The draconian conditions under which Army PFC Bradley Manning has been held for seven months — first in Kuwait and after that at Quantico, Virginia, where he has been kept in almost complete solitary confinement for five months, with no end in sight — connect to any number of constitutional issues, from government secrecy to torture. Some of these issues have sparked more discussion than others, and one that, in my view, has not received as much media attention as it should is the issue of pretrial detention in general.
Before plunging into this, I want to clarify that none of what I’m writing here is directly relevant to PFC Manning’s situation. Obviously, he is being held under military law, and military law is not the same in all details as civilian law. That said, I think a general attention to pretrial detention as a constitutional issue makes for an interesting sidebar to the Manning story.
Pretrial detention is defined by Webster’s New World Law Dictionary as “The detaining of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail or due to denial of release under a pre-trial detention statute.” Pretrial detention is not per se unconstitutional; indeed, the term is not mentioned in the U.S. Constitution. But because it impinges directly on the right to a fair trial, as laid out in the Sixth Amendment, it does raise constitutional issues.
Here is the text of the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Clearly, the length of pretrial detention has a direct impact on whether the accused person gets a fair trial. Beyond the obvious violation of the right to a speedy trial, there is also the potential harm done to the accused person’s personal and professional reputation, to the accused person’s physical and mental health, and to the accused person’s ability to aid in her or her own defense — not simply because it becomes more difficult to assemble evidence and witnesses, but also because evidence can be tainted or lost and witnesses can die or become incapacitated or unreliable, and obviously the dangers of this occurring increase with time.
To be clear, these are problems inherent in the length of the pretrial period in general — the time between charging and trial — whether the accused person spends that time in detention or free on bail, pending trial. Pretrial detention, however, goes directly to the accused person’s liberty interest — the person is being imprisoned for a crime they may not have committed, which offends the presumption of innocence. Of course, like “pretrial detention,” the phrase “innocent until proved guilty” is not in the U.S. Constitution. It is, however, understood to be implicit in the concept of due process, which IS in the Constitution (Fifth Amendment), just as the potential unconstitutionality of pretrial detention is understood to be implicit in the concept of a fair trial, which IS in the Constitution.
So, what is a “speedy” trial? In a legal sense, we don’t know. The courts have never specifically defined how long pretrial detention can be before it begins to violate the Sixth Amendment. Law Brain, an online legal resource that provides essay-length definitions and explanations of hundreds of legal concepts, points out that pretrial detention (which they call “preventive detention”) is “a relatively recent phenomenon.”
Before the 1970s the general practice in criminal courts was to set bail for almost all criminal defendants. For defendants accused of particularly heinous crimes, courts would set the amount of bail so high that the defendants were unlikely to be released. Defendants in murder cases were held in jail without bail through the end of trial.In the early 1970s, the District of Columbia became the first jurisdiction to experiment with preventive detention for defendants other than murder defendants. Under D.C. Code 1973, 23-1322, a defendant charged with a dangerous or violent crime could be held before trial without bail for up to 60 days. The defendant was entitled to a hearing at which the prosecutor was required to present evidence of a substantial probability that the defendant committed the alleged offense. The defendant was allowed to present evidence, cross-examine witnesses, and appeal an adverse ruling. This detention scheme was upheld by the District of Columbia Court of Appeals in United States v. Edwards, 430 A.2d 1321, (1981), cert. denied, 455 U.S. 1022 (1982).
Congress created a federal preventive detention system for criminal defendants in the Federal Bail Reform Act of 1984 (18 U.S.C.A. §§ 3141 et seq. [1996]). The act is similar to the District of Columbia law with several exceptions. Under the act, the prosecution is not required to notify a defendant that it intends to present evidence of his past crimes. The federal act allows a court to accept evidence from the prosecution without giving the defendant an opportunity to question the evidence. The federal act does not limit the defendant’s detention; a defendant may be held without bail until he is found not guilty. Finally, the class of defendants eligible for preventive detention is broader in the federal act than in the District of Columbia law.
In 1987, a legal challenge to the Federal Bail Reform Act reached the Supreme Court, via a case named United States v. Salerno:
… Anthony Salerno and Vincent Cafaro, who were facing numerous federal racketeering charges, were detained without bail after a detention hearing because the court believed that they posed a danger to the community. Salerno and Cafaro appealed to the Supreme Court, arguing that the court violated their due process rights by detaining them, and therefore essentially punishing them, on the basis of potential crimes. The defendants also argued that the federal act violated the Excessive Bail Clause of the Eighth Amendment.By a vote of six to three, the High Court rejected both arguments. According to the majority, “The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” The Court reasoned that to determine whether detention is punishment, it must look to the legislative intent behind the act. Because Congress formulated the act to prevent danger to the community, and not as punishment for the defendant, the detention was best characterized as regulatory and not punitive. Because the detention was not considered punishment, the defendant was due only minimal process. The Court concluded that the hearing the defendant received was sufficient process to justify the detention. The Court also rejected the defendants’ excessive bail argument, noting that the Eighth Amendment prohibits only the setting of excessive bail and does not address the issue of whether bail should be available at all. All states now allow for the preventive detention of criminal defendants without bail prior to trial and for the continued detention of defendants before sentencing and during appeals.
And what about Sixth Amendment challenges to pretrial detention? Well, there have been a number of those, but no definitive rulings on length have come out of them. However, according to this online law and legal reference library, “… during the second half of the twentieth century [courts have] laid down seven general propositions concerning the constitutional right to a speedy trial.”
(1) The Court has repeatedly identified three major and distinct interests protected by the Sixth Amendment speedy trial clause: an interest in avoiding prolonged pretrial detention, an interest in minimizing the anxiety and loss of reputation accompanying formal public accusation, and an interest in assuring the ultimate fairness of a delayed trial. (2) The Court has made clear that the major evils of pretrial restraints on liberty and loss of reputation occasioned by accusation exist quite apart from the third major evil of possible prejudice to an accused’s defense at trial. (3) The Court has held that the clause simply does not apply to the time between the commission of the crime and the time that the defendant is in some way “accused” (usually by arrest or indictment) by the government. In other words, the clause applies only to the formal “accusation period”–the period between governmental accusation and trial. (4) Relatedly, the Court has held that the clause does not apply to any period during which the government drops its initial charges while retaining the right to reindict later—the defendant is not “accused” during this time, and so the speedy trial clock stops ticking against the government during this period. (5) The Court has held that if preaccusation delay compromises the defendant’s ability to defend herself, the main safeguard against injustice comes from the applicable statute of limitations. In cases of substantial prejudice to a fair trial caused by a prosecutor’s purely strategic delay in bringing the initial accusation, defendants may also seek relief by appealing to general due process principles. (6) The Court has said that the judicial remedy for speedy trial violations of dismissing the case with prejudice—that is, dismissing with no possibility of refiling charges later—is unsatisfactorily severe because it means that a defendant who may be guilty of a serious crime will go free, without ever having been tried. Such a remedy, the Court has noted, is more severe than the Fourth Amendment exclusionary rule, which limits the introduction of certain evidence, but typically does not altogether bar a trial. (7) Nonetheless, the Court has repeatedly held that dismissal with prejudice is the only possible remedy for speedy trial clause violations. Given the first six propositions, the analytic soundness of proposition seven seems questionable to some scholars, although the law appears quite clear on this point.
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