Hypocrisy and Bail—The Policy Reasons For Preventive Detention

AuthorFrederick D. Hess
Date01 October 1970
Published date01 October 1970
Subject MatterArticles
Hypocrisy and Bail—The Policy
Reasons For Preventive Detention
THE DEPARTMENT OF JUSTICE submitted to Congress in July 1969 an
extensive package of amendments to the Bail Reform Act of 1966. The
heart of this proposal’ calls for creation of authority for pretrial deten-
tion of those defendants whose release would pose a danger to the com-
munity. Although pretrial detention is but one of many proposals by
the Administration to combat the crime problem, this measure is far
and away the most controversial. The concept of pretrial or preventive
detention has been attacked as a police state tactic, as an unheralded
denial of individual liberties and as an affront to the Constitution. This
article will not attempt a comprehensive defense of the Administra-
tion’s legislation, but instead, will make an effort to discuss some
of the basic policy issues surrounding preventive detention and to rebut
the major arguments raised against it. A full discussion of the serious
constitutional issues raised by preventive detention is beyond the scope
of this article and is treated fully elsewhere
The Present Bail System
Ever since the passage of the Judiciary Act of 1789 federal law
has been consistent that bail must be set in all noncapital pretrial
cases. The Bail Reform Act of 19663 continues that policy and adds
to it the presumption of release on conditions short of monetary bond
wherever possible. Traditionally, whenever a reason for the imposition
of bail has been articulated it is said to be to protect against flight and
thus to ensure the presence of the defendant for trial.
It is, however, generally accepted that bail is used, and has always
been used, for the added purpose of protecting the community from the
continued depredations of dangerous offenders. As will be discussed
later, the Bail Reform Act is clear that danger to the community may
be considered in pretrial capital cases. In all other jurisdictions pre-
trial detention to protect society is carried on surreptitiously by the
courts who hold many dangerous defendants on high money bond, and
* Attorney, Criminal Division, Department of Justice.
H.R. 12806; S. 2600, 91st Cong., 1st Sess. ( 1969).
See the November 1969 Virginia Law Review for an article on the consti-
tutional issues by Attorney General John N. Mitchell.

18 U.S.C. 3146-52.

when pressed, argue that there is a danger of flight. In passing the
Bail Reform Act, Congress itself did not specifically face the issue of
danger to the community,4 except in the limited area of capital of-
fenses and cases of bond pending appeal, but stressed instead the
necessity of ensuring that no person be needlessly detained pending
trial for financial reasons only. The Act thus struck at some of the
most flagrant evils of the bond system as it had evolved in this country.
Congress made it quite clear that by focusing on a defendant’s stability
and roots in the community it is feasible to release many more defend-
ants prior to trial with little added risk of flight. To a great extent the
Bail Reform Act has been a success. The use of money bond has de-
clined in the federal system and many defendants who under prior
practice would be detained on arbitrarily set money bail sums now win
their release.
At the same time that the Bail Reform Act has successfully re-
duced the arbitrary use of money bond and lessened needless pretrial
detention, the emphasis in the Act on release has ostensibly deprived
the federal courts of their power to continue the practice of detaining
dangerous criminals on money bond to protect society. The Bail Reform
Act is quite specific that the only legitimate purpose of bail is to assure
appearance at trial. Danger to the community, however, has always
been a clear concern of federal courts even though, with the exception
of capital cases, it has never been articulated in the law.
The effect of this present statutory scheme is to place the judicial
officer in a very difficult position and to make for uneven dispensation
of justice. A conscientious judge will, of course, strive to enforce the
will of Congress and properly implement the Bail Reform Act. At the
same time a conscientious judge feels an obligation to protect society
from the acts of those defendants who appear to him to be clearly dan-
gerous. The professional burglar, the professional robber and the dope
addict do exist and their actions are predictable. When faced with such
defendants, the Bail Reform Act puts the judge in an anomalous situa-
tion, particularly if the defendant has a good record of previous court
appearances. In many such cases proper implementation of the Bail
Reform Act dictates release on conditions short of money bond. Yet
release probably means repeated criminal acts. The necessary result
is that many judicial officers violate the Bail Reform Act and use high
money bond to detain dangerous defendants and protect society.
As the system actually operates the chance for error and the in-
carceration of the wrong defendant becomes much greater than it
would be if a hearing on the issue of dangerousness took place. A
Rep. No. 1541, 89th Cong., 2d Sess., p. 5-6 (1966).

person’s criminal record, for instance, has some bearing on his potential
for flight. It has, however, a far greater bearing on the issue of his
dangerousness. Usually all the presiding judicial officer at a bail
hearing has before him is the police &dquo;rap&dquo; sheet which often is in-

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