In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court ruled 6–3 that the federal government may jail a defendant before trial based on the danger they pose to the community, not only their risk of flight. The decision upheld the Bail Reform Act of 1984 against challenges under the Fifth and Eighth Amendments, and it produced a separate, lasting rule about when a law can be struck down on its face.1Library of Congress. United States v. Salerno et al., 481 U.S. 739 (1987)
Chief Justice Rehnquist wrote for the majority, joined by Justices White, Blackmun, Powell, O’Connor, and Scalia. Justices Marshall, Brennan, and Stevens dissented.
Why the Case Existed: The Bail Reform Act of 1984
Before 1984, the standard federal reason to hold a defendant before trial was flight risk. The Bail Reform Act, codified at 18 U.S.C. § 3141 and following, added a second justification: community safety.2Office of the Law Revision Counsel. 18 U.S. Code 3141 – Release and Detention Authority Generally For the first time in federal law, a judge could order a defendant detained pending trial not because they might run, but because releasing them might endanger others.
The government cannot request a detention hearing in every case. Eligibility is limited to specific categories, including violent crimes, offenses carrying life imprisonment or death, serious drug trafficking, and certain repeat felonies.3Office of the Law Revision Counsel. 18 U.S.C. 3142 – Release or Detention of a Defendant Pending Trial At the hearing, the government must prove by clear and convincing evidence that no combination of release conditions will adequately protect the public.
Anthony “Fat Tony” Salerno and Vincent Cafaro, both linked to the Genovese crime family, were charged in a 35-act racketeering indictment. Prosecutors moved to detain them under the new Act. The District Court ordered detention; the Second Circuit reversed, holding that jailing someone based on predicted future dangerousness violated due process.4Cornell Law School. United States v. Salerno The Supreme Court took the case to resolve a split among federal appeals courts.
The Fifth Amendment Ruling: Regulation, Not Punishment
Salerno’s lawyers argued that locking someone up before conviction, based on what they might do, amounts to punishment and violates due process. The presumption of innocence, they said, cannot coexist with a system that treats a prediction of future crime as grounds for incarceration.
The majority rejected that framing. Looking at the Act’s legislative history, the Court concluded that Congress designed pretrial detention as a regulatory response to “the pressing societal problem of crimes committed by persons on release,” not as punishment.5Justia U.S. Supreme Court Center. United States v. Salerno, 481 U.S. 739 (1987) Because preventing danger is a legitimate regulatory purpose, the ordinary rules about criminal punishment did not apply.
The Court also emphasized the procedural protections built into the Act. Defendants receive a hearing, may present evidence and cross-examine witnesses, and are entitled to prompt appellate review of a detention order.6Office of the Law Revision Counsel. Review and Appeal of a Release or Detention Order The government carries the clear-and-convincing-evidence burden, a standard higher than the preponderance used in most civil cases though lower than the beyond-a-reasonable-doubt standard for conviction. Taken together, the majority found those safeguards sufficient to satisfy due process.
The Eighth Amendment Ruling: No Guaranteed Right to Bail
The Excessive Bail Clause states that “excessive bail shall not be required.” Salerno’s team read that language as guaranteeing that bail must at least be available. If the government can deny bail entirely for reasons unrelated to flight, they argued, the clause loses meaning: setting bail at a billion dollars and refusing to set bail at all produce the same result.
Rehnquist wrote that the clause “says nothing about whether bail shall be available at all” and only forbids bail set higher than necessary to serve the government’s purpose.4Cornell Law School. United States v. Salerno When the government’s purpose is community safety, and no monetary condition can achieve it, denying bail does not violate the Amendment.
The Salerno Test for Facial Challenges
Alongside the bail holding, the case produced a rule that reaches far beyond pretrial detention. A facial challenge asks a court to strike down a statute entirely, not just block one application of it. Rehnquist wrote that a facial challenge is “the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”4Cornell Law School. United States v. Salerno
This “no set of circumstances” formulation, now often called the Salerno test, is one of the most cited standards in constitutional litigation. Under it, a facial challenge fails if even a single scenario exists in which the law works constitutionally. The Court recognized one exception: laws alleged to violate the First Amendment can still be challenged as overbroad if they sweep in a substantial amount of protected speech.
The test has drawn criticism from scholars and judges who argue it makes facial challenges outside the First Amendment nearly impossible to win. Some later Supreme Court decisions have applied what looks like a less demanding standard without expressly overruling Salerno, and the precise scope of the test remains contested.
The Dissents
Justice Marshall, joined by Justice Brennan, wrote that the majority had gutted the presumption of innocence. He offered a thought experiment: if a defendant is detained under the Act and later acquitted, the government cannot keep holding them. But if they are innocent the morning after acquittal, they were equally innocent the day before trial. Detention based on predicted dangerousness, he wrote, treats unconvicted people as criminals.5Justia U.S. Supreme Court Center. United States v. Salerno, 481 U.S. 739 (1987)
On the Eighth Amendment, Marshall called the majority’s distinction “mere sophistry.” Whether a judge sets bail at a billion dollars or denies bail outright, the defendant stays in jail. He also pushed back on the majority’s use of English legal history, quoting Justice Black’s earlier line that “the Eighth Amendment is in the American Bill of Rights of 1789, not the English Bill of Rights of 1689.”5Justia U.S. Supreme Court Center. United States v. Salerno, 481 U.S. 739 (1987)
Justice Stevens dissented separately. He agreed that preventive detention based on dangerousness is unconstitutional, but he added a distinct point about the indictment’s role. A pending indictment shows only that a grand jury found probable cause on past conduct; it says nothing about present danger. If the evidence of imminent danger is strong enough to justify emergency detention, Stevens wrote, “it should support that preventive measure regardless of whether the person has been charged, convicted, or acquitted of some other offense.”7National Association of Women Judges. United States v. Salerno, 481 U.S. 739 (1987) He also questioned whether the government was pursuing a genuine safety concern or a test case, noting that it was “unrealistic to assume that the danger to the community that was present when respondents were at large did not justify their detention before they were indicted, but did require that measure the moment that the grand jury found probable cause.”
What Salerno Means for Federal Defendants Today
Salerno cleared the way for routine use of preventive detention in federal court. By 2006, roughly 61 percent of federal defendants were held for the entire pretrial period, and only 39 percent were released at some point before trial. Removing immigration cases, the detention rate still exceeded 50 percent. Detention had become the norm rather than the exception.
For a defendant facing a detention motion, the ruling confirms that a hearing is not a formality. A judge must make individualized findings. The government must meet the clear-and-convincing-evidence standard. A defendant who loses can seek prompt review from a higher court.6Office of the Law Revision Counsel. Review and Appeal of a Release or Detention Order Those procedural protections are the price the Court set for allowing the government to hold people based on predictions about what they might do next. The framework has also shaped how state legislatures have designed their own pretrial detention systems.