Friedman, Michael Scott

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 18Number 1 Fall, 1987 Article 101987Recent Developments: U.S. v. Salerno: Federal BailReform Act Does Not Contravene U.S.ConstitutionMichael Scott FriedmanFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationFriedman, Michael Scott (1987) "Recent Developments: U.S. v. Salerno: Federal Bail Reform Act Does Not Contravene U.S.Constitution," University of Baltimore Law Forum: Vol. 18 : No. 1 , Article 10.Available at: http://scholarworks.law.ubalt.edu/lf/vol18/iss1/10but he rarely would be able to show that the family members have exaggerated the degree of sleeplessness, depression, or emo-tional trauma suffered." Id. Justice Scalia, in his dissent, relied on Tison v. Arizona, 107 S.Ct. 1676 (1986) and concluded that "the amount of harm one causes does bear upon the extent of his per-sonal responsibility." Booth, 107 S.Ct. at 2542 (emphasis added). In Tison, two brothers who planned and assisted in their father's escape from prison were sentenced to death because in the course of their escape, their father murdered four inno-cent poeple. Scalia's dissent pointed out that the difference between life and death for the two defendants was a matter "wholly unrelated to the[ir] blamewor-thiness," yet they were held personally responsible for the degree of harm that they had caused. The impact of this decision is so poten-tially far-reaching as to render the recent "victims rights" legislation virtually obsolete. Although Justice Powell speci-fically distinguishes between the use of the VIS in capital sentencing hearings as opposed to noncapital cases, the distinc-tion can hardly withstand the weakest attack on its logic. It remains to be seen just how far the Court will go in inter-preting the effects of this decision, but the obvious implications suggest the begin-nings of a new trend in "victims' rights." - Natasha Sethi u.s. v. Salerno: FEDERAL BAIL REFORM ACT DOES NOT CONTRAVENE U_S. CONSTITUTION In United States v. Salerno, 107 S.Ct. 2095 (1987) the Supreme Court, as a mat-ter of first impression, held that the 1984 Bail Reform Act, 18 U.S.c. § 3141 et seq., (" Act") does not, on its face, violate either the due process clause of the fifth amend-ment or the excessive bail clause of the eighth amendment. The Act authorizes the pretrial deten-tion of arrestees who are charged with cer-tain serious felonies and who are found, after an adversary hearing, to pose a threat to the safety of individuals or to the com-munity. Anthony Salerno and Vincent Cafero were arrested on March 21, 1986, on a 29 count indictment alleging various Rack-eteer Influenced and Corrupt Organiza-tions Act (RICO) violations, mail and wire fraud offenses, extortion and various criminal gambling violations. At arraignment, the government moved to have the arrestees detained pursuant to 30-The Law Forum/Fal~ 1987 § 3142. Section 3142 provides that an arrestee may be held without bail if no condition or combination of conditions would assure appearance at trial or assure the safety of another person or the com-munity. The government claimed that no condition of release would assure the safe-ty of any person or persons in the com-munity. § 3142(e). The government proffered evidence which showed that Salerno was the "boss" of the Genovese Crime family and that Cafero was a "cap-tain" in the family. Evidence also showed that the two men had participated in wide ranging conspiracies and that Salerno per-sonally participated in two murder con-spiracies. The District Court granted the govern-ment's motion finding that the govern-ment met its burden of establishing by clear and convincing evidence that no con-dition or combination of conditions of release would insure the safety of the com-munity or any person. United States v. Salerno, 631 F.Supp. 1364 (S.D.N.Y. 1986). Both Salerno and Cafero appealed. They contended that, to the extent the Act per-mits pretrial detention on the ground that the arrestee is likely to commit future crimes, the Act is unconstitutional on its face. The United States Court of Appeals for the Second Circuit agreed. It concluded that a person could not be detained consis-tent with due process merely because that person was thought to present a danger to the community. United States v. Salerno, 794 F.2d 64 (2nd Cir. 1986). The Second Circuit reasoned that the system of government in the United States holds per-sons accountable for past actions, and not anticipated future actions. The govern-ment appealed. The Court, with Chief Justice Rehnquist speaking for the majority, began by stating that because respondents had challenged the Act on its face, they bore the burden of showing that the Act could not pass constitutional muster under any set of cir-cumstances. The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of cir-cumstances is insufficient to render it wholly invalid... Schall v. Martin, [467 U.S. 253 (1984)]. United States v. Salerno, 107 S.Ct at 2100. The Court first addressed respondent's challenge (if the Act as violative of both substantive and procedural due process. "Substantive due process" prevents the government from engaging in conduct that "shocks the conscience," Roehm v. Cali· fornia, 342 U.S. 165, 172 (1952), or inter-feres with rights "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325-326 (1937). United States v. Salerno, 107 S.Ct. at 2101. Respondent's main contention under "substantive" due process was that the Act authorized impermissible punishment before any adjudication of guilt. The Court rejected this premise, stating that "[t]he mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punish-ment." Id. at 2121, quoting Bell v. WolfISh, 441 U.S. 520, 532 (1979). In determining whether the detention is punitive or regulatory, the Court fashion-ed the test " 'whether an alternative pur-pose to which [the restriction] may rationally be connected is assignable for it, and whether it ,appears excessive in rela-tion to the alternativt purpose assigned [to it].' " Ibid., quoting Kennedy v. Mendoza· Martinez, 372 U.S. 144, 168-169 (1963); United States v. Salerno, 107 S.Ct. at 2101. Applying this test, the Court concluded that the detention imposed falls on the regulatory side of the dichotomy, thus no infringement of due process exists. The legislative history of the Bail Re-form Act clearly indicates that Con-gress did not formulate the pretrial detention provisions as punishment for dangerous individuals. See S. Rep. No. 98-225, p. 8. Congress instead per-ceived pretrial detention as a potential solution to a pressing societal problem. Id. at 4-7. United States v. Salerno, 107 S.Ct. at 2101. The Court re-enforced the conclusion that the Act was regulatory by focusing on the limited circumstances with which a person may be detained. Section 3142(F) allows for detention only in cases involv-ing crimes of violence, offenses which the crime is life imprisonment or death, serious drug offenses, or repeat offenders. Furthermore, the Speedy Trial Act, 18 U.S.c. §3161, remains in effect. United States v. Salerno, 107 S.Ct. at 2101. Also persuasive to the Court was the long line of decisions which upheld the government's authority to invade an indi-vidual's interest in liberty. In each of those cases, the Court found the government's interest in detention compelling. In the instant case "[t]he government's interest in preventing crime by arrestees is both legiti-mate and compelling." By enacting the Bail Reform Act, Congress made specific findings that individuals on bail awaiting trial "are far more likely to be responsible for dangerous acts in the community after arrest." S. Rep. No. 98-225, p. 6-7. The Court found that the already com-pelling interest in preventing crime is heightened when the government has con-vincing proof that the arrestee presents a demonstrable danger to the community. "Under these narrow circumstances, socie-ty's interest in crime prevention is at its greatest." United States v. Salerno, 107 S.Ct. 2095 at 2103. When the government proves by clear and convincing evidence that an arrestee presents an identified and arti-culable threat to an individual or the community, we believe that, consis-tent with the Due Process Clause, a court may disable the arrestee from executing that threat. Under these cir-cumstances, we cannot categorically state that pretrial detention "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamen-tal." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). United States v. Salerno, 107 S.Ct. at 2103. The Court thus concluded there was no facial violation of substantive due process. Turning to the facial challenge against the procedures, the Court stated that "[t]o sustain [the procedures] against such a challenge, we need only find them "ade-quate to authorize the pretrial detention of at least some persons charged with crimes." Id. at 2103, quoting Schall v. Afar· tin, 467 U.S. 253 (1984). The Court then went on to detail the procedures called for under the Act. Detainees have the right to counsel, to testify, present information by proffer or otherwise, and cross-examine witnesses. The government has the burden and must prove its case by clear and convincing evi-dence. Section 3142(F); and the judge must include written findings. §3142(i). There is also immediate appellate review. §3245(c). The Court concluded that the extensive safeguards were sufficient to repel a facial challenge against the procedures. The Court turned finally to respon-dent's challenge based on the excessive bail clause of the eighth amendment. The Court stated that the U[p ]rimary function of bail is to safeguard the Courts' role in adjudicating the guilt or innocence of defendants .... " United States v. Salerno, 107 S.Ct. at 2104. However, the Court refused to interpret the bail clause in such a fashion as to make bail available in all cir-cumstances. The Court stated that, "[Tlhe Eighth Amendment does not prevent Congress from defining the classes of cases in which bail shall be allowed in this country. Thus, in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amend-ment fails to say all arrests must be bailable." United States v. Salerno, 107 S.Ct. at 2105, quoting Carlson v. Landon, 342 U.S. 524, 545-546 (1952). Thus, the Court expressly empowered Congress to impose other considerations other than questions of flight when deci-ding whether to allow an arrestee out on bail. We believe that when Congress has mandated detention on the basis of a compelling interest other than preven-tion of flight, as it has here, the Eighth Amendment does not require release on bail. United States v. Salerno, 107 S.Ct. at 2105. In sum, the Supreme Court has found that Congress may constitutionally impose considerations other than flight to the decision of whether an arrestee is bail eligible. Where the considerations are compelling, the Court will defer to the will of Congress. -Michael Scott Friedman Arizona v. Mauro: POllCE ACTIONS OF WI1NESSING AND RECORDING A PRE-DETENTION MEETING DID NOT CONSTITUTE AN INTERROGATION IN VIOLA-TION OF MIRANDA In Arizona v. Mauro, - U.S. -, 107 S.Ct. 1931 (1987), the United States Supreme Court held that an "interroga-tion" did not result from police actions of recording and witnessing a predetention meeting between the accused and his spouse. In reversing a judgment of the Ari-zona Supreme Court, the Court decided that Mauro's invocation of his Miranda rights did not extend any privilege of con-fidentiality to remarks made to his wife in a "private" meeting arranged by police at the insistence of the defendant's spouse. After admitting to police that he had murdered his son, William Carl Mauro was arrested and advised of his constitu-tional rights under Miranda v. Arizona, 384 U.S. 436 (1966). Mauro was twice read his right to refuse to make any statement without an attorney present. At Mauro's request, police interrogation immediately halted. Meanwhile in another room at the police station, Mrs. Mauro was also being ques-tioned concerning the murder of her child. After questioning, she became adamant in her demand to meet with her husband. Although reluctant at first, the police con-sented to the meeting only on the condi-tion that an officer be present. The Mauros were not consulted prior to their meeting, and their brief conversation was recorded by a tape recorder within their plain view. During the meeting, Mrs. Mauro expressed despair, while Mr. Mauro advised her not to answer any questions until an attorney was present. Mauro, 107 S.Ct. at 1933. At trial, the defense put forth an insanity plea which the prosecution rebutted by playing back the recorded conversation, and arguing that the recording showed Mauro was sane on the day of the murder. The trial court refused Mauro's motion to suppress the recording, rejecting the defense that it was a product of police interrogation in violation of his Miranda rights. Mauro was convicted of murder and sentenced to death, and the present appeal ensued. In reversing the trial court decision, the Arizona Supreme Court found that the police had interrogated Mauro under Miranda by allowing him to speak to his wife in the presence of an officer. Arizona '0. Mauro, 149 Ariz. 24, 716 P.2d 393 (1986). According to the court, the inter-rogation was invalid because Mauro had requested counsel before any further ques-tioning. The court based its holding on Rhode Island v. Innis, 446 U.S. 291 (1980), which held that interrogation may include practices "that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 30t. Since two police officers had testified dur-ing pretrial hearings that they thought it possible that Mauro might make incriminating remarks during the meeting with his spouse, the court found that Innis applied, and overturned the trial court's admission of the recorded conversation into evidence. The Supreme Court reversed, by a 5 to 4 margin. Writing for the majority, Justice Powell focused on the issue of whether the police actions were the "functional equiva-lent" of interrogation under Innis. In hold-ing that no interrogation occurred, the Court found that the officer present at the meeting between the Mauros posed no questions to the defendant. This had the effect of rejecting the minority view, embraced by Justice Stevens, that the police "employed a powerful psychologi-cal ploy" against Mauro. Mauro, 107 S.Ct. at 1937. Justice Stevens, for the dissent, argued that the police actions over-whelmed Mauro because they did not pro-Fall, 1987IThe Law Forum-31 

Recent Developments: U.S. v. Salerno: Federal Bail Reform Act Does Not Contravene U.S. Constitution

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Recent Developments: U.S. v. Salerno: Federal Bail Reform Act Does Not Contravene U.S. Constitution

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