The Bail Reform Act of 1984: an Update on Preventive Detention
| Publication year | 1985 |
| Pages | 1985 |
1985, November, Pg. 1985. The Bail Reform Act of 1984: An Update on Preventive Detention
The Bail Reform Act of 1984 ("1984 Act")(fn1) is part of the Comprehensive Crime Control Act of 1984 and became effective October 12, 1984. The 1984 Act substantially revised the criteria in the federal system for release pending trial and after conviction. Congress passed the new legislation in response to the public outcry against crimes committed by persons released on bail. Thus, the concept of preventive detention finally gained the approval of United States lawmakers. Since passage of the 1984 Act and implementation of its provisions, controversy has mounted concerning the construction and application of the new law. This article addresses the more significant decisions interpreting the Act.
Under prior federal law (the Bail Reform Act of 1966), an accused awaiting trial was to be released mandatorily on an unsecured or personal recognizance bond for noncapital federal felonies unless the judicial officer found that such release would not "reasonably assure the appearance of the person as required."(fn2) If such a determination were made, the judicial officer could impose one or more conditions which would reasonably assure the appearance of the person for future proceedings. Rather than entering specific findings, judicial officers as a matter of practice would merely set a high bond when the flight risk or seriousness of the offense warranted it.
If a defendant proceeded to trial and was convicted, the 1966 law specifically incorporated the pretrial release criteria unless the court found that no conditions of release would reasonably assure that the defendant would not flee or pose a danger to any other person or to the community. In such a case, a person could be ordered to be detained pending sentencing or appeal only if (1) such risk of flight or danger was established or (2) the government could establish that the appeal was taken for purposes of delay or was frivolous.(fn3)
Under pretrial release provisions of the 1984 Act, an appearance or recognizance bond is appropriate unless the judge determines "such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."(fn4) The phraseology pertaining to dangerousness is new, and the legislative history makes clear that Congress adopted the concept of preventive detention with the passage of the 1984 Act.
In addition to considering the risk of flight and dangerousness, the judge is obliged to order temporary detention if the defendant has a pending felony, is on probation or parole, or may be subject to deportation. Temporary detention in such circumstances enables prosecutors to notify the appropriate authorities for possible revocation of release or transfer of custody.(fn5)
In certain enumerated situations, an accused carries the burden of overcoming a rebuttable presumption against release prior to trial. A rebuttable presumption arises that no condition or combination of conditions will assure the safety of others or the community if (1) the accused has committed a prior serious or violent felony while on pretrial release and not more than five years has elapsed since conviction or release from prison (whichever is later); or (2) probable cause exists to believe that the accused has committed certain offenses under the Controlled Substances Act(fn6) or has carried a firearm while committing a violent crime.(fn7)
The government may cause a detention hearing whenever the charged offense is (1) a crime of violence; (2) a drug offense carrying ten years or more; (3) an offense which carries life or death; or (4) when the defendant has been previously convicted of two or more such offenses. A hearing may also be sought upon motion by the government or the court, which involves a serious risk that the defendant (a) will flee or (b) will obstruct or attempt to obstruct justice or threaten or intimidate prospective witnesses or jurors.(fn8)
A detention hearing must be held immediately upon the defendant's first appearance. A continuance, except for good cause, may not exceed five days upon motion of the accused nor three days upon motion by the government. Although the rules of evidence are
The new preventive detention provisions have been attacked as running afoul of the Eighth Amendment's prohibition against excessive bail. For crimes committed prior to passage of the Act, ex post facto concerns have also been raised.
The Eighth Amendment of the U.S. Constitution provides, in part, that "[e]xcessive bail shall not be required...."(fn10) It is generally recognized that a right to bail does not exist at common law but is dependent upon statutory enactment.(fn11) While some courts have expressly ruled that there is no absolute right to bail under the Eighth Amendment,(fn12) most have perceived it as fundamental to the American concept of liberty.(fn13)
In attacking the constitutionality of preventive detention provisions, opponents have generally relied on dicta found in Stack v. Boyle,(fn14) which suggests that bail is constitutionally excessive if it is set at a figure higher than that necessary to fulfill the purpose of assuring future court appearances. However, in 1952 the U.S. Supreme Court effectively limited the Stack decision by stating that the Eighth Amendment (which was lifted from the English Bill of Rights Act) requires only "that bail shall not be excessive in those cases where it is proper to grant bail. "(fn15) (Emphasis added.)
Since 1789, Congress has expressly provided defendants in criminal cases with a right to bail.(fn16) Thus, the federal courts have not been compelled to confront the constitutional issue head-on until passage of the 1984 Act.(fn17)...
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