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Column: Bail Reform, Preventive Detention, and “The Police State”


By Christopher Dunn

Reform of criminal bail practices has become a hot topic. Litigation around the country has succeeded in striking down schedules that fix the same cash bail for all arrestees charged with a given offense, and advocates have turned to constitutional challenges to bail-setting practices that result in individualized bail amounts that are unaffordable for indigent arrestees. Meanwhile, some elected officials (including district attorneys) have started to press for fundamental changes to bail practices, with much of the focus being on elimination of cash bail for those charged with minor, non-violent offenses. Just last month, New York joined this movement, with Governor Andrew Cuomo proposing significant changes to the state’s bail practices.

Mitigating the impact of cash bail is urgently needed, and the work of advocates and elected officials can draw considerable support from Supreme Court decisions from decades ago that address the constitutional implications of incarceration of the poor. Before turning to those decisions, however, I want to revisit a particularly troubling part of our country’s bail regime: denial of bail altogether to arrestees deemed to pose a threat to public safety. The deeply controversial nature of this form of preventive detention is largely lost in the current bail-reform debate, but it was only 30 years ago that the Supreme Court definitively addressed the issue. And it did so in a decision that lays bare the extraordinary constitutional implications of jailing people, often for years, who are presumed to be innocent on the supposition they will commit a future crime.

The Dimensions of Pre-Trial Detention

Pre-trial detention has become a central element of our criminal-justice system. The number of people held pre-trial nationally grew from 82,900 people in 1970 to 462,000 in 2013, more than tripling the nationwide pre-trial detention rate from 68 per 100,000 people to 220 per 100,000. Here in New York State, more than 60 percent of those held in jail in 2016 were pre-trial detainees, with pre-trial detainees in New York City in 2017 accounting for 75 percent of those in jail.

Large numbers of people charged with minor, non-violent offenses and assigned small bail amounts nonetheless remain jailed simply because they are too poor to afford their bail. For instance, in what may be the most comprehensive examination, a 2010 study reported that 87 percent of the cases (16,649) in which defendants arrested in 2008 had bail set at $1,000 or less in New York City, the defendant was not able to post bail at arraignment and was incarcerated pending trial, with their average length of pre-trial detention being 15.7 days.

Criminal arrests of course can have grave consequences for people, particularly those on the margins of our society. Pre-trial detention, however, inflicts even greater damage, threatening arrestees with loss of their jobs, housing, children, and more. These consequences demand that we continually examine the justification for pre-trial detention of those merely charged with an offense.

Preventive Detention and the “Police State”

The Bail Reform Act of 1984 added to the federal bail scheme for noncapital offenses the authority to detain an arrestee on the basis of a threat to public safety. Specifically, the Act provides that, if after a hearing, “the judicial officer finds that no condition or combination of conditions will reasonably assure . . . . the safety of any other person and the community, he shall order the detention of the person prior to trial.” Virtually all states – though not New York – similarly authorize pre-trial detention of arrestees deemed to pose a threat to public safety.

This newly authorized preventive-detention authority was quickly challenged, and the controversy reached the Supreme Court in 1987 in United States v. Salerno.[1] That case arose – helpfully for the government – out of the no-bail, pre-trial detention of two organized crime figures who allegedly had participated various violent criminal enterprises, including murder conspiracies. In the Supreme Court they contended that preventive detention was unconstitutional on its face because it violated the due process clause of the Fifth Amendment (which binds federal authorities) and the Eighth Amendment’s excessive-bail provision.

Starting with due process, the majority opinion by Chief Justice William Rehnquist first concluded that pre-trial detention was subject to a relatively relaxed level of scrutiny because, the Court held, it was not “punishment” but instead only “regulatory.” Doctrinally, the test the Court identified for disputes where Congress has not expressed a punitive goal is “whether an alternative purpose to which the restriction may be rationally connected is assignable to it, and whether it appears excessive in relation to the alternative purpose assigned to it.” Having reduced the analysis to these abstract and malleable notions, the Court had little trouble finding that preventive detention under the new federal law was not “punishment.” And having done so, it then held this form of “regulatory” detention fit neatly within prior categories of detention it had blessed. Just how problematic this fit was is apparent, however, from the examples the Court relied upon: detention of “enemy aliens during time of war,” jailing of an individual “in time of insurrection,” detention of “potentially dangerous resident aliens during deportation proceedings,” detention of “mentally unstable individuals who present a danger to the public,” and “postarrest regulatory detention of juveniles when they present a continuing danger to the community.” According to the Court:

Given the well-established authority of the government, in special circumstances, to restrain individuals’ liberty prior to or even without criminal trial and conviction, we think that the present statute providing for pretrial detention on the basis of dangerousness must be evaluated in precisely the same manner that we evaluated the laws in the cases discussed above.

And application of this less exacting evaluation led readily to the conclusion that preventive detention did violated due process.

As for the excessive-bail claim, the defendants offered the seemingly-straightforward contention that denying bail altogether could qualify as “excessive” given the arrestee’s circumstances. The Court rejected this claim via a single, facile observation about the Eighth Amendment’s text, which declares “Excessive bail shall not be required”: “This Clause, of course, says nothing about whether bail shall be available at all.” In other words, the Constitution’s protection against excessive bail applies only to bail amounts, no matter how small, and not at all to outright bail denial.

In stark contrast to the Chief Justice’s anodyne treatment of preventive detention, Justice Marshall penned an impassioned dissent – joined by Justice Brennan – that directly confronts the profound implications of Salerno. For starters, while the term “police state” typically is associated with radical elements of the political community, Justice Marshall opened with an observation equating the Bail Reform Act to a police state:

This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution.

Turning to the majority’s analysis, Justice Marshall decried the “false dichotomy” and “sterile formulism” of separating and treating in isolation the due process and Eighth Amendment concerns. And he acidly critiqued the facileness of the due process punishment / regulation analysis: “The ease with which the conclusion is reached suggests the worthlessness of the achievement.” As for the Eighth Amendment claim, he characterizes as “mere sophistry” the Court’s textual exercise concluding the excessive bail protection does not apply at all to denial of bail. “Indeed, such a result would lead to the conclusion that there was no need for Congress to pass a preventive detention measure of any kind; every federal magistrate and district judge could simply refuse, despite the absence of any evidence of risk of flight or danger to the community, to set bail.”

Finally and most ominously, Justice Marshall spoke about the threat preventive detention poses to fundamental liberty in terms that resonate powerfully given the threats that the Trump presidency poses to our most essential liberties and institutions:

Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be “dangerous.” Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power. Over 200 years it has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves. Today a majority of the Court applies itself to an ominous exercise in demolition. Theirs is truly a decision which will go forth without authority, and come back without respect.

Imprisoning the Poor

Preventive detention through denial of bail profoundly threatens the principle of liberty at the heart of our Constitution, but at least that detention accounts for only a small percentage of pre-trial detainees. Rather, the vast majority of them are held on bail they cannot pay, which goes to the heart of the current debate about minimizing or eliminating the use of cash bail for minor offenses to assure arrestees are not jailed merely because of their indigency.

The Supreme Court has never ruled on whether the Constitution speaks to the intersection between bail and poverty. But in three cases it has held that poor people in the criminal justice system cannot not be incarcerated merely because of their poverty.

The first was Williams v. Illinois,[2] a 1970 case that involved a defendant who was sentenced to a maximum jail term and a fine, who served the term but then was unable to pay the fine, and who then was held in jail another 101 days to “work off” the fine (at $5 a day). The Court struck this down, holding that “[o]nce the State has defined the outer limits of incarceration necessary to satisfy its penological interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indigency.”

One year later came Tate v. Short,[3] which involved a defendant sentenced to pay a fine under a statute that did not authorize any incarceration; when the defendant could not pay the fine, he nonetheless was jailed. Relying on the reasoning of Williams, the Court invalidated this form of indigency-based incarceration: “[T]he same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine . . . .”

Finally and most recently is Bearden v. Georgia from 1983,[4] which involved a scheme under which Georgia would revoke probation for failure to pay an imposed fine and restitution without any assessment of whether the probationer has made good-faith efforts to make the payments. Invoking equal protection and due process, the Court held that the Constitution significantly limits probation revocation for indigent persons’ failure to pay fines:

If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine.

Looking Forward

Bail reform is picking up steam, and the Supreme Court’s rejection of indigency-based detention in Williams, Tate, and Bearden is providing litigators with important support for claims designed to reduce the imposition of unaffordable bail on the poor. But this is not the only problem that bail reform must address, as far too often arrestees are denied bail altogether, resulting in preventive detention that can last for years. In New York, this issue looms large now because Governor Cuomo’s January bail-reform proposal would introduce for the first time into New York’s bail regime the authority to deny bail on the grounds of dangerousness. While such an expansion is unlikely to be vulnerable to constitutional attack, important policy considerations require that it be extremely limited and carefully guarded.

*Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at This column appeared in The New York Law Journal on Jan. 31, 2018.

[1] 481 U.S. 739 (1987).

[2] 399 U.S. 235 (1970).

[3] 401 U.S. 395 (1971).

[4] 461 U.S. 660 (1983).


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