Is it constitutional for the government to lock up people without waiting to convict them at trial? If it is, what are the limits on the government's power to lock up anyone it deems dangerous? These are issues raised by preventive detention provisions in bail statutes, and addressed in United States v. Salerno. The controversy about these bail statutes, once so hotly contested, has died down. But the broader questions about the government's power to detain suspected criminals without giving them the benefit of full criminal process remain unresolved, and have taken on a new urgency as the nation confronts the threat of more terrorist attacks. This essay, intended as a chapter in the Criminal Procedure Stories volume, explores the story of Salerno and of the doctrinal analysis that emerged from it.
Daniel C. Richman,
The Story of United States v. Salerno: The Constitutionality of Regulatory Detention,
Fordham Legal Studies Research Paper No. 82
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1361