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Preventive Pretrial Detention and the Failure of Interest-Balancing Approaches to Due Process

NCJ Number
Michigan Law Review Volume: 85 Issue: 3 Dated: (December 1986) Pages: 510-569
A W Alschuler
Date Published
70 pages
This article maintains that neither a legitimate nor very important governmental interest can justify preventive detention in the absence of significant proof of past wrongdoing or an inability to control one's behavior.
It is argued that the U.S. Supreme Court's interest-balancing formula in Schall v. Martin and provisions in the 1984 Federal Bail Reform Act reveal the extent to which cost-benefit analysis has captured American Law and threatened core concepts of individual dignity. The failure of the Act to demand proof of wrongdoing as a prerequisite to detention and its failure to afford hearings on this issue are incompatible with the law governing interim relief in civil cases, with fourth amendment decisions concerning intrusions more serious than arrest, with due process decisions governing the restraint of property, with Anglo-American tradition and the practices of most States, with individual freedoms, and with fundamental fairness. The use of detention under a rationale that subordinates freedom to compelling Government interests violates fundamental principles of liberty and justice that lie at the base of American civil and political institutions. 253 footnotes.


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