Preventive Detention

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Preventive Detention


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 years or more under the federal Controlled Substances Act or the Maritime Drug Law Enforcement Act, or (4) any felony if the person has been convicted of two or more violent offenses or federal drug offenses. Furthermore, a defendant may be held in preventive detention prior to trial if the court finds that he or she may flee or intimidate, threaten, or injure a prospective witness or juror. The court can make such a finding on its own, without a motion filed by the prosecutor.

Under the federal act, a court may consider several factors when it decides whether to detain a criminal defendant, including the nature and circumstance of the offense charged; the weight of the evidence against the defendant; the history and characteristics of the defendant, including his or her character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, drug and alcohol history, and criminal history; the defendant's prior attendance at court proceedings; whether the defendant was on Parole, Probation, or other conditional release at the time of the alleged offense; and the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.

Technically, a criminal defendant who is confined in jail through the end of trial is considered detained until the day of sentencing. Defendants sentenced to prison receive credit for the time that they serve in jail prior to the beginning of their sentence, but some defendants may go free until the day of sentencing. Under the federal act, a criminal defendant who is convicted at trial must be detained until the day of sentencing, with the following exceptions. Under 18 U.S.C.A. § 3143 (1997), a defendant who does not face a prison term may be released until the day of sentencing, and defendants who the court finds are not likely to flee and do not present a danger to the safety of any other person may also be released. If the defendant is appealing a guilty verdict, the court may release the defendant pending the outcome of the appeal if the court finds that the defendant is not dangerous and will not flee and that the appeal may yield a result favorable to the defendant.

The U.S. Supreme Court entertained a challenge to the federal act based on the Eighth Amendment in 1987 in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697. Anthony Salerno and Vincent Cafaro, who were facing numerous federal Racketeering charges, were detained without bail after a detention hearing because the court believed that they posed a danger to the community. Salerno and Cafaro appealed to the Supreme Court, arguing that the court violated their due process rights by detaining them, and therefore essentially punishing them, on the basis of potential crimes. The defendants also argued that the federal act violated the Excessive Bail Clause of the Eighth Amendment.

By a vote of six to three, the High Court rejected both arguments. According to the majority, "The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment." The Court reasoned that to determine whether detention is punishment, it must look to the legislative intent behind the act. Because Congress formulated the act to prevent danger to the community, and not as punishment for the defendant, the detention was best characterized as regulatory and not punitive. Because the detention was not considered punishment, the defendant was due only minimal process. The Court concluded that the hearing the defendant received was sufficient process to justify the detention. The Court also rejected the defendants' excessive bail argument, noting that the Eighth Amendment prohibits only the setting of excessive bail and does not address the issue of whether bail should be available at all. All states now allow for the preventive detention of criminal defendants without bail prior to trial and for the continued detention of defendants before sentencing and during appeals.

Preventive detention may also be imposed on persons other than criminal defendants. States may detain mentally unstable individuals who present a danger to the public, including criminal defendants found not guilty by reason of insanity. In Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979), the High Court ruled that a state may place mentally unstable persons in preventive detention for an indefinite period of time, but only after the government has shown by at least a Preponderance of Evidence that the person presents a danger to himself or herself or to others. If the person becomes mentally stable and shows no sign of mental illness, continued confinement of the person violates due process (Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 [1992]).

The Supreme Court has ruled that persons accused of dangerous crimes who become incompetent before trial may be placed in preventive detention until they are competent (Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 [1972]). The Court also has ruled that potentially dangerous resident Aliens may be detained pending deportation proceedings (Carlson v. Landon, 342 U.S. 524, 72 S. Ct. 525, 96 L. Ed. 547 [1952]; Wong Wing v. United States, 163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 [1896]). Finally, juveniles who have been arrested on the suspicion that they have committed a crime may be placed in preventive detention if they present a danger to the community (Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 [1984]).

In the 1990s some states enacted laws that authorized the continued incarceration of convicted child sex offenders after the offender had served his sentence. Such laws were challenged as violating several constitutional rights, including the right to due process, the right to be free from Cruel and Unusual Punishment, the right to be free from Double Jeopardy, and the prohibition of Ex Post Facto Laws (laws that retroactively apply criminal sanctions).

Further readings

Jackson, Joe, and William F. Burke, Jr. 2000. Dead Run: The Shocking Story of Dennis Stockton and Life on Death Row. New York: Walker.

Miller, Frank W., et al. 1991. Prosecution and Adjudication. 4th ed. Westbury, N.Y.: Foundation Press.

Miller, Marc, and Martin Guggenheim. 1990. "Pretrial Detention and Punishment." Minnesota Law Review 75.

Rodriguez, Nancy. 2003. Persistent Offender Law: Racial Disparity, Patterned Offenses, and Unintended Effects. New York: LFB.

Secret, Philip E. 1977. The Constitutionality of Preventive Detention. Washington, D.C.: Univ. Press of America.


Child Abuse; Criminal Law; Criminal Procedure; Due Process of Law; Insanity Defense.

See: constraint, imprisonment
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