In the 1987 Term, the Supreme Court solidified its jurisprudence of prevention in the companion cases of United States v. Salerno[320] and Hilton v. Braunskill,[321] two cases that knit together a body of decisions heretofore regarded as unrelated exceptions to due process requirements.[322] In these cases, the Court extended the concept of regulatory *376 detention well into traditional criminal law jurisprudence. The Court based this extension on the right of societal self-defense that underlies the jurisprudence of prevention.

Braunskill, the more narrowly decided of these two cases, involved a habeas corpus petition by a state prisoner.[323] Dana Braunskill was convicted of first-degree sexual assault and fourth-degree unlawful possession of a knife.[324] At trial, the judge refused to allow an alibi witness' testimony, which Braunskill alleged would have refuted testimony placing him at the scene of the crime. The New Jersey Court of Appeals found that the alibi witness had been improperly excluded,[325] but that the testimony was of 'dubious value'; the appeals court was satisfied "beyond a reasonable doubt that any such error did not affect the verdict."'[326] Braunskill filed his petition for habeas corpus pro se[327] from within the New Jersey State Prison. Upon granting the petition for habeas corpus, the federal district court did not order the petitioner's release, but stayed the issuance of the writ for 30 days to allow the state time to retry the petitioner.[328] The state asked the district court to suspend its order pending appeal of the case, alleging that Braunskill was a potential threat to the community.[329] The court denied the motion, finding that the only acceptable ground for detaining Braunskill would be the risk that he would not appear for subsequent proceedings.[330] The state then sought a stay of the court's order from the United States court of appeals. The appeals court "summarily denied the stay application."'[331]

Reversing the court of appeals, the United States Supreme Court determined that the proper standard for reviewing a motion to stay a writ of habeas corpus are the same as those for reviewing a civil judgment, because habeas corpus proceedings are civil, not criminal, in nature.[332] More specifically, a court must consider "where the public interest lies."'[333] The Court found that considering whether releasing a habeas corpus petitioner might endanger the community was in the public interest. *377[334] The Court rejected the argument that substantive due process "prohibits the total deprivation of liberty simply as a means of preventing future crimes."'[335]

Detaining an individual in order to prevent future criminal behavior harkens back to the idea that moral contagion is a public health issue.[336] By implicitly applying the public health metaphor to crime, the Court avoided applying the cumbersome constitutional protections that pertain in a criminal context. Hilton weakened the presumption of innocence through the facile observation that persons who have been convicted of a crime are less likely to be innocent than persons not convicted of a crime.[337]

Although the Hilton court acknowledged that the foundation of a successful habeas corpus petition is a finding that the underlying conviction was constitutionally infirm,[338] the Court stressed that a prisoner is entitled to less protection than an arrestee or a randomly chosen citizen because the prisoner has already been found guilty beyond a reasonable doubt by a jury[339]

However, this holding is not in keeping with the notion that innocence is an absolute quality: either one is innocent or one is not innocent.[340] By quantifying innocence so that it may be set off against dangerousness, the Court transformed the absolutist issue of constitutionally*378 impermissible punishment of an innocent person into the probabilistic issue of dangerousness. Once we contemplate judicial balancing of the pain of detention against the safety of society, then detention of innocent persons is no longer unthinkable. Ultimately the due process issues become subsumed within a determination of dangerousness.

In a federal habeas corpus action, the judge makes the determination of dangerousness. Because federal rules governing habeas corpus derive from the court's equity powers,[341] the federal judge has broad discretion to make the determination. Despite serious risk of unconstitutional vagueness,[342] the Supreme Court accepts this procedure recognizing that the public interest requires that the determination be flexible. However, this procedure is arguably inconsistent with the criminal law doctrine that bars punishment under ambiguous statutes.[343]

[320] 107 S. Ct. 2095. (1987).

[321]107 S. Ct. 2113 (1987).

[322] Salerno, 107 S. Ct. at 2102.

[323] 629 F.Supp. 511 (D.N.J. 1986).

[324] Id. at 513.

[325] Id. at 515.

[326] Id. at 516 (citation omitted).

[327] Pursuant to 28 U.S.C. s 2254.

[328] Braunskill, 629 F.Supp. at 526.

[329] Hilton, 107 S. Ct. at 2117.

[330] Id.

[331] Id., citing Carter v. Rafferty, 781 F.2d. 993, 997 (3d Cir. 1986).

[332] Id. at 2118. Therefore the general standards governing stays of civil judgments should also guide courts when they decide whether to release a habeas corpus petitioner pending the state's appeal. Id. at 2119.

[333] Id. at 2119.

[334] "[I]f the state establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration in determining whether to enlarge him."' Id.

[335] Id. at 2120.

[336] The Supreme Court, in Holmes v. Jennison, 39 U.S. 540 (1840), stated:

No political community, no municipal corporation, can be under any obligation to suffer a moral pestilence to pollute its air, or contagion, of the most corrupting and demoralizing influence, to spread among its citizens, by the conduct and example of men, who, having forfeited the protection of their own government by their crimes, claim to be rescued from the consequences, by an appeal to the same Constitution and laws, under which our own citizens are not, and cannot be screened from punishment, when it is merited by their conduct."

Id. at 615-16.

[337] When combined with the holding in Bell, which limits the presumption of innocence to criminal trials, this ruling severely constrains the presumption of innocence as a viable legal theory.

[338] Hilton, 107 S. Ct. at 2120.

[339] But we also think that a successful habeas petitioner is in a considerably less favorable position than a pre-trial arrestee . . . to challenge his continued detention pending appeal. Unlike a pre-trial arrestee, a state habeas petitioner has been adjudged guilty beyond a reasonable doubt by a judge or jury, and this adjudication of guilt has been upheld by the appellate courts of the state.

Id.

[340]The Supreme Court foreshadowed this relativistic view of innocence with its decision in Bell that innocent pretrial detainees are not entitled to special status. See supra note 188-92 and accompanying text.

[341] See Fed. Rule Civ. Proc 62(c) and Fed. Rule App. Proc. 8(a), cited in Hilton at 2119.

[342] "Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a rigid set of rules."' Id. at 2119.

[343] See, e.g., Scull v. Virginia, 359 U.S. 344, 353 (1959) (sending convicted person to jail for crime "he could not with reasonable certainty know he was committing"' violates fundamental fairness"').