Preventive Detention

AuthorAbner J. Mikva
Pages2004-2006

Page 2004

Preventive detention is the jailing of an accused not to prevent bail-skipping but to protect public safety pending trial. Although pretrial incarceration of criminal defendants has long been condoned when necessary to assure their appearance in court, the constitutional status of preventive

Page 2005

detention is far less certain. The Supreme Court has never directly addressed the issue, in part because until quite recently it was rendered largely academic by a federal statutory right to BAIL in noncapital cases and by similar rights granted in most state constitutions. Since 1970, however, District of Columbia courts have been authorized to deny pretrial release in certain cases to suspects charged with "dangerous" crimes, and several states have recently amended their constitutions to allow detention under similar circumstances. Following this activity, Congress in 1984 passed a nationwide program of preventive detention, substantially curtailing the federal statutory right to bail for the first time since the right was enacted in 1789.

The constitutionality of these programs is not altogether free from doubt. To begin with, the Eighth Amendment bars the federal government from requiring "excessive bail." Commentators have waged a spirited debate over whether that prohibition implies that some bail must be set. Many constitutional scholars have argued that the Framers intended to provide an affirmative right to bail to all defendants who do not pose an unacceptable risk of flight, and that without such a right the "excessive bail" clause would be a senseless bar against the government's doing indirectly what it remained free to do directly. Others have contended that the clause is aimed at the courts, not at Congress, and that a restriction on judicial discretion in setting bail is fully consistent with legislative authority to determine the circumstances under which bail should be granted at all.

The Supreme Court's decisions and opinions on the issue have been inconclusive. In Stack v. Boyle (1951) the Court held that bail was "excessive" when set higher than necessary to assure the accused's presence at trial. Strictly speaking, the ruling concerned only the level at which bail may be set if it is set, but the Court also hinted that the right to bail in the first place, long accorded by federal statute, might have a constitutional dimension: "Unless this right to bail before trial is preserved, the...

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