Preventive detention
Preventive detention refers to the practice of holding individuals in custody prior to trial based on the determination that they pose a flight risk or a threat to public safety. This legal approach has roots in the British system prior to the American Revolution, where certain defendants were denied bail for serious offenses. In modern American law, preventive detention raises several significant legal concerns, particularly regarding the presumption of innocence, due process, and the right to reasonable bail. While the Sixth Amendment guarantees a speedy trial, the Fifth and Eighth Amendments provide protections regarding due process and excessive bail. Federal and state laws allow for preventive detention in specific circumstances, such as in cases involving violence, previous felony convictions, or where defendants might obstruct justice. The debate surrounding preventive detention has intensified in recent years, particularly following events like the September 11 attacks, which prompted discussions on national security versus individual rights. This complex issue highlights a balance between ensuring public safety and upholding constitutional protections for accused individuals.
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Subject Terms
Preventive detention
SIGNIFICANCE: Federal and state statutes permit preconviction detention upon finding that the accused is likely to flee or is a threat to the safety of the community.
Under the English system at the time of the American Revolution, some criminal defendants were released on bail while those accused of the most serious felony offenses, especially crimes subject to capital punishment, were detained pending trial. Although some legal writers suggest that this pretrial detention was to protect the community from the dangerous propensities of the accused, case law indicates that detention was to make sure the defendant was present at trial. Current American practice, which evolved from English law, allows defendants to remain free on bail or on personal recognizance except in capital offenses with abundant evidence of guilt, when the defendant is likely to flee, or when the accused poses a danger to the community or to witnesses.
Preventive detention statutes call into question three important principles of American law: the presumption of innocence, the right to due process, and the prohibition against excessive bail. Indispensable to the American criminal justice system is the proposition that one who is accused of a crime is presumed innocent until proven guilty. Opponents of preventive detention contend that an accused person has no less of a right to freedom than any other member of society and that the only proper basis for preconviction confinement is the risk of flight. Nevertheless, other grounds for detention are recognized by federal and state law.
The Fifth Amendment prohibits the deprivation “of life, liberty, or property, without due process of law.” However, due process is satisfied by a hearing before a judicial officer in which the person to be detained has the right to be present and to contest the evidence favoring detention. The mandate of the Eighth Amendment, that “excessive bail shall not be required,” is also frequently cited by those who condemn preventive detention. They argue that this implies a right to be released on bail in all cases, except perhaps capital cases for which bail was not available under English common law. The courts, however, have consistently held that this amendment only limits the discretion of judges to set high bail in cases for which Congress or a state legislative body has authorized that bail be granted. The right to bail is fundamental but not absolute. It is not a constitutional violation to provide bail in some cases and deny it in others. The requirement is only that courts must act reasonably and conform to the Constitution and statutes.
The Bail Reform Act gives judicial officers the discretion to detain defendants in federal criminal cases upon finding that no condition or combination of conditions will reasonably assure the appearance of the accused to stand trial or protect the safety of others in the community. Preventive detention may be ordered for those accused of crimes of violence, of offenses which may be punishable by life imprisonment or death, or of certain drug-related offenses. It also may be ordered for defendants with two or more previous felony convictions, for those who pose a serious risk of flight, and for those whom the court finds will obstruct justice or intimidate witnesses or jurors.
State courts also have the power to deny bail in order to assure the presence of the accused at trial and to protect the community unless such powers are limited by the Constitution or by statute. Typical statutes permit criminal defendants to be released on bail except in capital cases where the facts are evident or the presumption of guilt is great. Some statutes also allow preventive detention for felony offenses involving acts of violence in which guilt is obvious or when the defendant would be likely to harm another if released. Since the terrorist attacks of September 11, 2001, and the subsequent detainment of terror suspects, the issue of preventative detention has been hotly debated throughout the world.
Bibliography
Ashworth, Andrew, and Lucia Zedner. Preventive Justice. New York: Oxford UP, 2014. Print.
Flemming, Roy B. Punishment before Trial: An Organizational Perspective of Felony Bail Processes. New York: Longman, 1982. Print.
Garcia, Alfredo. The Fifth Amendment: A Comprehensive Approach. Westport: Greenwood, 2002. Print.
Ludsin, Hallie. Preventive Detention and the Democratic State. New York: Cambridge UP, 2015. Print.
Macken, Claire. Counter-terrorism and the Detention of Suspected Terrorists: Preventive Detention and International Human Rights Law. New York: Routledge, 2011. Print.
"Preventive Detention." National Center for State Courts, 2024, www.ncsc.org/pjcc/topics/release-decisions/preventive-detention. Accessed 9 July 2024.
Shaughnessy, Edward J. Bail and Preventive Detention in New York. Washington: UP of America, 1982. Print.
Singer, Richard G. Criminal Procedure II: From Bail to Jail. New York: Aspen, 2005. Print.