Preventive Detention

• Author: Jeffrey Lehman, Shirelle Phelps

Page 79

The confinement in a secure facility of a person who has not been found guilty of a crime.

Preventive detention is a special form of imprisonment. Most persons held in preventive detention are criminal defendants, but state and federal laws also authorize the preventive detention of persons who have not been accused of crimes, such as certain mentally ill persons.

Preventive detention is a relatively recent phenomenon. Before the 1970s the general practice in criminal courts was to set bail for almost all criminal defendants. For defendants accused of particularly heinous crimes, courts would set the amount of bail so high that the defendants were unlikely to be released. Defendants in murder cases were held in jail without bail through the end of trial.

In the early 1970s, the District of Columbia became the first jurisdiction to experiment with preventive detention for defendants other than murder defendants. Under D.C. Code 1973, 23-1322, a defendant charged with a dangerous or violent crime could be held before trial without bail for up to 60 days. The defendant was entitled to a hearing at which the prosecutor was required to present evidence of a substantial probability that the defendant committed the alleged offense. The defendant was allowed to present evidence, cross-examine witnesses, and appeal an adverse ruling. This detention scheme was upheld by the District of Columbia Court of Appeals in United States v. Edwards, 430 A.2d 1321, (1981), cert. denied, 455 U.S. 1022 (1982).

Congress created a federal preventive detention system for criminal defendants in the Federal Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141 et seq. [1996]). The act is similar to the District of Columbia law with several exceptions. Under the act, the prosecution is not required to notify a defendant that it intends to present evidence of his past crimes. The federal act allows a court to accept evidence from the prosecution without giving the defendant an opportunity to question the evidence. The federal act does not limit the defendant's detention; a defendant may be held without bail until he is found not guilty. Finally, the class of defendants eligible for preventive detention is broader in the federal act than in the District of Columbia law.

The federal act authorizes the court to conduct a preventive detention hearing upon a motion made by the prosecutor where the defendant is accused of (1) a crime of violence, (2) a crime for which the maximum sentence is life in prison or death, (3) an offense that is punishable by a prison term of ten...