UNITED STATES OF AMERICA, PETITIONER, V. ANTHONY SALERNO AND
VINCENT CAFARO

   No. 86-87

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Reply Brief for the United States

   Respondent Salerno offers three arguments in support of the court
of appeals' decision.  /1/ First, he contends that the pretrial
detention provisions of the Bail Reform Act of 1984, 18 U.S.C. (Supp.
II) 3141 et seq., impermissibly inflict punishment prior to an
adjudication of guilt (Rep. Br. 5-15).  Second, he argues that the
government may never, under any circumstances, curtail the pretrial
liberty of a criminal defendant to prevent him from committing crimes
prior to trial (id. at 15-33).  Third, he asserts that even if the
government could detain a potentially dangerous criminal defendant
prior to trial, the Bail Reform Act is so defective procedurally that
it must be struck down in its entirety (id. at 33-50).

   1. The pretrial detention provisions of the Bail Reform Act do not
result in an unconstitutional form of punishment.  This Court has
repeatedly recognized that the government may detain a criminal
defendant for non-punitive regulatory purposes.  See, e.g., Schall v.
Martin, 467 U.S. 253, 269 (1984) ("pretrial detention may serve
legitimate regulatory purposes");  Bell v. Wolfish, 441 U.S. 520, 539
(1979) ("if a particular condition or restriction of pretrial
detention is reasonably related to a legitimate governmental
objective, it does not, without more, amount to 'punishment'"
(footnote omitted));  Moyer v. Peabody, 212 U.S. 78, 84-85 (1909)
("Such arrests are not necessarily for punishment, but are by way of
precaution to prevent the exercise of hostile power.");  Wong Wing v.
United States, 163 U.S. 228, 235 (1896) ("Detention is a usual feature
of every case of arrest on a criminal charge, even when an innocent
person is wrongfully accused;  but it is not imprisonment in a legal
sense.").  Notably, the court of appeals in this case refused to base
its decision on a finding that the Bail Reform Act is punitive.  The
court concluded instead that "the Due Process Clause prohibits
pretrial detention on the ground of danger to the community as a
regulatory measure" (Pet. App. 14a).  /2/

   As Salerno recognizes, the crucial question is "'whether the
disability is imposed for the purpose of punishment or whether it is
but an incident of some other legitimate governmental purpose.'"
Schall, 467 U.S. at 269 (quoting Wolfish, 441 U.S. at 538).  Salerno
admits (Resp. Br. 5) that the legislative history of the Bail Reform
Act clearly shows that Congress intended the statute to serve a
non-punitive, regulatory purpose.  See S. Rep. 98-225, 98th Cong., 1st
Sess. 3-25 (1983);  130 Cong. Rec. S938-S947 (daily ed. Feb. 3, 1984).
 /3/ He nevertheless suggests (Resp. Br. 7) that closer inspection
reveals "the undeniable transcendence of the punitive substance over
the regulatory form."

   Salerno proposes (Resp. Br. 8-9) what amounts to a faulty
syllogism.  He notes that a criminal conviction results in punishment,
and that the typical punishment -- imprisonment -- prevents the
convicted defendant from committing future crimes;  he then concludes
that any attempt to detain a person to prevent him from committing
future crimes must therefore be punishment.  This argument suffers
from at least three basic flaws.

   First, as a matter of logic, the fact that a criminal sentence,
imposed for the purpose of punishment, results in incapacitation of
the convicted defendant does not mean that any attempt to incapacitate
a dangerous defendant must be punishment.  A court cannot ascribe a
punitive purpose to a particular restraint simply because a similar
restraint is also incident to criminal punishment.  See Wolfish, 441
U.S. at 538-539.  The proper question, instead, is whether a court can
reasonably find a valid regulatory purpose that supports the restraint
(id. at 539).

   Second, as a matter of experience, the measures imposed after a
conviction of crime need not be (and rarely are) imposed exclusively
for punitive purposes.  While criminal sentences are usually designed
to advance the basic punitive objectives of retribution and deterrence
(see, e.g., Wolfish, 441 U.S. at 539 n.20), they frequently also serve
purposes that are plainly regulatory, such as providing an offender
with basic health care and literacy skills or preventing a convicted
defendant from fleeing or committing further crimes.  See Hart, the
Aims of the Criminal Law, 23 Law & Contemp. Probs. 401 (1958).  Thus,
it is hardly surprising that pretrial detention, imposed for
regulatory purposes, may share certain of the regulatory features of a
criminal sentence.

   Third, as a matter of precedent, Salerno's basic argument is
inconsistent with Schall, which treated New York's pretrial detention
statute as regulatory, despite its similarity to a criminal sanction.
See 467 U.S. at 300-302 (Marshall, J., dissenting).  If pretrial
detention to prevent crime must necessarily be equated with
punishment, then New York's statute could not have survived this
Court's scrutiny.

   Salerno attempts to distinguish this case from Schall on various
grounds, none of which is convincing.  In the present case, as in
Schall, "(t)here is no indication in the statute itself that the
preventive detention is used or intended as a punishment" (467 U.S. at
269).  In this regard, Schall noted that "the detention is strictly
limited in time" (ibid.).  The New York statute required a probable
cause hearing within three days after the juvenile's initial
appearance, and it limited subsequent detention to an additional 14
days.  The Bail Reform Act also contains limits on the length of
detention.  It generally requires a detention hearing within five days
after the defendant's initial appearance (18 U.S.C. (Supp. II)
3142(f)), and it limits subsequent detention according to the
restrictions imposed by the Speedy Trial Act, 18 U.S.C. (& Supp. II)
3161 et seq.  See S. Rep. 98-225, 98th Cong., 1st Sess. 22 n.63
(1983).  Contrary to Salerno's suggestion, one cannot ascribe a
punitive intent to Congress's choice to utilize more flexible, but
still restrictive, time limitations.  /4/

   Schall also observed that the conditions of confinement imposed by
the New York statute "appear to reflect the regulatory purposes relied
upon by the State" (467 U.S. at 270), noting that the juvenile
detainee was generally kept apart from adult criminals (ibid.).  The
Bail Reform Act contains an analogous limitation, requiring that
pretrial detainees be placed in a "facility separate, to the extent
practicable, from persons awaiting or serving sentences or being held
in custody pending appeal" (18 U.S.C. (Supp. II) 3142(i)(2)).
Contrary to Salerno's assertions, one cannot infer a punitive intent
from the mere fact that there may be qualitative differences between
New York's juvenile facilities and the detention facilities in which
Salerno is being held.  /5/

   The regulatory purpose of the Bail Reform Act is also supported by
factors not present in the New York statute at issue in Schall.  The
Act provides that pretrial detention may be employed only as a last
resort, when "the judicial officer finds that no condition or
combination of conditions will reasonably assure * * * the safety of
any other person and the community" (18 U.S.C. (Supp. II) 3142(e)).
In addition, the Act specifically requires the judicial officer to
consider the personal characteristics of the defendant and the nature
and seriousness of the danger that would be posed by his release (18
U.S.C. (Supp. II) 3142(g)).  The Act thus expressly instructs courts
to apply the pretrial detention provisions in a non-punitive manner,
which provides additional checks against its possible application for
punitive purposes.  In sum, both the purposes of the Bail Reform Act
and its specific provisions refute Salerno's assertion that the
pretrial detention provisions are punitive in nature and therefore
cannot be applied in the absence of a criminal conviction.

   2. Salerno's second argument is that due process forbids the
regulatory detention of competent adult citizens under any
circumstances (Resp. Br. 15-33).  Salerno contends that the Due
Process Clause creates an insurmountable "constitutional wall" (id. at
16) that forbids the government from detaining potentially dangerous
persons except as a consequence of criminal conviction.  To permit the
detention of competent adults other than as a consequence of criminal
conviction, he claims, "would eradicate a heretofore sacrosanct line"
(id. at 4;  see also id. at 14).

   Although Salerno repeatedly invokes the constitutional rights of
"competent adults" and "competent adult citizens," /6/ the Due Process
Clause does not accord special privileges to the mentally or
emotionally impaired, minors, and aliens.  /7/ The reason that Salerno
has focused on the class of competent adult citizens is readily
apparent.  This Court has already decided that the Constitution does
not prohibit the government from employing regulatory detention in the
case of the mentally impaired (Addington v. Texas, 441 U.S. 418, 426
(1979)), juveniles (Schall & Martin, 467 U.S. at 281), and aliens
(Wong Wing v. United States, 163 U.S. at 235).  Salerno's
identification of a special class of "competent adult citizens" is
simply an attempt to avoid the force of those precedents.

   Salerno can point to no decision of this Court declaring that
competent adult citizens enjoy absolute freedom from regulatory
detention.  And he is forced to concede (Resp. Br. 22, 27-31) that
this Court already has recognized that competent adult citizens may be
detained for regulatory purposes in a variety of special
circumstances, such as during times of war (Korematsu v. United
States, 323 U.S. 214 (1944)) or civil insurrection (Moyer v. Peabody,
212 U.S. 78), to protect the public from contagious disease (Compagnie
Francaise de Navigation a Vapeur v. Louisiana State Board of Health,
186 U.S. 380, 387 (1902)), to complete proceedings incident to arrest
(Gerstein v. Pugh, 420 U.S. 103, 113-114 (1975)), to assure a
defendant's appearance at trial (Bell v. Wolfish, 441 U.S. at 534),
and to protect witnesses from harm (Carbo v. United States, 82 S. Ct.
662 (1962) (Douglas, Circuit Justice)).  Salerno attempts (Resp. Br.
23-32) to distinguish those cases on their facts.  But the labored
nature of the effort to gerrymander the case law to accord with his
"sacrosanct line" provides compelling evidence that no such line
exists.

   Salerno's rejection of any balancing of governmental and individual
interests is incompatible with the concept of substantive due process.
 The commands of due process reflect "'the balance which our Nation,
built upon postulates of respect for the liberty of the individual,
has struck between that liberty and the demands of organized
society.'" Moore v. City of East Cleveland, 431 U.S. 494, 501 (1977)
(plurality opinion) (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961)
(Harlan, J., dissenting)).

   The Court's approach to substantive due process review of
legislative action has been characterized both by restraint and by the
rejection of broad constitutional absolutes of the sort that Salerno
has proposed.  The limits on substantive due process "come not from
drawing arbitrary lines but rather from careful 'respect for the
teachings of history (and) solid recognition of the basic values that
underlie our society.'" Moore, 431 U.S. at 503 (footnote omitted)
(quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965) (Harlan,
J., concurring in judgment));  see, e.g., Ingraham v. Wright, 430 U.S.
651, 675 (1977);  Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123, 162-163 (1951) (Frankfurter, J., concurring);  Lochner v.
New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting).  "'No
formula could serve as a substitute, in this area, for judgment and
restraint.'" Moore, 431 U.S. at 501 (quoting Poe, 367 U.S. at 542
(Harlan, J., dissenting)).  See, e.g., Bowers v. Hardwick, No. 85-140
(June 30, 1986), slip op. 8;  Regents of the University of Michigan v.
Ewing, No. 84-1273 (Dec. 12, 1985), slip op. 1 (Powell, J.,
concurring);  cf. Shaughnessy v. United States ex rel. Mezei, 345 U.S.
206, 222 (1953) (Jackson, J., dissenting).  /8/

   A broad, absolutist approach of the sort Salerno proposes is no
more appropriate when the focus of the substantive due process
challenge is a restraint on liberty.  Due process recognizes the
"necessary accommodation between the individual's right to liberty and
the State's duty to control crime." Gerstein v. Pugh, 420 U.S. at 112.
 The inquiry in this case is therefore not amenable to categorical or
rhetorical answers of the sort that Salerno offers.  Instead, it
requires a determination whether the limited imposition on individual
liberty resulting from the Bail Reform Act can be justified by the
importance of the objective of community safety and the adequacy of
the Act's procedural safeguards.  /9/

   Salerno suggests (Resp. Br. 16-17, 32-33) that judicial approval of
the pretrial detention provisions at issue here will supplant familiar
elements of the present criminal justice system.  That contention
rests upon a mischaracterization of the Bail Reform Act.  Under the
Act, the criminal trial remains the "main event" (Wainwright v. Sykes,
433 U.S. 72, 90 (1977) in the criminal justice system.  The Act's
pretrial detention provisions are narrowly tailored to address a
specific problem, ancillary to and arising from the event:  the
documented practive of criminal defendants committing crimes while
awaiting trial.  Detention to prevent the commission of crimes pending
trial -- like detention to assure the defendant's appearance at trial
and the safety of witnesses -- is an adjunct of the criminal
adjudication that experience has proved is sometimes necessary to
secure the ultimate goals of justice.  The criminal charges and their
due resolution are the initiating and sustaining cause of the
detention.  /10/

   A statute containing sweeping provisions for incarcerating persons
thought to be "dangerous" -- without any resort to the criminal
justice system -- would obviously raise serious constitutional
difficulties.  We are confident that Congress would not enact, and
this Court would not tolerate, a statutory scheme that displaced the
criminal justice system and replaced it with a "dangerousness" system
in which any person found to be dangerous, after a civil or
administrative proceeding, could be imprisoned.  But a scheme
embodying such a conception does not even remotely correspond to the
conception or effect of the Bail Reform Act.  The provisions of the
Act in issue here are ancillary to the criminal justice system, not a
device for displacing it.

   Because of its limited ancillary role in the criminal justice
system, the Bail Reform Act does not, as Salerno suggests, threaten
the "right of every competent adult citizen of this country to
liberty" (Resp. Br. 4).  Beyond the limitation inherent in permitting
detention only in the course of an ongoing criminal proceeding,
Congress carefully restricted the pretrial detention provisions to a
narrow class of particularly dangerous criminal defendants who satisfy
specific statutory criteria.  See S. Rep. 98-225, 98th Cong., 1st
Sess. 6 (1983).  The pretrial detention provisions are applicable only
to defendants who are charged with (a) a crime of violence;  (b) an
offense that may result in a sentence of life imprisonment or death;
(c) certain serious drug-related crimes;  or (d) a felony, if the
defendant has previously been convicted of two or more serious crimes.
 18 U.S.C. (Supp. II) 3142(f)(1).  In addition, the government must
demonstrate, through clear and convincing evidence (18 U.S.C. (Supp.
II) 3141(f)), that the defendant is so dangerous that "no condition or
combination of conditions will reasonably assure * * * the safety of
any other person and the community" (18 U.S.C. (Supp. II) 3142(e)).
/11/

   Salerno concedes (Resp. Br. 21-22) that the government may detain a
criminal defendant (even a competent adult citizen) to prevent him
from fleeing or tampering with witnesses.  He suggests, however, that
detention is permissible only where "the judicial process itself will
be thwarted" (Resp. Br. 22).  As we note in our opening brief (Br.
24-25), this distinction is both artificial and unreasonable.  Salerno
fails to explain, except by rhetorical ipse dixit (Resp. Br. 8 n.4,
14, 15, 29, 32-33) why regulatory detention may be employed to protect
the judicial process, but not, under any circumstances, to protect the
people whom the process serves.

   The Bail Reform Act breaks new ground only in its attempt to deal
with the problem of pretrial crime candidly and responsibly.  Pretrial
detention to prevent crime, like detention to assure presence at trial
and to prevent tampering with witnesses, is a necessary and reasonable
response to the inevitable delays that accompany a fair adjudication
of criminal charges.  If it were possible to try a criminal case
immediately upon the filing of charges, or if it were possible to keep
account of and control a defendant pending trial, there would be no
need for pretrial detention.  But as crime has increased, both in
volume and seriousness, as society has become more mobile, anonymous,
and vulnerable to criminal depredations, and as criminal procedure has
grown more complex, that ideal has become increasingly unattainable.
Practical realities accordingly require pretrial detention in certain
limited circumstances, including those cases where clear and
convincing evidence shows that pretrial release would pose a grievous
threat to the public safety and the government is moving with dispatch
toward a final determination of the criminal charges.  /12/

   At bottom, Salerno fails to confront the grim realities of pretrial
crime.  He apparently believes, like the court of appeals (Pet. App.
20a), that society must release criminal defendants, no matter how
grave the threat to community safety, and must simply accept the
resulting risks.  He gives no answer to Judge Feinberg's all too real
hypothetical case (Pet. App. 28a) of an avowed (and perhaps suicidal)
terrorist whose will is bent upon public mayhem, except to assure us
that release conditions and surveillance "will permit the government
to intervene * * * without awaiting the actual happening of the feared
event" (Resp. Br. 50 n.42).  /13/ We cannot believe that the
government, having once thwarted a terrorist's plan, must release him
and gamble -- upon a wager of human life -- that it can interdict him
once again.  Due process should not prohibit a court from concluding
that the stakes are too high to brave that risk.

   3. As his final argument, Salerno contends that the Bail Reform
Act's procedures are constitutionally inadequate.  This argument is
plainly insubstantial.  Salerno fails to identify any procedural
shortcomings that, either singularly or in combination, would justify
a facial invalidation of the statute.  As our opening brief explains
(Br. 35-39), Congress adopted rigorous procedural safeguards governing
pretrial detention.  Those procedures are plainly "adequate to
authorize the pretrial detention of at least some (persons) charged
with crimes" (Schall, 467 U.S. at 264);  the procedures therefore meet
the requirement for a finding of facial validity.

   As Salerno concedes, "this particular case presents no procedurally
based challenges to the act's constitutionality" (Resp. Br. 33-34
n.27).  Salerno does not dispute the finding, made by the district
court and affirmed by the court of appeals, that the statutory
criteria for detention were amply satisfied in his case.  Nor does he
suggest that any of the alleged procedural shortcomings would have
changed the outcome of the detention proceedings.  Instead, he
contends that the statutory language is vague and subject to overbroad
application (id. at 34-37), and that the statute, as applied, may
provide others with inadequate notice and opportunity for
confrontation (id. at 37-42).  We disagree.  But in any event, as this
Court noted in Schall (467 U.S. at 268-269 n.18):

         More fundamentally, this sort of attack must be made on a
      case-by-case basis.  United States v. Raines, 362 U.S. 17, 21
      (1960).  The Court will not sift through the entire class to
      determine whether the statute was constitutionally applied in
      each case.  And, outside the limited First Amendment context, a
      criminal statute may not be attacked as overbroad.  See New York
      v. Ferber, 458 U.S. 747 (1982).

   Salerno also argues that the Act should require that the defendant
be given an opportunity to challenge the grand jury's finding of
probable cause (Resp. Br. 42-43) and that his dangerousness be
determined by proof beyond a reasonable doubt rather than by clear and
convincing evidence (id. at 44-46).  /14/ But once again, Salerno does
not contend that these statutory modifications would have made any
difference to the outcome of his case.

   4. The findings of the two courts below -- which Salerno does not
challenge -- show the respondents to be lethally dangerous,
unrestrained by any inhibition of conscience, and consummately shrewd
and efficacious.  The government has obtained an indictment and is
proceeding to trial.  The public, in the interim, can justifiably
demand protection.  It is conceded that the government may employ
regulatory detention to protect the safety of participants in the
trial process.  And it is conceded that the government could restrain
a person found dangerous by reason of derangement or illness.  The
Bail Reform Bail Act authorizes the same measure of protection on an
interim basis, directly tied to a timely prosecution of persons shown
by clear and convincing evidence to be dangerous because their will
and self-control are firm and committed to public evil.  What
respondents and the court below would have us believe is that the
Constitution absolutely denies society that protection.  This is not a
sensible proposition.

   For the foregoing reasons and the reasons stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JANUARY 1987

   /1/ Respondent Cafaro has not filed a separate brief.  Since the
petition was granted, there have been several developments pertinent
to this case.  On November 19, 1986, Salerno was convicted in an
unrelated extortion case and is presently awaiting sentencing.  The
district court in that case has not yet committed Salerno to the
custody of the Attorney General.  Thus, Salerno remains under pretrial
detention in the present case, and the validity of that detention
continues to present a live controversy.  On October 8, 1986, Cafaro
was temporarily released for medical treatment.  Because he is still
subject to the pretrial detention order, Cafaro's case also continues
to present a live controversy.  The government recently returned a
superseding indictment against Salerno and Cafaro in the present case,
and the trial is presently scheduled to begin on March 20, 1987.

   /2/ Furthermore, Judge Newman noted in United States v.
Melendez-Carrion, 790 F.2d 984, 999-1000 (2d Cir. 1986), that the
legislative history of the Bail Reform Act makes it clear that
Congress intended pretrial detention to serve a regulatory rather than
a punitive purpose.  See also id. at 1007 (Feinberg, J., concurring);
id. at 1014 (Timbers, J., dissenting).  Every other court that has
addressed the issue has concluded that the pretrial detention
provisions are regulatory and not punitive.  See United States v.
Zannino, 798 F.2d 544, 547-548 (1st Cir. 1986);  United States v.
Perry, 788 F.2d 100, 109 (3d Cir. 1986), cert. denied, No. 86-5172
(Oct. 6, 1986);  United States v. Portes, 786 F.2d 758, 767 (7th Cir.
1985);  United States v. Maull, 773 F.2d 1479, 1485 (8th Cir. 1985)
(en banc);  United States v. Jessup, 757 F.2d 378, 385 (1st Cir.
1985);  United States v. Freitas, 602 F. Supp. 1283, 1290-1291 (N.D.
Cal. 1985);  United States v. Kouyoumdjian, 601 F. Supp. 1506, 1511
(C.D. Cal. 1985);  United States v. Hazzard, 598 F. Supp. 1442, 1451
(N.D. Ill. 1984).  The "punishment" argument was raised by the
defendants and implicitly rejected in United States v. Simpkins, 801
F.2d 520 (D.C. Cir. 1986) (Table) (per curiam;  opinion to be filed),
and in United States v. Walker, 805 F.2d 1042 (9th Cir. 1986) (Table)
(per curiam;  opinion to be filed).  See also United States v.
Edwards, 430 A.2d 1321, 1332-1333 (D.C.  App. 1980) (en banc), cert.
denied, 455 U.S. 1022 (1982).

   /3/ Salerno suggests that "the true measure of the punitive purpose
of Section 3142" is found in the floor debates (Resp. Br. 5 n.1).  He
notes Senator Mitchell's criticism of Senator Thurmond's supposed
rhetorical question "'Do you want to turn a lot of people loose who
are guilty?'" (130 Cong. Rec. S944 (daily ed. Feb. 3, 1984)).  That
quotation is doubly misleading.  First, Senator Mitchell himself
agreed that preventive detention serves a legitimate regulatory
purpose (id. at S939) and joined 83 other senators in voting in favor
of the Bail Reform Act (id. at S947).  Second, Senator Mitchell
misquoted Senator Thurmond.  Senator Thurmond actually asked, "what do
we want to do, turn a dangerous man or a potential fugitive loose?"
(id. at S941).

   /4/ The legislative history indicates that Congress adopted the
Speedy Trial Act time limits not as "a clear manifestation of punitive
intent" (Resp. Br. 9-10 n.6) but rather to provide a measure of
flexibility in response to the difficulties in bringing large-scale
drug trafficking cases and other complex cases to trial within 60
days.  See 130 Cong. Rec. S941-S945 (daily ed. Feb. 3, 1984).  Salerno
argues (Resp. Br. 9-10 n.6) that the time limits imposed by the Speedy
Trial Act are largely illusory, selectively citing exceptional cases
that have resulted in unusually long delays.  Those unrepresentative
cases cannot support a facial challenge to the constitutionality of
the Bail Reform Act.  Indeed, the courts have uniformly recognized
that a defendant may not be detained indefinitely, and that
constitutional challenges to the length of pretrial detention in
particular cases must be determined in light of the facts of each
individual case.  See, e.g., Pet. App. 30a-32a (Feinberg, J.,
dissenting);  United States v. Zannino, 798 F.2d 544, 548 (1st Cir.
1986) (per curiam);  United States v. Acceturo, 783 F.2d 382, 387-388
(3d Cir. 1986);  United States v. Portes, 786 F.2d 758, 768 & n.14
(7th Cir. 1986).  Salerno also cites a statistic (Resp. Br. 9-10 n.6)
that 307 defendants were detained for more than 151 days in 1985.
That figure (even if it is assumed to be numerically correct)
apparently includes both defendants who were ordered detained and
those who were granted conditional release but were unable to meet the
specified bail conditions.  Among those detained by order, only a
fraction would have been detained on the ground of dangerousness.
(The Justice Department's informal statistics for fiscal year 1986
indicate that roughly 47% of Bail Reform Act detention orders are
based on risk of flight alone, 38% are based on both risk of flight
and danger to the community, and only 15% are based solely on danger
to the community.) Thus, the number of persons detained solely on the
grounds of dangerousness for more than 151 days appears to be quite
small.

   /5/ There is no support in the record for Salerno's contentions
that pretrial detainees are generally subjected to "onerous"
conditions of confinement (Resp. Br. 11) or that "the segregation of
pretrial detainees from sentenced prisoners has generally led to
harsher rather than more benign conditions of confinement" (id. at 11
n.7).  The fact that pretrial detention interferes with the detainee's
"understandable desire to live as comfortably as possible and with as
little restraint as possible during confinement does not convert the
conditions or restrictions of detention into 'punishment.'" Wolfish,
441 U.S. at 537.

   /6/ Resp. Br. 1, 2, 3, 4, 5, 8 n.4, 11, 14 & n.10, 15, 25, 26, 28,
32, 33, 34.

   /7/ Notably, this Court's decisions have shown special concern for
according equal protection to children (e.g., Plyler v. Doe, 457 U.S.
202 (1982)), the mentally and emotionally handicapped (e.g., City of
Cleburne v. Cleburne Living Center, Inc., No. 84-468 (July 1, 1985)),
and aliens (e.g., Takahashi v. Fish and Game Comm'n, 334 U.S. 410
(1948)).

   /8/ Salerno maintains (Resp. Br. 17-19) that pretrial detention
based on perceived dangerousness is foreign to American jurisprudence
and therefore unconstitutional.  His reading of history and his
conclusion, however, are both mistaken.  As we explained in our
opening brief (Br. 28 n.14), both federal and state courts have
traditionally been empowered to restrain dangerous persons through the
common law remedy of "holding to security of the peace." See 4 W.
Blackstone, Commentaries *248-252.  Moreover, although the English
authorities do not shed much light on the matter, there is some
indication that by the 18th century, bail was being denied in criminal
cases in part for reasons of public safety.  See A. Highmore, Digest
of the Doctrine of Bail vii (1783) (bail may be denied so that "the
safety of the people should be preserved against the lawless
depredations of attrocious offenders").  And as we noted in our
opening brief (Br. 30-33), before the 1984 Act the federal courts
regularly detained dangerous persons through the sub rosa practice of
setting unattainably high financial conditions for release.  See,
e.g., H.R. Rep. 91-907, 81st Cong., 2d Sess. 83-85 (1970).  Thus, it
is simply inaccurate to state that pretrial detention is foreign to
American law.  In any event, pretrial detention certainly is not "a
grotesque anomaly unknown in civilized societies" (Resp. Br. 13).
Many of the world's most respected democracies, including France,
Great Britain, and West Germany, employ pretrial detention to prevent
defendants from committing crimes while awaiting trial.  Note,
Preventive Detention:  A Comparison of European and United States
Measures, 4 N.Y.U.J. Int'l L. & Pol. 289, 292-303 (1971).  The
European Convention for the Protection of Human Rights and Fundamental
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221, specifically authorizes
pretrial detention of an individual "for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so"
(art. 5(c), 213 U.N.T.S. 226).

   /9/ At one point Salerno seems to concede his own per se argument.
He notes (Resp. Br. 49-50) that concern for community safety has led
to a requirement that a defendant give assurance of his good behavior;
 if the defendant violates the terms of that assurance, he can then be
restrained.  But unless that restraint requires a full dress criminal
trial and conviction, Salerno has, in effect, acknowledged the
legitimacy of pretrial detention at least for defendants who have
violated the terms of their conditional release.

   /10/ This explains why Salerno's discussion of the constitutional
difficulties in detaining a dangerous person after acquittal on a
technicality or after completion of a sentence is beside the point.
In neither case would detention be ancillary to a pending criminal
prosecution.  Notably, no congressman, to our knowledge, has ever
proposed a general regime permitting preventive detention in the
absence of pending criminal charges.  We find it highly improbable
that Congress would ever attempt such genuinely troubling legislation.
 Legislation authorizing the preventive detention of an individual in
the absence of pending criminal charges might conceivably be
permissible (see, e.g., Korematsu v. United States, supra;  Moyer v.
Peabody, supra), but it would require a most extraordinary
justification.

   /11/ Respondent suggests (Br. 35, n.28) that the courts, in
applying the Bail Reform Act's statutory criteria, have engaged in
"grotesque distortions" of the statute's limiting language.  That
claim, even if it were true, could not support an attack on the facial
validity of the statute.

   /12/ Indeed, we believe that Congress's willingness to confront the
need for pretrial detention openly and honestly is laudable and long
overdue.  Prior to the Bail Reform Act, pretrial detention shared the
same heritage as plea bargaining;  the courts, driven by necessity,
employed it through "a sub rosa process shrouded in secrecy and
deliberately concealed" (Blackledge v. Allison, 431 U.S. 63, 76
(1977)).  Congress has rightly recognized that pretrial detention,
like plea bargaining, is a legitimate component in the administration
of justice provided that it is applied visibly, candidly, and thereby
subject to judicial supervision and control.  Cf. ibid.; Santobello v.
New York, 404 U.S. 257, 260 (1971) ("The disposition of criminal
charges by agreement * * * is an essential component of the
administration of justice.  Properly administered, it is to be
encouraged.");  Fed. R. Crim. P. 11.

   /13/ At the same time, Salerno qualifies his enthusiasm for that
alternative by telling us that the imposition of "restrictive release
conditions solely upon the ground of anticipated future dangerousness
is not itself free from constitutional difficulty" (Resp. Br. 37.
n.30).

   /14/ He adds, however, that "(t)his is not, of course, to suggest
that a preventive detention statute incorporating these procedural
protections would pass constitutional muster." (Resp. Br. 48).