OPINION OF THE COURT
The United States appeals from an order of the district court reversing a magistrate’s order that Howard Perry be held without bail pending disposition of a criminal complaint. The magistrate had jurisdiction to enter the detention order by virtue of 28 U.S.C.A. § 636(a)(2) (West Supp. 1985). The district court reviewed the order pursuant to 18 U.S.C.A. § 3145(b) (West 1985). We have appellate jurisdiction by virtue of 18 U.S.C.A. § 3145(c) (West 1985) and 28 U.S.C. § 1291 (1982). We reverse.
I.
Proceedings in the District Court
On November 21, 1985 a criminal complaint, No. 85-253M, was filed charging Howard Perry and Gary Moore with conspiring to possess heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982) .and 21 U.S.C. § 846 (1982). The United States then moved pursuant to 18 U.S.C.A. § 3142(e) (West 1985) for pretrial detention of Perry on the ground that he was a danger to the community. Based on the evidence presented at a hearing the magistrate found that there was probable cause to believe that Perry committed the offense charged, for which a maximum term of ten years or more is prescribed. The magistrate also found that at the time of the events charged in the complaint Perry was on bail on a state indictment charging him with *103 distributing narcotics and was under court supervision for conviction on gun charges in Illinois. Thus Perry fell within the provision that “a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community....” 18 U.S.C.A. §§ 3142(e), 3142(f)(1)(C) (West 1985). The magistrate held that this presumption was not rebutted. 1
On November 27, 1985 Perry sought review by the district court, pursuant to 18 U.S.C.A. § 3145(b) (West 1985), of the magistrate’s detention order. On December 5, 1985 the district court held a de novo detention hearing. During that hearing the district court stated that the only legitimate criterion for holding a defendant without bail was the likelihood of flight, a ground upon which the United States did not initially rely. According to the district court, the detention feature of the Bail Reform Act of 1984, Pub.L. No. 98-473, §§ 202-210, 98 Stat. 1976-87 (to be codified at 18 U.S.C. §§ 3062, 3141-3150), was facially unconstitutional, both substantively and proeedurally. Thus the court declined to consider anything but Perry’s likelihood of flight. When Perry testified that he would not flee, the court orally set bail at $100,000.
Meanwhile, on December 2, 1985, a grand jury in the Western District of Pennsylvania returned a ten-count indictment, No. 85-263, against Perry and others, charging them with conspiracy to distribute and possession with intent to distribute cocaine, marijuana, and oxycodone (perco-dan). The district judge learned of this indictment after the conclusion of the section 3145(b) hearing in No. 85-253M and determined to hold a detention hearing on the new charge. During this second hearing the judge reiterated his views about the unconstitutionality of the preventive detention features of the Bail Reform Act and again concluded that Perry was not likely to flee.
Although no formal order had yet been entered either in No. 85-253M or in No. 85-263, the United States moved for a stay of the decision to grant bail, which the district judge orally denied.
On December 6, 1985, the district judge filed a hand-written order covering both detention hearings. 2 Although the court *104 had in both hearings opined that the preventive detention features of the Bail Reform Act are unconstitutional, transcript before the district court in No. 85-253 at 31-32, 43; transcript before the district court in No. 85-263 at 47-59, the order does not mention such a ground of decision, See United States v. Perry, Nos. 85-253M and 85-263 (W.D.Pa. Dec. 5, 1985) (order granting release on bail). Instead it contains a finding “that Howard Perry is not in any way a threat to the community or a threat to any individual or property situate in the Western District of Pennsylvania and is not a danger to anyone whatsoever.” Id. Relying on this finding and the fact that the United States submitted no evidence of likelihood of flight, the court ordered Perry “released temporarily on his own recognizance for a period not to exceed five days for the purpose of posting a $50,000 bond for each of the two captioned charges.” Id.
The United States appealed in both cases and moved before a panel of this court to stay the order granting release on bail. That panel granted a stay and expedited the appeal as required by 18 U.S.C.A. § 3145(c) (West 1985). After argument, held on January 16, 1986, the United States moved in this court to dismiss its appeal in No. 85-263 (Court of Appeals Docket No. 85-3671). We have considered Perry’s opposition to that motion. Because that opposition does not demonstrate any prejudice from the dismissal, the motion will be granted. Thus our review is solely with respect to the order denying pretrial detention in No. 85-253M (Court of Appeals Docket No. 85-3680).
II.
Issues Presented
Because the order appealed from contains a finding that Perry is not a danger to the community, and thus appears to satisfy the criteria for release under the Bail Reform Act, the United States cannot prevail unless we may set that finding aside. The United States advances several reasons why we should do so. Perry, on the other hand, points out that even if we set aside the finding that he is not a danger to the community, the facial uneonstitution-ality of the preventive detention law is a separate ground for affirmance on which he relies and that we must address. We agree that unless we are prepared to affirm the release order on statutory grounds both the statutory and the constitutional issues must be considered.
III.
Scope of Review
Appellate review of a release or detention order is authorized by 18 U.S.C.A. § 3145(c) (West 1985). Neither this section nor any other provision of the Bail Reform Act specifies the scope of our review. In this circuit, however, it is now settled that the Court of Appeals must make an independent determination of a release or detention order.
See, e.g., United States v. Coleman, 777
F.2d 888 (3d Cir.1985) (pretrial release, government appeal);
United States v. Strong,
IV.
Statutory Issues
A. The Detention Hearing Before the Magistrate
In the hearing before the magistrate in No. 85-253M the United States produced *105 the complaint charging Perry with a violation of 21 U.S.C. § 841(a)(1) (1982) and 21 U.S.C. § 846 (1982). Appearing with counsel, Perry waived the reading of the complaint and pleaded not guilty. At that point the government moved for pretrial detention, asserting that Perry was a danger to the community. Perry’s counsel asked that co-defendant Moore be produced, representing that he would exculpate Perry on the charge in the complaint. Informed by the magistrate that he could have Moore subpoenaed at Perry’s expense, counsel declined to do so for reasons of expense.
The United States then produced Joseph Rotter, a special agent of the Drug Enforcement Administration who investigated the activities of Perry and Moore in the summer and fall of 1985. Rotter testified that he worked with Special Agent Daniel Williams in an undercover investigation, and that on August 29, 1985 Moore sold heroin to Williams. Perry’s counsel objected to Rotter’s testimony arguing, read generously, that his testimony was hearsay and that it offended the confrontation clause. Again counsel was advised of his opportunity to call, at his client’s expense, any witness he desired. Rotter testified that on September 10 Williams paid Moore $2,300 in advance for a one-quarter ounce of heroin. Moore was followed from the site of the September 10 meeting to a dairy store, where he met Perry. After meeting Perry, Moore left the dairy store and using a coin operated telephone called a confidential informant to tell him that the $2,300 was paid and that the package would be delivered in an hour. At 8:55 P.M. Moore delivered to Williams a package the contents of which, when testified at a Drug Enforcement Administration laboratory, proved to be heroin. Rotter testified that similar transactions took place on October 15 and November 20, 1985, in which Williams paid Moore, Moore met Perry, and Moore shortly thereafter delivered heroin to Williams.
Rotter testified that after the November 20, 1985 transaction both Moore and Perry were arrested. A search, pursuant to a valid warrant, of Perry’s residence produced $2,500 in currency that was identified by serial number to be part of the money used by Agent Williams to make the November 20 purchase. The balance, Rotter testified, was found on Moore’s person when he was searched incident to his arrest.
Rotter also testified that he learned from Officer Benny Sledge that on July 18, 1985 the City of Pittsburgh Police Department conducted an investigation, arrested Perry, and searched his home, wherein cocaine, valium, and percodan were found. Perry’s counsel objected on hearsay grounds, and asked the court to order the government to produce Office Sledge. He was informed that the court would not order the government to produce Officer Sledge, but that Perry was free to subpoena him. As he had with Moore and Williams, defendant declined to make the expenditure. Over a hearsay objection Rotter testified that the drugs seized by the Pittsburgh Police Department were sent to the Allegheny Crime Lab and tested positive for cocaine and percodan.
Finally, Rotter testified, again over a hearsay objection, that an assistant state attorney in Waukegan, Illinois, informed him that Perry had pled guilty in Illinois to possession of a firearm, was placed on probation or court-ordered supervision until September of 1986, and was in violation of the conditions of his probation.
Perry’s counsel stipulated that a Pennsylvania state charge was pending with respect to the July 18, 1985 arrest. He cross-examined Rotter at some length. In the course of that examination Rotter conceded that he had no evidence suggesting that Perry would flee if released on bond. Counsel asked and Rotter responded:
Q. What facts do you have that Mr. Perry is dangerous to the community? A. Based on his July 1984 arrest in Illinois, based on the July 18 search and investigation by the City of Pittsburgh police, and based on the November 20 arrest involving the activities of Howard Perry from August 29 up until that time, *106 it is my belief he shows a pattern of continuing criminal activity.
Transcript before magistrate in No. 85-253M at 43. Rotter had no evidence that Perry ever struck or threatened another person.
The court called the Pretrial Services Coordinator of the United States Probation Office, who testified concerning Perry’s record, family status, and property. This witness confirmed that Perry had received two years probation for the Illinois gun possession charge, which did not involve any threats of violence.
The United States presented no other evidence. Perry’s counsel indicated he would like to examine other witnesses, but represented that he had not made and would not make any effort to subpoena them. He claimed not to have the necessary witness fees, but he filed no affidavit of indigency.
The magistrate found probable cause to believe Perry committed the offenses charged, that he was presently on bail from the state court on narcotics charges, and that he failed to rebut the presumption in the Bail Reform Act of his danger to the community. Thus bail was denied.
The Bail Reform Act authorizes a judicial officer to order detention upon a finding “that no condition or combination of conditions will reasonably assure ... the safety of ... the community____” 18 U.S.C.A. § 3142(e) (West 1985).
Subject to rebuttal ... it shall be presumed that no condition or combination of conditions will reasonably assure ... the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.)____
Id. At a detention hearing the defendant “shall be afforded the opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” 18 U.S.C.A. § 3142(f) (West 1985). While the judicial officer must, in order to detain, find by “clear and convincing evidence” that “no conditions or combination of conditions will reasonably assure the safety of ... the community,” that finding need not rest upon evidence that would be admissible in a criminal trial. Id. The Act lists the information that the judicial officer may take into account in determining whether any conditions of release will reasonably assure the safety of the community. 3
Clearly the hearing before the magistrate satisfied the requirements of the Bail Reform Act. Perry had counsel, and counsel had a full opportunity to cross-examine the witnesses who testified. Perry was also afforded the opportunity, although he did not avail himself of it, to call witness in his own behalf. Perry’s counsel objected that some of the evidence presented by the government was hearsay. The statute, however, explicitly permits use of evidence that would not be admissible in a criminal trial. 18 U.S.C.A. § 3142(f) (West 1985).
See also United States v. Delker,
B. The District Court Review
Perry moved, pursuant to section 3145(b) of the Bail Reform Act, for review by the district court of the magistrate’s detention order. We have held that this section authorizes the district court to hold a
de novo
hearing.
See Delker,
At that point Perry’s counsel moved for Perry’s release, arguing that the Act was unconstitutional under the first, fourth, fifth, sixth, and eighth amendments, “and all the other so-called rights, privileges and protections the individual has been given.” Transcript before district court in No. 85-253M at 8-9, 13. Counsel also relied on the presumption of innocence and substantive personal liberty. Id. at 9. He also objected to the government’s failure in the hearing before the magistrate to produce as witnesses persons to whom hearsay statements had been attributed. Thus he made a procedural as well as a substantive due process challenge. Finally, he asked that “before attempting to prove that Mr. Perry will not flee or is not a danger to the community, I would ask your honor to dismiss the detention petition as unconstitu-tional____” Id. at 13.
Responding to the motion to release on the ground that the Act is unconstitutional, the Assistant United States Attorney outlined the evidence that had been presented to the magistrate. He had difficulty presenting further argument because the district judge made a lengthy statement as to his reactions to the Bail Reform Act. The court concluded with the statement that the Bail Reform Act “is dangerous and also unconstitutional.” Id. at 31. The court ruled, “I will set a bond for this man. The Act is unconstitutional on its face.” Id. at 32.
Following this ruling there was a recess. Several hours later the court reconvened and advised counsel, “I think we ought to address one issue we omitted to address, and that is in case of 85-253M. That is as to whether or not this man would flee the community. We never addressed that, right?” Id. at 42. Thus it appears that the court's holding as to unconstitutionality referred only to the preventive detention, not the danger of flight aspect of the statute.
Perry took the stand and testified about his ties to the community, the fact that he was out on bail from state court charges and had not fled, his education, and his intention to remain in Allegheny County to face all charges. The transcript of the resumed hearing discloses that the only issue addressed was whether or not Perry was likely to flee. No testimony was *108 presented and no argument was made about Perry’s danger to the community. The United States represented that it had no witnesses to present on the issue of risk of flight. At this point the court ruled, “All right, I am going to reiterate my former order and allow this man to be freed, provided he posts a $100,000 bond with a sufficient surety.” Id. at 78. With that the proceedings in No. 85-253M concluded. 5 Thus the record before us consists of the record made in No. 85-253M before the magistrate, Perry’s testimony on risk of flight, the argument of counsel as to unconstitutionality of the preventive detention provision, the district court’s ruling regarding the constitutionality of the Bail Reform Act, and the district court’s written order granting bail.
C. Our Review
Exercising plenary review, we conclude (1) that the United States established reasonable cause for belief that Perry committed the offense charged in No. 85-253M, an offense for which imprisonment for ten years or more is prescribed in the Controlled Substances Act, (2) that under section 3142(e) of the Bail Reform Act such a finding raised a presumption that Perry was a danger to the community, and (3) that there is no evidence in the record overcoming that presumption. Indeed Perry presented none. Thus we cannot affirm the release order on statutory grounds, and, therefore, we address Perry’s multitude of constitutional contentions.
y.
Constitutional Issues
Although we cannot represent that the efforts of Mr. Perry’s counsel have been particularly illuminating on the constitutional issues, no substantive or procedural constitutional issue that might arguably assist his client was waived. 6 Thus we consider the constitutional issues as we understand them, addressing first the substantive validity of preventive detention, and then the alleged procedural deficiencies in the manner in which a preventive detention determination is made.
A. Substantive Validity of Preventive Detention
(1) Issues Not Addressed
Initially it should be noted that there are two presumptions in the Bail Reform Act. The first presumption, “that no condition or combination of conditions will reasonably assure the safety of any other person and the community” is contained in the first paragraph of section 3142(e). See 18 U.S.C.A. § 3142(e) (West 1985). This first presumption arises in cases where (1) the accused has previously been convicted of one of a number of specified offenses, (2) the previous offense was committed while on release pending trial, and (3) “not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment,” for the previous offense. Id. The second presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community,” is contained in the second paragraph of section 3142(e) and arises if there is probable cause to believe that the accused has committed a major drug trafficking offense or a felony with a firearm. Id.
*109 The first presumption is not applicable in this case because the government presented no evidence that Perry had previously been convicted of an offense while he was on pretrial release. Moreover, we are not concerned with the provision in the first presumption dealing with detention to assure “the safety of any other person.” Id. That language addresses the problem of threats to potential witnesses and would require an analysis in terms of its necessity or propriety for safeguarding the integrity of the federal administration of justice. Nor are we concerned with the first provision of the second presumption — the risk of flight. Because the government does not rely on the likelihood that Perry will not appear for trial, it does not defend the constitutionality of a detention order as necessary to assure Perry’s presence at trial. Instead, we are faced solely with the constitutionality of the second provision of the second presumption — the safety of the community.
(2) Congressional Authority
Because we are dealing with neither the authority of the federal government to take steps to assure that a defendant will attend a criminal trial and respond to a judgment of sentence, nor with the federal government’s authority to prevent interference with judicial proceedings Congress has authorized, we must look elsewhere for the source of federal power to detain arrestees, without conviction, for the “safety of the community.” The preventive detention provision happens to be housed in a provision of the title of the United States Code dealing with crimes. Its location there, however, does not relieve us of the obligation to consider the source of congressional authority for its enactment. Despite its location, the preventive detention provision results in what is essentially a civil, not a criminal, commitment. Indeed the United States, in defending procedural challenges to the statute, has consistently resisted efforts to have it classified as an involuntary criminal commitment in the nature of punishment for crime. Moreover, while commitment under the statute is triggered by a criminal charge and lasts only until conviction or acquittal, the length of civil commitment does not in itself inform as to the powers of Congress. If short-term civil commitment is “necessary and proper for carrying into Execution” 7 the powers of Congress, it is not immediately apparent why long term civil commitment, divorced entirely from Title 18 of the United States Code, would not be equally so. Thus civil commitment for “the safety of the community” must be analyzed independently of the criminal charge.
What, then, is the source of congressional authority to provide for civil commitment for “the safety of the community”? As the legislative voice of a government of limited powers, Congress, unlike the legislatures of the states, cannot sanction for the general welfare. Since
Steward Machine Co. v. Davis,
One case in which the Supreme Court. has addressed the issue of civil commitment without bail outside the District of Columbia is
Carlson v. Landon,
We reach then the narrow constitutional issue raised by the order of commitment in the circumstances of this case. The petitioner came legally into the custody of the United States. The power that put him into such custody — the power to prosecute for federal offenses — is not exhausted. Its assertion in the form of the pending indictment persists. The District Court has found that the accused is mentally incompetent to stand trial at the present time and that, if released, he would probably endanger the officers, property, or other interests of the United States — and these findings are adequately supported. In these circumstances the District Court has entered an order retaining and restraining petitioner, while in his present condition, with habeas corpus always available when circumstances warrant. This commitment, and therefore the legislation authorizing commitment in the context of this case, involve an assertion of authority, duly guarded, auxiliary to incontestable national power. As such it is plainly within congressional power under the Necessary and Proper Clause. Art. I, § 8, cl. 18.
Greenwood,
What Greenwood teaches, therefore, is that the federal government may resort to civil commitment when such commitment is necessary and proper to the exercise of some specific federal authority. Congress may not, however, authorize commitment simply to protect the general welfare of the community at large. The specific federal interests recognized in Carlson (detention for deportation) and Greenwood (detention for trial or sentence) are not presented in this instance. Perry is native-born and cannot be deported. In addition the government does not contend that he will be unavailable for trial. Rather, the government seeks Perry’s civil commitment solely to protect the safety of the community.
We are concerned only with the second presumption/detention provision in section 3142(e). Although the language of that presumption — “safety of the community” — is unqualified, the presumption is triggered only by a finding by a judicial officer of probable cause to believe the defendant committed certain serious violations of the Controlled Substances Act, the Controlled Substances Import and Export Act, section 955a of title 21 of the United States Code, *111 or section 924(a) of title 18 of the United States Code. See 18 U.S.C.A. § 3142(e) (West 1985). A reasonable construction of this provision is that it is aimed at preventing the specific harm to the community proscribed by the four designated statutes; three dealing with drugs and one dealing with the use of firearms in the commission of federal offenses. We, therefore, read the second presumption of section 3142(e) as addressing only danger to the community from the likelihood that the defendant will, if released, commit one of the proscribed federal offenses. Thus because Congress has the power to proscribe the activities in question, it has the auxiliary authority, under the necessary and proper clause, to resort to civil commitment to prevent their occurrence. This authority, however, is limited by the specific substantive or procedural requirements of the Bill of Rights. Because Perry claims the protection of those rights, we now consider the specific constitutional constraints on the Bail Reform Act.
(3) Other Constitutional Limitations
a) The Eighth Amendment
Perry contends that the provision in the eighth amendment that “[ejxcessive bail shall not be required” establishes a constitutional right to bail and therefore a substantive prohibition against civil preventive detention. The Supreme Court has never resolved this question. In
Stack v. Boyle,
The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable.
Perry’s reliance on the eighth amendment would have been more significant in the days when the Supreme Court was engaged in the sterile
Palko-Adamson
debate over whether due process was limited to the specific process guarantees of the first eight amendments. For the incorporationists Perry could only prevail if a positive law provision such as the eighth amendment conferred on him a substantive personal liberty interest. It has long since been settled, however, that the due process clauses of the fifth and fourteenth amendments refer to substantive personal liberty independent of positive law.
See, e.g., Youngberg v. Romeo,
Although no holding in the Supreme Court is controlling,
Greenwood
and
Carlson
are certainly instructive.
Carlson
states explicitly that the eighth amendment right to bail is not universally applicable.
(b) Substantive Due Process
While the eighth amendment does not grant an absolute right to bail, there is a substantive liberty interest in freedom from confinement. It is also clear that because of that interest, entirely apart from the federalistic concerns, there are substantive limitations upon the power of government, state or federal, to impose civil detention.
See O’Connor v. Donaldson,
Applying the reasoning in Jackson to the analogous deprivation of liberty involved in pretrial detention, we hold that the second detention provision in section 3142(e) does not violate substantive due process. Section 3142(e) permits preventive detention when “no condition or combination of conditions will reasonably assure ... the safety of the community” from the more serious offenses proscribed by the Controlled Substances Act, the Controlled Substances Import and Export Act, section 955a of title 21 of the United States Code, and the use of deadly or dangerous weapons in crimes of violence. Thus it permits detention of persons found to be dangerous in a very real sense; distributors of dangerous drugs and users of firearms in the commission of crimes of violence.
(c) Procedural Due Process
The constitutional inquiry does not end, however, with the conclusion that the legislative decision to confine persons found to be dangerous to the safety of the community passes substantive due process muster. A civil detention order results in the deprivation of the most fundamental of all personal liberties. Such a deprivation may occur only in accordance with procedural safeguards. These procedural safeguards in turn must be evaluated in light of the significance of the interest affected, the risk of erroneous determination through the procedures used, and the probable value of additional safeguards.
See Mathews v. Eldridge,
Section 3142(e) requires two separate findings. First, a judicial officer must find that there is probable cause to believe that the defendant has committed one of the designated offenses. 18 U.S.C.A. § 3142(e) (West 1985). That probable cause finding then triggers the dangerousness to the community presumption and a separate finding regarding that provision, under a different standard, must be made. Accordingly, separate due process analysis is required for each finding.
The probable cause finding serves three purposes. First, it is determinative of the issue whether the defendant may be held at all or required to post bail. Second it permits further inquiry into the question of dangerousness, and, finally, it gives rise to the presumption that the defendant is dangerous. In evaluating the process due the first requirement we are guided by
Gerstein v. Pugh,
Turning to that inquiry, it is appropriate to note what the factfinder is required to determine. In a criminal trial the factfinder is required to reconstruct past events. Those events, which occurred in the exteri- or world, left their own imprint on history and knowledge of them is attainable by methods within the common experience of mankind. Nevertheless our legal tradition surrounds the process of reconstructing past events in a criminal trial with significant procedural safeguards. The defendant is presumed to be innocent.
See Bell v. Wolfish,
Given the grave invasion of the most fundamental of all personal liberties that occurs when preventive detention is ordered and the high risk of an erroneous judgment as to the highly speculative determination of future dangerousness, the procedural due process mode of analysis suggested by
Mathews
seems to require that the procedural safeguards should approach those used in the far less speculative enterprise of determining guilt of past misconduct. Despite the inherently speculative and difficult nature of the task of predicting likely future conduct by normal persons, however, the procedural rules under which the prediction is made present a severe contrast with those for determining past misconduct. The judicial officer need only be convinced of dangerousness by clear and convincing evidence. 18 U.S.C.A. § 3142(f) (West 1985). The rules concerning admissibility of evidence in criminal trials do not apply.
Id.
The detainee is not presumed to intend lawful conduct. Rather it is presumed that he will act dangerously. 18 U.S.C.A. § 3142(e) (West 1985). It is the government’s position that this presumption shifts the burden of persuasion to the defendant on the issue of dangerousness. This position, however, has been consistently rejected by the courts that have considered it, and section 3142(e)’s presumption has been interpreted as only shifting the burden of production.
See United States v. Fortna,
Even so construed, however, there are serious difficulties for the detainee. The clear and convincing standard does not even operate until the defendant has come forward with some evidence of lack of dangerousness. Placing on him the burden of going forward to prove that he will not in the future do that with which he is presently charged involves problems of self-incrimination if he testifies and is subject to cross-examination.
9
Aside from his own testimony about his future intention to refrain from dealing in drugs or using guns in crimes of violence, there may be several types of evidence available,
e.g.,
testimony by co-workers, neighbors, family physician, friends, or other associates concerning the arrestee’s character, health, or family situation. In many cases, however, such evidence may be insufficient to overcome the § 3142(e) presumption and, even if it does, such evidence may be insufficient to undermine the government’s evidence of dangerousness, so that the defendant may find it necessary to testify. Thus the detainee is placed in the position of risking self-incrimination or suffering the grave civil disability of preventive detention.
See Spevack v. Klein,
Because the presumption of dangerousness, if unrebutted by evidence offered by the defendant, places the defendant in the position of risking self-incrimination by testifying as to his future intentions, or running the grave civil disability of preventive detention, it poses a serious issue of unconstitutionality under the fifth amendment privilege against self-incrimination.
See Spevack,
(d) Equal Protection
Perry’s fifth amendment equal protection challenge to the preventive detention feature of the Act, as best we can glean, is twofold. First, he relies on statements by the trial judge that preventive detention is more likely to be applied against minorities. Transcript before district court in No. 85-253M at 31-34. To the extent that Perry’s argument is predicated upon any discriminatory application of the statute it is totally lacking in evidentiary support on this record.
See Yick Wo v. Hopkins,
The statutory classification is facially neutral not only with respect to race, but also with respect to national origin, gender, or alienage. The classification complained of, preventive detention aimed at protecting the public from certain serious drug and gun offenses, is facially underinclusive in that it does not reach criminal enterprises as risky to the public as espionage and bribery. Clearly, however, such an underinclusive classification is not suspect, and should thus be judged only for its rationality.
See McGowan v. Maryland,
Because we are not dealing with a suspect classification, Perry’s equal protection contention depends upon the fact that the challenged statute affects a fundamental interest. Freedom of locomotion is such an interest. The Supreme Court has applied equal protection analysis to classifications that affect fundamental interests.
See, e.g., Dunn v. Blumstein,
(e) The Sixth Amendment
Perry also relies on the sixth amendment. In his argument counsel specifically mentioned the deprivation of a jury trial. Also arguably relevant, and apparently relied upon, are the confrontation clause and the speedy trial clause.
(1) Jury Trial
The jury trial provisions in the sixth amendment, and in Article III, section 2, clause 3, refer to criminal prosecutions. Although the preventive detention determination is made incidental to a criminal prosecution, commitment on the basis of dangerousness to the community is civil, not criminal. Congress might have relied upon some other triggering event for the commencement of such a proceeding, but its determination to use the criminal charge as the triggering event does not change the nature of the proceeding. Nor can Perry rely upon the seventh amendment guarantee of jury trial in civil cases, for a proceeding leading to civil preventive detention, whatever else it is, plainly is not a suit at common law.
(2) Confrontation
Section 3142(f) provides for- the cross-examination of those witnesses who are produced. We have held that this statutory requirement ordinarily requires that witnesses that the government produces be available for cross-examination in open court, rather than heard
in camera. United States v. Accetturo,
*118 (3) Speedy Trial
In
United States v. Accetturo,
Accetturo does not, however, control Perry’s sixth amendment speedy trial claim. Nevertheless, we reject it. The speedy trial clause deals with the timeliness of criminal prosecutions, not civil commitment proceedings. Moreover Perry has had a very speedy determination of his status as a person dangerous to the community — all too speedy as far as he is concerned.
Conclusion
Perry relied on constitutional provisions in addition to those we have explicitly discussed. He has not pointed out how they would afford him any protections in addition to those we have dealt with. Thus there is no occasion to address them. We hold that the second preventive detention provision in section 3142(e) of the Bail Reform Act does not violate the eighth amendment, substantive due process, procedural due process, equal protection, or the sixth amendment. We also hold that Perry failed to overcome the presumption of dangerousness and thus that he should have been detained. The order admitting him to bail in No. 85-253M will, therefore, be reversed and the case remanded for the entry of a detention order. This reversal is without prejudice to a motion by Perry to reopen the detention hearing if he, knowing the Act is not facially invalid, desires to attempt to overcome the presumption of dangerousness.
Notes
. The magistrate also found that Perry would be likely to flee. The government, however, did not rely on likelihood of flight before the magistrate and does not rely on likelihood of flight in this appeal.
. The order provides:
And now this 5th day of December 1985 after a full hearing and argument this Court in both of the above mentioned cases finds:
1. That the Defendant Howard Perry took the stand and rebutted any and all legal presumption that he would flee the jurisdiction and to the contrary he satisfies this Court affirmatively (despite any presumptions to the contrary) that he will faithfully and properly attend all scheduled hearings or trials in the above captioned cases and would not flee.
' 2. That the Defendant Howard Perry took the stand and rebutted any and all legal presumptions that he, Howard Perry will be a serious risk to obstruct or attempt to obstruct justice or that he would threaten, injure or intimidate a prospective witness or juror; that Howard Perry is not in any way a threat to the community or a threat to any individual or property situate in the Western District of Pennsylvania and is not a danger to anyone whatsoever.
3. That although the United States Attorney was requested on a number of occasions by the Court to present evidence bearing on the detention of Howard Perry, said United States Attorney for the Western District of Pennsylvania refused to submit any evidence to rebut Howard Perry’s testimony and although requested to do so the United States Attorney did not submit any evidence to the Court on the issue as to whether the Defendant Howard Perry would flee the jurisdiction and not appear at Court proceedings as the same are scheduled.
4. That based upon the above finding of fact, and subject to certain conditions that this Court will hereinafter read into the record, said Defendant is hereby released temporarily on his own recognizance for a period not to exceed five days for the purpose of posting a $50,000.00 surety bond for each of the above two captioned charges.
5. If the bonds are not posted within 5 days, that is by December 10, 1985 at the closing of the United States Clerk of Court Office at 5:00 P.M. E.S.T. and/or if the Defendant Howard Perry violates any or all of the conditions of his release on said bonds, that this Court will read into the record, then *104 the said Howard Perry will be recommitted to a suitable jail or prison to await the proper disposition of the charges against him in accordance with law. United States v. Perry, Nos. 85-253M and 85-263 (W.D.Pa. Dec. 5, 1985).
. These include:
(1) the nature and circumstances of the offense charged, including whether the offense involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
18 U.S.C.A. § 3142(g) (West 1985).
. Because Perry presented no evidence our resolution of the statutory question does not require that we decide whether the section 3142(e) presumption shifts to the defendant the burden of persuasion, or merely the burden of production. We consider that issue in connection with Perry’s constitutional challenges to the preventive detention statute. It is sufficient to note here that the United States urges that the statute shifts the burden of persuasion, but concedes that it has yet to persuade any appellate court to adopt that interpretation of section 3142(e).
See United States v. Fortna,
. Perry contends that we should also take into account the record made in the detention hearing in No. 85-263, in which the government has moved to dismiss its appeal. Although we have concluded that the government's motion shall be granted, we have examined the transcript of the detention hearing in No. 85-263 and find nothing in it bearing on whether or not the section 3142(e) presumption arising from probable cause that Perry committed the offense charged in No. 85-253M is rebutted. Indeed, early in the hearing in No. 85-263 the court reiterated the ruling that the preventive detention feature of the Act, as distinguished from the risk of flight feature, was unconstitutional. Transcript before district court in No. 85-263 at 104.
. The lack of helpful assistance from counsel can perhaps be attributed to our compliance with the direction in 18 U.S.C.A. § 3145(c) (West 1985) that appeals in detention cases be determined promptly.
. U.S. Const, art. I, § 8, cl. 18.
. This case does not present the question whether the need for care, treatment, or training may be a separate substantive justification for a deprivation of liberty.
See Jackson,
. In this case when Perry testified about the likelihood of flight the court warned him to limit his testimony to that subject because his testimony could be used against him at a trial on the underlying charge. Transcript before district court in No. 85-253M at 42.