Bail Denial Upheld by High Court : Defendants Seen as Dangerous May Be Confined Till Trial

Criminal defendants who are believed to be dangerous may be held without bail, the Supreme Court ruled Tuesday, giving law enforcement officials a new weapon in the fight against organized crime.

On a 6-3 vote, the high court declared that the Constitution does not give defendants a right to remain free on bail until they are tried and convicted.

If prosecutors believe that a defendant threatens the “safety of any other person and the community,” a judge may order him held while he awaits trial, Chief Justice William H. Rehnquist said.

The decision upholds the Bail Reform Act of 1984, in which Congress for the first time allowed “preventive detention” of alleged crime bosses and drug dealers who could easily afford to bail themselves out of jail.

Ruling Applauded

Reagan Administration officials, who defended the law in court, applauded the ruling.

“On balance, our society will be a safer one because of it,” Justice Department spokesman Terry Eastland said. In the last two years, federal attorneys have succeeded in having more than 2,500 defendants held before trial, he said.

However, civil liberties lawyers attacked the ruling, saying that it allows the government to treat some defendants as guilty until proven innocent.

The decision is “completely at odds with our historic tradition that everyone is innocent until proven guilty,” said John Powell, legal director of the American Civil Liberties Union. “This ruling permits the government to jail first and try later.”

Excessive Bail Banned

The Fifth Amendment says in part that “no person shall . . . be deprived of life, liberty or property, without due process of law,” and the Eighth Amendment says that “excessive bail shall not be required.”

This case arose when U.S. attorneys in New York sought to hold reputed Mafia boss Anthony Salerno, who had been indicted on 29 counts of racketeering. In two instances, Salerno was said to have ordered the murders of rival crime figures.

State laws typically allow judges to deny bail to murder suspects and some violent criminals. In federal cases, judges may also deny bail if the defendant is considered likely to flee prosecution or to threaten a witness, but neither allegation was raised in Salerno’s case. Instead, the government argued that he would return to “business as usual,” which for him included “running an organized crime enterprise.”

A District Court agreed to have Salerno held, but last year the U.S. 2nd Circuit Court of Appeals reversed the order. It declared “preventive detention” a violation of the Fifth Amendment “due process” clause. Defendants may be held accountable only for past crimes, not for possible future crimes, the appeals court said.

Rehnquist, writing for the Supreme Court, conceded that accused individuals could not be punished before trial but added: “The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.”

As an example of a difference between jailing and detention, he noted that defendants such as Salerno are usually held in cells that are separate from those of convicted criminals. The detention should be limited to 70 days, he added, although the time can extend to more than a year because of court delays and extensions.

Nevertheless, Rehnquist concluded that pretrial detention “is regulatory in nature and does not constitute punishment before trial in violation of the due process clause.”

In addition, the chief justice disagreed with a contention by Salerno’s attorneys that the Eighth Amendment’s limit on “excessive bail” suggested that defendants had a right to some form of bail. “This clause, of course, says nothing about whether bail shall be available at all,” Rehnquist said.

In an angry dissent, Justice Thurgood Marshall said that jailing a person who, under law, is presumed to be innocent violates the American legal tradition. It is “consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state,” he wrote.

Marshall mocked Rehnquist’s distinction between punishment and regulation as “merely an exercise in obfuscation.” He was joined by Justices William J. Brennan Jr. and John Paul Stevens in the case (U.S. vs. Salerno, 86-87).

Moreover, ACLU lawyers maintain, the government has sought to hold many minor criminals who are not dangerous, even though the preventive detention law says that judges should hold defendants only when there is “clear and convincing evidence” that they are a threat to the community.

“They are holding a lot of . . . people like small-scale drug dealers. They have no guns, are not violent and have no criminal record, but that doesn’t matter,” the ACLU’s David Goldstein said. “We have had cases of people being held for two years awaiting trial.”

Although the high court ruling was a setback for such defendants, it will not have much effect on the 76-year-old Salerno, the reputed head of the Genovese crime family. Salerno was convicted in November of a series of charges and sentenced to 100 years in prison.

In other actions, the court:

--Ruled that federal judges should take into account the safety of the community before releasing convicts who have appealed and won new trials. Those convicts are not entitled to be free pending their new trials, the court ruled in a 6-3 vote (Hilton vs. Braunskill, 86-108).

--Decided that workers who say they have been subjected to unsafe conditions on the job may not sue their unions in state courts. In a unanimous decision, the court said that such suits are preempted by federal labor laws (International Brotherhood of Electrical Workers vs. Hechler, 85-1360).

--Rejected a lawsuit by federal employees who contended that President Reagan had no right to unilaterally award them pay raises that were smaller than those recommended by a federal pay commission (National Treasury Union vs. Reagan, 86-1349).