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Court limits bail right. Supreme Court ruling cuts into cherished US tradition of releasing accused on bond

The United States Supreme Court, in authorizing preventive detention in a 6-to-3 ruling, has taken a decisive stand that places public safety above individual rights. In what could well be one of the most important criminal-justice decisions of this term or any, the justices ruled yesterday that law enforcement agencies may hold potentially dangerous defendants without bail before trial. Up to now, bail has usually been denied only if there was a strong indication that the defendant would flee if not imprisoned.

This case, United States v. Salerno, had symbolized to many the ongoing struggle between police and civil libertarians on the proper balance between community protection and individual rights. Its adjudication is seen as a major victory for the Reagan administration's announced crackdown on crime.

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Judicial analyst L. Anita Richardson points out that this ruling could become ``a model for state as well as federal courts'' in handling drug-related cases and others involving violence. Miss Richardson, who works for the Supreme Court of Illinois, says that it ``tips the balance against individual liberty ... despite the presumption of justice.''

Tuesday's finding, along with the high court's recent ruling to allow the death penalty even if there is evidence that it is applied in a racially biased manner, indicates a consistent stance by the court under the leadership of Chief Justice William Rehnquist to take a hard line with those accused of serious crimes.

In recent years a moderate-to-conservative court has narrowed rights of the criminally accused by allowing exceptions to the exclusionary rule and so-called Miranda protections. The former requires the disregarding of evidence improperly or illegally gathered by the police. The latter guarantees that the accused be informed of certain individual protections - such as the right to a lawyer and the right to avoid self-incrimination.

In cases in which these safeguards have been relaxed, the Supreme Court has often reasoned the need for public safety outweighs individual rights.

Chief Justice Rehnquist, writing for the majority in the preventive-detention matter, upheld portions of a 1984 act of Congress, and he built upon this rationale: ``Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals. ``Congress instead perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal,'' the chief justice said.

He further explained that the US Constitution does not require that judicial decisions on bail be tied exclusively to preventing a defendant from fleeing before trial. Mr. Rehnquist, noting that the Eighth Amendment forbids excessive bail, said: ``We believe that when Congress has mandated detention on the basis of a compelling interest other than the prevention of flight, as it has here, the Eighth Amendment does not require release on bail.''

Dissenting from the majority were Associate Justices William Brennan, Thurgood Marshall, and John Paul Stevens.

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Justice Marshall, an unswerving advocate of individual rights in almost any situation, scored laws imposing preventive detention as ``consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state....''

Marshall also insisted that such pretrial restraints ``have long been thought incompatible with the fundamental human rights protected by our Constitution.''

Tuesday's ruling reversed the US Court of Appeals for Second Circuit, which ruled 2 to 1 last July that it was unconstitutional to hold a defendant in jail before trial ``simply on the ground that he is likely to commit a crime.''

Judge Amalya L. Kearse said that ``even the probability that a convicted criminal will again engage in crime does not sanction his incarceration simply in anticipation of such future crimes.''

This case involved Anthony Salerno, a reputed Mafia boss, and Vincent Cafaro, the alleged captain of a crime syndicate. The two have been held since March 1986 without bail on the basis that their underworld connections made them dangerous to the community.

The appellate court had determined that there was no evidence that the defendants presented a danger to the public safety of witnesses. It did keep them behind bars, however, pending yesterday's Supreme Court finding. Mr. Salerno and Mr. Vincent had been convicted in a separate case of criminal activities involving violence in connection with loan sharking, gambling, and labor union extortion.

In a another ruling Tuesday relating to criminal justice and public safety, the justices voted 6 to 3 that federal jurists should consider community safety before ordering the release of a criminal defendant whose state court conviction they overturn.

The case involved a New Jersey man accused of sexual assault. He was released because of improper judicial procedure, but an appeal by the state is pending. Rehnquist stressed the potential danger the prisoner posed to the community.

In a May 27 Monitor article on a US Supreme Court ruling on detention without bail, L. Anita Richardson was quoted as saying the decision ``tips the balance against individual liberty ... despite the presumption of justice.'' The phrase should have been ``presumption of innocence.'' The Monitor regrets the error.

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