481 U. S. 739
May 26, 1987
Salerno was one of the chief bosses of the Genovese family – the most notorious mafia group in New York. After his arrest, he was denied bail and kept in jail, in accordance with a federal law that allowed for detention pending trial when a court found that letting the accused go free would endanger other lives. Salerno filed a facial challenge against this law, arguing that it violated his due process rights, and the Eighth Amendment right to be free from excessive bail.
The Court ruled 6-3 that the law was not facially unconstitutional. Rehnquist, writing for the majority, first addressed the due process claim. He found that the detention was not penal in nature, but regulatory in nature – intended to protect society rather than punish the accused. The law required that the prosecutor show probable cause to believe that the accused was guilty, and required that clear and convincing evidence be adduced that letting the accused go would endanger other lives. With those safeguards, Rehnquist felt it could not be said that due process was violated. In response to the excessive bail clause, the majority said that bail was not a right, and denial of any bail was not the Constitutional equivalent of “excessive” bail. Several precedents were cited in support of these holdings.
Marshall, joined by Brennan, dissented. He first said that the case was moot, since Salerno had been convicted. He thought the majority’s treatment of the Constitutional claims flouted common sense. Keeping someone in jail simply had to be described as penal rather than regulatory. Denying bail altogether simply had to described as functionally the same as excessive bail. Finally, Marshall said that the law fundamentally undercut the cornerstone legal principle of ‘innocent until proven guilty’ – it gave courts the ability to jail based on predictions of future criminal activity. Stevens dissented as well. He felt it was wrong for courts to make a decision to detain someone based on an indictment, which legally must remain unproven until a trial.
The concerns the dissenters raise are not trivial. The Constitutional problems surrounding the law are not prophylactic inventions or penumbral non-issues. I’m glad Rehnquist’s side won, but I’m not convinced his interpretation was legally correct. This is precisely the reason why I never want to be a judge. I would have to take an oath to uphold the entire Constitution – even the horrible and unbiblical parts. A strong case can be made that some of the criminal guarantees in the Bill of Rights struck the wrong moral balance. Sometimes the problem isn’t activist judges. Instead, sometimes the problem is that the text of the Constitution itself cares more about rights for murderers than the innocent blood likely to be spilled when men like Anthony Salerno are out on bail.