United States v. Salerno
The Court upheld the Bail Reform Act of 1984's pretrial detention provisions, ruling that federal judges may jail an arrested person before trial if the government proves by clear and convincing evidence, after a full hearing, that no release conditions would keep the community safe.
The decision rejects the idea that the Constitution categorically bars locking someone up before conviction based on predicted future dangerousness, so long as strong procedural safeguards accompany the decision and the detention serves a regulatory rather than punitive purpose.
“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
The Court's framing of pretrial detention as a narrow exception to the general rule of liberty.
How it got here: A federal trial court ordered both men detained without bail; the Second Circuit struck down that part of the Bail Reform Act as unconstitutional, and the government appealed to the Supreme Court.
The Case in Depth
What happened
Anthony Salerno, described as head of the Genovese crime family, and Vincent Cafaro, described as a captain in that family, were indicted on racketeering, fraud, extortion, and gambling charges, including conspiracy to commit murder. Prosecutors sought their pretrial detention under the Bail Reform Act of 1984, arguing that wiretap evidence and witness testimony showed no release conditions could protect the community from further violence.
The question before the Court
Can Congress let federal judges jail people awaiting trial simply because a judge finds them too dangerous to release, even though they haven't been convicted of anything?
The Court's answer
Yes — the Court ruled that Congress can allow federal judges to detain an arrested person before trial based on dangerousness alone, without violating the Constitution. The Bail Reform Act's detention scheme counts as regulatory rather than punitive, because Congress was trying to solve a real public-safety problem rather than punish people before conviction, and the restrictions imposed aren't excessive given that goal.
Because the government's interest in preventing serious crimes by dangerous arrestees is compelling, and because the Act requires a full adversary hearing, clear and convincing evidence, and prompt appellate review before anyone can be detained, the Court found these safeguards sufficient to defeat a facial challenge. The Court also rejected the argument that the Eighth Amendment's ban on excessive bail guarantees a right to be released on some amount of bail whenever the government's only compelling reason for detention isn't flight risk.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Federal prosecutors gained a durable tool to keep people charged with serious crimes, especially organized-crime and violent offenses, locked up before trial based on dangerousness alone, not just flight risk. Defendants facing such charges can be jailed for months without a finding of guilt, provided a judge holds a hearing and finds clear and convincing evidence of danger.
What changes now
This was a final merits decision resolving the facial constitutional challenge to the Bail Reform Act's dangerousness-based detention provision. The Second Circuit's ruling striking down the provision was reversed, meaning the Act's pretrial detention scheme remained in force nationwide. The Court left open how the Act might apply to specific individual cases or unusually prolonged detentions, which could still be challenged separately.
What this does not decide
The Court expressly said it was not deciding the validity of any part of the Act not relevant to these respondents, was not addressing whether the Act was unconstitutional as applied to their particular facts, and was not deciding when detention might become so prolonged that it turns into unconstitutional punishment.
Concurrences and dissents
Dissent — Justice Marshall
“This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future.”Marshall's opening objection to detaining people based on predicted future crimes.
Justice Marshall argued the Act lets the government jail presumptively innocent people based on predictions of future crime, which he saw as fundamentally incompatible with the presumption of innocence and the traditions of Anglo-American law. He criticized the majority's regulatory/punitive framing as empty formalism and argued the Eighth Amendment's ban on excessive bail must also limit outright denial of bail. He also raised doubts about whether the case was even still a live controversy given developments involving both respondents after certiorari was granted.
Dissent — Justice Stevens
Justice Stevens agreed with Marshall that using a pending indictment to justify detention based on future dangerousness is unconstitutional, since danger assessments should not hinge on whether someone happens to have been charged with an unrelated crime. He noted the case had troubling features suggesting the government was pursuing a test case rather than resolving a genuine dispute, since Salerno was already imprisoned on other charges and Cafaro was apparently free and cooperating with the government.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the detention was really 'punishment' in disguise or a legitimate 'regulatory' measure — the key distinction courts use to decide if pretrial confinement itself violates due process. It looked at whether Congress intended punishment and whether the detention was excessive compared to a legitimate non-punitive goal.
- Because Congress's stated purpose was preventing danger to the community, not punishing people, and because the Act limits detention to serious crimes with prompt hearings and speedy-trial deadlines, the Court found the detention regulatory rather than punitive.
- Turning to substantive due process — the idea that some government actions are so unfair they're unconstitutional no matter what procedure is used — the Court surveyed past rulings allowing detention of dangerous people in wartime, deportation cases, mental-illness cases, and juvenile cases, concluding the government's interest in preventing crime can outweigh individual liberty in sufficiently compelling circumstances.
- The Court then weighed the government's interest against the individual's liberty interest directly, finding the government's interest 'both legitimate and compelling' given the narrow class of serious offenses covered and the demanding clear-and-convincing-evidence standard required before detention.
- On procedural due process, the Court held the Act's hearing rights — counsel, testimony, cross-examination, written findings, and prompt appellate review — were more than adequate to survive a facial challenge, since a facial challenge fails unless no application of the law could ever be valid.
- On the Eighth Amendment's ban on excessive bail, the Court reasoned that the Amendment says nothing about whether bail must be available at all, and that when Congress detains someone for a compelling reason other than flight risk, the Excessive Bail Clause does not require that release on bail still be offered.
Doctrinal impact
Cases affected by this decision
Reaffirms Schall v. Martin (467 U.S. 253)
The Court relied on this juvenile pretrial detention case as strong support for upholding adult pretrial detention on dangerousness grounds.
Limits Stack v. Boyle (342 U.S. 1)
The Court read this bail-excessiveness case narrowly, saying it did not establish a right to bail based solely on flight risk.