On “Preventive Detention”

During the recent presidential campaign, “crime in the streets” emerged as a crucial political issue. All three major candidates vowed to make the nation’s capital—where the crime rate is particularly high and painfully visible—a model of safety for our other urban centers. Now President Nixon faces the task of transforming slogans into programs.

In his first major policy statement on crime, President Nixon proposed a law “whereby dangerous hardcore recidivists could be held in temporary pre-trial detention when they have been charged with crime and when their continued pre-trial release presents a continued danger to the community.” By thus supporting “preventive detention”—albeit in cautiously vague terms—the President has provided substantial impetus to a movement which could have far reaching significance not only in the District of Columbia, but throughout the country.

The conditions giving rise to the call for preventive detention are not difficult to understand. A person suspected of committing a crime cannot stand trial on the day of his arrest; he must be given time to consult with his lawyer and prepare a defense. Although this should rarely take more than a few days, the delay between arrest and trial has been growing, until it is now almost as long as two years in some cities and a year in most other cities, including the District of Columbia. This is the consequence primarily of our unwillingness to pay for needed increases in judicial machinery.

At the same time there has been a growing sensitivity to the plight of the indigent accused, who are unable to raise even modest bail; this is reflected in a 1966 bail reform law which authorizes federal judges to release most defendants without requiring money bail. The net result of bail reform and increased delays in court has been that more criminal defendants spend more time out on the street awaiting their trials than ever before. This has led to an increase—or at least the appearance of an increase—in the number of crimes committed by some of these defendants between arrest and trial. And so, in an effort to stem this tide of increasing crime, many political leaders including Senators as diverse in their political views as Roman Hruska and Joseph Tydings, have focused their attention on the defendant awaiting trial. The slogan “crime in the streets” has found its first political victim.

The resulting proposals for preventive detention vary: some are limited to the District of Columbia, while others apply to all federal courts; some would seem to authorize the confinement of a very large number of defendants, while others are narrower in their scope; some include methods for shortening the time interval between arrest and trial, while others seem satisfied to leave things pretty much as they are now.

But they all have one point in common: they permit the imprisonment of a defendant who has not been convicted, and who is presumed innocent, of the crime with which he stands charged, on the basis of a prediction that he may…

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