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Preventive Detention - A Constitutional But Ineffective Means of Fighting Pretrial Crime

NCJ Number
Journal of Criminal Law and Criminology Volume: 77 Issue: 2 Dated: (Summer 1986) Pages: 439-476
S D Himsell
Date Published
38 pages
The Bail Reform Act of 1984 authorizes judicial officers to detain a defendant before trial if the officer determines that the defendant is likely to commit a crime while on release pending trial.
In United States v. Melendez-Carrion and Salerno v. United States, the second circuit court held that preventive detention violates the due process clause of the fifth amendment. It is argued that preventive detention is constitutional because it passes each of the three conditions of the U.S. Supreme Court's legislative purpose test: the express purpose of preventive detention is to incapacitate not punish, the intent is to regulate the future behavior of detainees, and its use to fight pretrial crime is not excessive. Further, the Act includes procedural safeguards to minimize the risk of erroneous deprivations of liberty. However, because detentions can be lengthy, adding detention length to the three factors would greatly improve the quality of the constitutional analysis while also mitigating the harshness of the false positive problem and enabling judges to determine the potential punitive effects of pretrial detention. Despite the potential constitutionality of pretrial detention, more effective means are available to prevent pretrial recidivism. These include pretrial services, speedier trials, and detention as a response to crime committed while on bail. 282 footnotes.