Bail Reform and the Constitutionality of Pretrial Detention
![handle is hein.journals/valr55 and id is 1243 raw text is: VIRGINIA LAW REVIEW
VOLUME 55 NOVEMBER 1969 NUMBER 7
BAIL REFORM AND THE CONSTITUTIONALITY OF
PRETRIAL DETENTION
The Honorable John N. Mitchell*
O N January 31, 1969, President Nixon, in his first public state-
ment on crime control, called for legislation to permit tempo-
rary pretrial detention of criminal defendants whose pretrial release
presents a clear danger to the community. 1 Pursuant to the President's
directive, the Department of Justice sent to the Congress, on July 11,
1969, a proposal2 amending the Bail Reform Act of 19663 which would,
inter alia, permit the federal courts to detain up to 60 days prior to
trial those criminal defendants who are charged with certain crimes
of violence; whose release, even with conditions imposed, would consti-
tute a danger to the community; and who have been afforded a hear-
ing with appropriate procedural safeguards. For criminal defendants
not detained prior to trial, the proposal would authorize courts to con-
sider the defendant's potential dangerousness to the community in de-
termining and setting conditions of pretrial release.4 Furthermore, new
sanctions are provided for violations of conditions of release, for bail
jumping and for crimes committed while on release.5
The question of pretrial detention raises issues of constitutional
dimension; such detention has been challenged on the grounds that it
violates the eighth amendment,- the presumption of innocence and
*Attorney General of the United States. LL.B, 1938, Fordham University. The
Attorney General gratefully acknowledges the assistance of Associate Deputy At-
torney General Donald E. Santarelli and Earl J. Silbert and James L. Kelley of the
Department of Justice in the preparation of this Article.
127 CONG. Q. WrVnKy RE'. 238 (Feb. 7, 1969).
2 S. 2600, 91st Cong., ist Sess. (1969). For the text of the bill and an explanation of
the various provisions, see 115 CoNG. Rac. S7906-11 (daily ed. July 11, 1969). See also
27 Co NG. Q. WEaxLy REP. 1270 (July 18, 1969).
3 18 U.S.C. §§ 3146-52 (Supp. IV, 1968).
4See S. 2600, 91st Cong., ist Sess. § 1(c) (1969).
GId. §§ 5, 6.
4 See text at notes 9-36 infra.
/See text at notes 37-38 infra.
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Bail Reform and the Constitutionality of Pretrial Detention
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