Caseflicks

Supreme Court of the United States • 1987

United States v. Salerno

481 U.S. 739 | 107 S. Ct. 2095 | 95 L. Ed. 2d 697 | 1987 U.S. LEXIS 2259 | 55 U.S.L.W. 4663

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Takeaway

In short, this case upheld the Bail Reform Act's limited system of preventive pretrial detention: for certain serious arrestees, clear and convincing proof of unmanageable danger can justify detention without violating due process or the Excessive Bail Clause.

Background

The Bail Reform Act of 1984 authorizes pretrial detention when, after an adversary hearing, the Government proves by clear and convincing evidence that no release condition will reasonably assure the safety of another person or the community. Detention hearings are limited to specified serious cases, and the Act provides counsel, an opportunity to testify, present evidence, and cross-examine witnesses, written findings, and expedited review.

Anthony Salerno and Vincent Cafaro were indicted on RICO and related charges arising from their alleged leadership roles in the Genovese crime family. The Government proffered wiretap evidence and witness testimony tying them to extortion, gambling, and murder conspiracies. The District Court found by clear and convincing evidence that no release conditions would adequately protect the public and ordered both men detained.

The Second Circuit held the dangerousness-based detention provision facially unconstitutional under substantive due process, though it recognized that detention to prevent flight or obstruction of the judicial process could be permissible. The Supreme Court granted certiorari to resolve a conflict among the circuits and reversed.

Issues

Issue #1

Whether the case remained a live controversy despite developments in Salerno's and Cafaro's circumstances after the lower-court proceedings.

Holding

Yes. The Court treated the challenge as justiciable because Salerno remained confined under the pretrial detention order at issue.

Reasoning

The Court noted that although Salerno had received a sentence in unrelated proceedings, he had not been confined pursuant to that sentence. His present custody therefore rested on the District Court's pretrial detention order, leaving a live dispute over the Act's validity.

Issue #2

Whether the Bail Reform Act's authorization of pretrial detention based on future dangerousness facially violates substantive due process under the Fifth Amendment.

Holding

No. The Act authorizes a carefully limited, regulatory form of detention rather than unconstitutional punishment before trial.

Reasoning

A facial constitutional challenge carries an especially heavy burden: respondents had to show that no set of circumstances exists in which the statute could validly operate. Possible unconstitutional applications do not make the entire Act invalid outside the limited First Amendment overbreadth context.

Pretrial detention is not automatically punishment. Congress enacted the Act to address the danger posed by certain arrestees while on release, not to punish them before conviction. Preventing danger to individuals and the community is a legitimate regulatory objective.

The detention scheme is not excessive in relation to that objective. It applies only in serious, statutorily specified cases; requires a prompt hearing; is constrained by the Speedy Trial Act; and directs that detainees be housed separately from convicted prisoners to the extent practicable.

Due process does not create an absolute bar against liberty restraints designed to avert danger. The Court's precedents permit regulatory detention in special circumstances, including detention of dangerous resident aliens, persons with dangerous mental conditions, incompetent criminal defendants, and juveniles who pose a continuing danger. Detention for flight risk or threats to witnesses is also accepted.

Congress narrowly targeted arrestees charged with particularly serious offenses and required more than probable cause. At an adversary hearing, the Government must establish by clear and convincing evidence that the person poses an identified and articulable danger that no release condition can reasonably mitigate. In those circumstances, the Government's compelling interest in preventing crime may outweigh the arrestee's substantial liberty interest.

Issue #3

Whether the procedures used to determine dangerousness under the Bail Reform Act facially violate procedural due process.

Holding

No. The Act's hearing and review protections are sufficient to sustain the statute against a facial procedural-due-process challenge.

Reasoning

The Court held that it need only determine whether the procedures are adequate for at least some persons charged with crimes, rather than decide whether they would be sufficient in every possible factual setting. Predicting future criminal conduct is not inherently impossible.

The Act promotes reliable determinations through counsel, the opportunity to testify and present information, cross-examination of appearing witnesses, statutory factors guiding the judicial officer, a clear-and-convincing-evidence burden, written findings and reasons, and immediate appellate review. These protections exceeded those previously upheld for juvenile preventive detention and for limited postarrest detention.

Issue #4

Whether detention without release conditions for dangerous arrestees violates the Eighth Amendment's Excessive Bail Clause.

Holding

No. The Excessive Bail Clause does not require release when Congress authorizes detention to serve a compelling interest other than preventing flight.

Reasoning

The Eighth Amendment prohibits excessive bail but does not expressly guarantee that every arrestee is entitled to bail. The Court rejected the claim that the Clause makes flight risk the only permissible consideration in regulating pretrial release.

Stack v. Boyle establishes that when the Government's sole interest is assuring appearance, bail may not exceed an amount reasonably calculated to achieve that purpose. But Stack did not decide whether bail must be available in every case, because bail was available there.

Carlson v. Landon recognized that the Bail Clause historically bars excessive bail in cases where bail is proper, rather than creating an absolute right to release. Even assuming the Clause substantively constrains Congress's power to deny bail in criminal cases, detention here was not excessive because it was directed to the compelling interest in protecting the community from demonstrated danger.

Dissents

Justice Marshall

Reasoning

Justice Marshall first questioned the Court's jurisdiction. He argued that Salerno's unrelated conviction and 100-year sentence, together with Cafaro's release on a personal-recognizance bond after becoming a cooperating witness, strongly suggested that neither respondent remained subject to an actual detention controversy. In his view, the Government had failed to disclose or adequately confront facts that could make the case moot.

Marshall rejected the majority's regulatory-versus-punitive framework as too narrow. A measure does not become constitutionally permissible merely because Congress describes its purpose as regulatory. Otherwise, he argued, Congress could impose sweeping restraints on people thought statistically likely to commit crimes, such as a nighttime curfew on unemployed persons, so long as it invoked public safety rather than punishment.

He maintained that the Due Process Clause and the Excessive Bail Clause must be read together because both protect the presumption of innocence. Denying bail has the same practical effect as setting bail at an unattainable amount, and the Eighth Amendment constrains Congress as well as judges. The Government may restrain an accused to assure appearance at trial or prevent obstruction of the judicial process, but not to imprison a legally innocent person for anticipated, uncharged crimes.

In Marshall's view, the Act makes an indictment function as evidence that an accused will commit future crimes. Yet a person is as legally innocent before trial as after an acquittal; if an acquittal would end preventive detention, the indictment cannot constitutionally justify it in the first place. The statute therefore undermines the presumption of innocence while allowing potentially indefinite incarceration based on predictive judgments rather than proof of guilt beyond a reasonable doubt.

Marshall warned that the Government's willingness to release Cafaro once he became an informant illustrated the coercive power and abuse potential of preventive detention. Constitutional protections must apply even to defendants whom the Government portrays as dangerous, because shortcuts taken against the accused ultimately threaten innocent people and the liberty of all.

Justice Stevens

Reasoning

Justice Stevens agreed that government may sometimes have authority to impose brief emergency restraints to avert an immediate and nearly certain danger, and he therefore did not embrace every broad proposition in Marshall's dissent. But he concluded that the Bail Reform Act's detention provision was unconstitutional.

For Stevens, a pending indictment cannot constitutionally be given weight in deciding whether a person poses an immediate threat to the community. If evidence of imminent danger independently justifies preventive detention, it should justify that restraint whether the person has been indicted, convicted, acquitted, or never charged. An indictment for past conduct cannot create a special class eligible for detention based on predicted future crimes.

He also found the circumstances surrounding the case troubling. Salerno's separate conviction made novel pretrial detention unnecessary, and Cafaro's release while his case was litigated suggested that the Government was pursuing a test case rather than resolving an actual dispute over these respondents' dangerousness. He joined the central reasoning of Marshall's analysis and concluded that it better honored the presumption of innocence and the Excessive Bail Clause.