University of Cincinnati Law Review Volume: 55 Issue: 1 Dated: (1986) Pages: 153-199
Congress should reappraise the preventive detention provision of the Bail Reform Act of 1984 in the interest of preserving a free society in which only the guilty are punished.
The Bail Reform Act of 1984 authorizes preventive detention by permitting the pretrial incarceration of a defendant who will endanger the community's safety. For pretrial detainees, preventive detention works unnecessary hardship and skews the adversarial basis of the criminal process. A pretrial detainee may also suffer the loss of employment and the disruption of family life. Both detainees subsequently found innocent or guilty may suffer incarceration unrelated to the charge's disposition. Detainees are also disadvantaged in the preparation of their defenses, as they are less able to participate conveniently in their defense preparation. Detention may provide a psychological inducement for a defendant to plead guilty, and studies have shown that detainees are more likely to be convicted and will usually receive a more severe sentence than nondetainees. Preventive detention as authorized by the Bail Reform Act of 1984 is an unconstitutional change in one of the fundamental precepts of American justice, i.e., that persons are innocent until proven guilty and should be so treated during the pretrial period. 269 footnotes.
United States of America