"Preventive Detention"-Nixon's Baby
Haskell, Gordon K.
A DRIVE in Congress to pass some form of "preventive detention" law is the Nixon Administration's first installment payment on its "crime in the streets" campaign slogan. Proposals...
...The federal bail reform act, and a tendency of state as well as federal courts to recognize the inherent defects of money bail as a social tool, have reduced (and in many cases in the federal courts eliminated) the employment of this kind of "preventive detention...
...Those who can't make bail spend the whole of this period in jail...
...Speedy trial—Are we willing to pay the cost for the judges, court buildings, prosecutors and public defenders necessary to bring criminal defendants to trial in two days, in weeks or months, instead of two years...
...Violators could be summarily convicted for contempt of court by the judge who had set the conditions, and thus be effectively removed from the community without a trial subject to the normal rules of evidence...
...If the proposal has any merit at all, it lies in the direction of compelling society to be frank about achieving ends that are now pursued by roundabout means...
...Under one version, preventive detention could be employed for no more than 30 days, after which the defendant would either have to be tried or released...
...Only the well-educated, well-heeled, or wellmobbed can usually avail themselves of appellate procedures (or have the money for high bail...
...While this use of bail runs counter to the theory that its only proper employment is to assure the defendant's appearance at trial, relief against abuse of the bail power is available only through appeals to higher courts...
...He could order him held in jail indefinitely pending trial, or restrict him as to movement, associations, etc...
...But within the judicial system there are measures, known to everyone who has given the matter even cursory attention, which could have a major effect...
...The kinds of conditions contemplated are similar to ones now attached to paroles and at times to suspended sentences: the accused must not associate with known criminals, must hold a steady job, etc...
...In many places defendants now have to wait for their trials up to two years from the time of arrest...
...that it puts a powerful weapon in the hands of the state, which may be used more against political offenders than criminals...
...Of course, decent jobs, housing, and schools are the basic answer to "crime in the streets...
...In addition, it would also reinforce the feeling that the crime and the penalty are causally connected, and work against the feeling that the mill of justice grinds so painfully and slowly that once caught in the machinery it makes not too much difference to the victim whether he is eventually found guilty or innocent— and hence whether he actually was guilty or innocent of the crime charged...
...Jail and Prison Reform—Are we also willing to spend the billions necessary to transform our jails, juvenile detention facilities, and penitentiaries into centers for training and rehabilitation for useful lives rather than the crime factories most of them are today...
...Under the federal bail reform act, conditional release (as an alternative to bail) is permitted, but the conditions that may be set are related solely to assuring the defendant's appearance at trial...
...He could be compelled to report to jail at sundown and sleep there every night...
...Proposals currently before Congress range all over the map...
...Other proposals are much more limited...
...They are simple, but they cost money—lots of it...
...A DRIVE in Congress to pass some form of "preventive detention" law is the Nixon Administration's first installment payment on its "crime in the streets" campaign slogan...
...That would eliminate the argument for any kind of preventive detention...
...Some observers feel that while incarceration is too severe an invasion of the liberties of an accused person to be tolerable, conditional release pending trial might be an acceptable method of inhibiting the possible repetition of criminal acts...
...The main arguments against preventive detention are that it strikes against the presumption of innocence in our system of jurisprudence...
...Thus, if applied throughout the country, such a "mild" scheme would seem as likely as not to result in fewer mandays spent in jail by unconvicted persons...
...that preventive detention is, above all, a cheap and politically popular evasion of the measures necessary to attack the real problems...
...Senator Byrd of Virginia would allow almost unlimited discretion to a judge who is persuaded that a defendant charged with a crime of violence might commit a similar act...
...The traditional method of pretrial incarceration of defendants held to be dangerous has been to set bail so high that they can't make it...
...This leaves the poor, free-lance, amateur criminals, or the perpetrators of crimes of passion (the least likely to repeat their transgressions) stuck in the bail bag...
...that, given usual police practices and the standards of intelligence and integrity commonly found in our police departments, police can't simply be trusted to achieve even approximate accuracy in screening the dangerous criminal from the chance misdemeanant...
...Most proponents of preventive detention agree that at best it can be a minor weapon in the legal anti-crime arsenal...
Vol. 16 • May 1969 • No. 3
