Preventive Detention

President Nixon's suggestion that "preventive detention" would be one good remedy for crime in the District of Columbia met with sharply divided reaction on Capitol Hill. West Virginia's Democratic Senator Robert Byrd applauded the idea of pretrial jailing of accused criminals thought likely to break the law while out on bail. "Unless we have a safe society," said Byrd, "we are not going to have a free society." But North Carolina Democrat Sam Ervin Jr., a member of the powerful Senate Judiciary Committee and usually no supporter of libertarian causes, was incensed. Preventive detention, he said, is "inconsistent with a free society."

Unfair to the Poor. The argument has, in fact, been raging for several years. In 1966, Congress passed the Bail Reform Act, which enables federal judges to release a man without bail when a check into his background indicates that he can be counted on not to run away before his trial. But a large number of those freed on bail (estimates in different studies vary from 8% to 45%) have become repeaters even before they come to trial. Some felons, say the authorities, rob a second time in order to pay a lawyer to defend them on the first charge. Others, believing that they will get concurrent sentences anyway (meaning that they can serve both sentences at the same time), figure that they have nothing to lose from another burglary.

Defenders of the Bail Reform Act point out that money bail has always been unfair to the poor. The original aim of bail was only to assure that a man would show up for his trial, and although the Constitution forbids excessive bail, judges commonly set high figures for many crimes. The result is a form of preventive detention for the poor man who does not have the cash or credit to pay. Pretrial jailing not only punishes a man who may be innocent, but effectively prevents him from working to pay for his defense. Moreover, studies have shown that when a man has been locked up before his trial, he is more likely to be convicted and get a higher sentence.

Because the bail system discriminates against the poor, Italy, Denmark and Sweden do not employ it. In all three nations, however, magistrates have the power to detain a man after his arrest. In Italy, lawyers have protested that too many persons are imprisoned for long periods and, if they are later declared innocent, may not recover damages for false imprisonment. Even in Britain, where a man may obtain his release by merely promising to pay bail, judges have broad power to lock up persons whom they consider dangerous. That such a system can be abused has been dramatically demonstrated by South Africa, where the ruling white minority may imprison for an indefinite time persons accused of "terrorist activities."

Police State? The possibility of letting violent men loose on bail to repeat their crimes is abhorrent to most citizens. But constitutional experts agree that to keep an accused person in prison because of a judge's belief that he may commit a crime while at liberty could very well violate the due-process clause of the Fifth Amendment. Jim Martin, president of the Dallas County Criminal Bar Association, calls it "most certainly the first step toward a police state." Harold Greene, Chief Judge of the capital's Court of

General Sessions, is among those who argue that it is impossible to identify repeaters beforehand with any reasonable accuracy. Greene claims that judges would have to detain "eight, ten or perhaps more suspects who would not commit crimes while out on bail in order to be sure to keep off the streets the one defendant who will."

One reason for the problem is crowded court calendars. In the District of Columbia, for example, it takes at least ten months to bring a man to trial. And the longer the accused is free, the stronger the chance that he will be arrested again. Senator Ervin has argued that if the time between arrest and trial lasted only from six to eight weeks, there would be no clamor for preventive detention. Even those who favor the idea believe a man should be detained for only a limited time--which would mean that the courts would have to provide quicker trials anyway.

Another possible solution is closer supervision of those who are released. This tactic was endorsed last year by the American Bar Association, which called on the courts to set curfews for certain defendants, to require them to report regularly to court officers and to prohibit them from carrying a weapon or other acts that might bring trouble. The Vera Institute of Justice, a nonprofit research group seeking to modernize legal procedures, started a trend away from money bail in Manhattan, is now offering job training and counseling to some of those who are released on their own word.

Alternative Remedies. When a man violates the terms of his release, the A.B.A. agrees it would be reasonable to detain him. But the A.B.A. has avoided endorsing preventive detention in general, because "measures short of detention have never been tested."

President Nixon may be well advised to look into alternative remedies before he presents his legislation on preventive detention to Congress. In view of the delicate constitutional issues involved, the Administration could wait to see if any other approach will work before prescribing a variety of prevention that, in some ways, may turn out to be worse than the problem itself.

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