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Protective custody: When does it violate a defendant's rights?

THE new, hard-line position on criminal justice in the United States is raising a whole new set of issues - and problems. It's all well and good for the public to cheer the passage of tough anticrime legislation and herald Supreme Court rulings that narrow the rights of the accused.

But it's those on the line - law enforcement officers, judges, and prison authorities - who have the difficult task of using these decisions. And under our democratic system, any course of action must take into consideration protection for both the individual and society.

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A key test of workability comes in the area of preventive detention. The theory seems sound: For the protection of society (and perhaps even for the safety of defendants), keep confined those awaiting trial who are likely to commit violent acts if out on bail.

In practice, however, it's much more complicated. There's the question of the individual civil rights of the accused, to say nothing of the underlying concept in a free society that someone is presumed innocent until proved guilty.

Then there is the issue of setting up some sort of judicial guidelines to determine who should be incarcerated while awaiting trial and who should not. Finally, there must be consideration of clean and safe holding facilities. This is important in lieu of widespread reports of assaults, sometimes sexual, on those in custody awaiting trial. Juveniles seem to be particularly vulnerable to this type of violence.

In October, President Reagan signed into law the Comprehensive Crime Control Act of 1984 after a heated congressional battle, during which opponents unsuccessfully argued that parts of the measure violated the guarantees of due process of law and the presumption of innocence until proven guilty. Prosecutors in many large cities across the nation soon began to invoke the new preventive-detention plank in federal cases where adults were accused of involvement with drugs, bank robberies, and other violent crimes. Repeat offenders in particular are being singled out for pretrial custody.

This provision, which overhauls the Bail Reform Act of 1966, allows judges to make their pretrial detention or release rulings based on evaluations of whether a defendant is likely to jump bail and how such action might affect public safety. Previously, protection of the community was rarely considered in preventive-detention decisions, and only in murder cases.

A recent spot survey in five cities - Boston, Detroit, Los Angeles, New York, and Philadelphia - by the National Law Journal revealed that, while prosecutors are more frequently requesting preventive detention, they realistically expect constitutional challenges when the new law is applied. Defendants are allowed the opportunity for a detention hearing - as well as judicial review of a resulting decision. Some legal observers say this potentially lengthy process may cool the ardor of some federal lawyers seeking pretrial incarceration.

While preventive detention for adults will continue to be debated and may lead to a spate of new litigation, the question of holding juveniles in custody is even more controversial.

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Last June the US Supreme Court ruled that a suspected juvenile offender may be detained while awaiting trial if there is a likelihood that he or she may commit another offense if released.

In upholding a New York statute, the court said the practice was ''regulatory'' and ''not punitive'' and thus not in violation of the ''fundamental fairness'' required by the due-process clause of the 14th Amendment. The rationale was that society was protected from crimes an underage suspect might commit if released and that, in turn, the juvenile was protected from physical injury which might be incurred during arrest and from being further ensnared in the web of criminal acitivity.

But David Lambert, an attorney for the National Center for Youth Law, says the court's ruling has the effect of authorizing confinement not for crimes already committed but for those that might be committed in the future. He implies that this type of crystal-ball-gazing puts an unfair burden on the judiciary and could lead to illegal curtailment of individual rights.

Mr. Lambert's recommendations:

* Specific criteria to help a judge decide whether pretrial detention is appropriate in a given case.

* Investigation of conditions and physical surroundings of confinement (in some jurisdictions, jail overcrowding has led to incarceration in unsafe areas and to illegal placement of youths in the same cell with adults).

* Emphasis on placing youths in the least restrictive settings possible.

These are reasonable requirements.

Preventive detention may be necessary for both adults and juveniles in specific cases. But it should not be used indiscriminately. A system that would run roughshod over individual rights on the rationale that it was protecting society must not be left unchecked.

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