section, 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 before trial. . . ."
3142(e). The controversy in this case centers around the
procedures for a hearing, found in subsection (f):
"DETENTION HEARING -- The judicial officer shall hold a hearing
to determine whether any condition or combination of conditions . .
. will reasonably assure the appearance of such person as required
and the safety of any other person and the community -- "
"
* * * *"
"The hearing shall be held immediately upon the person's first
appearance before the judicial officer unless that person, or the
attorney for the Government, seeks a continuance. Except for good
cause, a continuance on motion of the person may not exceed five
days, and a continuance on motion of the attorney for the
Government may not exceed three days. During a continuance, such
person shall be detained. . . . The person may be detained pending
completion of the hearing."
§ 3142(f).
We review the sequence of events to put the statutory issue in
proper context. On Wednesday, February 8, 1989, United States
Customs Service agents stopped respondent at a New Mexico
checkpoint near the international border.
Page 495 U. S. 715
The agents discovered approximately 72 pounds of cocaine hidden
in respondent's truck. Admitting his plan to link with cocaine
purchasers in Chicago, Illinois, respondent agreed to cooperate
with the Drug Enforcement Agency (DEA) and to make a controlled
delivery under Government surveillance. The DEA took respondent and
his truck to Chicago in an attempt to complete the transaction, but
the anticipated purchasers did not arrive at the delivery
point.
The Government then arranged to transfer respondent back to New
Mexico, where a criminal complaint had been filed charging him with
possession of cocaine with intent to distribute, in violation of 21
U.S.C. § 841. Before his departure, respondent was brought before a
Magistrate in the Northern District of Illinois for a transfer
hearing pursuant to Federal Rule of Criminal Procedure 40. The
hearing was held on Friday, February 10, two days after the initial
arrest in New Mexico. Respondent was represented by counsel, and it
appears that all parties and the Magistrate agreed that the
detention hearing would be held in New Mexico, where the charges
were pending. Respondent was returned to New Mexico that same
evening.
The weekend intervened. On Monday, February 13, the DEA asked
the United States Magistrate's office in New Mexico to schedule a
detention hearing. A hearing was convened on Thursday, February 16,
and respondent attended with retained counsel. Because the Pretrial
Services Office had not yet prepared a report, the Magistrate,
sua sponte, ordered a 3-day continuance, but, observing
that the following Monday was a federal holiday, scheduled the
hearing for Tuesday, February 21. The record shows no request for a
waiver of the time limits, no advice to respondent of the right to
a hearing within the time provided by the Act, no finding of good
cause for continuance, and no objection to continuance by either
party. The detention hearing was held as scheduled on February 21.
The Magistrate, unconvinced that respondent was a flight risk or
danger to other persons
Page 495 U. S. 716
or to the community, decided to order release of respondent upon
the posting of a $50,000 bond and compliance with other conditions.
The Government at once sought review in the District Court.
After holding a
de novo detention hearing, on Thursday,
February 23, the District Court agreed with the Government that no
condition or combination of conditions reasonably would assure
respondent's appearance or the safety of the community.
Nevertheless, it ordered respondent's release. The court found that
the detention hearing had not been held upon respondent's first
appearance, as specified by § 3142(f), and that pretrial release on
conditions was the appropriate remedy for violation of the
statutory requirement. The Court of Appeals affirmed. Upon issuance
of its mandate, respondent was released and took flight.
Though the Government notes that the statutory phrase "first
appearance" is by no means clear, either as an abstract matter or
as applied in this case, it does not challenge the Court of
Appeals' holding that respondent's detention hearing was held after
that event, and that continuances were beyond what the Act permits.
We decide the case on those same assumptions, though without
passing upon them. The sole question presented on certiorari is
whether the Court of Appeals was correct in holding that respondent
must be released as a remedy for the failure to hold a hearing at
his first appearance.
II
In
United States v. Salerno, 481 U.
S. 739 (1987), we upheld the Bail Reform Act of 1984
against constitutional challenge. Though we did not refer in
Salerno to the time limits for hearings as a feature which
sustained the constitutionality of the Act, we recognize that a
vital liberty interest is at stake. A prompt hearing is necessary,
and the time limitations of the Act must be followed with care and
precision. But the Act is silent on the issue of a remedy for
violations of its time limits. Neither the timing requirements nor
any
Page 495 U. S. 717
other part of the Act can be read to require, or even suggest,
that a timing error must result in release of a person who should
otherwise be detained.
The Act, as quoted above, requires pretrial detention of certain
persons charged with federal crimes, and directs a judicial officer
to detain a person charged, pending trial, if the Government has
made the necessary showing of dangerousness or risk of flight. 18
U.S.C. §§ 3142(e), (f). The Act authorizes detention "after a
hearing [held] pursuant to the provisions of subsection (f) of this
section." § 3142(e). Subsection (f) provides that "[t]he judicial
officer shall hold a hearing," and sets forth the applicable
procedures. Nothing in § 3142(f) indicates that compliance with the
first appearance requirement is a precondition to holding the
hearing or that failure to comply with the requirement renders such
a hearing a nullity. It is conceivable that some combination of
procedural irregularities could render a detention hearing so
flawed that it would not constitute "a hearing pursuant to the
provisions of subsection (f)" for purposes of § 3142(e). A failure
to comply with the first appearance requirement, however, does not
so subvert the procedural scheme of § 3142(f) as to invalidate the
hearing. The contrary interpretation -- that noncompliance with the
time provisions in § 3142(f) requires the release even of a person
who presumptively should be detained under § 3142(e) would defeat
the purpose of the Act.
We hold that a failure to comply with the first appearance
requirement does not defeat the Government's authority to seek
detention of the person charged. We reject the contention that, if
there has been a deviation from the time limits of the statute, the
hearing necessarily is not one conducted "pursuant to the
provisions of subsection (f)." There is no presumption or general
rule that, for every duty imposed upon the court or the government
and its prosecutors, there must exist some corollary punitive
sanction for departures or omissions, even if negligent.
See French v.
Edwards,
Page 495 U. S. 718
13 Wall. 506,
80 U. S. 511
(1872) ("[M]any statutory requisitions intended for the guide of
officers in the conduct of business devolved upon them . . . do not
limit their power or render its exercise in disregard of the
requisitions ineffectual"). In our view, construction of the Act
must conform to the
"'great principle of public policy, applicable to all
governments alike, which forbids that the public interests should
be prejudiced by the negligence of the officers or agents to whose
care they are confided.'"
Brock v. Pierce County, 476 U.
S. 253,
476 U. S. 260
(1986) (quoting
United States v. Nashville, C. & St. L.R.
Co., 118 U. S. 120,
118 U. S. 125
(1886)).
In
Brock v. Pierce County, supra, the Court addressed a
statute that stated that the Secretary of Labor "shall" act within
a certain time on information concerning misuse of federal funds.
The respondent there argued that a failure to act within the
specified time divested the Secretary of authority to act to
investigate a claim. We read the statute to mean that the Secretary
did not lose the power to recover misused funds after the
expiration of the time period. Congress' mere use of the word
"shall" was not enough to remove the Secretary's power to act.
Id., 476 U.S. at
476 U. S. 260
(footnote omitted) ("We would be most reluctant to conclude that
every failure of an agency to observe a procedural requirement
voids subsequent agency action, especially when important public
rights are at stake. When, as here, there are less drastic remedies
available for failure to meet a statutory deadline, courts should
not assume that Congress intended the agency to lose its power to
act").
In a similar manner, in this case, the word "shall" in the Act's
hearing time requirement does not operate to bar all authority to
seek pretrial detention once the time limit has passed. Although
the duty is mandatory, the sanction for breach is not loss of all
later powers to act. The argument that failure to comply with the
Act's time limits prohibits the Government from moving for
detention proves too much. If any variation from the time limits of
subsection (f) prevents a
Page 495 U. S. 719
detention hearing from being "a hearing pursuant to subsection
(f)," then the same would have to be true of any deviation from the
other procedures prescribed by § 3142(f). During the hearing, a
person is entitled to be represented by counsel, present witnesses,
testify on his own behalf, cross-examine Government witnesses, and
present additional evidence. 18 U.S.C. § 3142(f). If we suppose an
error that infringes any of these rights in an insignificant way,
we doubt that anyone would make the serious contention that a
hearing, otherwise perfect, is not "a hearing pursuant to" the
statute because such an error occurred. Nor should a hearing held
after the person's first appearance prevent detention.
To avoid the logical implications of his argument with regard to
procedural violations other than timeliness, respondent admits that
other infringements could be subject to a harmless error analysis.
This position cannot be reconciled with respondent's contention
that absolute compliance with the provisions of subsection (f) is
mandated by subsection (e). If a failure to follow the provisions
of subsection (f) with respect to timeliness means that a condition
precedent for detention is lacking, then a failure to comply with
the other provisions of subsection (f) would have the same effect.
It is no answer to respond that a hearing that violates some of the
procedural requirements of subsection (f) may still be "fair,"
while a hearing held after the person's first appearance cannot be
"prompt." If there has been a failure to observe the time limits of
the Act, it does not follow that there must be a presumption of
prejudice, either as an empirical matter or based on our
precedents. We need seek only a practical remedy, not one that
strips the Government of all authority to act.
Bank of Nova
Scotia v. United States, 487 U. S. 250
(1988).
Our conclusion is consistent with the design and function of the
statute. We have sustained the Bail Reform Act of 1984 as an
appropriate regulatory device to assure the safety of persons in
the community and to protect against the risk of
Page 495 U. S. 720
flight. We have upheld the substantive right to detain based
upon the Government's meeting the burden required by the statute.
United States v. Salerno, 481 U.
S. 739 (1987). Automatic release contravenes the object
of the statute, to provide fair bail procedures while protecting
the safety of the public and assuring the appearance at trial of
defendants found likely to flee. The end of exacting compliance
with the letter of § 3142(f) cannot justify the means of exposing
the public to an increased likelihood of violent crime by persons
on bail, an evil the statute aims to prevent.
See S.Rep.
No. 98-225, p. 3 (1983), U.S.Code Cong. & Admin.News 1984, pp.
3182, 3185 ("Federal bail laws must address the alarming problem of
crimes committed by persons on release and must give the courts
adequate authority to make release decisions that give appropriate
recognition to the danger a person may pose to others if
released"). The Government's interest in preventing these harms
remains real and substantial even when the time limits have been
ignored. The safety of society does not become forfeit to the
accident of noncompliance with statutory time limits where the
Government is ready and able to come forward with the requisite
showing to meet the burden of proof required by the statute.
Assessing the situation in realistic and practical terms, it is
inevitable that, despite the most diligent efforts of the
Government and the courts, some errors in the application of the
time requirements of § 3142(f) will occur. Detention proceedings
take place during the disordered period following arrest. As this
case well illustrates, circumstances such as the involvement of
more than one district, doubts about whether the defendant was
subject to temporary detention under § 3142(d), and ambiguity in
requests for continuances may contribute to a missed deadline for
which no real blame can be fixed. In these situations, there is no
reason to bestow upon the defendant a windfall and to visit upon
the Government and the citizens a severe penalty by mandating
release of possibly dangerous defendants every time some deviation
from the strictures of § 3142(f) occurs.
Page 495 U. S. 721
In the case before us, of course, it is not clear that the
Government bears the responsibility for the delay, for the
Magistrate continued the hearing
sua sponte when the
Government announced that it was ready to proceed. But even on the
assumption that a violation of the Act occurred and that the
Government should bear some of the responsibility for it, the Court
of Appeals erred in holding that the Government is barred from
proceeding under the Act.
We find nothing in the statute to justify denying the Government
an opportunity to prove that the person is dangerous or a risk of
flight once the statutory time for hearing has passed. We do not
agree that we should, or can, invent a remedy to satisfy some
perceived need to coerce the courts and the Government into
complying with the statutory time limits. Magistrates and district
judges can be presumed to insist upon compliance with the law
without the threat that we must embarrass the system by releasing a
suspect certain to flee from justice, as this one did in such a
deft and prompt manner. The district court, the court of appeals,
and this Court remain open to order immediate release of anyone
detained in violation of the statute. Whatever other remedies may
exist for detention without a timely hearing or for conduct that is
aggravated or intentional, a matter not before us here, we hold
that, once the Government discovers that the time limits have
expired, it may ask for a prompt detention hearing and make its
case to detain based upon the requirements set forth in the
statute.
An order of release in the face of the Government's ability to
prove at once that detention is required by the law has neither
causal nor proportional relation to any harm caused by the delay in
holding the hearing. When a hearing is held, a defendant subject to
detention already will have suffered whatever inconvenience and
uncertainty a timely hearing would have spared him. Release would
not restore these benefits to him.
United States v.
Morrison, 449 U. S. 361,
449 U. S. 364
(1981) (remedies should be tailored to the injury suffered).
Page 495 U. S. 722
This case is similar to
New York v. Harris, ante, p.
495 U. S. 14, in
which we held that an unlawful arrest does not require a release
and rearrest to validate custody, where probable cause exists. In
this case, a person does not become immune from detention because
of a timing violation.
Our ruling is consistent also with
Bank of Nova Scotia v.
United States, 487 U. S. 250,
487 U. S. 256
(1988), where we held that nonconstitutional error will be harmless
unless the court concludes from the record as a whole that the
error may have had a "substantial influence" on the outcome of the
proceeding. In this case, it is clear that the noncompliance with
the timing requirement had no substantial influence on the outcome
of the proceeding. Because respondent was dangerous and likely to
flee, he would have been detained if his hearing had been held upon
his first appearance rather than a few days later. On these facts,
the detention was harmless.
See ibid; Morrison, supra, 449
U.S. at
449 U. S.
364-367 (inappropriate to dismiss indictment because of
Sixth Amendment violation that had no adverse impact on
proceedings). This approach is consistent with the principle of
harmless error analysis that is the governing precept in most
matters of criminal procedure. Fed.Rule Crim.Proc. 52. We have no
need to consider in this case the remedies available to a person
detained beyond the statutory limit and later found eligible for
release. We hold that respondent was not, and is not, entitled to
release as a sanction for the delay in the case before us.
The judgment of the Court of Appeals is
Reversed.
**
Compare United States v. Vargas, 804 F.2d 157, 162
(CA1 1986) (violation of the time limits specified in the Act does
not prevent the Government from seeking pretrial detention at a
subsequent detention hearing);
United States v. Clark, 865
F.2d 1433, 1436 (CA4 1989) (en banc); and
United States v.
Hurtado, 779 F.2d 1467, 1481-82 (CA11 1985) (en banc);
with United States v. Al-Azzawy, 768 F.2d 1141, 1145 (CA9
1985) (failure to observe the time limits precludes detention).
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL
join, dissenting.
This case involves two lawbreakers. Respondent, as the Court
repeatedly argues,
ante at
495 U. S. 713,
495 U. S. 716,
495 U. S. 721,
failed to appear after his release on bail, an apparent violation
of 18 U.S.C. § 3146. Even before that, however, the Government
imprisoned respondent without a timely hearing, a conceded
Page 495 U. S. 723
violation of 18 U.S.C. § 3142. [
Footnote 1] In its haste to ensure the detention of
respondent, the Court readily excuses the Government's prior and
proven violation of the law. I cannot agree.
I
Before examining the consequences that follow from the
Government's violation of § 3142, it is well to remember the
magnitude of the injury that pretrial detention inflicts and the
departure that it marks from ordinary forms of constitutional
governance. Executive power to detain an individual is the hallmark
of the totalitarian state. Under our Constitution the prohibition
against excessive bail, [
Footnote
2] the Due Process Clause of the Fifth Amendment, [
Footnote 3] the presumption of
innocence [
Footnote 4] --
indeed, the fundamental separation of powers
Page 495 U. S. 724
among the Legislative, the Executive and the Judicial Branches
of Government [
Footnote 5] --
all militate against this abhorrent practice. Our historical
approach eschewing detention prior to trial reflects these
concerns:
"From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91,
to the present Federal Rules of Criminal Procedure, Rule 46(a)(1),
federal law has unequivocally provided that a person arrested for a
non-capital offense
shall be admitted to bail. 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.
See Hudson v.
Parker, 156 U. S. 277,
156 U. S.
285 (1895). Unless this right to bail before trial is
preserved, the presumption of innocence, secured only after
centuries of struggle, would lose its meaning."
Stack v. Boyle, 342 U. S. 1,
342 U. S. 4
(1951).
Sections 3142(e) and (f), allowing limited detention of
arrestees, were enacted against this historical backdrop. Bail
Reform Act of 1984, Pub.L. 98-473, 98 Stat. 1976, 18 U.S.C. §§
3142(e), (f). Congress carefully prescribed stringent procedures to
govern this extraordinary departure from
Page 495 U. S. 725
the guarantee of liberty normally accorded to presumptively
innocent individuals. [
Footnote
6] Accordingly, when this Court upheld the constitutionality of
these provisions of the Bail Reform Act, it assumed that pretrial
detention would be imposed only on those arrestees
"found after an adversary hearing to pose a threat . . . which
no condition of release can dispel. The numerous procedural
safeguards detailed above must attend this adversary hearing."
United States v. Salerno, 481 U.
S. 739,
481 U. S. 755
(1987). [
Footnote 7]
Section 3142(e) permits pretrial detention only
"[i]f, after a hearing pursuant to the provisions of subsection
(f) of this section, the judicial officer finds that no condition
or combination of conditions will reasonably assure the appearance
of
Page 495 U. S. 726
the person as required and the safety of any other person and
the community."
18 U.S.C. § 3142(e). Subsection (f), in turn, sets forth
specific deadlines, chosen "in light of the fact that the defendant
will be detained during such a continuance," S.Rep. No. 98225, at
22, U.S.Code Cong. & Admin.News 1984, p. 3205, within which a
detention hearing must be held:
"The hearing shall be held immediately upon the person's first
appearance before the judicial officer unless that person, or the
attorney for the Government, seeks a continuance. Except for good
cause, a continuance on motion of such person may not exceed five
days, and a continuance on motion of the attorney for the
Government may not exceed three days."
18 U.S.C. § 3142(f)(2). There was no such hearing -- or finding
of good cause for continuance -- when respondent was arrested on
February 8, 1989, when he first appeared before a Northern District
of Illinois Magistrate on February 10, or when the New Mexico
Magistrate convened the parties on February 16. No court considered
the basis of detention until February 21, after respondent had been
incarcerated for 13 days. [
Footnote
8]
Congress' specification of the timing of detention hearings
defines one boundary of the courts' power to order pretrial
detention.
"Because detention may be ordered under section 3142(e) only
after a detention hearing pursuant to subsection (f), the requisite
circumstances for invoking a detention hearing in effect serve to
limit the types of cases in which detention may be ordered prior to
trial."
S.Rep. No. 98-225, at 20, U.S.Code Cong. & Admin.News 1984,
p. 3203. The clear terms of the statute demand strict adherence.
See Hallstrom v. Tillamook County, 493 U. S.
20,
493 U. S. 25-31
(1989)
Page 495 U. S. 727
(holding notice and 60-day delay requirements mandatory
conditions precedent to commencing suit under 42 U.S.C. § 6972);
cf. Griggs v. Provident Consumer Discount Co.,
459 U. S. 56 (1982)
(Fed. Rule App.Proc. 4(a)(4) stating that a premature notice "shall
have no effect" is mandatory and jurisdictional). [
Footnote 9]
A federal prosecutor should have no difficulty comprehending the
unequivocal terms of § 3142(f)(2) and complying with its deadlines
by proceeding or obtaining a proper continuance at the arrestee's
first appearance. The rare failure to meet the requirements of
subsection (f) will mean only that the Government forfeits the
opportunity to seek pretrial detention in that case. Because the
provisions of § 3142(f)(2) are a prerequisite only for hearings to
consider this particular form of pretrial action, the prosecutor
still may seek any conditions of release that are
"reasonably necessary to assure the appearance of the person as
required and to assure the safety of any other person and the
community."
18 U.S.C. § 3142(c)(1)(B)(xiv). The range of options -- the sole
safeguards that were available in cases prior to the creation of
the special detention provisions in 1984 -- remain viable.
II
The Court, however, concludes that no adverse consequences
should flow from the prosecutor's violation of this plain statutory
command. Treating the case as comparable to an agency's failure to
audit promptly a grant recipient's
Page 495 U. S. 728
use of federal funds,
see Brock v. Pierce County,
476 U. S. 253
(1986), the Court concludes that there is no reason to penalize the
public for a prosecutor's mistake. If a belated hearing eventually
results in a determination that detention was justified, the error
has been proved harmless. The Court apparently discards the
possibility that the hearing might result in a determination that
the arrestee is eligible for release -- as the Magistrate so
determined in this case -- or that detention of any arrestee before
establishing the legality of that intrusion on liberty could
"affect substantial rights." 876 F.2d 826, 829 (CA10 1989); Fed.
Rule Crim.Proc. 52(a). A harmless error analysis fails to
appreciate the gravity of the deprivation of liberty that physical
detention imposes and the reality that "[r]elief in this type of
case must be speedy if it is to be effective."
Stack, 342
U.S. at
342 U. S. 4.
This casual treatment of official violations of law is
disturbing in itself, but it is particularly troubling because it
treats the pretrial detention statute as just another routine
species of Government regulation of ordinary civilian affairs.
[
Footnote 10] The Court
asserts that the requirements of § 3142(f) are in the category of
statutory requisitions that do not limit the power of Government
officers.
Ante at
495 U. S. 717-718 (citing
French v.
Edwards, 13 Wall. 506,
80 U. S. 511
(1872)). But the
French Court also identified, and in fact
applied, the opposite characterization of the procedural
requirements of the sheriff's sale there at issue. It held that
laws
"intended for the protection of the citizen, and to prevent a
sacrifice of his property, and by a disregard of which his rights
might be and generally would be injuriously affected, . . . are not
directory but mandatory,"
concluding that such requisitions
"must be followed or the
Page 495 U. S. 729
acts done will be
invalid. The power of the officer in
all such cases is limited by the manner and conditions prescribed
for its exercise."
French, 13 Wall. at
80 U. S. 511
(emphasis added). The grant of power that Congress gave courts to
assess and enforce pretrial detention under §§ 3142(e) and (f) is
also of a mandatory nature. [
Footnote 11]
As Congress recognized, the magnitude of the injury inflicted by
pretrial detention requires adherence to strict procedural
safeguards that cannot be sacrificed in the name of community
safety. While the Court regards any arrestee as "a person who
presumptively should be detained under § 3142(e)" and as "a suspect
certain to flee from justice,"
ante at
495 U. S. 717,
495 U. S. 721,
I believe -- and the Act reflects -- that a new arrestee is
initially presumed eligible for release no matter how guilty a
prosecutor may believe him to be. Section 3142(e) recognizes that
certain characteristics of the offense of arrestee may support a
rebuttable presumption that no conditions of release exist, but
such a presumption arises only "
if such judicial officer
finds" that those conditions do exist. 18 U.S.C. § 3142(e)
(emphasis added). The magistrate's say-so cannot make his reasoning
any less of a bootstrap. A late detention hearing does not become
permissible on the basis of a presumption that cannot exist until
after the hearing is held.
III
Congress has written detailed legislation in a sensitive area
that requires the Government to turn square corners. The Court
today, however, permits federal prosecutors to violate
Page 495 U. S. 730
the law with impunity. I agree with Justice SCALIA's observation
that strict compliance with such rules may appear to "frustrat[e]
justice in the particular case," but
"[w]ith technical rules, above all others, it is imperative that
we adhere strictly to what we have stated the rules to be. A
technical rule with equitable exceptions is no rule at all. Three
strikes is out. The State broke the rules here, and must abide by
the result."
Jones v. Thomas, 491 U. S. 376,
491 U. S. 396
(1989) (SCALIA, J., dissenting).
I respectfully dissent.
[
Footnote 1]
Respondent's absence is irrelevant to the merits of the question
upon which we granted certiorari. Its only bearing on this case is
that it counsels utmost caution in our consideration because the
adversarial character of the litigation may have been compromised.
See United States v. Sharpe, 470 U.
S. 675,
470 U. S. 721
(1985) (dissenting opinion).
[
Footnote 2]
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S. Const.,
Amdt. 8.
[
Footnote 3]
We have recognized that delay of a hearing related to detention
itself can violate constitutional guarantees of due process.
See Gerstein v. Pugh, 420 U. S. 103,
420 U. S.
125-126 (1975) (state pretrial detention requires a
"timely judicial determination" of probable cause before or
promptly after arrest");
cf. Morrissey v. Brewer,
408 U. S. 471,
408 U. S. 485
(1972) (preliminary hearing is required "promptly after a parole
violator's arrest);
id. at
408 U. S. 488
(parole revocation hearing "must be tendered within a reasonable
time after the parolee is taken into custody").
[
Footnote 4]
"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)."
United States v. Salerno, 481 U.
S. 739,
481 U. S. 766
(1987) (MARSHALL, J., dissenting).
The Bail Reform Act of 1984 added 18 U.S.C. § 3142(j): "Nothing
in this section shall be construed as modifying or limiting the
presumption of innocence."
[
Footnote 5]
In limiting the construction of 18 U.S.C. § 3147, which
prescribes punishment for crimes committed by persons on pretrial
release, we recognized that balancing among various policy
objectives was the job of Congress:
"[N]o legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence of
legislative choice -- and it frustrates rather than effectuates the
legislative intent simplistically to assume that
whatever
furthers the statute's primary objective must be the law."
Rodriguez v. United States, 480 U.
S. 522,
480 U. S.
525-526 (1987).
[
Footnote 6]
Both Houses of Congress were aware of the necessity of
procedural protections:
"[T]he Committee recognizes a pretrial detention statute may
nonetheless be constitutionally, defective if it fails to provide
adequate procedural safeguards or if it does not limit pretrial
detention to cases in which it is necessary to serve the societal
interests it is designed to protect. The pretrial detention
provisions of this section have been carefully drafted with these
concerns in mind."
S.Rep. No. 98-225, p. 8 (1983), U.S.Code Cong. & Admin.News
1984, p. 3191.
"Several of the states which have recently enacted pretrial
detention statutes have also incorporated elaborate due process
protections. These procedures have been recommended by the American
Bar Association, the Association of the Bar of the City of New
York, and the National Association of Pretrial Services
Agencies."
H.R.Rep. No. 98-1121, p. 14 (1984) (footnote omitted) (citing
Wis. Const., Art. I, § 8(3) (limiting any legislation allowing
pretrial detention to a maximum of 10 days without a hearing and 60
days thereafter)).
[
Footnote 7]
The unique dangers posed by any detention provision were more
fully described by Justice MARSHALL in his dissenting opinion in
Salerno:
"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 though incompatible with the
fundamental human rights protected by our Constitution."
481 U.S. at
481 U. S.
755.
[
Footnote 8]
Even the statutory provision applicable to arrestees who are
aliens, pretrial releasees or parolees allows detention only "for a
period of not more than ten days" after proper judicial
determination. 18 U.S.C. § 3142(d). The Senate recognized that "a
deprivation of liberty of up to ten days is a serious matter," but
allowed the longer period
"to give the government time to contact the appropriate court,
probation, or parole official, or immigration official and to
provide the minimal time necessary for such official to take
whatever action on the existing conditional release that official
deems appropriate."
S.Rep. No. 98-225, at 17, U.S.Code Cong. & Admin.News 1984,
p. 3200.
[
Footnote 9]
It is unnecessary to determine whether the time provisions of §
3142 actually create a jurisdictional bar,
see Hallstrom,
493 U.S. at
493 U. S. 31,
nor is the question of the effect of violations of other provisions
of § 3142(f) before us. The Court itself recognizes the possibility
that
"some combination of procedural irregularities could render a
detention hearing so flawed that it would not constitute 'a hearing
pursuant to the provisions of subsection (f)' for purposes of §
3142(e),"
although it fails to identify what standards it would design to
replace those stated by Congress.
Ante at
495 U. S. 717.
See also ante at
495 U. S. 720
(suggesting that "accident[s] of noncompliance" and "errors" are
excusable);
ante at
495 U. S. 721
(suggesting that "other remedies may exist . . . for conduct that
is aggravated or intentional").
[
Footnote 10]
The Court seems satisfied to allow detention to continue without
any hearing at all, unless the arrestee demands the proceeding that
is the prosecutor's duty to instigate. The implication that an
arrestee -- who may well have just met temporary counsel at the
first appearance -- should be responsible for divining the
Government's intent to move for detention and for initiating a
timely hearing under § 3142(f) is absurd.
[
Footnote 11]
The Court vigorously declines to "satisfy some perceived need to
coerce the courts and the Government into complying with the
statutory time limits," in the belief that compliance can be
presumed "without the threat that we must embarrass the system by
releasing a suspect certain to flee from justice."
Ante at
495 U. S. 721.
This analysis incorrectly assumes that the courts have discretion
over such matters. Congress has "perceived" the need to ensure that
detention hearings are held promptly, and has shouldered the
responsibility for any "embarrassment" by precisely defining the
authority of courts to order pretrial detention.