Policy Memo #2:? Bail Reform Proposal

The US Pretrial System: Balancing Individual Rights and Public Interests

· Will Dobbie

· Crystal S. Yang

Journal of Economic Perspectives

vol. 35, no. 4, Fall 2021

(pp. 49–70)

Download Full Text PDF (Complimentary)

· Article Information

Abstract

In this article, we review a growing empirical literature on the effectiveness and fairness of the US pretrial system and discuss its policy implications. Despite the importance of this stage of the criminal legal process, researchers have only recently begun to explore how the pretrial system balances individual rights and public interests. We describe the empirical challenges that have prevented progress in this area and how recent work has made use of new data sources and quasi-experimental approaches to credibly estimate both the individual harms (such as loss of employment or government assistance) and public benefits (such as preventing non-appearance at court and new crimes) of cash bail and pretrial detention. These new data and approaches show that the current pretrial system imposes substantial short- and long-term economic harms on detained defendants in terms of lost earnings and government assistance, while providing little in the way of decreased criminal activity for the public interest. Non-appearances at court do significantly decrease for detained defendants, but the magnitudes cannot justify the economic harms to individuals observed in the data. A second set of studies shows that that the costs of cash bail and pretrial detention are disproportionately borne by Black and Hispanic individuals, giving rise to large and unfair racial differences in cash bail and detention that cannot be explained by underlying differences in pretrial misconduct risk. We then turn to policy implications and describe areas of future work that would enable a deeper understanding of what drives these undesirable outcomes.

Citation

Dobbie, Will, and Crystal S. Yang. 2021. "The US Pretrial System: Balancing Individual Rights and Public Interests." Journal of Economic Perspectives 35 (4): 49–70. DOI: 10.1257/jep.35.4.49

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Policy Memo #2: Bail Reform Proposal (Module 5)

This assignment requires students to critically examine constitutional principles, legal precedents, and empirical research on pretrial detention, focusing on the balance between public safety, individual rights,and judicial discretion.

Memo Requirements & Structure

Background and Legal Context: Identify a state or federal rule of criminal procedure that governs pretrial detention and bail practices. Explain the legal framework and procedural requirements of the selected rule, including any discretionary authority granted to judges. Summarize the key issues in United States v. Salerno (1987), demonstrating an understanding of the constitutional parameters surrounding pretrial detention, including due process (Fifth Amendment) and excessive bail protections (Eighth Amendment).

Analysis of Current Issues: Provide a critical analysis of pretrial detention policies, addressing: (1) The effectiveness and fairness of cash bail systems, (2) The role of risk assessment tools in determining pretrial release conditions, (3) Disparities in pretrial detention outcomes based on race, socioeconomic status, and legal representation. Assess the impact of risk assessment algorithms, evaluating their effectiveness, biases, and ethical considerations. Integrate empirical research by incorporating findings from at least three (3) peer-reviewed

sources that examine the outcomes of pretrial detention policies and bail reform efforts.

Policy Recommendations: Propose specific, evidence-based reforms to address issues in pretrial

detention and bail practices. Recommendations may include: (1) Eliminating or reducing reliance on cash bail to minimize socioeconomic disparities, (2) Implementing judicial guidelines for risk assessments to prevent bias and ensure fairness, (3) Expanding pretrial services and non-monetary release alternatives, such as supervised release, electronic monitoring, or court reminder systems, (4) Strengthening legal protections for indigent defendants to reduce wrongful pretrial incarceration.Justify recommendations with legal precedent, empirical research, and policy considerations to demonstrate feasibility and effectiveness.

Concept Map: Incorporate a visual representation of your analysis by utilizing a concept map or logic model. The visual representation should demonstrate an understanding of the policy’s structure, actors, and outcomes. You may integrate your concept map in text or as an appendix

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U.S. Supreme Court

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

No. 86-87

Argued January 21, 1987

Decided May 26, 1987

481 U.S. 739

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Syllabus

The Bail Reform Act of 1984 (Act) requires courts to detain prior to trial arrestees charged with certain serious felonies if the Government demonstrates by clear and convincing evidence, after an adversary hearing, that no release conditions "will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(e) (1982 ed., Supp. III). The Act provides arrestees with a number of procedural rights at the detention hearing, including the right to request counsel, to testify, to present witnesses, to proffer evidence, and to cross-examine other witnesses. The Act also specifies the factors to be considered in making the detention decision, including the nature and seriousness of the charges, the substantiality of the Government's evidence, the arrestee's background and characteristics, and the nature and seriousness of the danger posed by his release. Under the Act, a decision to detain must be supported by written findings of fact and a statement of reasons, and is immediately reviewable. After a hearing under the Act, the District Court ordered the detention of respondents, who had been charged with 35 acts of racketeering activity. The Court of Appeals reversed, holding that § 3142(e)'s authorization of pretrial detention on the ground of future dangerousness is facially unconstitutional as violative of the Fifth Amendment's substantive due process guarantee.

Held:

1. Given the Act's legitimate and compelling regulatory purpose and the procedural protections it offers, § 3142(e) is not facially invalid under the Due Process Clause. Pp. 481 U. S. 746 -752.

(a) The argument that the Act violates substantive due process because the detention it authorizes constitutes impermissible punishment before trial is unpersuasive. The Act's legislative history clearly indicates that Congress formulated the detention provisions not as punishment for dangerous individuals, but as a potential solution to the pressing societal problem of crimes committed by persons on release. Preventing danger to the community is a legitimate regulatory goal. Moreover, the incidents of detention under the Act are not excessive in relation to that goal, since the Act carefully limits the circumstances under which detention may be sought to the most serious of crimes, the arrestee is entitled to a prompt hearing, the maximum length of detention

Page 481 U. S. 740

is limited by the Speedy Trial Act, and detainees must be housed apart from convicts. Thus, the Act constitutes permissible regulation, rather than impermissible punishment. Pp. 481 U. S. 746 -748.

(b) The Court of Appeals erred in ruling that the Due Process Clause categorically prohibits pretrial detention that is imposed as a regulatory measure on the ground of community danger. The Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest. Such circumstances exist here. The Act narrowly focuses on a particularly acute problem — crime by arrestees — in which the Government's interests are overwhelming. Moreover, the Act operates only on individuals who have been arrested for particular extremely serious offenses, and carefully delineates the circumstances under which detention will be permitted. Pp. 481 U. S. 748 -751.

(c) The Act's extensive procedural safeguards are specifically designed to further the accuracy of the likelihood-of-future-dangerousness determination, and are sufficient to withstand respondents' facial challenge, since they are more than "adequate to authorize the pretrial detention of at least some [persons] charged with crimes." Schall v. Martin, 467 U. S. 253 , 467 U. S. 264 . Pp. 481 U. S. 751 -752.

2. Section 3142(e) is not facially unconstitutional as violative of the Excessive Bail Clause of the Eighth Amendment. The contention that the Act violates the Clause because it allows courts essentially to set bail at an infinite amount for reasons not related to the risk of flight is not persuasive. Nothing in the Clause's text limits the Government's interest in the setting of bail solely to the prevention of flight. Where Congress has mandated detention on the basis of some other compelling interest — here, the public safety — the Eighth Amendment does not require release on bail. Pp. 481 U. S. 752 -755.

794 F.2d 64, reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 481 U. S. 755 . STEVENS, J., filed a dissenting opinion, post, p. 481 U. S. 767 .

Page 481 U. S. 741

The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions "will reasonably assure . . . the safety of any other person and the community." The United States Court of Appeals for the Second Circuit struck down this provision of the Act as facially unconstitutional, because, in that court's words, this type of pretrial detention violates "substantive due process." We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. [ Footnote 1] 479 U.S. 929 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse.

Page 481 U. S. 742

Page 481 U. S. 743

Page 481 U. S. 744

631 F. Supp. 1364 , 1375 (SDNY 1986). [ Footnote 2]

Respondents appealed, contending that, to the extent that the Bail Reform Act permits pretrial detention on the ground that the arrestee is likely to commit future crimes, it is unconstitutional on its face. Over a dissent, the United States Court of Appeals for the Second Circuit agreed. 794 F.2d 64 (1986). Although the court agreed that pretrial detention could be imposed if the defendants were likely to intimidate witnesses or otherwise jeopardize the trial process, it found

"§ 3142(e)'s authorization of pretrial detention [on the ground of future dangerousness] repugnant to the concept of substantive due process, which we believe prohibits the total deprivation of liberty simply as a means of preventing future crimes."

Id. at 71-72. The court concluded that the Government could not, consistent with due process, detain persons who had not been accused of any crime merely because they were thought to present a danger to the community. Id. at 72, quoting United States v. Melendez-Carrion, 790 F.2d

Page 481 U. S. 745

984, 1000-1001 (CA2 1986) (opinion of Newman, J.). It reasoned that our criminal law system holds persons accountable for past actions, not anticipated future actions. Although a court could detain an arrestee who threatened to flee before trial, such detention would be permissible because it would serve the basic objective of a criminal system — bringing the accused to trial. The court distinguished our decision in Gerstein v. Pugh, 420 U. S. 103 (1975), in which we upheld police detention pursuant to arrest. The court construed Gerstein as limiting such detention to the " administrative steps incident to arrest.'" 794 F.2d at 74, quoting Gerstein, supra, at 114. The Court of Appeals also found our decision in Schall v. Martin, 467 U. S. 253 (1984), upholding postarrest, pretrial detention of juveniles, inapposite because juveniles have a lesser interest in liberty than do adults. The dissenting judge concluded that, on its face, the Bail Reform Act adequately balanced the Federal Government's compelling interests in public safety against the detainee's liberty interests.

II A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an "overbreadth" doctrine outside the limited context of the First Amendment. Schall v. Martin, supra, at 269, n. 18. We think respondents have failed to shoulder their heavy burden to demonstrate that the Act is "facially" unconstitutional. [ Footnote 3]

Page 481 U. S. 746

The Due Process Clause of the Fifth Amendment provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law. . . ." This Court has held that the Due Process Clause protects individuals against two types of government action. So-called "substantive due process" prevents the government from engaging in conduct that "shocks the conscience," Rochin v. California, 342 U. S. 165 , 342 U. S. 172 (1952), or interferes with rights "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 -326 (1937). When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 335 (1976). This requirement has traditionally been referred to as "procedural" due process.

Respondents first argue that the Act violates substantive due process because the pretrial detention it authorizes constitutes impermissible punishment before trial. See Bell v. Wolfish, 441 U. S. 520 , 441 U. S. 535 , and n. 16 (1979). The Government, however, has never argued that pretrial detention could be upheld if it were "punishment." The Court of Appeals assumed that pretrial detention under the Bail Reform Act is regulatory, not penal, and we agree that it is.

As an initial matter, the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. Bell v. Wolfish, supra, at

Page 481 U. S. 747

537. To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Schall v. Martin, 467 U.S. at 467 U. S. 269 . Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on

"'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].'"

Ibid., quoting Kennedy v. Mendoza-Martinez, 372 U. S. 144 , 372 U. S. 168 -169 (1963).

We conclude that the detention imposed by the Act falls on the regulatory side of the dichotomy. The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. See S.Rep. No. 98-225, at 8. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. Id. at 4-7. There is no doubt that preventing danger to the community is a legitimate regulatory goal. Schall v. Martin, supra.

Nor are the incidents of pretrial detention excessive in relation to the regulatory goal Congress sought to achieve. The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes. See 18 U.S.C. § 3142(f) (detention hearings available if case involves crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders). The arrestee is entitled to a prompt detention hearing, ibid., and the maximum length of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act. [ Footnote 4] See 18 U.S.C. § 3161 et seq. (1982 ed. and Supp. III). Moreover, as in Schall v. Martin, the conditions of confinement envisioned by the Act "appear to reflect the regulatory purposes relied upon by the" Government.

Page 481 U. S. 748

467 U.S. at 467 U. S. 270 . As in Schall, the statute at issue here requires that detainees be housed in a "facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal." 18 U.S.C. § 3142(i)(2). We conclude, therefore, that the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.

The Court of Appeals nevertheless concluded that

"the Due Process Clause prohibits pretrial detention on the ground of danger to the community as a regulatory measure, without regard to the duration of the detention."

794 F.2d at 71. Respondents characterize the Due Process Clause as erecting an impenetrable "wall" in this area th

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