United States v. Salerno, 481 U.S. 739 (1987)

JUSTICE STEVENS, dissenting.

There may be times when the Government’s interest in protecting the safety of the community will justify the brief detention of a person who has not committed any crime, see ante at 748-749, see also United States v. Greene, 497 F.2d 1068, 1088-1089 (CA7 1974) (Stevens, J., dissenting).{1} To use Judge Feinberg’s example, it is indeed difficult to accept the proposition that the Government is without power to detain a person when it is a virtual certainty that he or she would otherwise kill a group of innocent people in the immediate future. United States v. Salerno, 794 F.2d 64, 77 (CA2 1986) (dissenting opinion). Similarly, I am unwilling to decide today that the police may never impose a limited curfew during a time of crisis. These questions are obviously not presented in this case, but they lurk in the background, and preclude me from answering the question that is presented in as broad a manner as JUSTICE MARSHALL has. Nonetheless, I firmly agree with JUSTICE MARSHALL that the provision of the Bail Reform Act allowing pretrial detention on the basis of future dangerousness is unconstitutional. Whatever the answers are to the questions I have mentioned, it is clear to me that a pending indictment may not be given any weight in evaluating an individual’s risk to the community or the need for immediate detention.

If the evidence of imminent danger is strong enough to warrant emergency detention, it should support that preventive measure regardless of whether the person has been charged, convicted, or acquitted of some other offense. In this case, for example, it is unrealistic to assume that the danger to the community that was present when respondents were at large did not justify their detention before they were indicted, but did require that measure the moment that the grand jury found probable cause to believe they had committed crimes in the past.{2} It is equally unrealistic to assume that the danger will vanish if a jury happens to acquit them. JUSTICE MARSHALL has demonstrated that the fact of indictment cannot, consistent with the presumption of innocence and the Eighth Amendment’s Excessive Bail Clause, be used to create a special class, the members of which are, alone, eligible for detention because of future dangerousness.

Several factors combine to give me an uneasy feeling about the case the Court decides today. The facts set forth in Part I of JUSTICE MARSHALL’s opinion strongly support the possibility that the Government is much more interested in litigating a "test case" than in resolving an actual controversy concerning respondents’ threat to the safety of the community. Since Salerno has been convicted and sentenced on other crimes, there is no need to employ novel pretrial detention procedures against him. Cafaro’s case is even more curious, because he is apparently at large, and was content to have his case argued by Salerno’s lawyer even though his interests would appear to conflict with Salerno’s. But if the merits must be reached, there is no answer to the arguments made in Parts II and III of JUSTICE MARSHALL’s dissent. His conclusion, and not the Court’s, is faithful to the "fundamental principles as they have been understood by the traditions of our people and our law." Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, I respectfully dissent.

1.

If the evidence overwhelmingly establishes that a skyjacker, for example, was insane at the time of his act, and that he is virtually certain to resume his violent behavior as soon as he is set free, must we then conclude that the only way to protect society from such predictable harm is to find an innocent man guilty of a crime he did not have the capacity to commit?

United States v. Greene, 497 F.2d at 1088.

2. The Government’s proof of future dangerousness was not dependent on any prediction that, as a result of the indictment, respondents posed a threat to potential witnesses or to the judicial system.