United States v. Montalvo-Murillo/Dissent Stevens

by John Paul Stevens

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

This case involves two lawbreakers. Respondent, as the Court repeatedly argues, ante, at 713, 716, 721, failed to appear after his release on bail, an apparent violation of 18 U.S.C. § 3146. Even before that, however, the Government imprisoned respondent without a timely hearing, a conceded violation of § 3142. ^[1] In its haste to ensure the detention of respondent, the Court readily excuses the Government's prior and proven violation of the law. I cannot agree.

* Before examining the consequences that follow from the Government's violation of § 3142, it is well to remember the magnitude of the injury that pretrial detention inflicts and the departure that it marks from ordinary forms of constitutional governance. Executive power to detain an individual is the hallmark of the totalitarian state. Under our Constitution the prohibition against excessive bail, ^[2] the Due Process Clause of the Fifth Amendment, ^[3] the presumption of innocence ^[4]-indeed, the fundamental separation of powers among the Legislative, the Executive and the Judicial Branches of Government ^[5]-all militate against this abhorrent practice. Our historical approach eschewing detention prior to trial reflects these concerns:

"From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 [15 S.Ct. 450, 453, 39 L.Ed. 424] (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951).

Sections 3142(e) and (f), allowing limited detention of arrestees, were enacted against this historical backdrop. Bail Reform Act of 1984, Pub.L. 98-473, 98 Stat.1976, 18 U.S.C. §§ 3142(e), (f). Congress carefully prescribed stringent procedures to govern this extraordinary departure from the guarantee of liberty normally accorded to presumptively innocent individuals. ^[6] Accordingly, when this Court upheld the constitutionality of these provisions of the Bail Reform Act, it assumed that pretrial detention would be imposed only on those arrestees "found after an adversary hearing to pose a threat . . . which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 2105, 95 L.Ed.2d 697 (1987). ^[7]

Section 3142(e) permits pretrial detention only "[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Subsection (f) in turn sets forth specific deadlines, chosen "in light of the fact that the defendant will be detained during such a continuance," S.Rep. No. 98-225, p. 22, U.S.Code Cong. & Admin.News 1984, p. 3205 (1983), within which a detention hearing must be held:

"The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days." 18 U.S.C. § 3142(f)(2).

There was no such hearing-or finding of good cause for continuance-when respondent was arrested on February 8, 1989, when he first appeared before a Northern District of Illinois Magistrate on February 10, or when the New Mexico Magistrate convened the parties on February 16. No court considered the basis of detention until February 21, after respondent had been incarcerated for 13 days. ^[8]

Congress' specification of the timing of detention hearings defines one boundary of the courts' power to order pretrial detention. "Because detention may be ordered under section 3142(e) only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial." S.Rep. No. 98-225, at 20, U.S.Code Cong. & Admin.News 1984, p. 3203. The clear terms of the statute demand strict adherence. See Hallstrom v. Tillamook County, 493 U.S. 20, 25-31, 110 S.Ct. 304, 308-311, 107 L.Ed.2d 237 (1989) (holding notice and 60-day delay requirements mandatory conditions precedent to commencing suit under 42 U.S.C. § 6972); cf. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (Fed. Rule App.Proc. 4(a)(4) stating that a premature notice "shall have no effect" is mandatory and jurisdictional). ^[9]

A federal prosecutor should have no difficulty comprehending the unequivocal terms of § 3142(f)(2) and complying with its deadlines by proceeding or obtaining a proper continuance at the arrestee's first appearance. The rare failure to meet the requirements of subsection (f) will mean only that the Government forfeits the opportunity to seek pretrial detention in that case. Because the provisions of § 3142(f)(2) are a prerequisite only for hearings to consider this particular form of pretrial action, the prosecutor still may seek any conditions of release that are "reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." § 3142(c)(1)(B)(xiv). The range of options-the sole safeguards that were available in cases prior to the creation of the special detention provisions in 1984-remain viable.

The Court, however, concludes that no adverse consequences should flow from the prosecutor's violation of this plain statutory command. Treating the case as comparable to an agency's failure to audit promptly a grant recipient's use of federal funds, see Brock v. Pierce County, 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), the Court concludes that there is no reason to penalize the public for a prosecutor's mistake. If a belated hearing eventually results in a determination that detention was justified, the error has been proved harmless. The Court apparently discards the possibility that the hearing might result in a determination that the arrestee is eligible for release-as the Magistrate so determined in this case-or that detention of any arrestee before establishing the legality of that intrusion on liberty could "affect substantial rights." 876 F.2d 826, 829 (CA10 1989); Fed. Rule Crim.Proc. 52(a). A harmless-error analysis fails to appreciate the gravity of the deprivation of liberty that physical detention imposes and the reality that "[r]elief in this type of case must be speedy if it is to be effective." Stack, 342 U.S., at 4, 72 S.Ct., at 3.

This casual treatment of official violations of law is disturbing in itself, but it is particularly troubling because it treats the pretrial detention statute as just another routine species of Government regulation of ordinary civilian affairs. ^[10] The Court asserts that the requirements of § 3142(f) are in the category of statutory requisitions that do not limit the power of Government officers. Ante, at 717-718 (citing French v. Edwards, 13 Wall. 506, 511, 20 L.Ed. 702 (1872)). But the French Court also identified, and in fact applied, the opposite characterization of the procedural requirements of the sheriff's sale there at issue. It held that laws "intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, . . . are not directory but mandatory," concluding that such requisitions "must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." Id., at 511 (emphasis added). The grant of power that Congress gave courts to assess and enforce pretrial detention under §§ 3142(e) and (f) is also of a mandatory nature. ^[11]

As Congress recognized, the magnitude of the injury inflicted by pretrial detention requires adherence to strict procedural safeguards that cannot be sacrificed in the name of community safety. While the Court regards any arrestee as "a person who presumptively should be detained under § 3142(e)" and as "a suspect certain to flee from justice," ante, at 717, 721, I believe-and the Act reflects-that a new arrestee is initially presumed eligible for release no matter how guilty a prosecutor may believe him to be. Section 3142(e) recognizes that certain characteristics of the offense or arrestee may support a rebuttable presumption that no conditions of release exist, but such a presumption arises only "if such judicial officer finds" that those conditions do exist. (Emphasis added.) The magistrate's say-so cannot make his reasoning any less of a bootstrap. A late detention hearing does not become permissible on the basis of a presumption that cannot exist until after the hearing is held.

Congress has written detailed legislation in a sensitive area that requires the Government to turn square corners. The Court today, however, permits federal prosecutors to violate the law with impunity. I agree with Justice SCALIA's observation that strict compliance with such rules may appear to "frustrat[e] justice in the particular case," but

"[w]ith technical rules, above all others, it is imperative that we adhere strictly to what we have stated the rules to be. A technical rule with equitable exceptions is no rule at all. Three strikes is out. The State broke the rules here, and must abide by the result." Jones v. Thomas, 491 U.S. 376, 396, 109 S.Ct. 2522, 2533, 105 L.Ed.2d 322 (1989) (dissenting opinion).

I respectfully dissent.

Notes

1. Respondent's absence is irrelevant to the merits of the question upon which we granted certiorari. Its only bearing on this case is that it counsels utmost caution in our consideration because the adversarial character of the litigation may have been compromised. See United States v. Sharpe, 470 U.S. 675, 721, 105 S.Ct. 1568, 1594, 84 L.Ed.2d 605 (1985) (STEVENS, J., dissenting).
2. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.C.onst., Amdt. 8.
3. We have recognized that delay of a hearing related to detention itself can violate constitutional guarantees of due process. See Gerstein v. Pugh, 420 U.S. 103, 125-126, 95 S.Ct. 854, 868-869, 43 L.Ed.2d 54 (1975) (state pretrial detention requires a "timely judicial determination" of probable cause before or promptly after arrest); cf. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484 (1972) (preliminary hearing is required "promptly after a parole violator's arrest); id., at 488, 92 S.Ct., at 2603 (parole revocation hearing "must be tendered within a reasonable time after the parolee is taken into custody").
4. "It is not a novel proposition that the Bail Clause plays a vital role in protecting the presumption of innocence. Reviewing the application for bail pending appeal by members of the American Communist Party convicted under the Smith Act, 18 U.S.C. § 2385, Justice Jackson wrote:
5. In limiting the construction of 18 U.S.C. § 3147, which prescribes punishment for crimes committed by persons on pretrial release, we recognized that balancing among various policy objectives was the job of Congress:
6. Both Houses of Congress were aware of the necessity of procedural protections:
7. The unique dangers posed by any detention provision were more fully described by Justice MARSHALL in his dissenting opinion in Salerno:
8. Even the statutory provision applicable to arrestees who are aliens, pretrial releasees, or parolees allows detention only "for a period of not more than ten days" after proper judicial determination. 18 U.S.C. § 3142(d). The Senate recognized that "a deprivation of liberty of up to ten days is a serious matter," but allowed the longer period "to give the government time to contact the appropriate court, probation, or parole official, or immigration official and to provide the minimal time necessary for such official to take whatever action on the existing conditional release that official deems appropriate." S.Rep. No. 98-225, at 17, U.S.Code Cong. & Admin.News 1984, p. 3200.
9. It is unnecessary to determine whether the time provisions of § 3142 actually create a jurisdictional bar, see Hallstrom, 493 U.S., at 31, 110 S.Ct., at 311, nor is the question of the effect of violations of other provisions of § 3142(f) before us. The Court itself recognizes the possibility that "some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute 'a hearing pursuant to the provisions of subsection (f)' for purposes of § 3142(e)," although it fails to identify what standards it would design to replace those stated by Congress. Ante, at 717. See also ante, at 720 (suggesting that "accident[s] of noncompliance" and "errors" are excusable); ante, at 721 (suggesting that "other remedies may exist . . . for conduct that is aggravated or intentional").
10. The Court seems satisfied to allow detention to continue without any hearing at all, unless the arrestee demands the proceeding that is the prosecutor's duty to instigate. The implication that an arrestee-who may well have just met temporary counsel at the first appearance-should be responsible for divining the Government's intent to move for detention and for initiating a timely hearing under § 3142(f) is absurd.
11. The Court vigorously declines to "satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits," in the belief that compliance can be presumed "without the threat that we must embarrass the system by releasing a suspect certain to flee from justice." Ante, at 721. This analysis incorrectly assumes that the courts have discretion over such matters. Congress has "perceived" the need to ensure that detention hearings are held promptly and has shouldered the responsibility for any "embarrassment" by precisely defining the authority of courts to order pretrial detention.