Dangerous Defendants

79 Pages Posted: 21 Aug 2016 Last revised: 30 Jan 2018

See all articles by Sandra G. Mayson

Sandra G. Mayson

University of Pennsylvania Carey Law School

Date Written: 2017


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 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? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the debate so far has largely ignored this foundational question.

One way of thinking about the question of 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 the answer is yes — that defendants are a special case, exempt by virtue of their pending charge from otherwise applicable constitutional and normative constraints. This Article challenges that assumption. It argues that, for purposes of restraint for dangerousness, there is no clear constitutional, moral, or practical distinction between a defendant and a non-defendant 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.

Keywords: Criminal law and procedure, bail, pretrial release, pretrial detention, reform, risk assessment, actuarial prediction, criminal justice, predictive justice, dangerousness

Suggested Citation

Mayson, Sandra Gabriel, Dangerous Defendants (2017). 127 Yale Law Journal 490 (2018), U of Penn Law School, Public Law Research Paper No. 16-30, Available at SSRN: https://ssrn.com/abstract=2826600 or http://dx.doi.org/10.2139/ssrn.2826600

Sandra Gabriel Mayson (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

HOME PAGE: http://https://www.law.upenn.edu/faculty/sgmayson/

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