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United States v. Salerno: Is Pretrial Detention of the Dangerous a Deprivation of Liberty Without Due Process of Law?

NCJ Number
Criminal Justice Journal Volume: 10 Issue: 1 Dated: (Fall 1987) Pages: 121-136
P B Farmer
Date Published
16 pages
In its 1987 decision in United States v. Salerno, the U.S. Supreme Court held that the Bail Reform Act of 1984 meets constitutional requirements and that, therefore, defendants indicted for certain violent crimes and drug offenses may be detained prior to their trials.
Prior to the law's passage, defendants were denied bail only in capital punishment cases, when the defendant posed a threat to flee, or if the defendant had threatened witnesses or jurors. Under the 1984 law, the government need only convince a neutral judge, by clear and convincing evidence, that no conditions could be imposed on the defendants that would assure the safety of the community. The Salerno case involved 15 defendants charged with 29 counts of racketeering, mail fraud, wire fraud, extortion, bookmaking, and conspiracies. The indictment alleged that Anthony Salerno and Vincent Cafaro were the respective boss and captain of the Genovese Family of La Cosa Nostra. Neither defendant introduced evidence to refute the government's allegations. The arguments in the case focused on due process. Analysis of the issues shows that pretrial detention involved balancing the government's compelling interest in protecting its citizens and preventing crime against the presumed-innocent defendant's fundamental right to liberty. Achieving actual balance will require Congress to address the law's current inadequacy in allowing potentially indefinite periods of pretrial detention. 108 footnotes.