First The Sentence, Then the Trial

By Richard Lacayo

In one of the most important criminal law rulings of the decade, the U.S. Supreme Court has given a new twist to the first axiom of American justice, that the accused is presumed innocent until proved guilty. In a 6-3 decision last week, the court upheld the controversial 1984 Bail Reform Act, by which Congress authorized the "preventive detention" of some federal suspects. For many years federal judges were forbidden to deny bail in most cases, except when there was reason to believe that a defendant might flee before trial. The new law has permitted those judges to refuse bail to thousands of suspects, most of them accused of violent and drug-related crimes, who could be shown to pose a danger to the "safety of any other person and the community." In effect, the accused is presumed to be, if not guilty, at least the guilty type.

The court's decision was warmly greeted by the law enforcement officials who have used the new law with vigor, typically against accused mobsters and drug dealers who often have the money to meet high bail. Thirty-four states also permit the threat posed by the defendant to figure in some bail decisions. On the federal level, there has been about a 36% increase in pretrial detainees since the act was passed, from a daily average of 5,383 in 1984 to 7,328 last year, or about one-seventh of those in federal lockup. "It puts a burden on us to find jail space," says Georgia U.S. Marshal Lynn Duncan.

Civil libertarians, however, warned that the court's endorsement of the principle of preventive detention would change the complexion of American justice. Judges faced with potentially dangerous defendants had long practiced a de facto brand of preventive detention: setting bail so high that it could not be met. But the act legitimized what had until then been an unacknowledged purpose of many bail procedures. "This sends a dangerous message that the trial is an afterthought," said Harvard Law Professor Alan Dershowitz last week. New York Defense Lawyer Alan Silber was reminded of Alice's Adventures in Wonderland: "To paraphrase the Queen of Hearts, 'First the sentence, then the trial.' "

The ruling came in the case of Mob Boss Anthony (Fat Tony) Salerno, head of the Genovese crime family, and Vincent Cafaro, a reputed captain in the same Mafia clan, who were charged last year with racketeering. A federal appeals court in New York City ruled that to deny them bail would violate constitutional guarantees of due process.

In reversing that decision, the Supreme Court ruled that pretrial detention is not an impermissible punishment forbidden by the Fifth Amendment, because it is not intended as punishment at all. Rather, it was designed by Congress as a "regulatory" act, with the legitimate Government goal of public safety. "The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment," Chief Justice William Rehnquist wrote for the majority.

The Justices also found that the law contained sufficient safeguards for the rights of defendants. A detention decision is made after a hearing in which the Government must demonstrate that no conditions of release will reasonably assure the safety of the community. The defendant and his attorney may both be present to challenge evidence, cross-examine and present witnesses.

These safeguards, however, were not enough to satisfy dissenting Justices Thurgood Marshall, William Brennan and John Paul Stevens. Marshall charged that laws imposing preventive detention were "consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state." He called the majority's semantic distinction between regulation and punishment an "exercise in obfuscation."

Attorneys already coping with preventive-detention laws complain about - preparing a defense for clients imprisoned in distant jails, where private telephone conversations are nearly impossible and where even brief personal meetings are typically conducted in the presence of guards. Moreover, detention can stigmatize the accused in court. "It's pretty hard to get a fair trial after you've been officially declared dangerous," says New York Civil Rights Attorney Richard Emery. Some are also worried that prosecutors may push pretrial detention for less dangerous suspects, small-time burglars, perhaps, or white-collar defendants. "What concerns me is the extremely broad reach of the law," says Phillip Johnson, professor of law at the University of California, Berkeley. "Preventive detention could become routine."

Is an open system of preventive detention better than the wink-and-a-nod method of the past? "The classic civil libertarian argument that everyone is presumed to be innocent is just not a workable principle," says Berkeley's Johnson. "We have given it lip service while in fact doing something else." The demand for tougher enforcement of laws may have made the advent of preventive detention almost inevitable. But the cost to innocent defendants, who sometimes may be unfairly detained for many months, is still to be measured. So is the cost to American justice. Faith in first axioms dies hard.

With reporting by Anne Constable/Washington, with other bureaus