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Preventive Detention: Liberty in the Balance

NCJ Number
Maryland Law Review Volume: 46 Issue: 2 Dated: (Winter 1987) Pages: 378-407
K F Arthur
Date Published
30 pages
This comment analyzes the Federal 1984 Bail Reform Act and court interpretations of its constitutionality.
Prior to the Bail Reform Act, judicial officers could not legitimately consider predictions of future criminality in setting bail. The Bail Reform Act expressly empowers the judiciary to deny bail on the basis of predictions of future criminality, and it establishes two rebuttable presumptions of dangerousness. A troublesome feature of the act is its failure to specify an upper limit for the detention period. Three cases shape the analysis of the act's constitutionality. In Bell v. Wolfish (1979), the U.S. Supreme Court distinguished conditions of pretrial detention that are merely regulatory, and hence constitutional, from those that are punitive, and hence unconsitutional. In United States v. Edwards (1982), the District of Columbia Court of Appeals rejected eighth amendment and due process challenges to a statute that authorized preventive detention. In Schall v. Martin (1984), the U.S. Supreme Court upheld New York's scheme for preventive detention of juvenile offenders. The majority of courts have concluded that the act is not unconstitutional on its face. When the Supreme Court considers the Salerno case this term, it should agree with the First, Third, and Seventh Circuit Courts that even if detention is constitutional at its outset, at some point it will degenerate into punishment and become unconstitutional. 218 footnotes.


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