United States v. Salerno

PETITIONER: United States
LOCATION: Action Iron and Metal Company

DOCKET NO.: 86-87
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 481 US 739 (1987)
ARGUED: Jan 21, 1987
DECIDED: May 26, 1987

Anthony M. Cardinale - Argued the cause for the respondent
Charles Fried - Argued the cause for the United States

Facts of the case

The 1984 Bail Reform Act allowed the federal courts to detain an arrestee prior to trial if the government could prove that the individual was potentially dangerous to other people in the community. Prosecutors alleged that Salerno and another person in this case were prominent figures in the La Cosa Nostra crime family.


Did the Bail Reform Act violate the Fifth Amendment's Due Process Clause?

Media for United States v. Salerno

Audio Transcription for Oral Argument - January 21, 1987 in United States v. Salerno

William H. Rehnquist:

We will hear arguments next in No. 86-87, United States against Anthony Salerno and Vincent Cafaro.

Mr. Fried, you may proceed whenever you're ready.

Charles Fried:

Thank you, Mr. Chief Justice, and may it please the Court:

In 1966, and again in 1984, Congress restructured and rationalized the law relating to pretrial detention of persons accused of crime.

The guiding principles of that restructuring was, first of all, to minimize the amount of pretrial detention; and subsidiary to that, to make sure... and I quote from the statute here... that a judicial officer may not impose a financial condition that results in pretrial detention.

Now, complementary to that principle was a second principle, that in a defined class of serious charges, where it is found on facts established by clear and convincing evidence that no conditions will reasonably assure the appearance of the person as required, and the safety of any other person in the community, there shall be detention prior to trial.

Factors guiding such a decision are set out, and the judgment of the court must be supported by reasons given in writing.

Now, the legislative history... and most observers agree that prior to the enactment of this 1984 provision, the very same purposes, the purposes of protecting the community were accomplished sub rosa by the setting of, in effect, impossibly high bail.

The purpose of this statute was to accomplish this same purpose, the purpose of protecting the community against pretrial criminality by those who have been indicted, by a frank and fair and open proceeding, which puts it out all on the table, and allows an open discussion under legislatively defined terms.

In this case, the respondents were charged with crimes of violence, and ordered detained after two lengthy hearings in which it was found by, and I quote the court, overwhelming evidence that they were lethally dangerous; that if returned to the street they would continue business as usual; and that business involved frequent episodes of murder and mayhem.

Now, these findings and the procedure, and the length of detention suffered here are not an issue in this case.

This case presents one stark proposition.

It is said by the Court of Appeals below that a mere prediction or concern for dangerousness cannot, consistently with substantive due process, justify detention of an adult charged with crime.

Detention, by reason of feared criminality, can only be effected by trial and conviction by the usual processes of criminal law... this is the Court of Appeals' proposition, as it was the proposition of Judge Newman in the Melendez-Carrion case on which the Court of Appeals relied heavily.

Now, Chief Judge Feinberg, in his dissent, sharpened this issue.

He put this case.

A member of a terrorist organization has been indicted for blowing up an airliner for political reasons, and there is clear and persuasive evidence that he will do so again if not confined.

That is the case Judge Feinberg put.

And the Court of Appeals' answer was clear.

The Court of Appeals stated: Even the risk of serious crime, such as destruction of an airliner, must under our Constitution be guarded against by surveillance of the suspect and prompt trial.

I would suppose that it is an inevitable corollary of the Court of Appeals' proposition that even if such an accused should be apprehended again, in some fresh act of violence, he would once again have to be released and remain at large until finally tried and convicted.

Now, what justifies so extreme and counter-intuitive a proposition?

First of all, no authority of this Court plainly holds that way.

Respondents, although not the Court of Appeals, argue that the detention here is punitive.

Now, there is no doubt that the detention is incapacitive, and that punitive detention also is.

But if all detention were punitive, then the detention of juveniles, of deportable aliens, of persons thought to be associated with the enemy in wartime, of insane persons, would also be punitive.

And it's quite plain that that is not the case.

Punishment is pain or disability inflicted for a past offense in order to exact retribution or to make an example of the offender.

Antonin Scalia:

But in fact, General Fried, to go back to your terrorist example, had the same situation, except he isn't arrested for a past offense yet; he has just gone around saying, I am going to blow up an airline.

Now, you acknowledge that in that situation, this legislation would not apply.