Preventive Detention

Prior to 1970, judges did not have the authority to preventively detain defendants for public safety reasons. The District of Columbia Court Reform and Criminal Procedure Act of 1970 was the first statute to allow judges to consider a defendant’s dangerousness to the community in addition to flight risk as a reason for denying pretrial release (see Legal Framework topic). Public safety considerations subsequently were added to the Bail Reform Act of 1984 and upheld in United States v. Salerno and are now part of many state statutes.

Although allowing detention for dangerousness, the tenor of the 1984 Bail Reform Act was restrained, requiring procedural safeguards (e.g., a detention hearing with right to request counsel, testify, present witnesses, offer evidence) to ensure a presumption of liberty and release with the least restrictive conditions necessary. The District of Columbia (DC) exemplifies this approach: its statute presumes the least restrictive release for eligible defendants, detention with due process safeguards for those who potentially pose an unacceptable risk to the community, and an absolute prohibition on money-based detention (i.e., setting financial conditions that the defendant cannot meet). For fiscal years 2013 and 2014, approximately 16% of all persons arrested and charged with a crime in DC were initially detained, and over half of these were subsequently released prior to disposition. On average, approximately 90% of arrestees are released to the community either on their own recognizance or with supervised release conditions.

Preventive detention is not without its critics who express concern that a presumption of release will be overshadowed in some jurisdictions by concerns of possible dangerousness and that judges will continue to use financial conditions (i.e., high money bonds) to detain potentially dangerous defendants rather than conducting a detention hearing with all of its procedural safeguards.

Schnacke (2014) argues that the issue for states is determining the appropriate balance of bailable to unbailable defendants, given the presumption of release:

If a proper bail/no bail balance is not crafted through a particular state’s preventive detention provisions, and if money is left as an option for conditional release, history has shown that judges will use that money option to expeditiously detain otherwise bailable defendants. On the other hand, if the proper balance is created so that high-risk defendants can be detained through a fair and transparent process, money can be virtually eliminated from the bail process without negatively affecting public safety or court appearance rates.  (p. 52)

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