Preventative detention and the judicial prediction of dangerousness for juveniles: a natural experiment.

• Author: Fagan, Jeffrey

1. INTRODUCTION

   Since 1970, legislatures have increasingly relied on preventive detention--detention before trial ordered solely to prevent an accused from committing crime during the pretrial period--as an instrument of social control.(1) Prior to this period, detention before trial was usually ordered only to assure an accused's presence at trial or to ensure the integrity of the trial process by preventing an accused from tampering with witnesses. Today, the majority of states and the federal system have changed their laws to allow judges to detain arrestees who pose a risk to society if released during the pretrial period.(2) Half of these laws were passed in the 1980's.(3)

   The significant increase in the use of detention before trial! to prevent crime has not occurrred without debate and legal challenge. Two U.S. Supreme Court decisions in the 1980s ensured that preventive detention would continue to be part of legal proceedings in criminal courts throughout the country. Schall v. Martin(4) upheld a New York statute authorizing the preventive detention of juvenile delinquents, and United States v. Salerno(5) upheld the federal Bail Reform Act of 1984(6) which authorized the use of preventive detention in federal criminal prosecutions. Although the Supreme Court in both cases rejected the use of detention before trial for punitive purposes,(7) it approved its use as a non-punitive regulatory governmental power to prevent future crimes and thereby advance state objectives to protect community safety.

   Thus, the degree to which preventive detention furthers its community safety purpose depends entirely upon the capacity to predict who will commit a crime over a specified period of time. These short-term predictions of dangerousness are made for defendants awaiting further court appearances. Both Schall and Salerno challenged the use of preventive detention on the ground that the prediction capacity is too poor to justify its use, but these challenges were squarely rejected. In both cases, the Court concluded that predictions of dangerousness were not so unreliable as to pose due process or equal protection concerns.(8) In Schall, the Court emphasized that "there is nothing inherently unattainable about prediction of future criminal conduct"(9) it also acknowledged that the prediction of future criminal conduct is "an experienced prediction based on a host of variables which cannot be readily codified."(10) However, the validity of judicial predictions of dangerousness is unknown, and the consequences of false predictions of future crimes remain the hidden cost of preventive detention. The predictive validity of judicial determinations of dangerousness inherent in preventive detention is the focus of this research.

   1. BAIL REFORM AND THE EVOLUTION OF PREVENTIVE DETENTION

      Preventive detention was part of the second generation of "bail reform" in the 1970s and beyond.(11) Historically, bail statutes were designed to assure the defendant's appearance at court proceedings. This second bail reform effort followed very closely upon the first and differed sharply from it. The first reforms, in the 1960s, were aimed principally at eliminating the unregulated use of pretrial detention, primarily among poor defendants in urban jails. Reformers were critical of the conditions of confinement in American jails, the discriminatory setting of unaffordable bail for the urban poor, and the indirect use of punitive detention.(12)

      Judges were empowered to set bail indiscriminately. Through this power, judges set unaffordable bail amounts to detain many defendants who they regarded as public safety threats. This unofficial use of detention was unacknowledged by courts, in part because there was reason to believe at the time that the Supreme Court would declare the formal use of preventive detention for presumptively innocent defendants unconstitutional.(13)

      In 1970, Congress held hearings to consider legislation that would of officially embrace the use of preventive detention to protect the public from dangerous defendants during the period from arraignment through trial.(14) By 1980, preventive detention was codified in several states, including Florida, California, and the District of Columbia.(15) For example, the Florida law said, "it is the intent of the legislature that the primary consideration [for pretrial detention] be the protection of society from risk of physical harm to persons."(16) The Federal Bail Reform Act of 1984 further moved the emphasis in bail decisions toward the use of denial of bail for the purpose of community protection.(17) Ironically, preventive detention was becoming a prominent feature of pretrial decision-making just as pretrial release and innovations such as Release on Recognizance (ROR) and conditional release had nearly replaced the traditional cash bail system.(18) The Schall and Salerno decisions completed the transformation of the purpose of bail from its traditional emphasis on ensuring court appearance to the protection of the public from dangerous persons.

      These developments raise two concerns. First, preventive detention statutes reintroduce relatively standardless bases for detention decisions. The bail reforms of the 1960s attempted to eliminate arbitrariness by providing meaningful criteria for judicial consideration in setting bail.(19) Critics of the old cash bail system correctly complained that the absence of such criteria were invitations to disparity and capriciousness.(20)

      Unfortunately, the new preventive detention statutes commonly fail to be precise in defining eligibility for detention. Even when statutes are explicit in permitting detention on grounds of "dangerousness," they frequently fail to provide specific standards for determining dangerousness.(21) Terms such as "threat," "danger," and "public safety" are operationally defined in fewer than half the statutes with such references. Rarely are distinctions made between threats to the "community" and threats to potential "victims." Many states include threats to property in their definitions, leading to obvious problems in interpretation, uniformity, and validation of statutes. Most important, the standardless bases for making detention decisions risk false prediction by their broad application to pretrial defendants who may not be reasonably considered "dangerous."(22)

      The second concern--and the one which this Article addresses--is the inability to validate the efficacy of judicial predictions of dangerousness made under these statutes. Because defendants are detained prior to committing an act, it has not been possible to validate the prediction of their future wrongdoing. Once a person is detained as dangerous, it is impossible to demonstrate that the detention was unnecessary or wrongful. According to Goldkamp, the degree to which judges wrongfully detain defendants is unknowable because their decisions "are unfalsifiable."(23)

      As a result, more than a decade after passage of the Federal Bail Reform Act of 1984, the efficacy of preventive detention laws remains unknown. The conditions of vague definitions and unfalsifiability confound efforts to evaluate preventive detention. Precise definitions and standards of dangerousness are crucial to researchers interested in determining exactly what is being predicted so that they may establish whether the predictions are reliable. Ultimately, however, the efficacy of preventive detention schemes can only be established by a careful validation of the accuracy of the prediction methods used to make preventive detention decisions.(24) This poses the greatest challenge since legal and ethical issues in judicial decisions lead to the unfalsifiability problem. The only way to determine the accuracy of preventive detention predictions is to release defendants who are predicted to commit new crimes during the pretrial period in order to determine the precise degree to which they are risks for future crimes.

      1. Definitional Problems

         Preventive detention involves a short-term prediction of dangerousness, or the prediction of some future harm. However, many statutes fail to use precise definitions of pretrial danger;(25) the absence of definitional standards makes it difficult to determine what is being prevented, what is the type and magnitude of the harm predicted, and what is the predicted level of risk and the rate of that harm. The product of these variables constitutes "dangerousness."

         The development of definitions of danger have focused on two concerns: danger to the public generally posed by the defendant, and danger posed to potential victims or witnesses. Most state laws that allow for preventive detention specifically refer to violent offenses. A few states and the District of Columbia include harm to or intimidation of witnesses and jurors, or broader concerns of possible interference with the judicial process as a component of pretrial danger.(26) Some statutes exclude particular types of defendants from pretrial release, such as those already on pretrial release for particular types of offenses or defendants on probation or parole for an earlier conviction.

         The Supreme Court in Schall allowed the preventive detention of juveniles once judge concluded that tnere was a "serious risk" that the juvenile would commit any crime, no matter how trivial, if released.(27) This breadth is obviously problematic. Several states allow for preventive detention of defendants under statutes that lack specific references to public safety concerns.(28) In Salerno, however, the Court upheld a rather specific preventive detention law which authorized detention only for the following crimes: (1) a crime of violence; (2) a crime punishable by life imprisonment or death; (3) a major drug offense; or (4) a felony committed by a person previously convicted of two of the crimes listed.(29) In Salerno, the Supreme Court characterized preventive detention as the "civil regulation...