U.S. v. Salerno represents the most recent refinement of the regulatory/punitive dichotomy: the civil detention of adults to prevent future criminal conduct. Commentators have assailed this decision as an erosion of criminal defendants' rights.[345] More importantly, the Supreme Court's decision in Salerno may signal an effort to revive a set of previously unrelated civil restriction cases as precedent for the jurisprudence of prevention.

The district court in U.S. v. Salerno reviewed the indictment of Anthony "Fat Tony"' Salerno.[346] Salerno was indicted under the Racketeer Influenced and Corrupt Organizations Act (RICO)[347] for conspiring to engage in a pattern of racketeering.[348] Pursuant to the Bail Reform Act of 1984,[349] which allows bail to be denied to persons who pose a threat of future criminal activity, the government moved to have Salerno detained prior to trial. Conceding that he posed no risk of flight, the government nevertheless maintained that he posed a threat to the community and "that no condition or combination of conditions will assure *379 the safety of the community or of any person . . . . "[350] The district court conducted a hearing at which Salerno, represented by counsel, was allowed to offer testimony rebutting the government's allegations. Salerno was not, however, allowed to cross-examine or confront the government's witnesses.[351]

In deviating from the usual form of an adversarial hearing,[352] the court stated that a pretrial detention hearing is civil, rather than criminal in nature.[353] It characterized the proceeding as one involving involuntary civil commitment, subject to the reduced standard of proof established in Addington v. Texas.[354] By this characterization, the District Court was able to avoid the issue of Salerno's presumed innocence and indulge in a risk calculus based on the government's evidence that Salerno ran a criminal enterprise.

The government presented extensive evidence that Salerno posed a danger to the community.[355] This evidence consisted of allegations of past criminal activities and the assertion that Salerno had the power to direct murder with no more than a word.[356] Within the constraints of the limited adversary hearing given Salerno, the court found that "the government has established by clear and convincing evidence that the defendant . . . pose [s] a present danger to the community and that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community."'[357] Concluding that *380 the government had satisfied the statutory test to justify detention pursuant to the Bail Reform Act of 1984,[358] the district court ordered Salerno's detention.[359]

Salerno appealed his pretrial detention to the Second Circuit Court of Appeals,[360] challenging both the sufficiency of the evidence of future dangerousness and the constitutionality of the Bail Reform Act.[361] The appeals court did not find that the district court's limitations on the adversary hearing prejudiced Salerno's rights, nor did it contest the use of a "'clear and convincing"' standard (rather than "beyond a reasonable doubt"') to justify detention.[362] The court also held that the conditions of the proposed detention itself were proper.[363]

After rejecting Solerno's procedural objections, the appeals court addressed the constitutional issue of detention based on future dangerousness. The court declined to characterize detention as regulatory rather than punitive in nature:

The sole bases for the detention order in this case are the findings that the defendants would, if released, carry on "business as usual"' notwithstanding any release conditions, and that business as usual involves threats and crimes of violence. We regard section 3142(e)'s authorization of pretrial detention on this ground as 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.[364]

*381 Pretrial detention is inconsistent with the traditional view that liberty is an absolute constitutional value, yet, the appeals court did not take a pure absolutist position in reviewing the use of pretrial detention.[365] For example, the court proposed the use of surveillance as an alternative to incarceration to prevent a monstrous crime, such as the threatened destruction of an airliner.[366] In suggesting this unpalatable alternative to pretrial detention, the appeals court implicitly recognized that the doctrine of absolute liberty until a final criminal conviction has unacceptable societal implications.

The appeals court carefully distinguished Gerstein v. Pugh[367] as limited to administrative steps incident to arrest.[368] The court refused to make Gerstein, which it characterized as a decision rendered to protect suspects, "'the basis for extending that detention for weeks and months after the probable cause determination ha[d] been made."'[369] The court was also careful to limit the ruling in Schall v. Martin[370] to juveniles. Conceding that adults may pose as great a threat to society as juveniles, the Salerno court interpreted Schall as "at pains to point out"' that juveniles are always in some form of custody.[371] Both of these finely drawn distinctions were swept away in the Supreme Court's reversal of Salerno.

Justice Rehnquist set the stage for the Supreme Court opinion in Salerno by reviewing the legislative history of the Bail Reform Act. The Court found that the Act was passed in response to "the alarming problem of crimes committed by persons on release,"' and that it gave courts "adequate authority to make release decisions that give appropriate recognition *382 to the danger a person may pose to others if released."'[372] In recognizing that the threat of public danger requires courts to exercise increased discretionary authority, the Supreme Court invoked public health jurisprudence to shift the constitutional question from criminal to civil law antecedents.

The key to this transformation is a recharacterization of "impermissible punishment"' as "permissible regulation,"' based on Bell v. Wolfish[373] and Schall.[374] Both Bell and Schall involved situations in which the effect of a statute was to confine "innocent"' persons to unpleasant places. In Schall, the Supreme Court accepted that detention of juveniles did not constitute punishment.[375] Bell involved adult pretrial detainees who were confined in a crowded federal detention center; the Bell Court found that this admittedly unpleasant confinement was not punishment because it was reasonably related to a legitimate government objective.[376] Following these holdings, the Salerno court found:

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. To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to the legislative intent. 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]."'[377]

Examining the legislative history of the Bail Reform Act, the Supreme Court determined that Congress intended pretrial detention to protect the public and not to punish.[378] The Court concluded that pretrial detention pursuant to the Bail Reform Act is "regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause."'[379]

*383 More generally, the Supreme Court rejected the notion that the Due Process Clause is an "impenetrable wall"'.[380] The Court recited a litany of cases in which states subrogated the liberty of individuals to the protection of society.[381] The Court stressed that, although those instances may all be considered "exceptions"' to the "general rule"' that the government may not detain a person prior to a judgment of guilt in criminal trial, the rule is by now so riddled with exceptions as to be ineffective in limiting the government's authority to restrain individuals.[382] Characterizing these cases as supportive of the government's right to infringe liberty for the public good, the Supreme Court implicitly reaffirmed the right of the government to detain: 1) "in times of war or insurrection . . . individuals whom the government believes to be dangerous"'[383]2) "potentially dangerous"' resident aliens pending deportation hearing;[384] 3) "mentally unstable individuals who present a danger to the public"';[385] 4) "dangerous defendants who become incompetent to stand trial"',[386] 5) "juveniles when they present a continuing danger to the community"',[387] and 6) persons arrested on suspicion of committing a crime.[388]

In reviewing the facial challenge to the Bail Reform Act the Court stressed that it was construing a statute that contained a detailed procedure for assuring the protection of the defendant's rights.[389] The Court emphasized that the Bail Reform Act provides more due process protection than many other cases; in particular, the Supreme Court contrasted the provisions of the Bail Reform Act with the statute that was upheld in *384 Schall v. Martin.[390] In rejecting the appeals court's limitation of Schall to the pretrial detention of juveniles, the Supreme Court may have foreseen a broader role for Schall as a standard for due process in adult detentions.

Disposing of Salerno's challenge based on the Excessive Bail Clause of the Eighth Amendment, the Court dismissed the argument that the Constitution's prohibition against excessive bail amounts to a requirement that bail always be provided. If there are considerations other than flight, the Court said, then the Excessive Bail Clause does not require release on bail.[391]

Disposing of Salerno's plea for freedom, the Court carefully characterized its holding as an exception to the societal expectation of liberty. Although the Court reiterated that the Bail Reform Act included safeguards that enabled it to pass constitutional scrutiny, the Court emphasized that liberty is not absolute, but must be balanced against the "primary concern of every government--a concern for the safety and indeed the lives of its citizens . . . . "[392]

[344] 107 S. Ct. 2095 (1987).

[345] See infra note 405.

[346] United States v. Salerno, 631 F. Supp. 1364 (S.D.N.Y. 1986).

[347] 18 U.S.C. s 1962.

[348] Salerno, 631 F. Supp. at 1366-67.

[349] 18 U.S.C. s 3142(f)(1)(A) (1984).

[350] Salerno, 631 F. Supp. at 1366.

[351] The government was concerned that Salerno would kill or intimidate the witnesses if he was allowed to confront them:

The government has a substantial interest at this early stage of the case in preventing premature discovery, in protecting the emotional and physical well-being of its witnesses and in preventing impairment of on-going investigations. On the record of this case, the court finds that these interests outweigh any prejudice claimed by Salerno in not being able to directly impeach Fratianno and Lonardo.

Id. at 1373. Central to the court's accepting the government's request to shelter its witnesses was the testimony on Salerno's involvement with various conspiracies to commit murder. See id. at 1367-68.

[352] Id. at 1373.

[353] Moreover, the court pointed out, "At a pretrial detention hearing, many of the rights a defendant enjoys at a criminal trial are absent. The detention hearing is not punitive in nature; rather, it is an involuntary civil commitment proceeding at which proof by a standard less than 'beyond a reasonable doubt' is applicable."' Id. at 1373.

[354] Id. (citing Addington, 441 U.S. 418 (1979)).

[355] "The court has received a great deal of information about Salerno's danger to the community; it is overwhelming. By 'clear and convincing' proof, the government has established that Salerno is the head, or 'Boss', of an organization engaged in extortion, loansharking, illegal gambling, and murder."' Id. at 1371.

[356] "The government has proffered information showing that Salerno could order a murder merely by voicing his assent with the single word 'hit."' Id. at 1371.

[357] Id. at 1366.

[358] 18 U.S.C. ss 3141-56 (Supp. II 1984).

[359] IT IS HEREBY ORDERED THAT defendants Salerno and Cafaro be committed to the custody of the Attorney General for confinement in a corrections facility . . . and that, on an order of a court of the United States or on the request of an attorney for the government, the person in charge of the corrections facility in which they are confined deliver them to a United States marshal for the purpose of an appearance in connection with a court proceeding.

U.S. v. Salerno, 631 F. Supp. at 1375.

[360] United States v. Salerno, 794 F.2d 64 (2d Cir. 1986) [hereinafter Salerno (2d Cir.)].

[361] Id. at 68.

[362] Id. at 70.

[363] Id. at 71.

[364] The court in Salerno at 71-72 (quoting from United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir. 1986)), pointed out:

The Government contends that section 3142(e) [the Bail Reform Act] is to be upheld simply because preventive detention is a rational means of advancing the compelling state interest in public safety. That cannot be the test for determining the constitutionality of preventive detention. The fallacy of using such a test can be readily seen from consideration of preventive detention as applied to persons not arrested for any offense. It cannot seriously be maintained that under our Constitution the Government could jail people not accused of any crime simply because they were thought likely to commit crimes in the future. Yet such a police state approach would undoubtedly be a rational means of advancing the compelling state interest in public safety. In a constitutional system where liberty is protected both substantively and procedurally by the limitations of the Due Process Clause, a total deprivation of liberty cannot validly be accomplished [on the sole ground that] doing so is a rational means of regulating to promote even a substantial governmental interest. (emphasis added in Salerno (2d Cir.).

[365] The appeals court also suggested that if a crime is sufficiently heinous, then the Government need merely assert that it fears the suspected criminal will flee. Id. at 74. This leaves the question whether it is constitutionally preferable to detain on the acceptable but sham ground of fear of flight.

[366] "Even the risk of some serious crime . . . must, under our Constitution, be guarded against by surveillance of the suspect and prompt trial on any pending charges, and not by incarceration . . . . " Id. at 74.

[367] 420 U.S. 103 (1975).

[368] "We do not believe that Gerstein v. Pugh upholds pretrial detention to guard against the commission of future crimes. The detention there allowed, upon a policeman's assessment of probable cause, was for the purpose of taking 'the administrative steps incident to arrest."' Salerno (2d Cir.) at 74 (citations omitted).

[369] Id.

[370] 467 U.S. 253 (1984).

[371] Salerno (2d Cir.) at 74. The appeals court also stressed that Schall represents the state exercising parens patriae power to protect the juvenile, rather than focusing on Schall as exercising the authority to protect the public.

[372] U.S. v. Salerno, 107 S. Ct. 2095, 2098 (1987) (citing S. REP. No. 98-225, p. 3, U.S. CODE CONG. & ADMIN. NEWS 1984, p. 3185).

[373] 441 U.S. 520 (1979).

[374] 467 U.S. 253. By contrast, in Mendoza-Martinez, 372 U.S. 144 (1963), an immigration law punished persons who left the United States to evade the draft. In that case, the apparent purpose of the statute (punishment) was also the intended purpose. Id. at 169.

[375] Schall, 467 U.S. at 269.

[376] Bell, 441 U.S. at 539.

[377] Salerno, 107 S. Ct. at 2101 (citations omitted).

[378] "Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal."' Id. (citations omitted).

[379] Id. at 2101.

[380] Id.

[381] Id.

[382] Id. at 2102.

[383] Id. It is interesting that the Court cited Ludecke v. Watkins, 335 U.S. 160 (1948), a case allowing the detention of an enemy alien, and Moyer v. Peabody, 212 U.S. 78 (1909), rather than the more notorious Korematsu, 323 U.S. 214 (1944).

[384] Salerno at 2102 (citing Carlson v. Landon, 342 U.S. 524 (1952) and Wing Wong v. United States, 163 U.S. 228 (1896)).

[385] Salerno at 2102 (citing Addington, 441 U.S. 520 (1979)).

[386] Salerno at 2102 (citing Jackson v. Indiana, 406 U.S. 715 (1972) and Greenwood v. United States, 350 U.S. 366 (1956)).

[387] Salerno at 2102 (citing Schall v. martin, 467 U.S. at 269).

[388] Salerno at 2102 (citing Gerstein v. Pugh, 420 U.S. 103 (1975)).

[389] The government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a fullblown adversary hearing, the government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure that safety of the community or any person.

Id. at 2103.

[390] "The protections are more exacting than those we found sufficient in the juvenile context, see Schall, and they far exceed what we found necessary . . . in Gerstein v. Pugh."' Id. at 2104 (citations omitted).

[391] "We believe that when Congress has mandated detention on the basis of a compelling interest other than prevention of flight, as it has here, the Eighth Amendment does not require release on bail."' Id. at 2105.

[392] Id. at 2105.