The Mandatory Pretrial Release Provision of the Adam Walsh Act Amendments: How 'Mandatory' Is It, and Is It Constitutional?

108 Pages Posted: 8 Jul 2012 Last revised: 15 May 2013

Date Written: February 4, 2011


Eighty years ago, Justice Brandeis warned us to “be most on our guard to protect liberty when the government’s purposes are beneficent,” as great dangers to liberty often lurk in the “insidious encroachment by men of zeal, well-meaning but without understanding.” Although Congress meant well five years ago, when it enacted the Adam Walsh Act Amendments to the Bail Reform Act of 1984, it failed to understand the consequences of its actions. The Amendments were added without a stated purpose, a single substantive debate or a shred of congressional findings. A particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing. This provision, which is unrivaled in American law, strips away any independent judicial evaluation by mandating that every arrestee be treated the same, regardless of the particular circumstances surrounding the arrestee and the charged offense.

Has Congress, in its zeal to protect children, violated fundamental constitutional safeguards routinely afforded criminal defendants at the pretrial stage? I believe it has and that the mandatory pretrial release provision of the Amendments is facially unconstitutional or, at the very least, unconstitutional as applied to the majority of defendants charged with an AWA-enumerated offense. Using two hypothetical cases coupled with the lessons drawn from the few reported decisions on this topic, this Article first considers whether the “mandatory” pretrial release provision is actually inapplicable in certain circumstances. Next, assuming arguendo that the provision applies, this Article addresses whether it is constitutional under the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth Amendment, and the separation of powers doctrine. Recognizing the lack of political room for any meaningful legislative reform on the war against sex crimes, this Article instead calls for Congress to repeal or redraft the aforementioned provision of the Adam Walsh Act Amendments or, in the alternative, bolster its legislative record, in order to avoid meritorious constitutional attacks and to preserve the Bail Reform Act’s longstanding deference to the judiciary’s independent, case-by-case determination of the least restrictive pretrial release conditions necessary to reasonably assure the reappearance of the arrestee and the safety of the community.

Suggested Citation

Dearinger, Bryan, The Mandatory Pretrial Release Provision of the Adam Walsh Act Amendments: How 'Mandatory' Is It, and Is It Constitutional? (February 4, 2011). St. John's Law Review , Vol. 85, No. 4, 2011, Available at SSRN:

Bryan Dearinger (Contact Author)

University of Oregon ( email )

1280 University of Oregon
Eugene, OR 97403
United States

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