The Yale Law Journal

January 2018

Dangerous Defendants

Criminal ProcedureCriminal Law

abstract. Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but it also forces the criminal justice system to confront a difficult question: what statistical risk that a person will commit future crime justifies short-term detention—if any does? What about lesser restraints on liberty, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has raised concern in some quarters, the debate so far has largely ignored this foundational question.

One way of thinking about what level of crime risk justifies restraint is to ask whether the answer is different for defendants than for anyone else. It is generally assumed that defendants are a special case, exempt by virtue of pending charges from otherwise applicable protections against preventive interference. This Article challenges that assumption. It argues that, for purposes of restraint for general dangerousness, there is no clear constitutional, moral, or practical basis for distinguishing defendants from non-defendants who are equally dangerous. There is thus no basis to conclude that the risk standard for such restraint should be different for defendants than for anyone else.

author. Assistant Professor of Law, University of Georgia School of Law. For extremely helpful input, I am indebted to Laura Appleman, David Ball, Shima Baradaran Baughman, Richard Berk, Mitchell Berman, Stephanos Bibas, Kiel Brennan-Marquez, Jessica Eaglin, Barry Friedman, Lauryn Gouldin, Rachel Harmon, Paul Heaton, John Hollway, Mark Houldin, Douglas Husak, Samuel Issacharoff, Orin Kerr, Seth Kreimer, Jim Jacobs, Craig Konnoth, Joanna Langille, Sophia Lee, Youngjae Lee, Richard Lippke, Stephen Morse, Anna Roberts, David Rudovsky, Tim Schnacke, Larry Schwartztol, Jocelyn Simonson, Megan Stevenson, Alec Walen, Rebecca Wexler, Sam Wiseman, participants of the University of Pennsylvania Fellows’ Workshop, participants of the Quattrone Center’s Lunch Workshop Series, attendees of the bail panel at CrimFest 2016, and attendees of faculty presentations at Berkeley Law, Boston University School of Law, Brooklyn Law School, Louisiana State University Paul M. Hebert Law Center, Roger Williams University School of Law, Rutgers Law School, Sandra Day O’Connor College of Law, Southern Methodist University Dedman School of Law, University of Georgia School of Law, and University of Utah S.J. Quinney College of Law. For institutional support, I am grateful to University of Pennsylvania Law School, the Quattrone Center for the Fair Administration of Justice, and University of Georgia School of Law. Heather Richard and the editorial team at the Yale Law Journal provided invaluable editorial advice that much improved the piece. And, as always, I am most grateful to Maron Deering, whose patience is unending.