Preventive Detention

Preventive detention in the United States is a fairly recent procedure for denying pretrial release to defendants the court decides are dangerous and a threat to the community. It developed as a response to growing concern over the belief that an increasing amount of crime was being committed by persons awaiting trial. Judges had for years informally achieved preventive detention for defendants who were deemed likely to commit additional crimes during the pretrial period by setting cash bail sufficiently high to ensure that the defendant would be unable to raise the required bond. Although the statutory purpose of bail is to ensure that the defendant will appear for trial, preventive detention adds new issues for the court to consider in the evaluation of the defendant's pretrial status. Beyond the defendant's likelihood of appearance, the judge may also decide whether he or she is sufficiently dangerous to create a threat to the safety of the community or any witness to the proceedings.

Preventive detention has been used in England for many years, but as a postconviction procedure rather than a pretrial determination. British judges are permitted to examine the conduct of prisoners about to be released, and if they are found to still be a threat to society, they may be “preventively detained” for an extended period of time until the prisoner is no longer considered dangerous.

The constitutional position on bail and pretrial release in the United States is found in the Eighth Amendment, which holds that if bail is set, it must not be excessive. The United States Supreme Court has consistently held that this amendment does not guarantee all defendants a right to pretrial release. As clarified in Stack v. Boyle (1951), bail is excessive if it is set at a figure higher than an amount reasonably calculated to fulfill the purpose of ensuring the presence of the accused at his or her trial. There is no absolute right to bail, and the Supreme Court has therefore permitted federal and state courts to prohibit the pretrial release of defendants who are accused of crimes such as capital offenses where defendants may be facing the death penalty. Currently, many jurisdictions exclude defendants charged with murder, kidnapping, rape, and treason from possible pretrial release.