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United States v. Salerno - 481 U.S. 739, 107 S. Ct. 2095 (1987)


The Due Process Clause, U.S. Const. amend. V, protects individuals against two types of government action. So-called "substantive due process" prevents the government from engaging in conduct that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner. This requirement has traditionally been referred to as "procedural" due process.


Under particular conditions, the Bail Reform Act of 1984, 18 U.S.C.S. § 3141, et seq. ("Act"), permitted a federal court to detain an arrestee without bail, pending trial, on the ground of such an arrestee's dangerousness to any other person and to the community. Defendants Anthony Salerno and Vincent Cafaro were arrested after being indicted on numerous counts of racketeering activity—including fraud, extortion, gambling, and conspiracy to commit murder—as well as other federal crimes. At a hearing pursuant to the Act in the United States District Court for the Southern District of New York, the United States ("Government") presented evidence, contested by defendants, that defendants were a "boss" and a "captain," respectively, in an organized crime "family" and that both defendants had participated in conspiracies to aid their illegitimate enterprises through violent means. Furthermore, the Government asserted that Salerno had personally participated in two murder conspiracies. Acting on this evidence, the district court granted the Government's motion for pretrial detention under the Act on the grounds of dangerousness. It further expressed the view that the evidence of defendants' present danger to the community was overwhelming. On appeal, the United States Court of Appeals for the Second Circuit vacated the district court's pretrial detention order, expressing the view that defendants' pretrial detention on the ground of dangerousness met the Act's statutory conditions, but the Act's authorization of pretrial detention on the ground of dangerousness to the community was repugnant to the Federal Constitution's concept of substantive due process, which concept, the court of appeals reasoned, prohibited a total deprivation of liberty simply as a means of preventing future crimes. The Government was granted a writ of certiorari.


Was defendants' pretrial detention under the Bail Reform Act of 1984 facially unconstitutional for being repugnant to the Federal Constitution’s concept of substantive due process?




The Supreme Court of the United States held that the contested provisions of the Act, which allowed pretrial detention if the Government demonstrated by clear and convincing evidence after an adversary hearing that no release conditions would reasonably assure the safety of any other person and the community, did not, on their face, violate the substantive due process under the Fifth Amendment or the excessive bail clause of the Eight Amendment. The Court also noted that the fact that the  Act might operate unconstitutionally under some conceivable set of circumstances was insufficient to render it wholly invalid. The Court concluded that defendants failed to shoulder their heavy burden to demonstrate that the Act was "facially" unconstitutional.

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