United States v. Edwards

STATES, Appellant, UNITED EDWARDS, Appellee.

Marvin L. EDWARDS, Appellant, L.

Marvin STATES, Appellee.

UNITED

Nos. 80-401. Appeals.

District of Columbia Court of

Argued May En Banc 1980. 8,May

Decided

1323 Farrell, Atty.,

Michael W. Asst. U. S. C.,D. Washington, with whom Charles F. C. Rauh, Ruff, Atty., Carl John U. S. S. A. Pasano, and Michael Asst. U. Terry, S. S. Washington, C., were on the Attys., D. mo- tion, appellant appel- and for No. 80-294 lee 80-401. in No. H. and James

Stephen Glickman H. McComas, Service, Public Defender Wash- C., ington, D. with J. Wasser- whom Silas strom, Gilson, Anthony Fitch, Mady W. and Soller, Service, Lou Defender Mary Public C., motion, Washington, D. were for on appellee appellant in No. 80-294 and No. 80-401. McDaniel,

William A. Jr. and Keven T. Baine, C., Washington, D. whom John Kuhns, C., Washington, B. D. was on the motion, Washington for The Post as amicus curiae. NEWMAN, Judge,

Before Chief KERN, GALLAGHER,* KELLY, NEBEK HARRIS, ER, MACK, FERREN and PRYOR, Judges. Associate NEWMAN, Judge: Chief appeals present These consolidated us, time, question the first with the constitutionality District of Co statute, lumbia detention D.C.Code suspect under ar rested for certain offenses may enumerated up days pending detained trial. case, govern In the first No. Judge appeals ruling ment Bowers for Marvin which denied government Edwards when the refused to complaining witness for cross- case, examination. In the second No. 80- Judge Edwards Nor appeals Marvin subsequent granting man’s ruling government’s he be motion that detained. challenges Appellant pro Edwards1 asserted constitu ceeding violative of his bail, trial, right to to a fair tional his process, including to due and his * convenience, Judge Judge Gallagher was an Associate 1. For Mr. Edwards hereinafter although argument. “appellant”, court at status to as he is the the time His referred appellee Retired, changed Judge, in No. to Associate Febru- 80-294. ary cross-examination, present” upon which the confrontation, conduct rights of addition, rely pat- government intended to show compulsory process. dangerous govern- behavior. The constitutionality tern of government challenges the requests. Appellant, ment declined these proceedings. partial closure of both prior hearing, con- to the March 28 moved that statute find the We hearing protect and hold the be closed in order to his appellant stitutional as applied under to a fair trial. The ini- hearings improper the closure of the closure, position on tially took no but subse- First Amendment.2 objected.

quently Appellant prof- made no I. FACTS specific fer as to from articles prejudice already published, presented no evi- Edwards was arrested on March Marvin publicity likely. dence that future charged rape with the armed closed without court ordered the courtroom morning early of a woman in the hours any specific findings that closure was neces- matching February Fingerprints 1980. rights.3 fair trial sary protect appellant’s to scene, found at the and appellant’s had been arrested on the basis of this appellant was Eighth raised Fifth and Appellant also arrest, the time of his information. At challenges to the Amendment rape to the and to appellant confessed both contending that proceeding, Constitu- sodomy on another several a forcible of confrontation and of requires right tion a before, addi- months as well as to seventeen precludes the use cross-examination ring during A stolen tional robberies. hearsay. agreed The court proffers or from a rape course of the was recovered inadmissi- hearsay and ruled that would be pawned it had been pawnshop where ble, D.C.Code and to the extent rape victim identi- appellant’s name. The proffers or 23-1322 authorized the use of § her assailant. appellant line-up fied at a as Appellant hearsay, was unconstitutional. information, and on On the basis of this further contended that he had a under record, the juvenile extensive appellant’s States, 322 A.2d D.C.App., Blunt v. United appellant’s pretrial government moved for (1974), have certain material witness- to pursuant to D.C.Code 23- § es, rape complainant, availa- including the 1322(a)(1), appellant’s presentment. Appellant’s ble for cross-examination. not that he could sub- hearing represented motion was set for counsel A on the Bowers, he not 25, 1980, because did Judge poena complainant before March The court held appellant’s re- know her whereabouts. continued to March 28 at appellant had a to cross-examine Appellant requested the continu- that quest. proffering how complainant his to sub- without ance in order to exercise exculpatory, and testimony might her be Appellant requested also poena witnesses. pretrial detention denied the motion for government any information con- of the present declined to charge any “past government when the cerning rape both the (1980) (challenge 90-day Subsequent argument appeal, appellant A.2d 1350 n.3 on 2. moot). Similarly, although emergency pleas guilty in which entered in both cases acts effect, pursuant plea longer sought no detention was the closure orders charges repetition, bargains. disposition they “capable raises of the also fall within mootness, appellant long question yet category. evading is no Richmond review” 555, 563, challenges. Virginia, Newspapers, We er held under the statute he 448 U.S. Inc. v. conclude, however, inherently 2814, 2820-21, (1980); that limited L.Ed.2d 973 period 368, 377, detention renders con DePasquale, time 443 U.S. Gannett Co. v. practice 2898, 2904, finement under the statute 61 L.Ed.2d yet evading “capable repetition, would be ICC, Terminal Co. v. review.” Southern Pacific the record be also ordered 3. The court 279, 283, 55 L.Ed. review, purposes except appellate sealed for all (1911); Pugh, see Gerstein presumably until trial to be effective the order n.11, n.11, L.Ed.2d Notwithstanding charges. disposition Washington District of Columbia order, to us unsealed. the record comes Council, Inc., Ownership D.C.App., 415 Home government government require filed an to establish her as a witness. 80-294, pursuant probability, without resort appeal, No. D.C.Code substantial 1973, 23-1324(d)(2). hearsay, accused committed the ruled, however, charged offense. The court 1, 1980, appellant charged April On regarding ap- hearsay that it would admit robbery, sodomy arising burglary, to show pellant’s past conduct single incident on November out of Accord- dangerousness community. had confessed after appellant to which hearsay testimony ingly, the court excluded rape. At his charge his arrest on the complainant’s line-up identi- regarding the charges April presentment on the new report of her appellant fication of Norman, government Judge before The court further police of the assault. D.C.Code again moved for detention under was not complainant ruled that because the 1973, 23-1322(a)(1). Appellant requested witness, upon government as a relied April until and received a continuance compel appellant was not entitled to her appellant’s coun prior proceeding, As in the cross-examination, presence and could discovery of the requested sel notice and not call her on his own behalf without a largely denied. government, which was proffer testimony that her would tend to copies ap provide did negate probability” showing a “substantial pellant’s confession before start of complicity. April 4. At hearing on the outset of the hearing, appellant again requested closure presented, On the basis of the evidence objected. government Judge and the Nor granted Judge Norman the motion for de- initially complete man ruled in favor of Appellant thereupon ap- tention. noted an appellant closure. The court ruled that peal, appeals No. 80-401. The two were knowing a voluntary could make and waiv argument for before consolidated en banc personal right er of his Amendment Sixth this court. public to a trial unless the compelling having could show a interest in II. CONSTITUTIONAL RIGHT Later, open an hearing. hearing after from TO BAIL amicus, Post, counsel for Washington the Appellant the attacks constitutional ruling the court modified its so as to ex ity pretrial of the detention statute on its during press public only clude the the contrary face as to asserted constitution presentation of evidence that would be in right al to bail. The source for this assert subsequent admissible at a trial. right “excessive clause of the ed is the bail” Eighth also renewed his constitutional Appellant Amendment.4 Whether this clause objections hearing grants right bail in a criminal case has provided for statute. The court ruled never been in the federal courts.5 decided against appellant adoption the in each instance ex- of the deten Before the statute, cept Congress always provided one. The court construed the statute tion had required, jurisdiction not 4. “Excessive bail shall not be nor ex- Previous cases in this have imposed, directly passed question. cessive fines punishments nor cruel and unusual Blunt v. on this In States, upheld Amend. inflicted.” U.S.Const. United we A.2d 1973, constitutionality VIII. the 23- of D.C.Code 1322(a)(3) (detention prevent obstruction of Wolfish, n.15, witnesses) justice threatening 5. See Bell v. but did of n.15, constitutionality L.Ed.2d 447 S.Ct. (reserving pass of detention on the any govern- question 23-1322(a)(1) the whether or under D.C.Code guaranteeing interest besides an ac- Mitchell, (D.D.C. mental F.Supp. Dash v. may justify pretrial presence cused’s at trial court), 1972) (three-judge the District Court detention). contradictory of Stack v. The dicta standing question plaintiffs held the had no 1, 3, Boyle, 342 (1951), and 96 L.Ed. 3 constitutionality pretrial detention the Landon, Carlson v. Alston, generally statute. See United States (1952), 96 L.Ed. 547 are (1980) (en D.C.App., 358 n.15 412 A.2d inconclusive on the issue. See discussion infra banc). (D). Part II Right to Bail: A statutory Inquiry, bail federal Historical (1977); Foote, cases.6 34-66 noncapital Appellant detainees Alb.L.Rev. Coming 1), language (pt. Crisis in Bail concedes that the literal Constitutional 959, 967-68, 113 U.Pa.L.Rev. encompass excessive bail does not clause bail, Meyer, Constitutionality Pretrial Deten of right to but would have us find such a 1), (pt. tion 60 Geo.L.J. implied in clause on basis of 1151-56, 1180-90 (1972).9 history of the adoption clause and history its constitutional context. The English system developed bail out of however, Amendment, Eighth gener- Anglo-Saxon ancient forms sureties ally unilluminating sup- and falls short of By into law bail. the thir- early common porting, compelling, let alone conclusion teenth local century representative impli- be found by that a bail must sheriff, Crown, exercised a broad cation. to bail discretionary power ill-defined King’s prisoners committed to his custo- History A. Bail English dy. power widely abused sher- This the Eighth money The excessive clause of iffs individuals bail who extorted from charge Amendment was almost entitled without who adopted verbatim to release Virginia accepted from section nine of the Declara- bribes from those who were not 1776,7 Rights which in bail. tion of turn was otherwise entitled to The first statu- regulation bail, English Rights tory Bill of of West- derived Statute I, (1275), sought 1689.8 The excessive bail clause of the minster 3 Edw. c. 15 English sought enumerating Bill of curb Rights carefully itself to close such abuses loophole English system by bail were and which offenses bailable sheriffs, justices restricting jus- of local in were not. The later the discretion setting peace, grant bail for otherwise tices of the were required offenses deemed deny according bailable. The limited nature of the exces- bail to the terms of statute, original provided form sive bail clause in its becomes which also sanctions however, upon statute, The did apparent noncompliance. an examination the evolu- Duker, King English higher justices not the system. tion of the bail See bind the nor 371, 397, Mitchell, passage Judiciary the of the Act of 6.“From 56 Va.L.Rev. 1789, to the Federal Rules of ... Crimi Procedure, 46(a)(1), nal federal law has Rule ought required, 7. “That be excessive bail not to provided unequivocally person that a arrested imposed, nor cruel and un- excessive fines nor non-capital to for a offense shall admitted inflicted,” punishments reprinted in 10 4, usual Boyle, Stack v. at at bail.” Sources and Documents of States Con- United (emphasis original). 3 (1976) (right See U.S.C. 3146 § (W. 1979); stitutions 49 Swindler 7 Ameri- ed. noncapital cases); to Fed. bail in (F. 1909). Thorpe can Charters 3813 Com- 46(a) ed. (incorporating by refer R.Crim.P. pare supra. note ence). long- The contends the M., 36, 1(10) (1689) (“That 8. 1 W. exces- & c. standing exception for well-established ”). ought required sive bail not to be .... capital crimes the federal bail statute in both justifies and under most state constitutions a Landon, 544-46, 72 9. In at Carlson v. capital of bail cases the denial in non on dictum, Court, stated the at grounds dangerousness, citing of the detainee’s Eighth bail Mitchell, the Amendment’s excessive Constitutionality Bail the Reform and bail, citing, provide right clause a to does not Detention, of Pretrial 55 Va.L.Rev. 1225- discussion, Eng- its from the without derivation (1969). Despite superficial plausibility, its Rights. criti- however, lish have Bill of Commentators support there is no historical for summary as his- exception cized discussions equating the Court’s capital the crimes with a inaccurate, torically asserting rather, on dangerousness; that it relies finding right the to apparent misunderstanding theory of the allocation capital denied bail was crimes the justices King’s Bench possible penal- of discretion to the of the that a ty faced with a death by grant trial, likely appear to bail for crimes made nonbailable would be to at so bail not Foote, See, g., Coming prevent protect flight, Consti- to to statute. e. was denied community. not the 1), Tribe, (pt. in Bail U.Pa.L.Rev. at An tutional Crisis See Ounce of Deten- 979. tion: Preventive in the World of John Justice himself, was rede- the bail the and Parliament free to excessive clause in seventeenth fine which were bailable. Duk- crimes See centuries, practice in eighteenth 43-50; er, Meyer, supra supra at 1151- at established the to as a colonies bail 57. right” perforce “fundamental was Further limitations on the discretion guaranteed by Eighth implicitly grant were bail enacted cure defects argument sup- This Amendment. exploited deny law which the Stuarts by First, a ported history. fundamental particular prisoners. release to The Peti- among bail was not universal Right King tion of in which Charles states; among the early colonies or several that, acquiesced, upon I required petition, a a statutory states made the to bail showing return be cause specific made right. rather than constitutional See upon prisoner which a was being detained.10 77-83; Duker, supra Meyer, note at return, specific A general rather than a Second, supra at the lan- note prisoner recitation that the was detained guage explic- of several state constitutions command, King’s justice would enable a itly limiting power judiciary baila- determine whether cause was a offense, ble as determined statute bail negates suggestion set excessive law, common as well as allow for an answer that the excessive bail clause intended charge. and a trial on the Procedural abus- to restrict the definition of bailable offenses es by the Stuarts after the Restoration led Duker, legislature. supra See note fifty years enactment later Third, early state at 81-83. consti- Corpus Habeas Act of which closed specifically tutions that granted right to the procedural loopholes by estab- firmly clause, bail also contained an excessive bail lishing rights enforcing means for suggesting recognition of the distinction corpus.11 When, thereafter, bail and habeas supra between the two. Meyer, See note protections of the Habeas Act Corpus 10, at 1191. were practice circumvented of set- ting high bail, prohibitively the excessive English and statutory common law bail clause was drafted Bill of into the provisions regulating procedures bail were Rights of clause in order correct simplified to some extent in various colonial injustice. Duker, supra note provision charters. earliest colonial 66; 967-68; Foote, supra Meyer, note concerning eighteen bail is found in section sum, note at 1189-90. of the Massachusetts Body Liberties of excessive bail clause was as a developed 1641.12 This sharply deviated enactment specific remedy abuse English by granting from the tradition an procedure by bail otherwise as established affirmative, limited, though right to bail. law, not, itself, and did and of imply in crimes, capital were contempts Excluded of right to bail. court, expressly desig- and other cases to be B. State Bail Colonial and Constitutional legislature. by nated Massachu- Rights provision setts influenced article XI of the (1682),13 Pennsylvania Liberty Charter of that,

Appellant notwithstanding contends language purpose the narrow and limited a granted right constitutional to bail 1, Duker, 1975) (1628); Right 10. 3 see Car. c. 1 ed. cited as Sources and [hereinafter Duker, 10, 79; Inquiry, supra See note Documents]. Bail: A Historical 42 Alb.L.Rev. at at Foote, 9, 975; Foote, 966-67; supra Meyer, 9, supra (1977); supra note at note 58-66 note at 10, Meyer, Constitutionality at 1162-63. Detention Pretrial (pt. 1), at 1180-85 Geo.L.J. 13. Pennsylvania Liberty, Charter of Laws Agreed Upon XI, England, May in art. 2, Duker, supra 11. 31 c. 2 see note Car. reprinted in 8 Sources and Documents of Unit 967; 10, 65-66; Foote, 9, supra Mey- at note at (W. ed States Constitutions 259 Swindler ed. er, 10, supra note at 1185-90. 1979) cited as 8 Sources and Docu [hereinafter Charters, Reprinted supra 12. Sources and Documents of in 5 and American note ments] 7, Foote, 9, (W. supra at See note at United States Constitutions Swindler 3061. 975. explicit language Penn- of law.”19 This refutes adopted in a form that was later in their consti- sylvania and North Carolina early appellant’s contention that the exces- 1776, widely copied tutions in and was clause, alone, standing gener- sive bail all “That century 19th state constitutions: limitation on the ally embody intended by sufficient sure- persons shall be bailable by granting right to bail legislature as ties, offences, capital when the unless for protection against as a abuse. well evident, great.”14 presumption proof is Finally, the state constitutions North however, charters, sim- Many colonial other Pennsylvania, which were the Carolina and subjects of the ply guaranteed that adopted those only state constitutions of colony enjoy would the same liberties an ex- Bill of to include Rights before the seen, which, Englishmen,15 as we have cases, noncapital also press right to bail encompassed as defined to bail bail clause.20 a distinct excessive contained Parliament. provisions separate The inclusion of two inde- When the colonies asserted their suggests recog- regulating system the bail 1776, they largely adopted pendence language pur- and differing their nition of provisions from charters bail their colonial poses. The Massa- into their state constitutions. included an chusetts Constitution of 1780 clause, bail to bail excessive but Rights C. The Bill of relegated statutory itself was status. a noncon- bail clause was The excessive bail makes clear that This excessive clause very lit- provision provoked troversial judici- it was intended as a limitation on considered the Congress discussion when tle legislature:16 magis- not the “No ary and in 1789. The adoption Rights of the Bill of trate or court of law shall demand excessive congression- in the record of only reference Hamp- New bail or sureties ....”17 vagueness,21 attacked al debate its asserted 1784 used identical

shire Constitution of response no provoked but that statement while language,18 Maryland Constitu- shortly approved the amendment was bail tion of 1776 stated excessive “[t]hat required ... the courts ought not to be afterward. 28, Rights, 1776, 1776, reprinted in 8 19. Md.Const. of Declaration 14. Pa.Const. § 283; 13, XXII, Documents, supra reprinted at Documents note in 4 Sources Sources XXXIX, (W. reprinted in Swin- see N.C.Const. of 1776 art. of United States Constitutions Charters, 1975), United States 7 Sources Documents of and in American dler ed. (W. 1978) added). 7, (emphasis supra Swindler ed. [here- Constitutions note at (In inafter cited as 7 Sources and Documents]. 1868, right to North Carolina eliminated 1776, Rights, Declaration 20. N.C.Const. Foote, also, constitution.) from its See bail X; XXXIX, reprinted in 7 Sources id. art. 9, supra note at 975. 407, 14, 402, Documents, supra and in 5 at note provide present, Charters, 2788, 2793; At 36 state constitutions supra at American note noncapital cases. absolute bail in reprinted in 8 Pa.Const. §§ Humphrey, Petition of 601 P.2d Documents, supra note at Sources and (Okl.Cr.App.1979) I). (Appendix Charters, supra and in 5 American note 3089; Meyer, supra see note 80-81; Duker, Meyer,

15. See note supra note at 1163. 21. entire follows: The reference is as Duker, to ex- 10, Mr. Livermore.—The clause seems supra at 82. 16. See note humanity, press great which deal of on XXVI, 1, it; 1780, pt. objection of re- 17. Mass.Const. art. account I have no to but as Documents, supra it, printed meaning in 5 and Sources have no I do not seems to Charters, 95, 12, necessary. note at and in 3 American the think it What is meant 7, added). supra (emphasis note at 1892 to be the terms excessive bail? Who are judges? I, XXXIII, 1784, reprint- 18. N.H.Const. of art. Cong. (Gales eds. 1 Annals of & Seaton in 6 Sources of United ed and Documents similarly 1789). speaker brief The then made (W. ed. Swindler States Constitutions objections vagueness clauses the of the other to Charters, 1976), supra and in 4 note American amendment. 782-83. of the Id. at 7, at 2457. Appellant adopts Rights of and the argument contemporaneous pas- the Profes from sor drawn narrowly Foote that exces sage statutory right explicit of an federal to of product oversight sive bail clause was the 85-86; supra at Meyer, bail. id. note See inadvertence, and which masked the fram 10, 1164, at 1190-94. a right ers’ true to include to intention bail In to Mason’s from Vir- proposal addition Foote, Rights. supra in the Bill of See note ginia, proposals seven other states made at 984-89. Professor Foote ac Rights. of The North Carolina and Bill knowledges Congress that available had ex proposals Pennsylvania included an ex- amples explicit right of an to bail in colonial clause, although their cessive bail constitu- going charters and state constitutions back tions each both an excessive bail contained Body to the Massachusetts of Liberties of right clause to provision. and a bail See Territory in the Northwest Ordinance Duker, 83; Meyer, note supra supra at 1787,22 in the contemporaneous Judi note five propos- at 1192. Of the other ciary Act of 1789. See id. 970-71. at Pro als, York) (New one included excessive explains language fessor Foote of the clause, right bail but not one contained a to Eighth bail Amendment excessive clause as provision. bail Meyer, supra Bee note at error," “drafting result “inadvert by George Mason, ence” the drafter of the Virginia Rights Declaration of and of the Congress In the session in same proposed Congress by amendments proposals finally ap- considered the Virginia ratification convention 1788. proved of Rights, a Bill it also drafted and theory, Mason, Id. at 984-87. Under this passed Judiciary Act The of 1789. lat- lawyer, appreciate who was not a failed right ter act statutory established a to bail the “tripartite English protec nature of the 6, supra. cases. noncapital See note Al- against detention, tion abusive in Eighth though the Amendment and the volving procedure right and the to bail as statutory right may developed bail have well as control abuse of sources, from two there is distinct noth- bail,” excessive id. used the ing congressional to suggest record language English limited of the Bill of implications differing of the lan- Rights of 1689 to stand whole. for the addressed, Foote, guage supra were see argument assumes, foundation, without 971-73; Tribe, note supra note English granted law an absolute presumed be that Congress it must seen, to bail.23 As we have the definition of recognized clear in scope difference Parliament, bailable offenses was left explanation, clauses. alternative early the colonial charters and constitu clearly differing that the language for- establishing tions varied in a fundamental tuitous, simply inferred without cannot addition, right to if bail. even the clause Congress intended evidence imperfectly English was lifted from the Bill differing language carry the same mean- Rights approved the clause was Moreover, ing. in the 1789 bail in Congress and ratified the states in the Act redundancy would have been a if the form in which it stood and without indica language excessive meant same bail tion of asserted to pro Mason’s intention capital thing even in cases. Duker, vide a bail. note Indeed, contempo at 84-85 n.303. D. Case Law rary understanding meaning of the limited ruled Supreme bail be inferred Court has never excessive clause proposals imports for the Bill of whether bail clause other states’ the excessive argument 22. An for the 23. The also the fact that Ordinance Government overlooks Territory procedural protection against United abusive States north-west 13, II, Ohio, July 1787, by provided river art. re-enacted detention by in the U.S. Constitution 1789, I, 9, 2, Congress preserved privi- 1 Stat. 50-53. Art. cl. which lege Meyer, corpus. of See of the writ habeas supra at 1190. note 1330

right sively high The cites the is free to bail. bail but to bail deny Landon, v. language Court’s 342 altogether making Carlson or all some crimes 525, 537, 72 96 L.Ed. 547 only explanation pro- nonbailable. The (1952), very language of that “the high bail but hibiting excessively allowing say all arrests are Amendment fails to bail- be a the denial of all bail would concern able.” involved the denial of bail Carlson the rich equality economic between and the pending deportation to alien Communists poor, evidence clearly which the historical proceedings. The Court concluded that the negates.26 rendering the To avoid excessive Eighth does not apply Amendment to such argument bail clause “surplusage,” proceedings. Accordingly, civil the Carlson runs, interpreted broadly must be to directly holding does not concern criminal grant Foote, a right supra to bail. See note cases, particularly emphasized as the Court 9, at 987. Congress’ powers broad to deal with aliens. argument This presumes, however, that Moreover, regarding dictum the Carlson pri- excessive bail clause was intended scope Eighth right of an Amendment marily to legislative power limit the of Con- bail the tenor v. conflicts with of Stack gress rather than to limit the discretion of Boyle, 72 96 L.Ed. 3 judiciary setting individual bail. (1951), the same v. decided term. Stack historical of origins the excessive bail Boyle, although concerned the exces- clause, language, as well as its narrow indi- orders siveness of the bail under review primary purpose cate that its is to limit the there, recognized right the “traditional judiciary. major reason advanced for permits freedom before conviction [which] construing as directed the clause to Con- defense, unhampered preparation (and gress a broader thus as limitation on prevent pun- serves to infliction of powers) its is the constitutional context of 4, 72 prior ishment to conviction.” Id. at the Bill of The Bill Rights Rights, itself. relied, S.Ct. at S.24 Lower courts al- have argued, it is as its “central . .. had concern ternatively, on the dicta Carlson' both protection Congress.” against abuse deny Id. Stack to find or constitutional 969, 988; Tribe, bail, note at 400. convincing but without Wright, also v. 430 Ingraham resolution.25 See 51 L.Ed.2d E. Constitutional Scheme (history adoption of Eighth that cruel Amendment indicates and un- Apart from the asserted support in punishment usual clause was intended history development adoption of the Congress judiciary). restrict as well as the clause, appellant argues excessive bail cursory provisions A other examination of apparent anomaly of the excessive Rights, however, contained in the Bill of only explained bail clause can con- reveals struing grant right to the conduct it to bail. The core chief, important, branch was an if not argument this excessive bail clause, indictment, concern. operates jeopardy, insofar as it as a limit on double congressional due power, futility process is a if Con- clauses of the Fifth gress Amendment, prohibited requiring exces- Sixth Amendment’s Stone, 25. Compare F.Supp. 24.The Court in Stack added that Trimble v. “[u]nless preserved, pre (D.D.C.1960) (constitutional before trial is ex bail bail innocence, juvenile sumption cases) (citing Boyle, tends to Stack v. secured after cen supra) Covington struggle, meaning.” with United States ex rel. turies of would lose its Coparo, (S.D.N.Y. F.Supp. recently, 205 & n.6 U.S. at S.Ct. at 3. More 1969) (Congress however, define criminal of pre the Court has stated that Landon, bailable) (citing fenses are Carlson sumption application innocence has “no Note, supra). generally Preventive Deten rights of a determination detain-ee. Trial, tion Harv.L.Rev. 1498- Before Wolfish, . . .” Bell v. U.S. at S.Ct. at 1870. Foote, supra at 989-92. 26.See note rights, clearly trial were acts that support finding criminal intended would of “dan- gerousness” curtail powers of the courts as well was deficient. Appellant also Congress statutory those of contends that the legislating proof for the burden of is inadequate, and that courts. statute as is violative of process whole substantive due A second argument related that while facially and is both overbroad and unconsti- power legislative an unlimited to define the vague. We address tutionally these conten- rights, boundaries of the citizen’s such as presented. order tions in the right bail, is consistent with the English theory of civil liberties in which A. Detention as Punishment authority, Parliament is the ultimate it is government concedes that if de generally inconsistent with a constitutional punishment, imposed tention is cannot be Foote, form of ours. like absent conviction for the crime i. charged, 969, 988; Tribe, supra note at see note e., resulting a fair in an adjudication trial reasoning 400. This requires, however, at panoply guilt protections with the finding an antecedent that the to bail guaranteed by the Fifth and Sixth Amend is a that the fundamental framers of Supreme recognized ments. The Court Bill Rights protect against meant in Bell principle fundamental v. Wolfish: congressional encroachment, plainly because Clause, “under the Due Process a detainee all rights not asserted are constitutionally may prior punished adjudica to an protected. history While the of the devel- guilt tion of process in accordance with due opment of bail that it impor- reveals is an Ingraham of law.” Id. also v. Wright, right, noncapital tant and bail in cases has n.40, 674, 430 U.S. at 671-72 at traditionally been a federal statutory right, 1414; n.40, Kennedy v. Mendoza- neither the historical nor evidence contem- Martinez, 144, 165-67, 186, porary implicit fundamental values 554, 565-67, 576, 9 L.Ed.2d 644 justice criminal system requires recognition States, Wong Wing v. United to bail as a “basic human 41 L.Ed. 140 right,” Foote, supra note which Whether pro detention constitutes must then be to be construed of constitu- punishment hibited turns on whether the tional dimensions. penal regulatory statute is in character. We appellant’s conclude that contention

III. DUE PROCESS inevitably constitutes incarceration Appellant statutory procedure attacks the punishment is without merit. As the Su on multiple grounds preme Court has “Detention is a usual said: as violative of his Fifth Amendment due every feature of of arrest on a case criminal process rights. among Chief these com- charge, even an innocent when plaints (1) are the contentions accused; wrongfully imprison but it is not punishment detention is that cannot be im- ment legal Wong Wing in a sense.” posed “prior adjudication guilt States, United U.S. at law,” process accordance with due Bell v. 980.27 Wolfish, 441 U.S. at (footnote omitted); (2) that the hearing, at penal regu- The distinction between minimum, rights provide latory elusive, must of confron- sanctions is often but the tation, cross-examination, and compulsory compilation traditional tests set out process, Mendoza-Martinez, notice of past Kennedy that the Court in Wong Wing ly necessary processing, involved detention of aliens arrest to effect status, pending inquiry presentment, hearing, appropriate, into their which was if and a bail unobjectionable, subsequent pretrial period found and their but is limited to the imprisonment trial, days. at hard labor without not exceed 60 D.C.Code 23- 60-day 1322(d)(2)(A). period, gener- which was invalidated. Detention under the After this challenged comprehend longer ally statute does be admitted Id. the defendant must to bail. period of confinement than administrative- question is applied pending Bell Wolf- ical whether detention and and in v. reaffirmed ish,28 guidance: purpose protecting trial for of the com provides authoritative munity from detainee’s established dan an affirm- Whether the sanction involves gerousness purpose” is an “alternative con restraint, or it disability

ative whether templated by Mendoza-Martinez fac pun- as a historically regarded has been pretrial tors. reasons for The traditional ishment, into play whether it comes detention, flight preventing or the intimida finding scienter, oper- on a of whether its witnesses, of tion serve “alternative of promote ation will the traditional aims integrity of the purpose” preserving of deterrence, punishment —retribution preventive thus judicial process, and are applies which whether the behavior to it Similarly, pretrial forward-looking.29 crime, already is an alternative whether repetition danger prevent detention to of may rationally it be purpose 23-1322(a)(1) by acts incapaci ous under § it, assignable connected is for and wheth- tating to curtail the detainee seeks reason appears er it excessive in relation to the conduct, punish ably predictable not are rele- purpose assigned alternative all prior acts. may point the inquiry, vant to often differing in Men- [Kennedy directions. v. Wolfish, opinion The Bell v. Court’s 168-69, doza-Martinez, at supra, purpose as emphasizes governmental (footnotes omitted), quot- at S.Ct. 567-68 significant determining particularly Wolfish, in Bell ed 441 U.S. at challenged imposed whether the conditions penal regula- or pretrial were 1873-74.] detainees tory. recognizes, explicitly As this test A whether the disabili- court must decide point differing various factors di punish- purpose is of ty imposed for the rections, and can no mechanical there be incident of ment or whether it is but an application of test. Characterization legitimate governmental pur- some other pretrial is a close particularly detention pose Thus, particular condition .... if a Nevertheless, conclude, question. after we detention is rea- pretrial or restriction factors, considering all of the relevant govern- legitimate sonably related to pretrial regulatory is rather than detention not, objective, it does without mental pend penal Although nature. detention more, “punishment.” amount [441 restraint, ing trial invokes an affirmative (foot- at 1873-74 U.S. at 99 S.Ct. regarded pun it as historically has not been omitted).] detainee, purpose ordinarily another associ Amendments, the Fifth and Sixth the stat- punishment.31 ated with Pretrial detention utory provisions nonetheless are violative of incapacitate does purposefully detainee providing Due Process Clause not committing further crimes pending procedural the minimal framework neces- charges, on phys trial the criminal and such sary to a hearing. particular, appel- fair necessarily ical restraint is also one of the process lant asserts that due requires that a imprisonment functions of after in pretrial hearing conviction. defendant a be however, confrontation, Incapacitation, rights is afforded distinct from cross-ex- deterrence, amination, general compulsory process, operates which by ex prove that the must each re- ample, by physical not restraint. note See quired proof finding by beyond a reasonable supra. Significantly, pretrial detention provides doubt.33 The statute pro- certain closely go circumscribed so as not to safeguards cedural formalities and but does beyond protect the need to safety of the guarantee procedural not pro- the several community pending the detainee’s trial. tections appellant asserts are consti- Such detention is not to days, by exceed 60 tutionally required. judges The two which time either the detainee must be respective pretrial hearings under trial, brought to or bail must be set. D.C. conflicting rulings review here made 23-1322(d)(2)(A). Moreover, Code adequacy statutory protections. For the detention be ended “whenever a follow, the reasons that we conclude that judicial officer finds subsequent that a statutory procedures satisfy the mini- event has eliminated the basis for such de procedural mum demands of process due 23-1322(d)(2)(B). tention.” Id. As the before person may pending detained legislative clear, history makes such “[o]ne trial on grounds dangerousness might circumstance be the court’s granting community. suppress motion to most of the Govern H.R.Rep.No.91-907, ment’s evidence.” 91st Although detention is not Cong., 2d (1970).32 Sess. 184 punishment, clearly implicates liberty Wolfish, punishment, retribution, 30. As the Court noted in Bell v. such as rehabili- tation, legitimate “[Retribution deterrence are not or deterrence.” nonpunitive governmental objectives.” 441 n.20, (citing U.S. at 539 99 S.Ct. at 1874 n.20 Appellant also contends that deten- Mendoza-Martinez, Kennedy v. 372 U.S. at unconstitutionally punishes tion for the “sta- 567). 83 S.Ct. at In neither being “dangerous,” relying Mendoza-Martinez tus” on Robinson California, nor Wolfish does the Court indicate that “de- v. 370 U.S. 82 S.Ct. encompass (1962) terrence” is meant to times (punishment what is some- L.Ed.2d 758 for status deterrence, e., specific drug Eighth referred to as i. addiction violates and Fourteenth through physical incapacitation, prohibition “deterrence” Amendments’ punishment). on cruel and unusual generally meaning as general deterrence, well as the understood Because we conclude that such e., punishment, argument i. the existence of a detention is not falls example appli- Moreover, weight. necessary pre- criminal sanction and the of its of its own requisite cation deters others for fear of similar conse- detention is an arrest for a quences. crime, specified beyond which crime is an act Texas, mere status. See Powell v. 392 U.S. (1968) 686-87, Ingraham Wright, 31. See 430 U.S. at (state may punish J„ (White, status of alcoholism but dissenting) 97 S.Ct. at 1420-21 may punish specific public (footnote omitted): for acts such as and citation “The relevant drunkenness). inquiry is not whether the offense for which a punishment is inflicted has been labeled as criminal, purpose depri- process requirement but whether the 33. The due of notice is among ordinarily part III(C), vation is those associated addressed in infra. legislative history requires hearing within of the statute a fair con- interest process. due procedural Congress’ the mandates of firms intent that the information 778, 782, Gagnon Scarpelli, upon which the officer makes his L.Ed.2d 656 finding testimony, need not be sworn probation attach to (due process protections hearing not designed afford Brewer, revocation); Morrissey v. Thus, discovery device. defendants a finding providing that substantial (1972) (parole impli- L.Ed.2d revocation based on is to be information probability interest). protected liberty proc- Due cates otherwise,” presented proffer or “by however, concept, flexible ess is a and “not anticipates House Report calling procedural situations all safe- that, under present practice as is procedure.” guards call the same kind Act, Bail ... the use sworn Reform question 2600. The Id. S.Ct. at exception and be the not testimony will due,” process is id. therefore remains “what hearings [Bjail under the the rule. ... Eldridge, Mathews v. 333- Act, frequently Bail result Reform 901-03, L.Ed.2d 18 accused, pri- proceed (1976), procedures provid- and whether They are proffers. of not marily by way by proc- ed statute meet the minimum due adherence to requiring strict formal trials requirements. ess If the of evidence. court technical rules provides detention statute prof- is with the nature dissatisfied officer, hearing judicial a a for before D.C. discretion, fer, always, within its it can 1973, 23-1322(b)(1), (c)(1), at which § Code But the dis- testimony. insist on direct representation is to the defendant entitled court without be left to the cretion should present by and by counsel “to information limiting of imposing on it the burden otherwise, testify, to and to proffer permit to that would a admissibility present in his own behalf.” Id. witnesses jury [H.R.Rep.No.91-907, to hear. 91st 23-1322(c)(4). presented The information § (1970) (emphasis Cong., 2d Sess. judicial govern either the to officer added).] by proffer may ment or the defense be and hearsay may evidence be Accordingly, pertaining not to the rules “need conform presented, although may require the court in a court of admissibility to the of evidence prof- a testimony direct if with dissatisfied Upon 23-1322(c)(5). law.” Id. the infor § fer. hearing, judi presented mation at the not legislative history does discuss separate officer must three find cial make scope permitted cross-examination of of proof: (1) of ings, particular with burdens govern- who are called witnesses convincing is evidence that there clear and 1322(c)(4) gives ment. the accused Section one of cate the accused falls into present in his own right “to witnesses detention, persons eligible for e. gories behalf,” House states that Report but the g., person charged dangerous a with a right accused conditional crime, that, 23-1322(b)(2)(A); (2) id. § call adverse witnesses: “pattern based on the accused’s behavior not, course, He call witnesses who conduct, consisting past present of his expected testify would be ordinarily other set out in section and the factors trial, unless he can the Government at 23-1321(b),” com there is “no condition or proffer court reasonable detail will of conditions of release which bination negate testimony how expects he their reasonably safety other assure hearing pro- probability. substantial community,” id. 23- person or (c) (b) subsections vided 1322(b)(2)(B)(i); (3) that “a there is designed discovery to afford defendants a probability that com substantial pur- obtained Discovery device. to be by the for which he is mitted offense officer,” [H.R.Rep.No. id. suant to the rules of court. before added).] (emphasis at 183 23-1322(b)(2)(C). hearings Supreme In the first of the two under derived from the decision Court’s here, Judge agreed ap- Pugh, review Bowers Gerstein pellant constitutionally (1975), Morrissey that the statute was 43 L.Ed.2d deficient, government appeals Brewer, and the Although

determination. the basis for the that an L.Ed.2d 484 Gerstein held ruling during proceeding, court’s shifted timely hearing arrestee is entitled to a be ultimately (1) hearsay the court held “judicial fore magistrate for a determina not be would admitted because defend- tion as a probable prerequisite cause ant has constitutional of confronta- following liberty extended ar restraint tion, and to that extent the statute is con- 114, 95 rest.” 420 U.S. at S.Ct. at 863. The deficient, stitutionally de- “the panoply Court further held that full has a call adverse fendant witness- safeguards counsel, confronta adversary — e., es proffer, compul- without a i. cross-examination, tion, and compulsory States, Blunt sory process, under v. United process witnesses,” id. at S.Ct. at 322 A.2d at 585. Because the 865, which the Court District and Court available, complainant refused make the Appeals mandatory, had held was is not Judge pre- Bowers denied the motion for constitutionally Id. required.34 trial detention. Morrissey, 95 S.Ct. at 866-69. other hand, preliminary hearing that a held must proceeding, Judge In the second Norman held, procedural safeguards, with certain right held that the accused has a to con- to probable determine whether there is and front cross-examine the witnesses cause to believe the parolee committed against him on the issue of whether the parole hearing violation. be must charged committed, crime and there- magistrate held the before neutral and hearsay fore excluded on evidence that is- sue, parolee given opportunity an including notice and to complainant’s report the of present the at line-up crime and her evidence. 408 U.S. identification of appellant. accept given the S.Ct. at hearsay parolee The court did 2602-03. The also is regarding “per evidence issues the ac- to confront and cross-examine past present cused’s given conduct and adverse information who son[s] [have] any based,” whether conditions of release could as- on which is to parole revocation be sure the safety community. hearing specifically unless the officer finds court held there was no requirement subjected that that the witness “would be to a complainant be made available for risk identity of harm if his were disclosed.” proffer cross-examination without a from Id. prelimi-' at 2603. The S.Ct. at testimony the defense as to her nary hearing how would revo to be followed negate notice, that probability” hearing “substantial cation at there is an evidence, charged Appellant offense was opportunity committed. to at 487- id. contests the rulings admitting hearsay evi- at S.Ct. and a denying dence and an unconditional confront and wit cross-examine adverse call (“unless specifi adverse witnesses. hearing nesses officer challenges ruling excluding cally good allowing the com- finds cause for not con plainant’s frontation,” 2604). hearsay statements. id. at S.Ct. at that, minimum,35 determining process

Guidance in Appellant “what contends at a due” hearing may the rights be of confrontation and cross-exami- person property 34. The Court decided the constitutional re- that is due” seizures or quirements cases, preliminary hearing including for a under criminal the detention suspects Pugh, pending Fourth Amendment rather than Due Proc- trial.” Gerstein v. Amendment, n.27, noting ess Clause of the Fifth at at 125 868 n.27. explicit- Fourth “[t]he Amendment was tailored ly system, justice for the criminal and its bal- Appellant also contends the burden public ance between individual interests proof should be the criminal trial standard of proof beyond a always thought “process doubt, has been define rather than reasonable Appellant hearing required. was not at- required in a nation witnesses of adverse distinguish tempts liberty interest hearing by preliminary parole revocation “practically se- similarly required be in a in Gerstein as less Morrissey should involved entirely hearing. conceptually Because “due vere different” pretrial detention such under process proce- is flexible and calls for detained Gerstein person because a protections hearing situation or particular dural entitled to a bail also be demands,” at id. 408 for release. See D.C.Code conditions independent examination must argument This confuses the 23-1321. § process requirements for made of the due hearing with the statutory right a bail determining the detention. process due re- procedural protections that required, we scope procedural protections quires any pretrial detention. The bail must consider the individual’s interest af- will in which the court determine hearing, action, the nature of fected the official flight any and whether condi- likelihood of involved, governmental function reasonably appear- tions “will assure probable value of enhanced accura- safety or the person ance for trial cy procedural safeguards. from additional community,” or the id. other Eldridge, Mathews v. 23-1321(a), any procedural offer does not 903; Jones, see Vitek v. require- protections beyond the Gerstein Brewer, Morrissey The District of Columbia statute ments. generally U.S. at 92 S.Ct. at 2600. See specifically provides “[information Tribe, Law L. American Constitutional in, with, any offered in connection stated -13 Consideration of §§ to this need pursuant order entered section interest and the liberty the individual’s pertaining to the rules not conform simplified government’s yet interests in a in a law.” admissibility of evidence court of hearing fair leads us to 23-1321(f).37 con- Id. An arrestee has no the conclusion that the interests involved cross-examination, con- rights stitutional in preliminary are closer to those a Gerstein frontation, process compulsory or or hearing Morrissey in a than those involved proof beyond a doubt in a bail reasonable procedures hearing, statutory the characterizing proceeding. Thus detention constitutionally are ade- challenged here upon under probable cause determination quate.36 only “indirectly” resulting in Gerstein as be re- detention because the arrestee could findings The of the in a detention effect other subject leased on bail or conditions preliminary (Gerstein) hear- hearing and a Indeed, the misleading. is if release hearing ing is the same: each determines recogni- personal is released on arrestee may pend- be detained whether the accused zance, requirement there is no under Ger- liberty ing The interest trial. individual’s preliminary be held. hearing stein that proceeding accordingly each is by affected subject Only pro- when is the arrestee Gerstein, explicitly Court the same. In the longed pretrial or release “accom- detention stated is whether there that the “sole issue ef- conditions that panied by burdensome detaining for the arrested probable cause liberty,” id. at significant fect a restraint proceedings,” 420 person pending further n.26, 863; id. at (emphasis see at 866 add- U.S. at n.26, In apply. does ed), adversary a full S.Ct. at 868 Gerstein and concluded that discovery probable preliminary is not The of the examination finding hearsay .... the cause standard may upon Morrissey, hearings probable be based in both Gerstein and cause apparently part. to confront in contends that evidence in whole or complainant may is absolute. and cross-examine cross-examine witnesses defendant against in his him and introduce evidence 34, supra. 36. note See own behalf.” 5(d)(1) (“Preliminary Super.Ct.Cr.R. Ex- 37. See amination”): preliminary purpose of a “The

short, addition, liberty system.39 the same interest of the indi- Court distin- pretrial proceed- guished preliminary vidual—to be free detention— revocation pretrial ing Morrissey, place near the hearing involved in detention in to be held violation, by alleged parole of the its broad- hearing probable and a Gerstein on cause. “gathering preserving er function comparison Turning to a of the nature of n.22, 95 testimony,” live id. at 121 government’s pro- interest the two n.22, which shared nei- function is ceedings, they we are also similar find probable preliminary hearing ther a cause outset, scope. At the hearing. pretrial nor a detention conducting has an in not obvious interest twice, proceeding full-blown criminal once Rights 1. of Confrontation and Cross- and a time for detention second Examination charges. Indeed,

the trial on the the indi- government’s vidual’s and the inter- mutual regard specific proce With holding est in the hearing soon after protections dural of confrontation and necessarily the time arrest38 pre- cross-examination, Judge which Bowers preparation cludes the full-scale and inves- constitutionally required ruled were tigation that is commensurate with a crimi- Judge part, imposed Norman we nal Conversely, trial. the limited function government may proceed hold that the i.e., of a hearing, to de- proffer hearsay, subject use termine appropriateness of detention judge discretion of the as to the nature for a maximum of 60 days pending trial proffer and the need for admissible charges panoply the full rights evidence. of confrontation and weighs criminal trial rights, in favor of a together generally pro cross-examination simplified hearing. The Gerstein dis- Court hibit the use of hearsay statements unless tinguished greater procedural formali- they recognized exception,40 fall within a or required ties by Morrissey part on the they supported by are other unless “indicia basis procedural protections overall reliability,” although of con justice otherwise afforded the criminal is not co-extensive with the evi- frontation 1973, 23-1322(c)(3) provides: D.C.Code tation is to be and to hear the testimony of live statements are used available witnesses whose hearing shall held against the defendant. immediately upon person brought being Page, Barber hearing before the officer for such Pointer v. unless the United attor- States 400, 403-05, Texas, ney moves for a continuance. A continuance (1965). generally 13 See L.Ed.2d 923 granted person on motion of the not shall Westen, Compulsory Confrontation and Proc- days, exceed five calendar are unless there Theory ess: A Unified Cases, of Evidence for Criminal extenuating circumstances. A continuance (1978). 91 Harv.L.Rev. 569-79 The attorney on motion of the United States shall cross-examination, right of derived from the granted upon good be cause shown and shall confrontation, right right to of is the cross-ex- days. not exceed three calendar The government’s presented amine the trial. S.Ct. witnesses at may pending hearing. be detained the Texas, U.S. at See Pointer v. 85 proceedings 1068; Westen, revocation Morris- “Uhe] [in at at 579-81. sey] may protection offer from error less initial process, Supreme recently than the more formal criminal violations are defined where 41.The Court reexamined the prose- relationship statute and the of between the confrontation professional duty charge Roberts, hearsay cutor has a suspect not to a and U.S. v. the rule. In Ohio (1980), with crime unless of he satisfied probable Pugh, Gerstein U.S. at cause.” v. the Court held that at defend- the introduction n.22, testimony prelimi- 95 S.Ct. at 866-67 of at a n.22. ant’s trial obtained nary hearing ap- who did from a witness not right confrontation, rights pear confrontation, 40. The trial of cross-examina- did not violate defendant’s tion, process, compulsory guaranteed had where the witness been sub- jected equivalent significant the defense in criminal trial the Sixth cross-ex- a Amendment, overlapping preliminary hearing. related and This are amination at rights. speaking, showing Generally holding upon confron- a rested a that the witness do, complainant. Holding, hearsay. Dutton v. as we that dentiary rules of government may proceed by proffer Evans, 74, 81-82, 91 otherwise, we conclude that there is no rea (1970); California L.Ed.2d complainant distinguish son Green, 149, 155-56, 90 offense, to an possible other witnesses 1930, 1933-34, 26 L.Ed.2d 489 Harri may government proffer a that com States, D.C.App., 407 son v. United A.2d proba as in a plainant’s hearsay statements (1979). Judge apparently Bowers examination. Con preliminary ble cause constitutionally-mandated on these relied holding, further con with we sistent rights ruling hearsay that all trial must proffer may require clude that court that, disagree, finding excluded. We as compelling the before from the defense cause, hearing for preliminary probable in a pre The presence of witness. an adverse proceed government may by proffer or provides trial accused detention statute Pugh, hearsay. See Gerstein witnesses his with a 866-67; 22,95 Blunt v. United 121 — respond is opportunity favor. Such an States, (“Given at 583 A.2d n.4 right which the procedural fundamental pro unique [pretrial nature of detention] restricting. interest in government has no ceedings, general a full trial of the issue govern Nevertheless, regard would be evidence impracticable,” and witnesses, the com particularly ment’s sufficient.) proffer constitutionally witness, does have plaining government liberty and the function interest at stake premature dis preventing an interest proceedings two are so similar as to protecting interest in covery. It has an also provide distinguishing no them.42 basis well-being of its physical the emotional and Clemmer, Washington v. witnesses. See compul trial right The related n.11, 216, 219 339 F.2d U.S.App.D.C. sory process, provided by the Sixth holding our Under n.11 Amendment, guarantees that the defendant by prof government proceed that the may compel witnesses in the attendance of for the fer or cross-examination hearsay, context, his favor. In the trial the defend impeaching the witness’ purpose limited proffer requested need how the ant credibility insufficient reason com is an " favor; requirement will in his the de testify pel witness presence. witness’ regarding the preliminary proffer,3 of a identify fendant carries burden testimony will manner which a witness’ ing and securing attendance those negate probability tend to substantial testimony he desires. See witnesses whose offense, charged the accused committed Westen, supra In nei note at 601-13. the accused’s is a limitation on reasonable hearings ther of the two right to in his favor. call witnesses produc appealed complainant here was the States, relied on information supra, ed. Blunt v. was relied United by ap- by upon by Judge Bowers and is cited and statements other than statements hearsay conflicting fine trial resolution of evidence unavailable for testimony reliability.” adequate preponderance bore “indicia of or even a reasonable-doubt demands, credibility Id. at 2542 — 13. Roberts addressed the issue of determina- standard and ” preliminary testimony obtained at a whether at are crucial .... tions seldom hearing against may statutory Although be used a defendant at stan- 866. the violating right of trial without frontation; defendant’s con determining a for if the in dard accused not the issue which charged it did address hearing committed the of- here, namely; government face the we whether probability,” D.C.Code fense “substantial hearsay pre may proceed by proffer a and 23-1322(b)(2)(C), higher standard § a hearing. trial detention cause, probable it is nevertheless essen- than tially an whether the informed estimate of language in Gerstein Appellant on the relies charge government prove the at trial and it will distinguished the the nature of wherein Court require of a does not the fine determination Morrissey. “[A in Gerstein the functions reasonable standard. doubt hearing] probable require does not the cause 2602-04; pellant violations, probation for an unconditional authority Gagnon v. right Blunt, Scarpelli, 782, 789, to call witnesses. U.S. at adverse S.Ct. at 1763; detention, argued that he was denied Gerstein v. defendant Pugh, 420 U.S. S.Ct. at 865- right to cross-examine constitutional 67. The requires statute alleged he had witnesses threat- who officer find by probability” “a substantial ened them. defendant We noted “[a] that the accused committed the offense for right has the under statute and under which he charged. D.C.Code 23- the case subpoena ap- law to witnesses to 1322(b)(2)(C). legislative history indi pear in his behalf” id. 322 A.2d at 585 standard, higher proba cates that this than (emphasis added) (citing D.C.Code ble equivalent cause was intended to be 23-1322(c)(4); Greenwell United “to required standard secure a civil States, 115 U.S.App.D.C. 317 F.2d 108 injunction of success on the —likelihood (1963)), but held that defendant had H.R.Rep.No.91-907, merits.” 91st Cong., 2d “waived right his cross-examine the Sess. 182 government’s when witnesses he neither right availed himself of to call the his wit- Texas, Addington nesses nor asked the court for a continuance (1979), is cited by presence,” in order to secure their id. 322 appellant actually support but lends to our A.2d at 586. no We had occasion in Blunt Addington, reject- conclusion. In the Court to determine whether accused’s ed proof beyond a burden of a reasonable call witnesses in his favor be involuntary condi- doubt civil commitment upon proffer tioned showing hearings, proof how the requiring tes- instead clear timony negate convincing reject- will probability substantial evidence. Court when ed higher “beyond a reasonable testimony presumably witness’ doubt” will historically be standard because adverse to the accused. has been See In re R.D.S., cases, reserved for D.C.App., puni- A.2d criminal are tive in (respondent’s purpose which our probable society cause “our hearing determined that concern that evidence introduce on his own risk of error to the individual must be mini- behalf “does not connote the to deter- mized even at the risk some who are mine government’s in effect who wit- guilty might go Id. at free.” be,” nesses shall compel order to at 1810. weigh These considerations also complainant’s testimony, respondent must against imposition of the “reasonable proffer how the evidence negate would doubt” proceedings. standard on detention probable cause). above, pretrial

As we conclude detention is punitive Our purpose. societal deter- 2. Burden of Proof mination that of error in the risk a criminal Appellant contends that the burden trial be balanced in favor the accused is proof required trial, e., criminal i. closely punitive aspects tied to the of con- proof beyond doubt, a reasonable see In re application viction and has no to detention Winship, pending a trial at which (1970), required L.Ed.2d 368 is the required higher will be to meet burden. procedural standard under the dictates of We infirmity find no constitutional process due for a detention hearing. statute on this score. We agree. Supreme cannot Court has consistently significant held that restraints C. Notice on liberty may upon imposed finding probable violation, including cause of a of the specific Advance notice parole violations, cases Morrissey of allegations v. against the accused is a funda Brewer, procedural 408 92 mental component proc- U.S. S.Ct. at of due 1340

ess. for the individual offenses described in necessary appellant’s Notice confession retry adjudications of charges proceed delinquency and the or to understand meaningful Rather, ings give opportu appellant’s contained in social file. and to him a judicial in officer is to determine nity “to marshal facts his defense.” from the McDonnell, accused’s of behavior “pattern consisting 94 of Wolff v. 418 conduct, past present his and 2963, 2978, 41 935 on the L.Ed.2d 23-1321(b),” other in does contain factors set out section pretrial detention not statute or whether no combina- pro “there is condition any provision regarding notice but does which will rea- tion of conditions of release vide on the accused’s mo for a continuance sonably per- other safety assure the tion “shall exceed five calendar which son community.” or the Id factors days, extenuating there circum unless are 23-1321(b), govern- set out in statute 23-1322(c)(3). § § stances.” D.C.Code ing pretrial release, “the include nature and Appellant three-day availed himself of a charged, . . . circumstances of the offense proceeding Judge in the continuance before ties, family employment, his financial re- Although appellant Norman.43 claims sources, conditions, mental character was time to constitutionally insufficient conduct, length residence past in the prepare, we find no merit in this contention. community, of convictions record [and] Pugh, See v. 123-25 & Gerstein ” added). 23-1321(b) (emphasis . .. . Id. § nn. 24 24 & 95 S.Ct. at 867-69 & nn. & judicial thus qualita- officer’s task is probable (preliminary hearing for cause than, tively no as- different some immediately presentment, to be held after to, pects the determination at a identical conjunction or in bail or re pretrial hearing immediately bail held after an ar- McDonnell, hearing); lease Wolff v. rest conditions of re- ascertain “which (minimum U.S. at at 2978 lease, reasonably if will assure the any, prison hours advance necessary notice for appearance required person of a or disciplinary hearing). safety communi- any other or the ” . .. . ty inquiry signifi- Id. Nor is the Appellant acknowledges also assessing cantly different from whether provided adequate he of the was notice dangerous likely convicted or defendant specific charged crimes for which he was flee, determining his purposes for arrested, but contends that he received in 23-1325(c).44 pending appeal. release Id. § adequate specific notice instances his “past upon conduct” appellant’s Judge upon relied Norman rely his dan would show (to charged confession and sev- offenses community. gerousness to the D.C. See preceding enteen four robberies 1973, 23-1322(b)(2)(B)(i). Appellant Code § months), testimony as corroborated misperceives finding the character of officers, investigating upon dangerousness 23-1322(b)(2) re under adjudications delinquency appellant’s § quired detention. The juvenile regard social file. With Norman) (here, not re Judge prior adjudications, put officer was appellant quired prior past to conduct a trial of each of the notice statute that convictions bail, three-day previously depriva con- 43. He had obtained constitutional by Judge through liberty Bowers. tinuance case handled tion of does significantly not differ either Unquestionably, pending appeal, is no there constitutional lieu of bail the denial of bail post-conviction process post-conviction bail. v. United Harris as due de attaches to States, liberty L.Ed.2d Morrissey nials of interests. (Douglas, J.); Brewer, United revocation); Johnson v. supra (parole Gagnon v. States, D.C.App., (1972); see Scarpelli, (probation revocation); 291 A.2d supra Wolff McDonnell, U.S.C. D.C.Code (loss good-time credits 23-1325; Duker, supra 112-19. note infraction). prison disciplinary that, likewise, Having is no concluded there Wade, Blumstein, v. supra; would be considered the determination of Dunn v. And, dangerousness. although 330, 995, counsel for U.S. 92 S.Ct. 31 L.Ed.2d 274 appellant given appellant’s (1972); copy Thompson, v. Shapiro only (1969). confession statement of several hours 89 S.Ct. L.Ed.2d 600 See prior Scott, of the hearing, to commencement generally W. LaFave & A. Criminal 138; present been line-up Tribe, supra counsel at a Law had held L. §§ appellant’s (and soon after arrest to -4. confes-

sion) in which some twenty-five witnesses Regardless right whether to were asked whether they were witnesses to not, bail is as fundamental characterized or victims by appellant par- of assaults on legislative history provides ample sup particular ticular dates locations. More- port compelling for a state interest over, unique circumstances of the pretrial detention of the narrow class of case, whereby hearing had been persons by Congress covered statute. held a time govern- short earlier on the (1) alarming considered increase in first, unsuccessful, ment’s but motion for street crime in District of Columbia pretrial detention, appellant counsel for had 1966; (2) since involving statistical studies more usual regarding than notice instances by persons recidivism while re on appellant’s past conduct, including access lease; recommendations the Presi appellant’s juvenile to social file. We find dent’s Commission Crime in District appellant the notice constitutionally to ade- (1966), of Columbia and the Judicial Council quate. Study Committee Operation Bail Reform Act in the District Columbia Process, D. Substantive Due Vagueness, (1969); (4) pretrial and deten release and Overbreadth practices England tion and other coun Appellant also asserts that Cong., tries. H.R.Rep.No.91-907, 91st 2d detention statute (1970). violates substantive due Appellant attempts Sess. 87-94 process by denying pending bail trial litigate and is essentially legislative what are find both unconstitutionally e., vague ings, and over- i. the extent crime committed broad. These persons contentions have no pending merit pre released trial and the and may be dismissed with little conduct, discussion. dictability citing of criminal stu dies which reached different statistical re sults by Congress. than those upon relied 1. Substantive Due Process These properly are matters committed to Substantive due process requires process. the legislative Pretrial detention rights” when “fundamental are in clearly prevent has a substantial relation volved, state may rights such limit ing injury public and thus falls with regulation only upon showing of a “com in the scope Congress’ power legislate pelling Wade, state interest.” Roe 410 for the District Columbia. Palmore 113, 93 705, 35 (1973). L.Ed.2d 147 States, v. United 411 U.S. The Supreme Court has identified (1973); United States v. limited number of such “fundamental Sharpnack, rights,” vote, such as the (1958). L.Ed.2d travel, privacy concerning intimacy procreation, decisions of as 2. Overbreadth well rights expressly guaranteed by Roe, Constitution. See Whalen support of his contention imper- L.Ed.2d Roe that the detention statute g., Note, 45. E. An Preventive Detention: Em- pirical Analysis, 6 Harv.C.R.-C.L.L.Rev.

1342 share, judicial of overbroad, prediction also sta the dan- appellant cites missibly distinguished pre- gerousness, as concluding that con from tistical studies criminal of flight, likelihood is both a diction of predicted. The generally be duct cannot impo- and the denial of a fundamental ap doctrine of constitutional overbreadth Accordingly, we de- punishment. sition of sweep unnecessarily plies to statutes that unconstitutionally statute cline find the substantially impinge broadly thereby overbroad. as constitutionally-protected conduct governmental subject as conduct well Oklahoma, v.

regulation. See Broadrick Vagueness 3. 93 413 U.S. S.Ct. Appellant also asserts State, (1973); Aptheker Secretary of 378 v. vague. The Su impermissibly statute is 1659, 1664, 12 500, 508, 84 L.Ed.2d S.Ct. preme v. New stated Lanzetta Court (1964); Tribe, supra, L. 12-24 to -25. 992 §§ Jersey, 59 83 L.Ed. pre application doctrine no for (1939): 888 statute which either “[A] applies as it trial statute doing or of an act in terms requires bids constitutionally regulable, which conduct intelligence vague so men of common e., charged be with the /. detainee must meaning and necessarily guess must at its crime, a dangerous of D.C.Code commission violates first application, differ to its violence, 1973, 23-1322(a)(1), or a crime of § Id. at process of law.” essential of due judicial 23-1322(a)(2), which the offi id. § v. (quoting Connally General 59 S.Ct. at 619 probability finds with cer substantial Co., 385, 391, 46 269 Construction Moreover, committed the accused. 126, 127, (1925)). The L.Ed. 322 statute requires finding that statute also “there abstract, however; is not tested in or of of no condition combination conditions vagueness challenges “must be examined in reasonably which release will assure at hand.” light of facts of the case safety any of or the communi other Mazurie, United States 23-1322(b)(2), prohibits id. which thus ty,” § 710, 714, (1975), L.Ed.2d restrictive alterna pretrial detention if less States, quoted Willcher v. United D.C. the individual case to tives are available in App., (1979). It is true that 408 A.2d government’s protect interest in effect “past con Congress meaning of left ing the Prediction of the like community. dangerous finding supporting duct” necessarily in lihood certain conduct 23-1321(b), ness under D.C.Code §§ error, margin but is an estab volves judgment of -1322(b)(2)(B), to the sound component sys lished of our release judicial officer, H.R.Rep.No.91- see judges engaged tem. Trial have been (1970). How Cong., 2d 91st Sess. flight all predicting the likelihood for ever, appellant was with which crimes defendants, noncapital, and capital and charged he admits he and the crimes which predicted likelihood of recidivism have pre space four months committed in the capital Act Judiciary for offenses since ceding sodomy, two rape, his arrest —a States, Wright 1789. See v. United D.C. burglaries, robberies —as and seventeen A.2d n.4 Russell App., juvenile so adjudication well of his as the States, U.S.App.D.C. file, under prohibited v. United cial are all conduct argument re laws.46 Nor can Appellant’s concededly F.2d 185 valid criminal meaning any there doubt as to the assumptions, lies on the we do not “dangerous 23-1331(3)-(4) (A) Specifically, The term crime” means of the D.C. statutory attempting property provides taking take Pretrial or Detention Statute force, (B) “dangerous” un- and “violent” force or threat of definitions another lawfully entering attempting enter or crimes. premises overnight adapted for accommoda- provides: Subsection 3 persons carrying on business tion “safety community” in this context. Burka, In United D.C.App., States 1973, 23-1322(1). D.C.Code (1972), A.2d 376 we recognized a common law right of access proceedings sum, challenged pro- we hold that the holding judge that a sequester trial visions of the District of Columbia transcripts proceedings inspection of statute, 1973, 23-1322, detention D.C.Code by one parties of the proceed because the are constitutional.47 ing itself required public. so holding, we noted general that na “[t]he IV. CLOSURE ture of our form government requires of highest degree public exposure of A collateral but important issue is trial court proceedings,” and that “the un left for our consideration. In each of the derlying policy firmly judicial rooted in appellant’s our pretrial hearings, de system that courtroom proceedings fense counsel moved for [is] and was successful public open.” must be and obtaining (foot Id. at partial at least closure of the omitted). note hearings parte See also ex press public. and Draw Because baugh, App. (patent court in each D.C. 404 regis case failed to any make findings litigation tration support at all to cannot be its conclusion held in secret that despite closure was necessary preserve Patent Office rules appel preventing pub lant’s fair right, registration). trial we lic disclosure in reverse the If court’s rulings as government violative of the First and amicus solely Amendment relied on this right press of the public access, and right to attend common law of the balance of courtroom proceedings. interests might weigh heavily in favor of appellant’s right to a fair trial unjeopard- Appellant that, contends despite an ac- ized prejudicial publicity, guaranteed knowledged, long-standing pub- tradition of by the Fifth and Sixth Amendments. See lic trials and hearings, there is neither a Maxwell, Sheppard U.S. common-law nor a right constitutional of 1507, 16 Texas, L.Ed.2d 600 Estes v. press public or attend hear- 85 S.Ct. ings. We accept cannot this contention. (1965). right pro access to While aspects certain hearings, ceedings basis, also has a constitutional including pretrial hearings, weigh however, requiring consideration of the bal heavily in favor implementing protective ance between rights. the two constitutional procedures to safeguard a defendant’s right trial, to a fair the necessity scope and Supreme recently Court made explic- procedures such must be against balanced it that the guarantees constitutional of the press interest of the public open First speech Amendment to freedom of judicial proceedings. press right and the to assemble encom- therein,

with the intent to commit an accompanied by offense or blackmail lence, arson, threats of vio- (C) adaptable persons attempted any premises arson or arson of assault with intent to commit overnight for accommodation of any offense, dangerous weap- assault with a carrying business, (D) or for on, forci- attempt conspiracy or an or to commit rape, ble or assault with intent to commit any foregoing of the offenses as defined rape, (E) forcible or unlawful sale or distribu- any law, Congress Act of if State depressant tion of a narcotic or or stimulant punishable by imprisonment offense is more than one drug (as by any Congress) defined Act of if year. punishable by imprisonment the offense is year. for more than one Contrary Judge to the contention of Ferren provides: Subsection 4 dissent, purport in his we do not to advise the The term “crime of violence” means mur- legislative or executive branches of der, rape, knowledge forcible carnal of a fe- constitutionality on the of a statute not before sixteen, age taking male under the or at- us, us. We hold statute before that the tempting immoral, improper, to take or inde- with its “stricter his lan- standards” —to use age cent liberties with a child under the guage appellant’s constitutional —survives years, mayhem, kidnaping, robbery, sixteen challenge. burglary, voluntary manslaughter, extortion public right access, criminal tri a basis pass cognate to attend concurring with the Virgin consistent dissent- Newspapers, Inc. v. als. Richmond case ing opinions that with the ia, 65 L.Ed.2d explicit holding in Richmond News- decision, Court’s (1980). plurali In an earlier First there is a Amendment papers held ty Supreme had Court trials, we of access to criminal con- Amendment independent is no Sixth there provides a that the First Amendment clude part public attend right on the pretrial proceedings as right of access to defense, pretrial hearings in which the support a principles well. to clo government, and the consent court equal apply trials force access to DePasquale, sure. Gannett Co. possibility proceedings. While 61 L.Ed.2d greater pretrial publicity is prejudicial of Judges and Bowers and Nor appellant to closure more limited and the alternatives sanctioning on man relied Gannett as pretrial setting, these concerns are pretrial hearings of the detention closure by balancing the need closure addressed appellant’s motion. This reliance solely on access, by right refusing of against the out misplaced. Gannett did not rule recognize right. such a public First of a Amendment existence pretrial hearings, see id. right of access to judicial proceedings access to Public Instead, plural at at 99 S.Ct. functions, amalgam of functions serves an that, assum ity opinion for the Court found pretrial critical applicable as which are right First ing there was a Amendment Gannett v. hearings as to trials. See Co. access, evidence in the there was sufficient 433-39, DePasquale, 443 at 99 S.Ct. at U.S. support protect record to closure J., concurring (Blackmun, and dis 392-93, trial Id. at right. defendant’s fair senting) (pretrial suppression hearing is a majority at 2911-12. A clear 99 S.Ct. right implicating of trial proceeding critical at require, the Court Gannett would access). open An has an amelio courtroom minimum, showing by the defense that judicial proceedings effect on them rative pretrial publicity there exists a likelihood of selves, by deterring perjury pro and thus rights. prejudicial to the accused’s fair trial judicial process, tecting integrity of the J., (Powell, See id. at 99 S.Ct. at 2916 2907, by inducing id. at 99 at see S.Ct. at concurring); id. at 99 S.Ct. come unknown witnesses to forward Brennan, (Blackmun, J., Mar White & testimony pro and thus with relevant truth, shall, JJ., concurring dissenting and part id., by see moting the search for J., (Blackmun, cited as part) possible on serving as a “restraint abuse [hereinafter Oliver, concurring dissenting)]. and Justice Powell judicial power,” In re Amendment, his decision on the First based 92 L.Ed. 682 on Burka, Blackmun relied opinion supra; by while the see United States v. reaching the is Sixth Amendment without guarding against police misconduct right Maxwell, of access. sue of a First Amendment v. su prosecution, Sheppard and concurring ; “causing] at 2940. The Id. at S.Ct. all trial pra generally by and Newspapers of Jus opinions Richmond duties their more participants perform White, 2830, and Brennan conscientiously,” DePasq tices 100 S.Ct. at Co. v. Gannett Marshall, accept uale, id. at at 2907. In 443 U.S. at First recognition of a Amendment effect addition to ameliorative judicial proceedings while main judicial process, openness publicity per access to informative, position in Gannett educative function taining their form an operation enabling public of the Sixth to observe the explicit public trial more system. See Rich justice also such a of the criminal Amendment contains Virginia, Newspapers, Inc. v. of the Court in mond majority Because a access. 2824-25; DePasq- at Co. Amendment S.Ct. Gannett rejected the Gannett Sixth 2907; uale, 383, 99 Past arrests and id. at be inadmissible at trial. S.Ct. J., convictions, (Blackmun, pretrial relevant highly at 2930-31 concurring dissenting). Related to the are inadmissible at proceeding, detention purpose of function is another to commit the predisposition educative trial to show appear proceedings, promoting States, open v. United charged. crime Drew justice, Newspapers, see Richmond ance of 331 F.2d Like U.S.App.D.C. 2824-25; Gan Virginia, Inc. v. wise, convictions juvenile the accused’s DePasquale, nett Co. v. 443 U.S. at introduced at J., (Blackmun, concurring at 2931 hearing but law are confidential. See dissenting), promotes confidence in 16-2331, -2333. Not D.C.Code §§ justice. the fair Al administration hearing only does a though simplified procedures pre possibility prejudi an increased hearing distinguish trial detention it from a argues, publicity, appellant cial further but arguably lessen the need for and trial of the alternatives to closure are less some impact evidentiary process pub on the instance, as with other hear desirable. For scrutiny brings,48 lic the educative and trial, sequestration ings held in advance of openness aspects fully apply “sunshine” alternative. jury is not an available hearings— detention. “Secret DePasquale, 443 U.S. at See Gannett Co. though they scrupulously be fair in reali 378-79, compare at 2904-05. But 99 S.Ct. ty suspect by nature. Public confi 419, 414 Hayes, —are Commonwealth v. 489 Pa. long be dence cannot maintained where im denied, - U.S. -, A.2d cert. portant judicial decisions are made behind (1980) (seques 101 66 L.Ed.2d 289 S.Ct. closed and doors then announced in conclu to closure tration an available alternative public, sive terms to the with the record im suppression hearing when scheduled to supporting the court’s decision sealed from trial). Change of venue mediately precede public (quoting view.” Id. United Columbia, District of is not available in the Cianfrani, (3d v. F.2d 851 States 573 v. compare Nebraska Press Association 1978)). Cir. In the context of a constitu Stuart, 539, 563-64, 96 U.S. S.Ct. challenge pretrial tional to a controversial 2804-05, (1976), and 49 L.Ed.2d 683 a con process, appropriateness detention where the costly tinuance is a alternative public proceedings scrutiny pretrial of such re statutory would waive the defendant gainsaid. cannot be detained quirement that a ordered force, days. D.C.Code Appellant argues, be tried within with some 23-1322(d)(2)(A). special apply respect considerations prejudicial publicity aris- possibility prejudi possibility The increased ing pretrial hearings. detention Like the limitation on alterna publicity cial and pretrial hearings, pretrial other important considerations for a tives are hearings may involve the disclosure of al- motion to close a court confronted with a evidence, state- legedly inadmissible such as Nevertheless, proceeding. physical ments of the accused or evidence press public and the of access of the police, ultimately by seized which the de judicial proceedings mandates that addition, suppressed. be the nature find, showing the court fendant make a and hearing, inquiry in a minimum, at a a likelihood that examining past in whether defendant’s publicity jeopardize will supports finding conduct of the accused “alternative community, fair trial and that there are no dangerous that he is reasonably will available necessarily introduces evidence which means hearings, DePasquale, hearings, pretrial suppression Compare v. unlike Gannett Co. J., secret). (Blackmun, may be at 2935 U.S. at dissenting) (probable concurring cause denied, (1979), 408 A.2d 313 cert. U.S. might preserved fairness of the trial 62 L.Ed.2d 781 interfering substantially with the without Haldeman, U.S.App. v. United States public’s open proceedings. interest” denied, (1976), cert. D.C. 559 F.2d DePasquale, Gannett Co. J., (Powell, concurring); see 99 S.Ct. at 2916 strong presumption must be (Black at 2936-38

id. at case, jurors can be found in the any that in J., mun, concurring dissenting); Ne exposure District of whose Columbia Stuart, braska Press Association sufficiently case minimal to will have been Compare 2804-06. 96 S.Ct. at impartial a fair and enable them to render Virginia, 100 Newspapers, Richmond Inc. v. findings of fact based verdict. Absent findings (in absence of at 2829-30 upon showing clearly demonstrating regarding supporting any inquiry closure or pretrial publicity jeopardize parties’ will solutions, rev closure order alternative and that no alternative to a fair trial alternatives, ersed).49 Less burdensome to accord a fair trial means are available juvenile the accused’s presenting such as public the substantial threatening without court, must file for in camera review it is error to open proceedings, interest ultimate taking be considered before order closure. step barring the courtroom door to public. press and So ordered. Judge Bow-

The record here reflects (1) inquiry concerning: no ers conducted NEBEKER, Judge, with whom Associate pretrial pub- nature of likelihood of and joins, concurring Judge Associate HARRIS licity; (2) potential jeopardize a fair its dissenting part: part parties; trial for all the available thorough Judge’s join While I the Chief fair trial can be assured means which a constitutionality of analysis upholding the Judge resorting without to closure. Nor- detention, dissent from the pretrial I must man, originally ordering complete clo- after by the court unoccasioned announcement sure, hearing from modified this order after Amendment press that the has a First Washington The Post. counsel for hearings. No attend in these cases Significantly, the record land, knowledge, has my court accompa- publicity shows that the minimal however, singularity, This ever so ruled. nying proceedings primarily gen- these was knowledge that than the troubles me less by erated the unusual fact of the closure way history into proposal this will find its hardly surprising. itself. And is The apparent behest and the law books at Columbia, capital of the na- District of curiae, its sur- perhaps even to an amicus tion, with a major metropolitan is a center addition, adequately not prise. we have atten- commanding majori- surfeit of events media major premise of the considered the occur, reported, pass signifi- tion. Events are the court relies ty. opinion The relating to Inc. v. amazing rapidity. Newspapers, Trials cantly on Richmond 2814, 555, news events of and international 100 65 Virginia, national 448 S.Ct. U.S. report- (1980), without un- which was attention have been conducted L.Ed.2d 973 a case five weeks obtaining jury Supreme free from ed almost difficulty due a Court See, post-ar- our argument after in this case and taint caused such news attention. States, D.C.App., gument conference. g., e. Khaalis v. United n.1, DePasquale, U.S. at 371 99 S.Ct. evidence 443 Justice Powell found sufficient n.1, pre finding support had been extensive 2901 where there the record in Gannett publicity newspapers prejudicial likely jeopardize concern publicity in two local trial arrest, ing id. rights. see The trial was the crime and the defendants’ the defendants’ fair trial county place with a 99 at 2901-03. to take in a small town in a S.Ct. 34,000, population v. see Co. total Gannett

1347 Baker questions.” constitutional i difficult 703, 204, 691, 186, Carr, 82 S.Ct. 369 U.S. v. the court’s deci- Although portion this (1962). 663 7 L.Ed.2d much receive atten- undoubtedly sion will pro- criteria, prevailed since tion, jurisprudence which have the chronicles of These are Washington,2 advisory is an one of President decision the time claim regard juris- wholly without absent here rendered question on a moot detention hear press to attend benefit of hypothetical for the diction appealed the has ings. government party is not even corporation which appeal cross ruling in a court’s closure trial case. challenge to constitutional to defendant’s nothing to do with the The true issue While the statute. pretrial detention Washington or The Post. First Amendment quarrel assert its may arguably government question whether the court is the Before judge, it has of the trial with the conduct may veto the defendant’s government appellate it to which entitles standing no close his detention hear- request to Cf. Amendment issue. review of First public.1 appear For reasons that ing to the Haworth, 300 Co. v. Aetna Life Insurance below, question that even this I believe 461, 464, 242, 81 L.Ed. 617 227, 57 S.Ct. U.S. of review. incapable represent (1937). requirement of an actual elementary per which are rights the First Amendment fed- controversy for the exercise of case or v. Massachusetts sonal to others. power Article III imposed eral 128, 886, 27 L.Ed.2d Laird, 91 S.Ct. is no requirement the Constitution. This Jackson, 346 (1970); v. U.S. 130 Barrows of Columbia applicable less to the District denied, 1031, 97 249, L.Ed. 1586 reh. 73 S.Ct. v. Wal- system. court District of Columbia 19, 361 74 98 L.Ed. S.Ct. U.S. n.13, ters, ap- D.C.App., 319 A.2d Mellon, (1953); Florida v. U.S. dismissed, peal (1927); v. Tyler L.Ed. 511 United States 42 L.Ed.2d Registration, Judges of the Court 229, 231 Cummings, D.C.App., 301 A.2d 405, 407, 45 L.Ed. U.S. Furthermore, (1973). party must have Raines, 362 (1900); cf. United States pur- injury suffered some actual (1960) (feder illegal action. Linda R. v. Rich- portedly S. litigate Fif grants standing al statute D., ard the other rights). On teenth Amendment injury This 1148, 35 L.Ed.2d 536 “case,” collapses controversy side of the party against to a must be attributable the interest entirely when we consider v. may Bailey be afforded. v. whom relief Weinstein appeal. the accused 549, Patterson, 31, 32-33, 347, 46 Bradford, 147, 369 82 S.Ct. U.S. 96 S.Ct. 423 U.S. (1962). 512 Without no motive to (1975). 7 L.Ed.2d He has L.Ed.2d 350 met, clo being appeal no one can be of the oppose government’s these criteria the observation, question in the this upon pursue ruling. support the sure relied coun government’s These criteria “assure the adversary system. I note neither himself sharpens counsel addressed which sel nor Edwards’ that concrete adverseness argument. oral Con which the closure issue at upon of issues to the presentation advisory an court has issued sequently, largely depends for illumination court so sought 1793, Washington question perplexing 2. In President than that This is no less Supreme mat- opinion on various majority opinion Court chooses to address. which the arising France. The superiors treaties with Only conferring the op- ters under his did after with ques- respond Attorney because Justices declined to decide to United States Assistant pose particular posed con- request were not within at the tions for closure the defendant’s legal troversy brought form. before them hearing. first 297, 301, Evans, 213 U.S. States v. See United (1909). 53 L.Ed. 803 29 S.Ct. 1348 by government, raised at- of the court’s

opinion, from interests remote inappropriate tempted ruling is and boot- necessary it. The adverse- parties before majority less. ness fabricated has been opinion an and looks to to have seems The Washington manner proper express it. We this a vehicle to case as Post a First have asserted Amendment Amend- know little more about First cases, claim is in numerous some established if were no ment we would there issue than seeking party access to now notorious. The v. Party Labor at all. See Socialist case seek to judicial proceedings must intervene 588, 1716, Gilligan, 583, 92 moment, see Richmond News at the critical 1719, (1972). L.Ed.2d 317 32 Press papers, supra; Nebraska Association Stuart, 539, 2791, v. 96 S.Ct. 49 requisite adversity can the

Neither United States v. Cian (1976); of L.Ed.2d supplied presence appeal on 683 by the frani, 1978); (3d seek Washington Post as amicus curiae. An 573 F.2d 835 Cir. action, against writ the trial party extraordinary amicus curiae is not to the DePasquale, Co. v. See Gannett 443 contemplation appear judge. of law on does not in 2898, 61 608 may not the liti 99 L.Ed.2d anyone, behalf of control U.S. Sherman, Goldstein, v. States (1979); F.2d v. United D.C.Mun.App., 581 Givens gation, 1978); Newspapers, v. Liss, Klein v. Inc. (9th (1947); 1358 52 D.C.Mun. Cir. A.2d 725 County, Milwaukee Circuit Court for 65 App., (1945), and not entitled 43 A.2d 757 Gore (1974); 894 D.C.App.R. 29(b). Con Wis.2d 221 N.W.2d argument.3 to oral Newspapers Tyson, 313 v. Co. curiae is entitled So.2d sequently, an amicus not v. English overruled ruling (Fla.App.1975), in its relief or the court McCrary, United (Fla.1977); are favor not raise issues which 348 So.2d Valente, 308 N.Y. Press Associations v. principal par properly asserted E. Givens, supra 52 A.2d at 726. The 123 N.E.2d ties. N.Y.S.2d Fulton, Scripps W. Co. being personal App. 100 Ohio First to the Amendment (1955).4 irrelevant to the true issue N.E.2d 896 amicus and public.” ap given party 3. An a neutral who while nett, Gan amicus curiae is notice was J., (Powell, pears Where who seeks at 2916 to aid the court. one 99 S.Ct. Schiavo, advocating position appear concurring). States v. as an amicus See also United denied, parties, Cir.), (3d this is inconsistent with one of 504 F.2d cert. curiae, impartiality (1974). which clothes amicus In Schia L.Ed.2d may deny vo, representatives and the court within its discretion judge the trial called Casey application appear as the Male, amicus. after news into the courtroom one news media (1960). N.J.Super. 164 A.2d 374 judge reported had which the had man a matter permitted Washington Since the trial court report. previously requested him not to In the heard, it did Post so we should assume that to be courtroom, judge ordered the mem then grounds role of an on consistent reporting press such bers of to refrain from is, curiae; sought infor the court amicus contempt. matters threat of The circuit under Washington as a friend mation from The of public Post appeal- the order court able review held that assessing assist it in the court to better order doctrine of Co under the collateral open proceeding. in an interest Corp., Loan hen v. Beneficial Industrial disposition case As matter of law our 93 L.Ed. 1528 an consistent with the role of should also be case, contempt In our there is no threatened Therefore, cannot the amicus. we consider targeted nor a order of the trial court docketed sought question First to be raised. Amendment press. the The The Wash fact that the trial court allowed Compare Sher- with United States v. Schiavo ington heard does not to make Post to be serve man, supra, judge which the trial an entered Casalduc, party appeal. it a Peckham v. conviction, order, forbidding judgment of after 1958). (1st 261 120 F.2d Cir. press speaking of the the jury. with members from particular that court held a The circuit press opportunity be heard The for the to standing appeal newspaper to it lacked because persons actually extends “no farther than the action, party but it was not to the criminal the motion closure is at the time writ for a of manda- could maintain an action mus. made, require would sub- for the alternative today. not the case before us That is also delays pretrial proceedings in trial and stantial

1349 Burka, 289 D.C.App., States A.2d 376 Supreme of the United States The Court (1972) (government brought writ of duty judge the of the trial manda- has articulated trial compel judge with a to close a mus to request when confronted turn over hearing. pretrial suppression case). The transcript trial or a in a criminal Mere consent is duty trig- the question parties by of whether court’s consideration the court closure of gered requests cannot, when a defendant itself, by jurisdic- of an confer issue and, so, if proceedings tion on Co. the court. Brown Shoe v. Unit- judge complied with whether the trial has 305, 1502, States, 294, ed U.S. 370 context duty argued be can 1512, (1962). 8 510 L.Ed.2d parties mandamus or intervention addition, the trial court’s action does individual as- opposing with interests: the excep not fall the collateral order within the right, trial serting his First Amendment rule.5 Di judgment tion to final the defending his exercise of au- judge 121, 126, States, 82 Bella United exercising or defendant his thority, the 654, 657, (1962). 7 614 L.Ed.2d of a trial. public waiver exception primary reason that the does not government is

apply in this case that the right asserting enjoys. II not Supreme has made it clear that de Court problem, A further unaddressed the Amendment fendants have Sixth opinion, juris our majority or the parties trial, Gannett, supra, and public public the government appeal. It diction hear the has a First Amendment to attend a we without such is clear me that are supra. Newspapers, trial. How Richmond govern jurisdiction. Although both ever, suggested prose boundaries ment and defendant are authorized to request cutor’s role in a closure do not ruling, from D.C. Code appeal a detention rights. plurality opin embrace similar 23-1324(b), -1324(d)(2), no statute §§ suggests ion in the public’s Gannett appeal authorizes the from open protected by interest in an trial is ruling. closure the trial court’s Without litigants, prosecutor acting society’s authority such are unable to statutory we servant to defend both interest of government. treat the issue raised - rights public process and the due DiFrancesco, United States v. U.S. Gannett, supra 443 at 383 accused. -, -, 66 L.Ed.2d n.12, and 384 2907 and S.Ct. at 2908 n.12. (1980); Martin United States v. Linen suggests prosecu Justice that if the Powell Co., Supply joins request, tor closure he should (1977); Will v. United given States, 269, 19 opportunity “be to show that L.Ed.2d Jones, (the public would States v. D.C. access interfere United State's) pre- Cf. United App., proceedings 423 A.2d interests fair suggests that a closure order would not meet not an 5. An order does terminate action finality necessary this test. appeal but which (1) criteria. It must have a must meet three application determining The task of rights irreparable “final and effect on the ruling] these limitations a closure in each [on disposition parties” being final of a claimed “a necessarily individual trial fails almost exclu- (2) important right.” be to be It must too sively upon the asked trial court to exclude (3) not The claimed must denied review. press public members of ingredient action an of the cause of entirely imprac- For it courtroom. would be along require consideration with it. must require proceedings tical to criminal to cease Ceferatti, U.S.App.D.C. United States v. appellate op- were while courts afforded denied, (1952), cert. F.2d portunity to review a trial court’s decision 97 L.Ed. 73 S.Ct. [Gannett, supra, proceedings. U.S close (emphasis added); see also United States v. J., (Powell, at at 99 S.Ct. concur- Perkins, U.S.App.D.C. F.2d ring).] (1970). Supreme Justice One Court factfinding judicial scrutiny which ful and of sensitive in- confidentiality serving the adversary process designed pro- at at Id. 443 U.S. formation.” J., concurring). The dissent- (Powell, vide. however, Justices, object to strenuously ing together, the views of the various Taken prosecutor’s of the characterization this Gannett, which I discuss Justices that the deci- They “reject any notion role. prosecuto- a support do not at should be permit whether to closure sion granted a closure order right rial to veto theory prosecutor on the the hands of the defendant, even if the request public representative of that he is the judge public trial has failed to consider the at 2939 Id. at interest.” and re- open proceeding interest in an less J., dissenting in concurring (Blackmun, best, to closure. At strictive alternatives part). prosecutor may request insist that Furthermore, waiver the defendant’s with the actual closure be consistent not harm right public a trial does his government But the wishes of the accused. Therefore, let he government per se. public appeal on behalf seriously trial is public interest in a whose right waived his when the defendant has closure, intervene, appear, jeopardized by Indeed, permitting govern- a public trial. is not rights. This litigate his prose- with the appeal ment is inconsistent and, consequently, no role government’s sure the swift and duty cutor’s to assure lie in this case.6 appeal such should public inter- justice. administration duty are never prosecutor’s est and the are serious matters that In this case there Gannett, supra. court’s prior assertedly symbiotic. to the See passed have unexamined ap- jurists ques- win such an example, government For some If the should decision. assumption lite, blithe conviction majority’s subsequent peal, pendente tion support by principles attack subject would be to direct “[t]he equal force to apply prej- to trials access that he was grounds on the defendant Burger Justice pretrial proceedings,” Chief process rights. by a denial of his due udiced opinion in concurring among them. In his id. at Gannett, supra at (Blackmun, J., concurring dissenting suggested ever “no one Chief Justice wrote part). public any ‘right’ there was involving case clo- I submit we have no proceedings as at such sure; argument an has decided court founding of our were available” at IV, therefore, should be put. Part weakly country. nullity. viewed as a assumes that a whole majority also public pro- served litany of functions concurring in FERREN, Judge, Associate hearings. See ceeding applies to detention part: part dissenting suggest I that sever-

ante at 1344-1345. devoting much attention After so most are debat- wholly al are irrelevant and Amendment, its court lowered Eighth left to care- These matters are better able. all, Washington is not a Similarly, Post serf at is not one for which the case Newspa- party applies. Richmond exception to the action. Cf. doctrine to the mootness Gannett, supra; supra. key pers, granting an See ante at 1324 n.2. The exception which the is the existence of Stuart, supra, In Nebraska Press Assoc. v. government procure which a seeks to suit or a trial held that the issue of whether the Court govern protect private seeks to reporting judge me news could restrain Terminal Pacific ment action. See Southern con the defendant’s dia was not moot because ICC, 498, 515, 31 S.Ct. Co. v. appeal Su to the Nebraska viction was under Neverson, D.C. 55 L.Ed. 310 Dobbs preme could be ordered. and a new trial Court App., I have 155 n.14 As 393 A.2d has here since Edwards Such is not the case indicated, as- no guilty. pleaded second, merely right without to bail on sights important is- detention equally on the probable cause to believe that findings of concerning sue bail: Fifth Amendment due accused, “charged dangerous with a (1) an process. Judge While I concur in Chief offense” crime,” “committed the and Eighth analysis Amendment NEWMAN’S release pretrial “will that no condition of court, opinion in his the I Part II of safety assure the commu- reasonably process accept his treatment of due cannot present and “past the accused’s nity,” given in Part III. 23-1322(a)(2), D.C. Code conduct.” §§ In con- (b)(2); ante at 1339-1340. see I. trast, due mandates the process I believe in requirement, stricter contained the much this the Specifically, court confronts statute, findings premised that the be on question the Eighth whether Amendment convincing evidence. clear guarantees right to every person bail to noncapital We hold accused of a crime. Second, as to the defendant’s to that it does not. We rule the that witnesses, majority adverse the in- confront bail, such, legislature, is a matter for the way that terprets the statute in a affords protection and that the bail clause of the Constitution, than the I protections lower Eighth believe, majori- According Amendment directed to the requires. pretrial judge may ty, government accomplish can courts: a “excessive impose detention, process, consistent with due sole- legislature bail” in cases the bailable. deems proffer hearsay or other ly on the basis therefore, important, All is the the more “subject evidence to the discretion question whether an con- accused has other proffer judge as to the nature of. protections leg- stitutional the event the Ante at the need for admissible evidence.” pretrial islature authorizes with- detention Thus, effect, 1337. unless the accused out yes, holding bail. We answer Fifth that casting doubt on the burden of sustains process leg- Amendment due constrains government’s proffer, sufficiency of the committing magistrate. islature and the stage at this has no to con- accused apply process We due then and sustain both any government front and cross-examine validity pretrial detention stat- contrary, witness. To the I believe the ute, 1973, 23-1322,1 D.C.Code and its use § accused to Constitution entitles the con- appellant detain Edwards. every witness front cross-examine Although agree I that is consti- 23-1322 § testimony intends to government whose properly interpreted ap- tutional when sustains the proffer, unless plied, I respectfully per- I dissent because showing why cause wit- good burden of analysis ceive lead a looseness that could ness should not called. misunderstandings process due Third, declining to rule on the notice future. I have three concerns. Bowers, Judge my in the case before issue colleagues impor- leave about that First, government’s burden of doubts as to process right. tant due ante 1339- proof, majority upholds the statute with clear 1341. I believe it made must be strongly protec- an analysis hints process due entitles the accused notice of tions the defendant afforded charges con- past all the about they More higher are than need to be. he or she will face at duct by premising analysis pri- their specifically, hearing. Pugh, marily Gerstein (1975), my heritage col- 43 L.Ed.2d our It affronts constitutional when leagues process due is satisfied apparently permit say would provisions, 23-1311(3)-(4), definitional id. §§ The District Columbia statute, repro- Code also are included. D.C. Appendix opinion. Related duced in the 1352 778, 782, 1756, 1759, jail, pelli, months in 411 93 S.Ct.

accused can be held for two U.S. bail, (1973) procedures (probation); on without to based 36 L.Ed.2d 656 Morris 471, 484-89, Brewer, findings flimsy sey as as as those v. 92 one-sided and S.Ct. 2593, 2601-04, permit. (1972) In 33 L.Ed.2d majority apparently (pa would 484 view, role). my very strictness of the statute That is not the law. salvation; fact, elementary

is its notions Gerstein, Supreme Court supra, judicial amplification process require of due arrested and considered “whether a respects of the statute in the three critical informa- prosecutor’s held for trial under a majority where the is lax.2 judicial to a entitled constitutionally tion pretrial for probable cause determination of I consequence, As a dissent from reversal 105, at 95 80-294; liberty.” restraint of Id. 420 U.S. case, rape No. I would af- proce- criminal S.Ct. at 858. Under state Judge denying firm Bowers’ order dure, bring every government had to government’s application first for deten- officer a person arrested before concur, however, tion. I in the result hours, magistrate made within 24 but 80-401; case, burglary reached in the No. I to be- cause probable no determination of de- Judge pretrial would affirm Norman’s a committed crime. suspect lieve the had tention order. held that The Court Id. 420 at 109. U.S. probable prosecutor’s “the assessment II. justify re- alone to cause is not sufficient majority relies on Ger principally trial,” id. at 118- liberty pending straint of stein, case, supra, 865-66; rather, a Fourth Amendment 19, “the Fourth 95 S.Ct. at a analysis process, properly of due Fifth judicial determina- requires Amendment so, By doing my Amendment concern. col to probable prerequisite tion of cause as a leagues protection liberty following afford less constitutional ar- restraint of extended 114, pretrial to an accused at a detention hear at 863. The rest.” Id. at 95 S.Ct. granted holding ing Supreme than the limit our to Court Court stressed: “[W]e Fourth facing possible precise revocation requirement convicted felons 123, Id. 95 S.Ct. probation parole. Gagnon See v. Scar- Amendment. ...” majority opinion, majority I I IV. of the 2. As to Part III.D. of the also concur in Part agree opinion I disa- that the detention statute offends on closure of the courtroom. process. principle gree Judge Ante that the no of substantive due with NEBEKER’s statement statute, applied standing agree which entitles “has no that I also (typically appellate appellant, is- review of a First Amendment is not overbroad concern). Although See Broadrick First Amendment Ante sue.” press at 1348. “the institutional 613-15, 2908, Oklahoma, beneficiary likely, fitting, U.S. 93 S.Ct. 413 is the chief (1973); 37 L.Ed.2d 830 ante at 1341- as the because it serves of access citizens,” ‘agent’ 1342. Nor an irrational does the law create News- Richmond of interested equal protection classification that violates the 100 papers, Virginia, U.S. Inc. v. 448 process. aspect n.2, due See of Fifth Amendment 65 L.Ed.2d 973 S.Ct. (Brennan, Doyle, D.C.App., J., Marshall, J., 365 A.2d concurring Estate of French v. with (1976), appeal dismissed sub nom. respon- judgment), it is also true that “[t]he Key Doyle, U.S. sibility prosecutor representative as a Finally, at 1342. ante surely encompasses duty protect L.Ed.2d although public majority agree I with the open trial.” Gannett the societal interest in an vague- is not void for detention statute n.12, DePasquale, Co. v. applied appellant, ness as at 1342- ante n.12, 2898, 2908, (1979). S.Ct. open possibil- our decision does leave Furthermore, contrary Judge NEBEKER’s ity grounds attack on of a constitutional view, I conclude ante at see applied vagueness to a defend- of 23-1322 as through properly issue is before us closure dangerousness prediction ant for whom the appealable Cohen v. Ben- collateral order. See premised “past conduct” of a Corp., 337 eficial Indus. Loan appel- sort less conclusive than the conduct 1221, 1225-26, (1949). 93 L.Ed. 1528 Jersey, 306 lant Edwards. See Lanzetta v. New 618, 619, L.Ed. 888 Stewart, joined security “regulatory” purposes were valid 867. Justice three oth- ers, uncomfortable, separately justify even of- emphasize enough concurred fensive, jail limitation. id. at at 869 conditions detainees J., (Stewart, Douglas, offending process. Brennan Mar- due See id. at & without shall, JJ., 540, 544-48, concurring). at 1876-79. Such con- ditions, not be accordingly, could called my colleagues’ For three reasons I believe though they ranged, even “punishment,” heavy misplaced. reliance on Gerstein is visual example, double-bunking First, with the decision to hold an accused inspections genital inmates’ anal and is determina entirely out bail different they had received out- every cavities time probable finding Ger- tion from the cause 540-60, 99 at side visitors. See id. at S.Ct. requires may impose stein before the court Gerstein, Citing 1874-85. the Court as- significant any pretrial liberty. restraint on (which appel- sumed the detention itself A probable See id. at 95 S.Ct. at 868. valid, challenged) based lants had not finding solely cause under Gerstein relates finding probable coupled cause with on question whether there is reasonable prevent flight. bail set to See id. at ground to believe the accused committed a that at 1872. The Court stressed S.Ct. traditionally applied crime. It is the test at had “no occasion to consider whether other “only stage” justice first criminal objectives may constitution- governmental n.27, n.27, system, id. at 125 at 868 S.Ct. ally justify detention.” Id. at 534 pretrial pretrial greater restraint than justify no n.15, 99 at 1871 n.15. While the Court S.Ct. setting of bail. id. at See S.Ct. position no on detention with- took Indeed, probable at 863. cause is the stan bail, out the statement reflects the Court’s upon arraignment dard used to hold the recognition that no-bail detention is a seri- separate pretrial accused for a ous, separate issue. hearing up days to five later. See D.C. 23-1322(c)(3). contrast, Code Finally, Supreme empha- Court has premised detention without is bail flexible process sized that “due and calls showing not on a that the accused protections particular for such as the situa- crime, particular have committed a but also Morrissey, supra tion demands.” 408 U.S. a far complex, inherently specula more year at at 2600. A after S.Ct. prediction likely tive that the accused is to Gerstein, Eldridge, in Mathews v. 424 U.S. future, dangerous be past based on 893, 903, 47 96 S.Ct. L.Ed.2d conduct. This kind of evalua (a permitting prehearing decision tion was not before court Gerstein Security disability cut-off of bene- Social and, nature, given predictive requires its fits), three considera- the Court outlined focused, carefully more Fifth Amendment applicable process every tions to due con- analysis.3 text: Second, Gerstein, First, will years private four after interest action; Wolfish, second, Supreme in Bell v. affected the official Court (1979), deprivation of an erroneous 60 L.Ed.2d risk procedures government’s through held needs for effec- such interest that the used, value, any, if prison management probable tive and institutional and the Gerstein, n.27, property supra that is due’ for seizures of 3. In 420 U.S. at 125 n.27, cases, including response the detention of S.Ct. at 868 to Justice Stew- criminal concurring opinion, suspects pending called the Pretrial art’s probable the Court trial.” bail, however, part a “threshold of this tradi- cause determination without process (except right,” emphasized application of in connection the historical tional criminal process, crimes). capital the Fourth Amendment in the criminal See D.C. Code 23-1321, -1325(a), “bal- and the Court’s dicta §§ does not foreclose Fifth Amendment and added that the Fourth Amendment’s analysis. public individual and interests ance between always thought ‘process has been to define the Gagnon, procedural liberty. safe- tect conditional additional or substitute 1759; 782,93 at Morrissey, in- 411 guards; finally, the Government’s supra 408 92 S.Ct. at 2601- terest, the function involved including fortiori, detainees, 04. “A who burdens the fiscal and administrative crimes, re- have not been convicted proce- the additional or substitute rights tain at least those constitutional See, e. requirement dural would entail. enjoyed pris- we have held are convicted g., Goldberg Kelly, supra, 397 U.S. at Bell, supra oners.” 441 U.S. at 263-271, 90 at 1018-1022. By apparently providing pretrial v. Inmates of the Nebraksa See Greenholtz protection proba- less than detainees with Complex, Penal & Correctional (as parolees tioners and receive we shall 2100, 2106-2107, 60 L.Ed.2d see), majority set the constitutional Kossow, D.C.App., In re pretrial decidedly detention too hurdle 97, (1978). perceive legiti- I no A.2d 104 low. majority ignore this way mate for the analysis unique basic interest in favor of a of the Potential Liberty A. The Interest

Gerstein shortcut. Detainee summary, In Gerstein mandates at least a judges All of this court— parties all judicial finding probable cause before —and affects a clear agree: pretrial detention restraint, pretrial imposing any extended Indeed, “[ljiberty interest. liberty vital including “five-day pretrial a hold” for a been rec bodily always from restraint hearing; permits pretrial Bell ognized liberty protected as the core of “punishment” short of on the confinement arbitrary from Due Process Clause assumption is detention itself val- Greenholtz, supra governmental action.” id; distinct, requires and Mathews a three- J., 18, (Powell, 442 2109 U.S. at 99 S.Ct. at every in which part analysis for context concurring part dissenting part).4 impinge would on constitution- precious liberty Pretrial is all the more be is, protected There ally private interests. drops protection cause constitutional off accordingly, gulf between an initial find- properly sharply pretrial once ing probable and an cause under Gerstein bars imposed. point, process At that due jail approval pretrial conditions under only “punishment,” Supreme term the gulf bridged Bell—a that can be now reference to the Court defines analysis pretrial detention Mathews government’s purpose, impact not to on the statute, applied. on its face and as 538, Bell, supra, accused. 441 U.S. at See accused, therefore, 99 S.Ct. at 1873. An III. environ grim prison have to live in a trial, applying process probation due months before ment for months and 43, 548-60, revocation, Bell, parole Supreme supra Court im- see 441 U.S. at 541 — 1875-76, 1879-85, posed procedural safeguards pro- certain 99 at shielded S.Ct. ever, liberty liberty will inter- 4. Some will maintain that characterize the derived, self-evidently, explicit positive est as a creation of law reflected in the interest from “liberty” recognition presumption “re- in the Fifth Amend- bail statute’s rebuttable Bell, pending personal recogni- supra 99 trial on .. ment. See 441 U.S. . lease[ ] Brennan, J., J., (Stevens, upon at 1895 with dissent- zance or the execution of an unsecured Fano, ing); appearance 427 U.S. 96 bond.” 23- Meachum v. D.C. Code 2532, 2541, (1976) (Ste- 1321(a) (reproduced Appendix); see Greenholtz, vens, Marshall, JJ., J., with Brennan & dissent- 442 U.S. at 99 S.Ct. at source, ing). Eighth (majority opinion). reflects a 2106 Whatever Amendment also statute, imprisonment every deep constitutional concern that Constitution or the interest of deprivation liberty before trial is a of liber- accused of crime in before tri- substantial 1, 4-5, ty. Boyle, any wrong 72 See Stack v. 342 U.S. al —before conviction of —is Others, 1, 3-4, (1951). highest 96 3 how- order. L.Ed. delays by “speedy Report 1961-1971, tice Reform: Ten-Year against only egregious Wingo, (1972). disparity may Barker v. at 31 This be attrib guarantees. trial” 2182, 2191, 514, 530, of confinement utable to “[conditions of his impede preparation de v. Mari- defendant’s (1972); United States L.Ed.2d 101 course, the fact of n.8, n.9, 319, 324, (apart, fense on, itself), or that are so harsh or confinement n.8, n.9, plead guilty, him to as to induce intolerable (1971). L.Ed.2d 468 or mental damage appearance his “punishment,” Although necessarily Campbell, supra, 188 trial.” alertness infra, pretrial detention is see note 12 but F.2d at 532. U.S.App.D.C. at same, pain- substantially likely have least, very an accused has a say To individual as incarceration impact ful on the being arbitrarily interest in not substantial Campbell for a criminal offense. See dangerous, and thus nonbaila- classified as McGruder, U.S.App.D.C. ble as a matter of law.5 likely accused is F.2d relationships employment, strain to lose (the Interests of the Government B. The friends, indigni- and suffer family Public) described; but, of already ties of the sorts significance, a number of stu- greater even principal interests public has two liberty dies indicate that “the defendant detention: availability of not pending trial stands a better chance ap the defendant need to ensure that or, convicted, re- being if of not 1, convicted trial, Boyle, v. 342 U.S. pears at see Stack Ares, ceiving sentence.” Rankin & prison 4-5, 1, 3-4, (1951); Jones 96 L.Ed. 3 Sturz, Project: 399, Bail An In- The Manhattan States, D.C.App., 347 A.2d v. United Report States, of Pre-Trial Pa- terim Use D.C. (1975); v. 401 Villines United role, 67, (1963); 304, 86 see (1973); 38 N.Y.U.L.Rev. D.C. Code App., 312 A.2d 306 281-83, 263, 410 Royster, 1973, 23-1321(a) Ap McGinnis v. U.S. in the (reproduced § 1055, 1065-66, society 35 L.Ed.2d 282 (2) protect need to pendix), and Marshall, J., J., (1973) (Douglas, may dis- who con dangerous individuals against U.S.App.D.C. while other senting); Campbell, supra 188 to commit serious crimes tinue Jones, 531-32; supra, 347 268-69, Vera Insti- charges pending. at 580 F.2d at are See 1973, 23-1321(a).6 401; Justice, Jus- Programs § tute of in Criminal A.2d at D.C. Code bail, course, illusory. bring right 60 the accused to trial within to is often failure to 5. right days generally provisions to results in the automatic is our local bail It true that “under bail, indictment, money may assure not dismissal of the see D.C. ... bond not be used to 1973, States, detention,” 23-1322(d)(2)(A), D.C.App., nonethe there § Villines v. United Code 304, every government (1973), to less incentive for the A.2d 306 and that bail accord- is 312 ingly “may bring dispatch. prevent flight 23- the trial with See id. § used therefore, matter, 1322(d)(1). practical appellant appearance for trial.” As or to assure his may great States, D.C.App., statute afford detention United 347 A.2d Jones v. instances, liberty, accord, Villines, protection in some than (1975); supra er A.2d at 401 312 bail, 23-1321, statutory right cou 306; 23-1321(a). § id. None- see D.C. Code right pled theless, constitutionally Sixth Amendment with the not exces- even when Barker, speedy 530, supra at See 407 U.S. sive, may high trial. for the bail in fact be set too in the See, Villines, 92 S.Ct. at 2191. The deficiencies supra g., at to afford. e. accused however, systems, coupled with bail and court uncommonly, an accused remains 305. Not statutory impetus speedy trial under to a because of before trial for months incarcerated properly to undermine cannot serve bail, coupled with un- an unaffordable Any imped importance to bail. (it said) congestion is courts correctable for its its should be no excuse iment to compromise. exercise falling systemic delays of Sixth short and other See, g., speedy violations. e. Amendment trial Calhoun, D.C.App., 363 A.2d States v. United 480, 495, Jones, Jones, 100 (1976); Vitek v. 6. Cf. United States 278-82 (state (1969). it is D.C.App., 414 While S.Ct. 254 A.2d treating segregating mental- statute has interest true that under the 1356 government supra, 2107; also has an efficiency U.S. at 99 S.Ct. at having

interest Texas, to make two substan- Addington 418, 426-27, similar, at tially presentations: Morrissey, extensive su- one detention, pra, 408 at U.S. other at trial itself. supra Note, Cf. Morrissey, 483, generally 408 U.S. at Preventive Detention: An (state S.Ct. at 2601 being Empirical Analysis, interest in 6 Harv.C.R.-C.L.L.Rev. able to parole return prison violator my colleagues’ position Under without burden of adversary new however, criminal on due process, “the risk of an trial). effect, This interest in avoiding, in deprivation” Mathews, erroneous of liberty, two greater trials is even government when S.Ct. at might witnesses suffer severe emotional enormous. private Given the public (as trauma alleged case) they if had involved, coupled interests with the sub- testify twice as to brutal treatment error, stantial risk of I conclude that the defendant. Fifth Amendment demands are considera- view, my ble. In the statute cannot survive hand, strong On the other as the constitutional scrutiny unless it contains— government’s having interests be in imputation word or additional —three manageable pretrial available a safeguards which, together, taken will system, has a countervail- make the risk of error acceptably low. fairness, ing assuring interest basic in-

cluding short, accuracy findings —in interest imprisoning anyone in not unneces- 1. Notice Greenholtz, sarily. supra 442 U.S. at 2107; Gagnon, supra majority’s S.Ct. at discussion of the 1761; notice, Morrissey, supra incomplete. 93 S.Ct. at ante at Any person “dangerous U.S. at at 2601. accused of crime”

needs to precise “past know the instances of govern conduct” on which the ment proposes rely to demonstrate a of Error from the Procedures C. The Risk 1973, threat community. D.C. Code Used; of Additional or Probable Value 23-1322(a)(1), (b)(2)(B). Timely § notice is Safeguards Substitute vital if the meaningful accused is to have a opportunity pretrial to defend at the deten Pretrial detention under 23-1322 inher § hearing. tion Even risk, liberty when lesser in ently involves a substantial of error. stake, terests are at Supreme Court has decisions, pretrial parole probation Like specific held that notice of the charge is requires predictive judgment a detention process. essential to due Wolff v. See depends on im about future conduct McDonnell, 539, 564, 2963, 418 U.S. 94 S.Ct. techniques. perfect evaluative See Green 2978, (1974) 41 (prison discipli L.Ed.2d 935 holtz, 8, 13, supra 442 at 99 at U.S. S.Ct. nary proceeding); Gagnon, supra, 411 U.S. 2104, 2107; supra, 408 at Morrissey, U.S. 782, (probation at 93 at 1759 S.Ct. revoca 480, Supreme at 2599. The Court S.Ct. tion); 486-87, Morrissey, supra, 408 at error U.S. repeatedly recognized has the risk of revocation); at See, (parole S.Ct. cf. g., in similar determinations. e. Vitek Jones, 1254, Goldberg 254, 267-68, v. Kelly, 397 Greenholtz, S.Ct. 25 L.Ed.2d 287 63 L.Ed.2d 552 Texas, (state ly prisoners); Addington ill 93 S.Ct. at 1761 has interest in not prejudicing safety community through pa- (1979) (state protecting decisions); Morrissey, probation has commu- interest role and nity dangerous (state tendencies some who 408 U.S. at 92 S.Ct. at 2601 mentally ill); supra, Gagnon, 411 U.S. at are by (notice opposite presumption establish the inter- preliminary suspen- before required grant the accused the benefits).7 preting 23-1322 to sion of welfare rule, right, as a to confront and general Furthermore, government has no in- individuals who have cross-examine those it declining charges terest to reveal Thus, provided I adverse information. allege hearing, although will at proceed would allow the expedited proceeding natural- nature proffer only when can show hearsay preclude ly will notice much in advance. good witness should not be why cause Greenholtz, n.6, at supra, See give testimony. called to live n.6; Wolff, supra, at S.Ct. 418 U.S. at setting important where every “In almost 2978; Goldberg, supra 94 S.Ct. at fact, questions of due decisions turn on U.S. at at 1020-21. Be- requires opportunity to confront process an pending cause the accused is held the hear- adverse witnesses.” cross-examine however, ing, government ordinarily Goldberg, supra 397 U.S. will not strong denying interest have Although pretrial 1021. hear- defense continuance8 if the wants accused comprehensive ing does not necessitate govern- additional time to evaluate the required examination witnesses when the ment’s I conclude allegations. that due guilt the jury court or must resolve or inno- process (even requires to advance cence, veracity credibility and remain at short) charges, if all notice of facilitated example, Goldberg, issue. In the Court ato continuance. The reasonable loss temporary held that even the of wel- interpreted. statute should be so complete a more pending fare benefits hearing enough require was severe con- 2. Confrontation Cross-Examination 270, 90 rights. frontation id. at detention, the case of here, exception applicable With much where the accused has so more at provides statute stake, I we should downplay do not believe no be ordered shall detained unless basic, ma- process such a due presented “on the of information basis —as authorizing jority by presumptively proffer or otherwise to the officer does— proffer hearsay sustain the other there is probability substantial ” necessary showing. person committed the offense .. .. D.C. 23-1322(b)(2)(C). Code My col- detention, public’s interest in leagues the the interpret say statute to however, justify excep- an on will occasion government general may prof- as a rule use general right tion to the of confrontation. hearsay testimony fer and other to establish supra, although recognizing In Morrissey, findings support required sufficient for the with rev- preliminary that individuals faced 23-1322, subject under court’s § trial parole a basic confrontation ocation have require proof, presuman to better discretion right, the articulated a limi- Supreme Court defcndantVreqtiire-bcUci piuof, -blyat'“fche hearing tation: officer deter- when “the urging. the defendant’s be presumably subjected at See mines that informant would identity to risk of if his were dis- ante at save harm To disagree. I 1337-1339. statute, closed, subjected to constitutionality of the would he be confron- the I need not prison being parol- Under the accused is to a interest to return to 8. the statute entitled in able acts). days long- up five even ee who commits antisocial continuance of er, —and discretion, “there the if are exten- court’s 494-96, Vitek, uating supra, at 100 D.C. Code 23- 7. But circumstances.” cf. contemplat- 1322(c)(3). (written at notice of S.Ct. prison hospital, ed transfer to mental fol- by hearing lowed at which authorities disclose transfer, on for satisfies due evidence relied process). accord, Vitek, supra Id. tation and cross-examination.” 495-96, 100 445 U.S. at Vitek, 2603; see at at at S.Ct. S.Ct. 1264-65.10 I believe this suggested 494-96, approach U.S. at at 1264-65.9 to confrontation and S.Ct. cross-exami Thus, is sufficiently compatible for the nation safety well-being concerns or a government requiring presented by witnesses and statute “information ability their proffer or to save its otherwise” constitu testify both before and at dictate trial a tionality if so construed.11 similar for limitation hearings. If, example, government for evidence, can present a such as doctor’s Burden of Proof 3. testimony, rape that a victim would suffer Although agree I question, a close testify emotional harm when forced to so days bail for pretrial detention without event, soon after probably reason (or longer the accused asks somewhat if for should justify proffer suffice her “punishment,” continuance) is not testimony instead. Bell, supra, 535-39, 441 U.S. at defined summary, I would follow the Court’s Kennedy v. Mendo 99 S.Ct. at approach Morrissey, supra, and announce za-Martinez, 144, 168-69, 83 general as a rule of the defense to 554, 567-68, 6 L.Ed.2d

confront government and cross-examine all government regulatory purpose has a valid witnesses essential to the case for deten protecting community against pre see id. 408 U.S. at tion, 92 S.Ct. at dictably during dangerous person period 2603, 2604, except government that the may prepare government needs to for trial.12 proceed by proffer instead if can it show trial, safeguards All the of a criminal more “good (as example given cause” over, will within a follow detention reason above) why should it not call the witness See note period short time. ably Id. at 2604; supra. Accordingly, personally. I conclude that at a Wolff, supra 9. Cf. 418 U.S. at unless the witnesses defendant (inmate facing disciplinary proceed- proffers testimony at 2979-81 will how such tend to ne- ings gate should allowed probability to call witnesses and he or she committed present documentary evidence when un- prof- the offense. Ante 1338. Such a duly safety fer, course, hazardous institutional correc- govern- could undermine goals; process require tional due does not why good ment’s effort cause to show should rights of confrontation and cross-examination produce not have to witnesses. its witnesses). of adverse majority “pretrial opinion 12.The states that occasion, Conceivably, government, repetition prevent dangerous detention to be able to establish its case for 23-1322(a)(l) by incapacitating under acts calling proffering detention without or even its reasonably pre- the detainee seeks curtail If, principal government example, witnesses. conduct, punish prior dictable not to acts.” can confes- defendant’s Later, majority Ante 1332-1333. (absent coercion) sion ciently evidence of is suffi- “Significantly, states: closely required reliable establish the sub- go beyond circumscribed as not to so probability committing charged stantial safety community protect need to offense, government may required not be pending the detainee’s Such detention trial. proffer complaining call or to testi- witness days, to exceed 60 which time either the fy hearing. important at the detention It is trial, brought must or detainee be set. be bail must add, however, although may good be there 1973, 23-1322(d)(2)(A).” D.C.Code why testimony cause of a witness to the Ante at 1333. I read latter statement as proffered, crime at issue should be rather than constitutional on the former. limitation beyond Pre- live, presented it is much more difficult to con- days, trial detention 60 without good merely proffering ceive of a reason for bail, arguably punishment, aura of takes on the testimony required interpret to establish or rel- for, continuance, unless the accused asks for a past evant conduct the accused. government pressed justify hard the longer will be ground detention it on the needs time agree majority 11. I with the that the defend- prepare for trial. ant’s witnesses or her be- call on his half, 1973, 23-1322(c)(4), see D.C.Code does compulsory process not include directed at

1359 the mistakes where “room allowed for hearing [is] acting when on facts officers proof required reasonable bear the burden of need not probability.” trial, e., to conclusions proof beyond a lead for a criminal i. 600; Crawford, see Brine supra A.2d at However, agree I cannot reasonable doubt. 160, 176, States, v. United gar majority’s prob- that a implication with the 1302, 1311, (1949).13 L.Ed. 1879 See ante at showing enough. S.Ct. able cause error accept relatively high risk of We because probable cause determination analysis in Traditional Fourth Amendment limited. We even intrusion —arrest—is stops question with the whether generally (discounted by warranted; of error accept high risk any government intrusion is information) greater for post-arrest does not focus on how much intrusion Gerstein, bail. supra imposition See pretrial restraint impose. state then can however, the state before my judgment, at 868 In at 125 & nn. months without Thus, jail for two have devel can someone & nn. 26-27. the courts bail, Fifth Amendment probable Amendment even a oped Fourth injus accuracy. The compels greater much primarily cause standard to evaluate what for probable cause standard police officer on tice of a mere is reasonable conduct for re sharply quickly 60-day pretrial act the street —an officer who must the same flected the fact this is on the basis of facts and circumstances preliminary g., Draper e. hear time. See required at the standard available States, parole and United ing alleged and detention 329, 333, Crawford virtue of a probation violators who— States, United 600- D.C.App., only 369 A.2d to lose con criminal conviction —stand States, (1977); Arrington v. United Gagnon, D.C. liberty. ditional 1759-60; Morris App., 311 A.2d Probable at U.S. at justifying 485, 487, an plastic concept” cause is “a sey, supra reasonable conclusion that an ar officer’s decision on 2603. The final even rest and related search are warranted liberty can revocation of this conditional though, percep retrospect, the officer’s alleged violator has had come after the incorrect, may course prove tions or another hearing, which opportunity for a second Id. preferable. seem of action for more the determin “must be the basis cause; ing probable it must lead to a final therefore, reality, Fourth Amendment relevant facts contested evaluation can characterized probable barely cause the facts as of whether and consideration Rather, it is a proof as a burden of at all. Id. warrant revocation.” determined reasonable conduct —a standard test adjoin- inquired people supra, in the Arrington, 4. He had demonstrate 13. The facts of they ing probable a “colored knew of cause can offices whether how low the threshold for room; man, messenger” reception prob- police in the had or a This held the officer be. court they people had no had indicated these to make an arrest for theft based able cause person. knowledge following such a facts: appellant do- what he was 5. He had asked public, appellant open, in an 1. He had seen said, office; appellant ing had “[N]oth- walk-in, reception Senate room the Old ing.” standing Building. Appellant was Office any report that a not received 6. He had desk, receptionist’s bend- the area behind the any prop- committed or that crime had been ing “looking the desk over and down behind (em- missing. erty 311 A.2d at 840 [Id. the area under the desk.” phasis original).] room, appellant leave the 2. He had seen constitu- me that the state It is inconceivable to walking pace. at a normal prison, tionally could detain an individual appel- He had examined the room after 3. bail, days up on facts for to without ap- everything that lant left and determined as these. as inconclusive nothing peared particularly that normal and had been disturbed. on or behind the desk (emphasis added).14 categories at 2603 In other of civil cases.” Id. at contrast, adopting potential pretrial 99 S.Ct. at 1813. In standards for detainee detention, pretrial Congress has taken a presumptively stands to lose unconditional Thus, approach. government similar liberty charges yet because of criminal to be convincing must show “clear and evi proved. substantially greater liberty This person dence” that the is a subject accused requires substantially greater pro- interest pretrial detention under D.C.Code tection. 23-1322(a). 23-1322(b)(2)(A). Id. § § I would hold that the burden proof for government “a also must demonstrate sub findings 23-1322(b)(2) greater all under is § the accused probability” stantial that “com preponderance than a of the evidence but mitted Id. 23- offense.” proof beyond less than reasonable doubt. 1322(b)(2)(C).15 is The statute silent on the holding, rely approach In so I would on the degree support required evidentiary Addington, supra, Supreme where the critical, elusive, the most and thus factual convincing Court held that clear and evi- evaluating findings, those namely dence is sufficient for imposing involuntary “present necessary to past conduct” 431-33, civil commitment. Id. 441 at prediction sustain a at 1812-13. The Court reasoned community safety. is necessary to assure although only “punitive” (criminal) 23-1322(b)(2)(B). We implicitly See id. § proceedings proof beyond demand a reason- however, statute, to re have construed the doubt, 427-31, able id. at at 1810- quire convincing “clear and evidence” for States, findings. 12 the risk of erroneous all Blunt v. United involuntary civil D.C.App., 322 A.2d D.C. significant enough, commitment and its 23-1322(b)(2)(A). Code I would consequences enough, require severe ruling explicit make that here. preponderance more than a standard. Id. Weighing S.Ct. at 1809-10. conclude, accordingly, I stake, liberty public interests at I process due detention statute satisfies be- consequences believe that the risk and requires cause —and because —it similarly erroneous detention are government burden heavy to meet a grave evidence,” and thus a similar proof, convincing mandate standard “clear and proof. preponderance which falls between a proof beyond evidence and a reasonable adopting convincing a clear and evi doubt.16 standard, Addington dence Court wording less concerned precise than D. Conclusion as Due Process message with its to the factfinder “that the proof greater preponder must be than the Having compared private public stake, applicable ance of the evidence standard interests at the risk of evaluated Supreme revoking parole. 14.The court has outlined the “mini- relied on and reasons for requirements process” parole [Morrissey, supra mum of due 2604.] revocation: equivalent 15. The standard is to the threshold They (a) include written notice the claimed probability required injunc- “to secure civil (b) parole; violations of disclosure to the tion—likelihood merits.” of success him; parolee against (c) opportu- of evidence H.R.Rep.No. Cong., 91st 2d Sess. nity to be heard in evidence; documentary (d) witnesses and right to confront and cross-examine adverse Although proffered testimony can contribute (unless hearing specifi- witnesses officer establishing convincing toward clear and evi- allowing cally good finds cause for not con- dence, there be occasions when a trial frontation); (e) a “neutral and detached” testimony court concludes that live quired, subject will be re- hearing body board, parole such as a traditional cross-examination, if the of which need not be members proof. to sustain this burden of lawyers; (f) officers or written state- ment the factfinders as to the evidence error, copy value of of the confession one-half hour before and considered the corrective the line safeguards, hearing; I that D.C. counsel had attended additional conclude up constitu soon after the arrest at which numerous Code 23-1822 can survive § appellant; strict had identified scrutiny by robbery tional the trial court’s victims and, rights to convictions were specified knowing prior defense enforcement statute, notice, confrontation, counsel had re and cross-examina relevant under juvenile appellant’s a burden on ceived social imposition tion and access statutory Judge government prove hearing each re file at the earlier before circumstances, convincing evidence. these al quirement clear and Bowers. Under require though have been lack failing to make clear these formal notice pre ing respects, any error was harm ments are inherent in a constitutional some scheme, beyond Chap less doubt. my colleagues trial detention in the a reasonable See 18, 24, California, majority implicitly compromised have the man v. process Fifth to due D.C.Code Amendment 1973, 11-721(e). law.

Furthermore, government’s mode proof burglary prejudice case not did IV appellant’s and cross-exami confrontation Applying requirements proc- these of due rights. nation relied on ess, rape I dissent from the reversal in the confession, appellant’s testimony by investi case, 80-294, and thus would affirm No. officers, delinquency adjudi gating and the Judge denying govern- Bowers’ order appellant’s social file. The trial cations application ment’s I first detention. hearsay complaining court excluded concur, however, in the result reached in Although the court admitted the witness. case, 80-401, burglary affirming No. hearsay of two victims of the 17 other rob Judge Norman’s detention order. confessed, appellant beries to which had case, rape govern- In the No. Chap also was harmless. that error satisfy ment did not the notice and confron- man, 828; supra at 87 S.Ct. at D.C.Code requirements. tation It inform failed to 1973, 11-721(e). appellant specific timely in a manner Finally, statutory in accordance “past about the conduct” on standards, the court found “substantial rely. government, which it intended to appellant had committed probability” that moreover, proffered testimony the victim’s charged burglary; offense of found substantiating without its claim that she crime”; “dangerous that that offense is a appear would be harmed if she were to convincing evi- “by and found clear and Thus, testify hearing. govern- at the person subject appellant dence” that was a satisfy “good ment did cause” ex- detention and that “no condition ception to the defense of confronta- . of release . . or combination conditions Accordingly, properly tion. the trial court safety reasonably will assure of other refused to order detention. community.” The evidence persons and the case, burglary No. is differ- light most favorable to the viewed ent; appellant’s right “past to notice of the court’s conclu- government supports present conduct” was satisfied. In the sions. Norman, hearing Judge before the court to the bur- appellant’s relied on confession V. glary rape and to 17 other recent rob- beries; Judge opin- by testimony of I believe Chief NEWMAN’s on corroboration officers; adjudi- exceptional job does an investigating eight and on ion the court juve- sorting myriad of historical doc- delinquency appellant’s cations of out from meaning scholarly works the Defense counsel received a uments and nile social file. Eighth (3) Require the the prohibiting Amendment clause execution of an ap- agree Eight excessive bail. I that the in a pearance specified bond amount Amendment does not bar deposit in the registry and the of the time, without bail. At the same I cannot court, security in cash or other as di- accept easily majority how the moves from rected, of a sum not to exceed 10 per apparent this conclusion to an conclusion bond, centum of the amount of the constitutionally that the state can detain an such deposit upon to be returned the bail, individual for days, without performance of the conditions of re- the slim “probable on basis of cause” to lease. that believe the individual committed a (4) the execution of a bail Require dangerous crime and is too to remain at sureties, bond solvent or with sufficient large pending trial. Given the much strict- deposit the of in lieu thereof. cash er standards in the detention stat- condition, (5) any other in- Impose itself, majority’s approach ute the is unnec- requiring cluding a condition essary and mischievous. It undermines the person custody specified after return to statute and the Fifth Amendment. employment hours of or oth- release for purposes.

er limited APPENDIX may imposed No financial condition D.C.Code provides in any person other safety assure the of or part: the community. (a) Any person charged with an of- (b) determining which conditions of fense, punishable other than an offense release, reasonably assure any, if will death, shall, appearance at his before a appearance person required of a as or the officer,

judicial pend- be ordered released safety any person other or the commu- ing personal recognizance trial on his or shall, nity, judicial officer on the basis upon the execution of an unsecured ap- information, available take into pearance specified bond in an amount account such the nature matters as officer, judicial unless the officer de- charged, the offense circumstances of termines, discretion, in the exercise of his weight of against per- the evidence such reasonably such a release will not son, ties, family employment, his financial assure appearance person of the as resources, character and mental condi- required safety any person or the other tions, conduct, past length of residence in community. or the When such a determi- convictions, community, record of made, shall, judicial nation is officer any appearance pro- record of at court either in lieu or in addition to the ceedings, prosecution, flight to avoid or release, impose above methods of the first appear proceedings. failure to at court following conditions of release D.C. provides Code reasonably which will appear- assure the full: person for or safety ance of the trial or, person or community, other (a) Subject provisions of this sec- single gives if no condition that assur- tion, officer order ance, any of the following combination detention of— conditions: (1) person charged dangerous with a (1) Place person custody crime, 23-1331(3), in section defined if designated person organization or the Government certifies motion that agreeing supervise him. based on person’s pattern such of behav-

(2) travel, consisting past ior of his Place restrictions on the con- duct, association, place and on of abode of the the other factors set out in person during period 23-1321(b), of release. section there is no condition section, (a)

subsection by prof- presented basis information will or combination of conditions which judicial officer or otherwise fer reasonably safety com- assure probability is a there substantial munity; the offense committed person charged crime of with a judicial the he before present violence, 23-1331(4), in defined section officer; and (i) person the a if has been convicted of ten-year pe- crime of violence within the accom- detention of (3)issues order immediately preceding alleged riod the and findings fact by written panied present- crime violence for which he is entry. for its reasons the ly charged; (ii) the or crime of violence n apply shall procedures following (c) The allegedly person committed while the pursuant hearings held detention was, with respect to another crime of section: on violence bail or other release or on probation, parole, or release mandatory (1) a person Whenever the is before sentence; pending completion of a or officer, hearing judicial the be initia-

(3) person charged any a with offense on oral the ted motion of United States person, if such for the of ob- purpose attorney. structing or attempting jus- to obstruct (2) re- person has been Whenever tice, threatens, intimidates, injures, at- or and it pursuant to section 23-1321 leased threaten, tempts injure, or or intimidate person subsequently appears such any prospective juror. witness or detention, subject may be (b) person (a) No in described subsection attorney may initiate United States this section shall be ordered detained hearing parte by ex pretrial detention judicial

unless the officer— Upon such motion written motion. (1) a pretrial holds hearing in for may issue warrant judicial officer provisions accordance with the of subsec- person per- if such arrest of the and (c) section; tion of this Columbia, he District of son is outside the judicial

(2) officer brought finds— shall be before he is and in the district where arrested (A) that there is clear and convinc- District then be transferred to the shall ing person evidence that the person is a in accord- proceedings of Columbia paragraph (1), (2), (3) described in or ance with the section. section; (a) subsection of this (B) that— hearing shall (3) (i) person be- immediately upon person the case of a described be held (1) in paragraph (a), judicial subsection officer ing brought before person’s pattern based on such of be- or the person hearing such unless consisting havior past his a con- attorney moves for States United conduct, present on the other fac- granted on mo- A continuance tinuance. 23-1321(b), set tors out in section or five shall not exceed person tion of days, there are extenuat- calendar unless (ii) person in the case of a described A continuance on mo- ing circumstances. (2) (3) in paragraph or of such subsec- attorney shall tion, States based out tion of United factors set 23-1321(b), granted upon good section cause shown days. three not exceed calendar shall there is no or condition combination of pending be detained person may conditions of release which will reason- hearing. ably safety any assure the other person community; or the (4) person rep- shall be entitled

(C) that, except respect resentation counsel shall be enti- (3) person present paragraph by proffer described tled to information

United States attorney or the Corporation Counsel for otherwise, testify, and to wit- District of Columbia shall notify the appropriate nesses in his own behalf. State or pro- Federal parole bation or officials. If such officials in, Information stated or offered in fail or decline to take person into custo- with, connection any pursu- order entered dy during such period, the person shall be ant to this section need not conform to treated in accordance with section 23-1321, pertaining admissibility rules unless he is subject to detention under this of evidence in a court of law. section. If is subsequently con- (6) Testimony person given dur- victed of the charged, offense he shall re- ing hearing shall not be admissible on ceive credit toward service of sentence for guilt the issue of other the time he pursuant was detained to this proceedings under sections 23- subsection. perjury proceed- ings, purposes impeach- and for the D.C. provides Code any subsequent proceedings. ment in part: (7) Appeals from orders of detention As used in this subchapter: may be pursuant taken to section 23- ^{[*] [*] [*] [*] [*] [*]} (d) following The applicable shall be (3) The “dangerous term crime” persons pursuant detained to this section: (A) means taking or attempting to take (1) person The case of such shall be property from by another force or placed and, expedited on an calendar con- force, (B) threat of unlawfully entering sistent with the sound administration of or attempting to any enter premises justice, given his trial shall be priority. adapted for overnight accommodation

(2) person persons Such shall be treated in ac- or for carrying on business cordance with section 23-1321— with the intent to commit an offense therein, (C) arson attempted or arson

(A) upon expiration sixty cal- of any premises adaptable for over- days, endar unless the trial is in night persons accommodation of or for progress or the trial has been delayed carrying business, on (D) rape, forcible at the request person other than or assault with intent to commit forci- (exclud- by filing of timely motions rape, ble (E) or unlawful sale or continuances); distri- ing motions for or bution of a depressant narcotic or or (B) judicial whenever a officer finds (as stimulant drug defined any Act subsequent that a event has eliminated of Congress) if the punisha- offense is basis such detention. ble by imprisonment for more than one person shall be deemed de- year. pursuant tained to section 23-1325 if he is convicted. (4) The term “crime of violence” murder, means rape, forcible carnal (e) officer detain for a knowledge age of a female under the period not to exceed five days calendar a sixteen, taking attempting or to take person who comes before him for a bail immoral, improper, or indecent liberties offense, charged any determination with if age with a child under the of sixteen appears person presently that such is years, mayhem, probation, kidnaping, robbery, parole, mandatory or release burglary, manslaughter, pending completion voluntary ex- any of sentence for of- tortion accompanied by fense under or federal law and that or blackmail State violence, arson, person may pose danger such threats of flee or assault offense, any community any other or the if re- intent to commit assault During five-day period, dangerous leased. with' a weapon, or an at- that, grant only

means does majority presume I any of to bail. to commit conspiracy tempt or grant can Congress saying that as defined foregoing offenses law, bail, if has been right to once Congress any State act of imprison- over takes punishable granted, the Constitution offense excessive. year. one not be for more than mandates that bail ment pulling cart example classic This is a dissenting: MACK, Judge, abrogate Associate could Congress since the the horse making the altogether, bail I. meaningless. absolutely Eighth Amendment men have wise majority treads where Rights Bill of did the framers of our Surely my I certain to tread.1 am feared protection— illusory fashion not intend to liberty as ruling is not out Brother Newman that a subse- possibility leaving open Yet, case is as right.” human a “basic legislature empty could quent act of a right to liber- constitutional about the much Constitution provision critical of the federal right to it is about constitutional ty as of all content. is not Ironically enough, my concern bail. L. Marvin rights of with the constitutional right to freedom before This traditional Edwards, guilty pleas who has entered prep- unhampered permits the conviction being held cases, longer who is and no both defense, pre- of a and serves aration challenges. statute he under the detention prior to punishment infliction vent the of rights MY is with constitutional My concern Parker, 156 Hudson v. conviction. See lived, I, of have like millions Americans 450, 453, 277, 285, 39 15 L.Ed. U.S. S.Ct. least, that the Unit- believing for a time right to bail be- (1895). Unless this 424 pun- my prohibited Constitution ed States of preserved, presumption trial is fore as I crime time for a until such ishment innocence, centuries of secured after committing that guilty found of have been meaning. would its struggle, lose [Stack equal giving of crime.2 And interest 1, 3, 1, 4, U.S. 72 96 Boyle, v. 342 (with whom Professor Foote3 time to supplied).] (emphasis L.Ed. 3 issue) “there is majority opinion takes close that unrealized ideals and to The fact that the right value in to bail has been abandon- reality by (since ideal and gap pas- between mandated federal statute to be lightly is not a ing sage Judiciary 24, 1789, the ideal course Sept. of the Act of 4 20, 14, 81, amended, undertaken.” ch. 1 Stat. as Rev. (1875)) bearing, Stat. has little if §§ aside, however, Idealism view the my in whether, any, question on the of in this case majority’s analysis scope of the of the least, constitutionally mandated. Eighth Amendment muster. pass does not My colleagues’ position, logical carried to its reasoning is not clinical —nor could it conclusion, conceivably could vest be. The conclusion is reached that Eighth commanding City power Amendment that District of Columbia Council the required “Excessive bail shall not ...” deny to bail to citizen 453, Court, 432, 394, 402, Supreme 1. The United States for what- 15 U.S. 39 L.Ed. 481 reason, unresolved, Wolfish, 520, (1895). left ever for over a See also Bell v. half, century any question 1861, 533, 1870, and a of whether 447 99 S.Ct. 60 L.Ed.2d Rights Bill of confers a to bail. McGruder, U.S.App.D.C. Campbell v. (1978). 580 F.2d presumption 2. The “constitu- innocence is States, tionally rooted.” Cool v. United Foote, Coming Crisis 3. See Constitutional 100, 104, Bail, (1965). 113 U. of Pa.L.Rev. 959 (1972). presumption of innocence fa- “[A] law, of the accused is axio- vor the undoubted Ibid. at 964. elementary, matic and lies and its enforcement at the foundation of of our the administration States, law.” Coffin criminal v. United History arrested motivation. charged and fails as a meaningful with an offense in (This city.5 legal interpretation tool of and suggest, not to becomes course, merely that a recitation facts unless Council it can be would pow- exercise such er.) presumed that individuals learn from it. It is “well Rights known our Bill of By account, the majority’s own the histo adopted written and guarantee Ameri- ry Eighth of the generally Amendment is greater cans freedom than had been en- Yet, unilluminating. having solemnly pro joyed by their ancestors who had been driv- fact, nounced this the majority launches by persecution.” en from Europe Carlson in-depth into an English discussion of Landon, (well-known American history colonial J., (1952) (Black, 96 L.Ed. 547 dissent- well-used by many commentators)6 ing) California, citing Bridges proceeds to draw its own inferences there 190, 194-95, L.Ed. from. I suggest the majority’s infer ences are no more sound than those of In focusing narrowly language on the commentators who have oppo reached an purpose English Rights, of the Bill of Foote, site conclusion. See The Coming majority history does a disservice to and its Bail, Constitutional Crisis in 113 U. of Pa.L. meaning. purpose English The true (1965), Rev. 959 argued who has specif Bill Rights (1 c.2) W & M st. ic language respect to bail cannot be discerned without resort to an was inadvertently omitted from the draft understanding purposes other de of the Amendment. velopments Century in the 17th Habe —the The central theme of the majority’s his- Corpus (31 c.2) Act of 1677 Charles analysis appears torical that, to be in Eng- Right (3 Petition Charles land, Parliament was free to define which c.l). developments rep Each one of these crimes were follows, bailable. It therefore, resented merely step one at a time to reme that the framers of the United States Con- dy specific hand, problem light in of a stitution place would no restraints whatev- bigger struggle growing out of centuries of er on the Congress in this regard. The by abuses against man man —in unjustly language Eighth Amendment speaks detaining corruptly or extracting money for of “excessive bail” in language almost iden- liberty engaged by local custo —conduct tical to the English Bill Rights of which was dians, justices, and monarchs alike. See directed Therefore, toward abuse. Duker, The Right to Bail: A Historical our Rights Bill of bail, in addressing impos- If, Inquiry, (1977). 42 Alb.L.Rev. 33 there merely es a restraint on the courts. fore, we are rely English history, to on let suggest go I that the us back majority’s approach to the Statute of Westminister much parochial. too Its precedent focus on First 12757 and more basically to the is solely identity Chapter 29th language Magna of Carta and it ignores providing altogether important that: aspect of government 5.At the time dered to the when the American central states were would be re- ratifying Constitution, Duker, Right the United States served to the de- states. See The necessity Inquiry, bates centered around the A for a Bail: Historical (1977). feder- 42 Alb.L.Rev. Rights. Carolina, al Bill of In North it was suggested incorporation of such a bill prove liberty would detrimental Foote, since it Duker, supra; supra; Meyer, Constitu- impossible would be vidual to enumerate all the indi- tionality Detention, of Pretrial 60 Geo.L.J. 1139 rights relinquished by the Constitu- (1972); Tribe, An Ounce of Detention: Preven- tion, rights and the omission of some would Mitchell, tive Justice in the World of John question raise the of their existence. A com- Va.L.Rev.371 promise suggested what one commentator has speculated might given have form to the Ninth 7. 3 Ed. c.15. Amendment—a tion clause the federal Constitu- guaranteeing rights that all not surren- jor development for the imprisoned, reason taken or No Freeman shall be pressed, Liberties, would have been hard Freehold, to bail. One or of his or disseised duty explaining outlawed, to have had the Customs, to be or free or and four other Thomas Darnel Sir destroyed, but lawful any otherwise punished they being were not knights, that Peers, law of byor Judgment of his “by com- they special were committed when Hen. the Land. c.29.] [9 pay majesty” (for refusing to mand of his emphasis with its Further, majority, assessments) without trial illegal and held Parliament, not make allowances does General, Attorney prevailing after English sys- between the the differences for bail, against release on argument Parliamentary control over of absolute tem “King’s position was suggested that American rights and the basic individual balancing society best for interest limited and of a system Duker, supra at 58-59. and the individual.” people powers delegated defined country, recently, In this until there was individual lib- by enumerated circumscribed Amendment, Eighth little doubt that the Black, Rights, Bill of erties. See necessary guaranteed implication, (1960). James Madison N.Y.U.L.Rev. trial, except capital to bail before cases. the Bill proposing this contrast in spoke to Holtzoff, Judge Our own as late as (1 Cong. Rights Congress Annals of emphatically stated this and added: 1789-1791)). (Gales & Seaton ed. pending to bail trial is abso rights which that In the declaration cases,[8] lute, capital no matter is, except in established, they the truth country unsavory the offense or how how vicious gone have no further than to raise Crown; past may record of the defendant be. against power barrier Stone, F.Supp. altogether power legislate is left [Trimble (D.D.C.1960).] although indefinite .... But ... it thought necessary provide not be limits Motlow, also 10 F.2d United States legislative power country, in that (7th 1926). Cir. yet opinion prevails a different colleagues Perhaps my the reluctance of people many United States. Eighth view of the to follow this traditional necessary raise thought states have Amendment’s mandate stems from against power in all forms barriers right in “absolute” phrasing of the claimed government. departments of in the world in very terms. There is little framework, against In this viewed the Yet we live that is absolute. because which backdrop struggles against of centuries ages, for the was written the Constitution detention, it seems somehow ludi- unlawful temptation to inter- judges must resist the Eighth that suggest crous to me to the expediency pret restrictively, it the with the idea of Amendment was drafted moment, of their life problems with the Congress from its restraints. I isolating solution for span Perhaps in mind. a better the framers of the Bill suggest cannot believe that majority would have been to preoccupied with an Rights Eighth were more Amend- did Justice Burton that the bail, government than with a English along form of with excessive prohibits, ment Moreover, appears it liberty. denial bail.” See guarantee the “unreasonable Landon, 569, 72 suggest ludicrous to that 342 to me even more Carlson v. U.S. here at legislative within The scheme punishment detention is not S.Ct. 548. as to Histori- issue then could have been evaluated meaning Rights. of the Bill of reasonableness. such detention was the ma- cally speaking, out, points exception predates Judge exception this stems capital Newman crimes 8. The persons facing consistently death fear in colo- from the and is found Constitution penalty tempted provisions will be to flee. to bail. As Chief for the nial 1368

I am receptive most suggestion to the The majority recognizes that govern document; Constitution living is a conceded, ment has as it must11 that if yet I am not embarrassed to say that preventive punishment, detention is it can borders on a sacred one. If we are tempted not be imposed, constitutionally, absent con to believe that it is necessary that we re- (with viction for the charged crimes certain therein, solve an ambiguity I opt would relevant).12 exceptions major not here the interpretation that not makes com- ity then analysis follows a tortured de mon sense but that is very essence of signed statute, show that Rights Bill of preservation of indi- —the days prior sanctions detention for 60 to trial liberty. vidual bail, regulatory13 without benefit of rath penal

er than in character and therefore does punish. suggest not I today’s II. arrestee, aegis pro detained under subject of this The statute which is the tecting would be no community, less law, applying litigation is a “one-of-a-kind” surprised, than would have Sir Thomas Dar- provi- of Columbia. Its only to the District nel, to being punished know he not was “in sions, by good imaginatively drafted 1970 a legal in fact he would be sense”: more pro- ... tried to lawyers “apparently who apt being legally to surmise that he was on constitutional against tect the Act attack punished. itself [is] “[PJretrial response to what represent a grounds,”9 ” .... indistinguishable punishment stemming from thought be a crisis McGruder, U.S.App.D.C. Campbell v. 188 succumbing In in the streets. crime 258, 267, (1978). A 580 F.2d 530 sanctioning provi- these appeal of seductive prior deprived detained to trial through designed prevent crime sions association, Papachristou to free v. detention, court follows majority of this Jacksonville, 839, 31 405 U.S. Queen immortalized in example (1972), Alabama, L.Ed.2d 110 NAACP distinguished by a literature and described 2 S.Ct. L.Ed.2d 1488 as follows: commentator10 (1958), travel, and the Dunn v. Witness this classic exchange in Lewis Blumstein, U.S. Carroll’s Through The Looking Glass [88 L.Ed.2d 274 Shapiro Thompson, Harper Queen & Bros. ed. 1902]. L.Ed.2d 600 King’s observes that the Messenger is “in (1969). The “privacy integrity” of his prison now, being punished; and the trial family is threatened. See Moore v. East begin doesn’t even till next Wednesday; Cleveland, and of course the crime comes last of all.” addition, L.Ed.2d 531 Perplexed, asks, Alice “Suppose he never handicaps commits a defendant the crime?” “That would be all better, preparation Queen Wingo, wouldn’t it?” of a defense. Barker v. re- plies. 2182, 2193, Meyer, supra 9. See practice offenses, denying capital pre- bail in dating Constitution, upon was based Tribe, supra 10. See at 374. premise charged likely that one so is more flee. Clause, 11. Under the Due Process detainees may punished prior adjudication not be to an of challenge 13.The constitutional in Bell v. Wolf- guilt process in accordance with due of law. ish, supra, prison security practices, was to Wolfísh, 1872; Ingra Bell v. ham v. 99 S.Ct. at clearly nature, regulatory applied pre- in as 651, n.40, Wright, 674, 430 U.S. 671-72 detainees, concededly legitimately trial incar- 1401, n.40, 1414, 51 L.Ed.2d presence cerated to insure at trial. Here we (1977). 711 constitutionality are concerned with the initial decision to detain. dispute 12. There is no here that deten- prevent flight tion to or the intimidation of constitutionally permissible. witnesses is

1369 it a fundamental to limit supra. state seeks Boyle, v. 101 Stack L.Ed.2d showing of a “com only upon so may do Moreover, authority sug persuasive there is Wade, 410 Roe v. interest.” detention affects state pelling that gesting 705, (1973). 147 Deten L.Ed.2d 113, 93 Preventive 35 of a case. See S.Ct. outcome U.S. “necessary” Civ. Analysis, 6 Harv. Empirical Further, An must tion: the scheme 289, (1971). rationally Rev. 347 related” to merely Lib. L. Rights for, and “not — Civ. Lenon, (9th 596 447 F.2d Kinney also interest. See of that effectuation 1971). Florida, 184, 196, 85 Cir. 379 U.S. McLaughlin v. (1964). Final 283, 290, 13 222 L.Ed.2d S.Ct. statute, meas the instant The sanction of means less restrictive no ly, there must be ma tests which the by the traditional ured v. Ala NAACP that interest. promoting drawing recognizes pertinent as jority 12 bama, regulatory and penal between distinctions question cannot (1964). One L.Ed.2d 325 sanctions, penal. Bell v. indisputably is a fundamental liberty that Wolfish, S.Ct. U.S. compelling has a that the state right or v. Mendoza- (1979); Kennedy L.Ed.2d 447 can curtailing crime. One in street interest Martinez, statute in whether the question and does (1963). imposes an affirma It L.Ed.2d in compelling state promotes question liberty restraint —the loss tive —which in a manner it does so terest and whether regarded punish historically been right. of the fundamental restrictive least ment; finding play it comes into Underlying statutory classification of deterrence, scienter; pro it seeking and “dangerous” persons presumption is a punishment. aim of motes the traditional predict persons the state can those who are Moreover, subsequently, out point as I dangerous. I have reviewed defense coun- the as connection to bears little rational sel’s exhaustive presump- treatment of this signed purpose” protecting “alternative tion I and am convinced the authorities excessive in community appears and it upon relied the presumption is not a purpose. alternative relation to that Moreover, valid one. I am likewise con- 1973, 23- Specifically, under D.C. Code vinced that the utilization presump- of this pre- 1322(a)(1), judicial officer order purpose tion the asserted will result person charged with a trial detention of a persons pose detention of who no “dangerous crime”14 where the view, community. my threat “con- pattern of behavior certifies that therefore, “dangerous- this classification of present conduct” sisting past of his arbitrary ness” is and invalid under due or combination indicates that no condition process equal protection principles. Es- safety reasonably assures of conditions Doyle, D.C.App., tate French v. 365 A.2d community. (1976), Key sub dismissed nom. Doyle, 434 54 L.Ed.2d stan- which required hearing is A (1977), den., reh. convincing “clear are proof dards behavior pattern as to evidence” dwelling length on the sources Without probability” a “substantial counsel, it is inter- upon by defense relied is be- he offense committed congressional hear- esting to note that officer. fore experts both ings legislation, on the concern with government expressed out be assessed must statutory scheme This predict dan- ability of the authorities Where principles. undisputed light of danger- rape. “dangerous does not include such forcible It Interestingly enough, the term 14. kidnapping. attempt- ranging offenses as murder ous from offenses includes crime” narcotics, to of burglary, or distribution ed tion, gerousness.15 concerns been has detention our These have deemed under stat- “constitutionally best”,18 empirical ute dubious at echoed in results of studies.16 not- experience of years that ten had ing demon- experts’ that doubts as to has Association strated Psychiatric The American inability predict dangerousness psychiatrists nor were “[njeither that well suggested Moreover, reliably founded.19 the Bar else have demonstrated Association anyone ‘danger- virtually has noted that statute is predict violence or use- ability to future in Bar Associa- less recidivism.20 reducing The American ousness’.”17 Wald, 1321(b) formerly exception weight Ms. 15. Thus Patricia of the De- of the § the evidence with the of partment Judge (the now of Justice and instant arrest in the factors Appeals designed United States 1321(b) originally Court of for the District out in set predict were Circuit, e., flight prosecution) Columbia stated from default — i. despite preventive incorporated the fact that reference into years, yet 1322(b)(2)(B). They been talked about for we have as that in concluded order empirical study, predictable study, prevent necessary no no all it would 41 offenses go is, every which shows the into recidi- persons factors to detain 357 for one —that judge on bail and which the could use eight vis[m] recidivist nonrecidivists would detained single in order to one out man in who have 314. Such also to be detained. Id. at might [Proposed commit the crime. District dragnet.” ratio little less than “amounts to Hearings of Columbia Omnibus Crime Bill: at 344. Id. on S. 2601 Before the Senate Committee Columbia, Cong., Association, the District of 2d 91st Sess. Psychiatric 17. American Task (1970).] Report Aspects of Force Violent on the Clinical Judge Supe- Chief Rubin, Former Harold Greene of the (1974). Individuals See also Predic Court, Judge of rior District Court for the District of testified as to the now the United States Mentally Dangerousness Ill tion of in Crimi (1972) Columbia, also nals, Psychiatry 397 27 Arch. General anticipated over-inciusive- (no empirical support the belief evidence proposed legislation: ness of predict psychiatrists accurately that gerous behavior). can dan Statistics indicate future behav- criminal ten, easily predictable. Eight, ior is or perhaps suspects even more who would not Commentary 18. Bar Associa- American commit crimes to be detained in out on while bail would have Relating (2d Release tion Standards ed. to Pretrial keep to be order sure to off Draft, 1979, Approved following Standard the streets the one defendant who will. It is 10-5.9) Harris, See also Millard v. 10-106. perhaps preventive for that reason de- U.S.App.D.C. 406 F.2d tention has been outside the mainstream of (1968). Anglo-American jurisprudence Magna present day. [Proposed Carta District Report, ABA 19. at 10-98. Hearings Crime Bill: Columbia Omnibus on S. Before the Senate Committee on finding months 20. “The chief of the first ten Judiciary, Cong., 1st Sess. 31 91st observation has been the virtual non-use of the (1969).] preventive quot- law.” Id. at sponsored 16. American Bar Endowment Justice, ing Vera Institute Preventive Deten- study persons Harvard rate of rearrest tion of Columbia District during period the Boston area a six-month also House on the District of Committee Empirical 1968. Preventive Detention: An Columbia, Rep.No. Cong., H.R. 94th 2d Analysis, Rights 6 Harv. L. Civ. Lib. Rev. (1976): — Civ. Sess. (1971). Using the District of Columbia [1976], the date enactment until [F]rom framework, preventive detention statute as a rarely (only requested detention was on 427 defend researchers focused released during year peri- about 60 times the entire charged dangerous ants violent crimes od.) explanations given Various were eligible preventive who would have been non-use, nearly agree such but all that the detention had the District Columbia law provisions 1970 Act’s detention have been a been in effect in Boston 1968. Id. complete dealing failure as a tool for with the sample, Of the 427 41 were defendants group repeat hard core offenders. [Foot- rearrested and during of crimes convicted committed note omitted.] pretrial period. Twenty-two dangerous 41 convictions were for violent or defined act. crimes as “dangerous The researchers used a scale” out in model which considered factors set example, dangerous and this was to (although vein Mr. Edwards In a like conclusion, community. Such a how- this),21the challenge hardly position in a ever, simply be I would unreasonable. prob- serious language poses mari[j]uana think the conclusion that respect to unconstitutional lems smoking dangerous is unreasonable. “past the statute is vagueness. Nowhere in any way prevent IBut don’t know of Neither present conduct” defined. being courts from unreasonable. “safety” of the define the does the statute predicate We everything here on the community. good faith of good courts and the faith of reviewing a statute for process, for prosecutors not allege such informa- it is is to determine whether vagueness, tion good and the faith of courts of ap- who are sufficiently explicit to inform those peals to review these matters and be fair will render them subject to it what conduct in their judgment. Deten- [Preventive it is so penalties to its or whether liable tion: Hearings on S. Before the intelligence vague that men of common Subcommittee on Constitutional Rights guess meaning. at its necessarily must Judiciary Committee, Senate 91st States, D.C.App., 408 Willcher v. United Cong., 2d Sess. 314 (emphasis add- (1979). fails to meet the A.2d 67 A statute ed).] the Due Process Clause if it requirements of The flexibility that accompanies the exer- decide, with leaves the trier-of-fact free to cise of discretion is a necessary component standards, legally fixed what is out of our system of justice. criminal It is a particu in each prohibited and what is not tribute prose- reasonableness of our Pennsylvania, lar case. Giaccio cutors and our courts that the instant stat- 518, 15 (1966). L.Ed.2d 447 In ute is being challenged for the first time. regard, uncertainty definitional be But the restraints embodied in the Bill of virtually unre open comes an invitation to Rights were not codified under the illusion strained administration. Ricks v. District that man would always be reasonable and Columbia, U.S.App.D.C. 414 F.2d always would good act in faith. As the (1968). United States Appeals Court of aptly so statute, noted in by failing specify striking This what as unconstitutionally vague the general District’s types past vagrancy or future conduct stat- (D.C.Code 1967, ute -3306): 22-3302 to assessing §§ considered in a defendant’s dan- gerousness, way for abuse in ad- opens the criminal perishes statute on constitu [A] I that the grounds ministration. can conclude tional speculative when it leaves recognized this legislation framers of this tests for ascertaining the line separat ing Thus, guilty Department spokes- from innocent acts. fact. a Justice [Ricks Columbia, District of man, U.S.App. ... testifying “totality as to the D.C. at 414 F.2d at (record, and atti- 1100.] circumstances” character tude) judge trial would review in past And not even violation of the crimi nal law concluding a course of conduct subjection whether authorizes one’s to in nately vague community, statutory specifications add- dangerous would be 214, 414 crime. F.2d (foot at 1110 [Id. ed: note omitted).] petty larceny say The court could unconstitutional would hold this statute I dangerous was petty offense proce- both substantive as violative of drunk driver community, guy was a activity ju- prior vagueness lant’s criminal is not made in extensive A determination of regard that he venile record cannot be concluded rather is made with a vacuum but past specific con- without that this hand. Willcher v. United notice facts of the case at bring scope States, D.C.App., did not him within the see Unit- duct pretrial 408 A.2d 67 Mazurie, statute. ed States v. light appel- process due and I would look dural22 less restrictive alterna-

more feasible and STATES, Petitioner, UNITED crime. combating pretrial tives for [De- use and en- suggested counsel has fense NUNZIO, Nicholas S. Honorable Associ con- stringent pretrial release forcement Superior Judge, ate Court of the Dis ditions, for violation and prosecution Columbia, Respondent. trict of noncompli- of release in cases revocation ance; expedited proceedings persons No. 81-84. while on likely to commit crime

deemed Appeals. District Court of of Columbia bail; filing pa- and extensive of “release penalties for offenses pers” which enhance Argued April 1981. by persons release. committed May Decided 1981. also American Bar Association Stan- Rehearing Rehearing En Banc Release, supra Relating to Pretrial dards Denied June a de- 10-5.9 which characterize Standard community if he danger fendant as a “(b)(ii)(A) a criminal ... committed release, (B) .. . violated

offense since designed protect

conditions of release

community and no additional conditions of protect safety sufficient to

release are community ....”] Judge Bow-

I would affirm the order of government’s application denying

ers pretrial detention and reverse the order pretrial deten- Judge granting Norman

tion.23 reasoning Judge involving 22. I 23. I the issue closure of concur Ferren do reach procedural the extent deficiencies trial. that he finds in the scheme of the statute. notes purpose pre ishment where the been prevent or or clear that flight statutory history vent coercion makes protect intimidation of witnesses. See Blunt detention was intended community States, safety 584. also the until can United 322 A.2d at society States, may properly Carbo v. United determined whether J.). punish crit- the defendant. Pretrial (Douglas, L.Ed.2d 769 Wolfish, upon looking, general, tion is “forward and nonnor- 28. In Bell v. was called Court Wolfish, jail to determine whether certain conditions mative.” Bell v. n.10, 441 U.S. at 581-82 penal regulatory applied as to uncon- were victed n.10. Justice Stevens petitioners did detainees. concluded: challenge specifically re not and the Court contrast, By accepta- is regarding the consti served determination assuring ble means the detainee’s as a tutionality initial to detain. decision maintaining presence his and at trial and n.15, at 1871 n.15. U.S. at 534 & & safety Its focus his fellows’ is in the meantime. looking, essentially gen- forward therefore Stevens, dissenting in v. Wolf- Bell Justice eral, type and nonnormative. Because ish, application disagreed majority’s with the primarily designed sanction Kennedy standard v. Mendoza-Martinez large public at future benefit suggested distinguishing principle that a implies judgment no about the and person moral punishment regulatory between and a sanction properly it is classified affected “backward-looking, per- punishment is that regulatory. [Jd.] normative,” sonal, regulatory while a sanc- promote intended to either of the B. Procedural Due Process punishment “traditional aims of —retribu Appellant next contends that even pre- if tion Kennedy and deterrence.” v. Mendo trial detention is not found to penal be a za-Martinez, U.S. at trigger sanction which would proce- full 567.30 Nor does it seek to rehabilitate protections dural criminal trial under

Case Details

Case Name: United States v. Edwards

Court Name: District of Columbia Court of Appeals

Date Published: May 8, 1981

Citation: 430 A.2d 1321

Docket Number: 80-294, 80-401

Court Abbreviation: D.C.