salerno argued january decided may bail reform act act requires courts detain prior trial arrestees charged certain serious felonies government demonstrates clear convincing evidence adversary hearing release conditions reasonably assure safety person community supp iii act provides arrestees number procedural rights detention hearing including right request counsel testify present witnesses proffer evidence witnesses act also specifies factors considered making detention decision including nature seriousness charges substantiality government evidence arrestee background characteristics nature seriousness danger posed release act decision detain must supported written findings fact statement reasons immediately reviewable hearing act district ordered detention respondents charged acts racketeering activity appeals reversed holding authorization pretrial detention ground future dangerousness facially unconstitutional violative fifth amendment substantive due process guarantee held given act legitimate compelling regulatory purpose procedural protections offers facially invalid due process clause pp argument act violates substantive due process detention authorizes constitutes impermissible punishment trial unpersuasive act legislative history clearly indicates congress formulated detention provisions punishment dangerous individuals potential solution pressing societal problem crimes committed persons release preventing danger community legitimate regulatory goal moreover incidents detention act excessive relation goal since act carefully limits circumstances detention may sought serious crimes arrestee entitled prompt hearing maximum length detention limited speedy trial act detainees must housed apart convicts thus act constitutes permissible regulation rather impermissible punishment pp appeals erred ruling due process clause categorically prohibits pretrial detention imposed regulatory measure ground community danger government regulatory interest community safety appropriate circumstances outweigh individual liberty interest circumstances exist act narrowly focuses particularly acute problem crime arrestees government interests overwhelming moreover act operates individuals arrested particular extremely serious offenses carefully delineates circumstances detention permitted pp act extensive procedural safeguards specifically designed accuracy determination sufficient withstand respondents facial challenge since adequate authorize pretrial detention least persons charged crimes schall martin pp section facially unconstitutional violative excessive bail clause eighth amendment contention act violates clause allows courts essentially set bail infinite amount reasons related risk flight persuasive nothing clause text limits government interest setting bail solely prevention flight congress mandated detention basis compelling interest public safety eighth amendment require release bail pp rehnquist delivered opinion white blackmun powell scalia joined marshall filed dissenting opinion brennan joined post stevens filed dissenting opinion post solicitor general fried argued cause briefs assistant attorney general weld deputy solicitor general bryson jeffrey minear samuel rosenthal maury epner anthony cardinale argued cause respondents brief kimberly homan briefs amici curiae urging affirmance filed national association criminal defense lawyers jon may mark king leban public defender service cheryl long james klein david reiser briefs amici curiae filed american bar association eugene thomas charles cole david schlueter american civil liberties union et al william genego dennis curtis mark rosenbaum paul hoffman richard emery martin guggenheim alvin bronstein david goldstein howard perry allen brunwasser chief justice rehnquist delivered opinion bail reform act act allows federal detain arrestee pending trial government demonstrates clear convincing evidence adversary hearing release conditions reasonably assure safety person community appeals second circuit struck provision act facially unconstitutional words type pretrial detention violates substantive due process granted certiorari conflict among courts appeals regarding validity act hold facial attack mounted respondents act fully comports constitutional requirements therefore reverse responding alarming problem crimes committed persons release congress formulated bail reform act et seq supp iii solution bail crisis federal courts act represents national legislature considered response numerous perceived deficiencies federal bail process providing sweeping changes way federal courts consider bail applications circumstances bail granted congress hoped give courts adequate authority make release decisions give appropriate recognition danger person may pose others released end act requires judicial officer determine whether arrestee shall detained section provides hearing pursuant provisions subsection judicial officer finds condition combination conditions reasonably assure appearance person required safety person community shall order detention person prior trial section provides arrestee number procedural safeguards may request presence counsel detention hearing may testify present witnesses behalf well proffer evidence may witnesses appearing hearing judicial officer finds conditions pretrial release reasonably assure safety persons community must state findings fact writing support conclusion clear convincing evidence judicial officer given unbridled discretion making detention determination congress specified considerations relevant decision factors include nature seriousness charges substantiality government evidence arrestee arrestee background characteristics nature seriousness danger posed suspect release judicial officer order detention detainee entitled expedited appellate review detention order respondents anthony salerno vincent cafaro arrested march charged indictment alleging various racketeer influenced corrupt organizations act rico violations mail wire fraud offenses extortion various criminal gambling violations rico counts alleged acts racketeering activity including fraud extortion gambling conspiracy commit murder respondents arraignment government moved salerno cafaro detained pursuant ground condition release assure safety community person district held hearing government made detailed proffer evidence government case showed salerno boss genovese crime family la cosa nostra cafaro captain genovese family according government proffer based large part conversations intercepted wiretap two respondents participated conspiracies aid illegitimate enterprises violent means government also offered testimony two trial witnesses assert salerno personally participated two murder conspiracies salerno opposed motion detention challenging credibility government witnesses offered testimony several character witnesses well letter doctor stating suffering serious medical condition cafaro presented evidence hearing instead characterized wiretap conversations merely tough talk district granted government detention motion concluding government established clear convincing evidence condition combination conditions release ensure safety community person activities criminal organization genovese family cease arrest principals release even stringent bail conditions illegal businesses place many years require constant attention protection fail circumstances recognizes strong incentive part leadership continue business usual business usual involves threats beatings murder present danger people pose community supp sdny ii facial challenge legislative act course difficult challenge mount successfully since challenger must establish set circumstances exists act valid fact bail reform act might operate unconstitutionally conceivable set circumstances insufficient render wholly invalid since recognized overbreadth doctrine outside limited context first amendment schall martin supra think respondents failed shoulder heavy burden demonstrate act facially unconstitutional respondents present two grounds invalidating bail reform act provisions permitting pretrial detention basis future dangerousness first rely upon appeals conclusion act exceeds limitations placed upon federal government due process clause fifth amendment second contend act contravenes eighth amendment proscription excessive bail treat contentions turn due process clause fifth amendment provides person shall deprived life liberty property without due process law held due process clause protects individuals two types government action substantive due process prevents government engaging conduct shocks conscience rochin california interferes rights implicit concept ordered liberty palko connecticut government action depriving person life liberty property survives substantive due process scrutiny must still implemented fair manner mathews eldridge requirement traditionally referred procedural due process respondents first argue act violates substantive due process pretrial detention authorizes constitutes impermissible punishment trial see bell wolfish government however never argued pretrial detention upheld punishment appeals assumed pretrial detention bail reform act regulatory penal agree initial matter mere fact person detained inexorably lead conclusion government imposed punishment bell wolfish supra determine whether restriction liberty constitutes impermissible punishment permissible regulation first look legislative intent schall martin unless congress expressly intended impose punitive restrictions distinction turns whether alternative purpose restriction may rationally connected assignable whether appears excessive relation alternative purpose assigned quoting kennedy conclude detention imposed act falls regulatory side dichotomy legislative history bail reform act clearly indicates congress formulate pretrial detention provisions punishment dangerous individuals see congress instead perceived pretrial detention potential solution pressing societal problem doubt preventing danger community legitimate regulatory goal schall martin supra incidents pretrial detention excessive relation regulatory goal congress sought achieve bail reform act carefully limits circumstances detention may sought serious crimes see detention hearings available case involves crimes violence offenses sentence life imprisonment death serious drug offenses certain repeat offenders arrestee entitled prompt detention hearing maximum length pretrial detention limited stringent time limitations speedy trial act see et seq ed supp iii moreover schall martin conditions confinement envisioned act appear reflect regulatory purposes relied upon government schall statute issue requires detainees housed facility separate extent practicable persons awaiting serving sentences held custody pending appeal conclude therefore pretrial detention contemplated bail reform act regulatory nature constitute punishment trial violation due process clause appeals nevertheless concluded due process clause prohibits pretrial detention ground danger community regulatory measure without regard duration detention respondents characterize due process clause erecting impenetrable wall area governmental interest rational important compelling otherwise may surmount brief respondents think clause lays categorical imperative repeatedly held government regulatory interest community safety appropriate circumstances outweigh individual liberty interest example times war insurrection society interest peak government may detain individuals government believes dangerous see ludecke watkins approving unreviewable executive power detain enemy aliens time war moyer peabody rejecting due process claim individual jailed without probable cause governor time insurrection even outside exigencies war found sufficiently compelling governmental interests justify detention dangerous persons thus found absolute constitutional barrier detention potentially dangerous resident aliens pending deportation proceedings carlson landon wong wing also held government may detain mentally unstable individuals present danger public addington texas dangerous defendants become incompetent stand trial jackson indiana greenwood approved postarrest regulatory detention juveniles present continuing danger community schall martin supra even competent adults may face substantial liberty restrictions result operation criminal justice system police suspect individual crime may arrest hold neutral magistrate determines whether probable cause exists gerstein pugh finally respondents concede appeals noted arrestee may incarcerated trial presents risk flight see bell wolfish danger witnesses respondents characterize cases exceptions general rule substantive due process government may detain person prior judgment guilt criminal trial general rule may freely conceded think cases show sufficient number exceptions rule congressional action challenged hardly characterized totally novel given authority government special circumstances restrain individuals liberty prior even without criminal trial conviction think present statute providing pretrial detention basis dangerousness must evaluated precisely manner evaluated laws cases discussed government interest preventing crime arrestees legitimate compelling de veau braisted schall supra recognized strength state interest preventing juvenile crime general concern crime prevention less compelling suspects adults indeed harm suffered victim crime dependent upon age perpetrator schall martin supra bail reform act responds even particularized governmental interest interest sustained schall statute upheld schall permitted pretrial detention juvenile arrested charge showing individual might commit undefined crimes bail reform act contrast narrowly focuses particularly acute problem government interests overwhelming act operates individuals arrested specific category extremely serious offenses congress specifically found individuals far likely responsible dangerous acts community arrest see act means scattershot attempt incapacitate merely suspected serious crimes government must first demonstrate probable cause believe charged crime committed arrestee enough fullblown adversary hearing government must convince neutral decisionmaker clear convincing evidence conditions release reasonably assure safety community person government general interest preventing crime compelling even interest heightened government musters convincing proof arrestee already indicted held answer serious crime presents demonstrable danger community narrow circumstances society interest crime prevention greatest side scale course individual strong interest liberty minimize importance fundamental nature right cases hold right may circumstances government interest sufficiently weighty subordinated greater needs society think congress careful delineation circumstances detention permitted satisfies standard government proves clear convincing evidence arrestee presents identified articulable threat individual community believe consistent due process clause may disable arrestee executing threat circumstances categorically state pretrial detention offends principle justice rooted traditions conscience people ranked fundamental snyder massachusetts finally may dispose briefly respondents facial challenge procedures bail reform act sustain challenge need find adequate authorize pretrial detention least persons charged crimes schall supra whether might insufficient particular circumstances think pass test stated schall nothing inherently unattainable prediction future criminal conduct see jurek texas joint opinion stewart powell stevens jj white concurring judgment bail reform act procedures judicial officer evaluates likelihood future dangerousness specifically designed accuracy determination detainees right counsel detention hearing may testify behalf present information proffer otherwise witnesses appear hearing ibid judicial officer charged responsibility determining appropriateness detention guided statutorily enumerated factors include nature circumstances charges weight evidence history characteristics putative offender danger community government must prove case clear convincing evidence finally judicial officer must include written findings fact written statement reasons decision detain act review provisions provide immediate appellate review detention decision think extensive safeguards suffice repel facial challenge protections exacting found sufficient juvenile context see schall supra far exceed found necessary effect limited postarrest detention gerstein pugh given legitimate compelling regulatory purpose act procedural protections offers conclude act facially invalid due process clause fifth amendment respondents also contend bail reform act violates excessive bail clause eighth amendment appeals address issue found act violates due process clause think act survives challenge founded upon eighth amendment eighth amendment addresses pretrial release providing merely xcessive bail shall required clause course says nothing whether bail shall available respondents nevertheless contend clause grants right bail calculated solely upon considerations flight rely stack boyle stated ail set figure higher amount reasonably calculated ensure defendant presence trial excessive eighth amendment respondents view since bail reform act allows essentially set bail infinite amount reasons related risk flight violates excessive bail clause respondents concede right bail discovered eighth amendment absolute may example refuse bail capital cases appeals noted respondents admit may refuse bail defendant presents threat judicial process intimidating witnesses brief respondents respondents characterize exceptions consistent claim sole purpose bail ensure integrity judicial process agree primary function bail safeguard courts role adjudicating guilt innocence defendants reject proposition eighth amendment categorically prohibits government pursuing admittedly compelling interests regulation pretrial release dictum stack boyle far slender reed rest argument stack occasion consider whether excessive bail clause requires courts admit defendants bail statute case fact allowed defendants bailed thus determine whether bail admittedly available case excessive set sum greater necessary ensure arrestees presence trial holding stack illuminated holding four months later carlson landon case remarkably similar present action detainees arrested held without bail pending determination deportability attorney general refused release individuals ground reasonable cause believe release prejudicial public interest endanger welfare safety emphasis added detainees brought challenge respondents bring us today eighth amendment required admitted bail squarely rejected proposition bail clause lifted slight changes english bill rights act england clause never thought accord right bail cases merely provide bail shall excessive cases proper grant bail clause carried bill rights nothing said indicated different concept eighth amendment prevented congress defining classes cases bail shall allowed country thus criminal cases bail compulsory punishment may death indeed language amendment fails say arrests must bailable footnotes omitted iii society liberty norm detention prior trial without trial carefully limited exception hold provisions pretrial detention bail reform act fall within carefully limited exception act authorizes detention prior trial arrestees charged serious felonies found adversary hearing pose threat safety individuals community condition release dispel numerous procedural safeguards detailed must attend adversary hearing unwilling say congressional determination based upon primary concern every government concern safety indeed lives citizens face violates either due process clause fifth amendment excessive bail clause eighth amendment judgment appeals therefore reversed footnotes salerno subsequently sentenced unrelated proceedings different judge date however salerno confined pursuant sentence authority salerno present incarceration remains district pretrial detention order case therefore much alive properly presented resolution intimate view validity aspects act relevant respondents case respondents claimed act unconstitutional way applied particular facts case intimate view point detention particular case might become excessively prolonged therefore punitive relation congress regulatory goal justice marshall justice brennan joins dissenting case brings first time statute congress declares person innocent crime may jailed indefinitely pending trial allegations legally presumed untrue government shows satisfaction judge accused likely commit crimes unrelated pending charges time future statutes consistent usages tyranny excesses bitter experience teaches us call police state long thought incompatible fundamental human rights protected constitution today majority holds otherwise decision disregards basic principles justice established centuries ago enshrined beyond reach governmental interference bill rights preliminary words necessary respect majority treatment facts case two paragraphs majority devotes procedural posture essentially correct omit certain matters substantial legal relevance solicitor general petition certiorari filed july october respondent salerno filed response petition response appearance counsel filed behalf respondent cafaro petition certiorari granted november november respondent salerno convicted jury trial charges unrelated alleged indictment case january salerno sentenced charges years imprisonment date government longer required pretrial detention order purpose keeping salerno incarcerated simply take custody judgment commitment order present case thus became moot respondent salerno situation respect respondent cafaro still disturbing early october solicitor general petition certiorari granted respondent cafaro became cooperating witness assisting government investigation working covert capacity information cafaro cooperating government revealed codefendants including respondent salerno october respondent cafaro released ostensibly temporarily medical care treatment government consent docket ss cr mjl sdny lowe release conditioned upon execution personal recognizance bond sum million general pretrial release provisions supp iii short respondent cafaro became informant government agreed release bail order might better serve government purposes cafaro case longer justiciable even certiorari granted information bearing upon essential issue jurisdiction made available us government thus invites address facial constitutionality pretrial detention statute case involving two respondents one sentenced century jail time another case released pending appeal government consent released bail case government consent become informant facts raise least substantial question jurisdiction far clear actual controversy parties recently said article iii constitution requires live case controversy time federal decides case enough may live case controversy case decided whose judgment reviewing burke barnes see sosna iowa golden zwickler flatly ignoring matters majority able maintain pretense jurisdiction decide question hurry reach ii majority approaches respondents challenge act dividing discussion two sections one concerned substantive guarantees implicit due process clause concerned protection afforded excessive bail clause eighth amendment sterile formalism divides unitary argument two independent parts professes demonstrate parts individually inadequate due process side false dichotomy appears argument concerning distinction regulatory punitive legislation majority concludes act regulatory rather punitive measure ease conclusion reached suggests worthlessness achievement major premise nless congress expressly intended impose punitive restrictions distinction turns whether alternative purpose restriction may rationally connected assignable whether appears excessive relation alternative purpose assigned ante citations omitted majority finds congress formulate pretrial detention provisions punishment dangerous individuals instead pursuing legitimate regulatory goal preventing danger community ibid concluding pretrial detention excessive solution problem preventing danger community majority thus finds substantive element guarantee due process invalidates statute argument demonstrate conclusion purports justify let us apply majority reasoning similar hypothetical case investigation congress determines unrealistically large proportion violent crime perpetrated persons unemployed also determines equally reasonably much violent crime committed night amongst panoply potential solutions congress chooses statute permits judicial proceedings imposition curfew anyone unemployed since measure enacted purpose punishing unemployed since majority finds preventing danger community legitimate regulatory goal curfew statute according majority analysis mere regulatory detention statute entirely compatible substantive components due process clause absurdity conclusion arises course majority cramped concept substantive due process majority proceeds though substantive right protected due process clause right free punishment conviction majority technique infringing right simple merely redefine measure claimed punishment regulation magically constitution longer prohibits imposition discuss part iii infra due process clause protects substantive rights infringed legislation majority argument merely exercise obfuscation logic majority eighth amendment analysis equally unsatisfactory eighth amendment majority notes xcessive bail shall required majority declares undeniable clause course says nothing whether bail shall available ante excessive bail imposed defendant stays jail result achieved bail denied altogether whether magistrate sets bail billion refuses set bail consequences indistinguishable mere sophistry suggest eighth amendment protects former decision latter indeed result lead conclusion need congress pass preventive detention measure kind every federal magistrate district judge simply refuse despite absence evidence risk flight danger community set bail entirely constitutional since according majority eighth amendment says nothing whether bail shall available perhaps majority says manifest absurdity avoided perhaps bail clause addressed judiciary need decide today majority says whether excessive bail clause speaks congress power define classes criminal arrestees shall admitted bail ante majority correct question need decided today decided long ago federal state statutes purport accomplish eighth amendment forbids imposing cruel unusual punishments may stand see trop dulles furman georgia text amendment provides simply xcessive bail shall required excessive fines imposed cruel unusual punishments inflicted provides absolutely support majority speculation courts congress forbidden inflict cruel unusual punishments courts forbidden require excessive bail majority attempts deny relevance bail clause case unavailing majority nonetheless correct prohibition excessive bail means order determine whether government response excessive must compare response interest government seeks protect means response ante majority concedes must government admitted interest preventing flight bail must set sum designed ensure goal ibid majority says congress mandated detention basis compelling interest prevention flight eighth amendment require release bail ante conclusion follows compelling interest upon congress acted interest constitution permits congress denial bail majority ask result disingenuous division analysis substantive limits contained eighth amendment due process clause render system preventive detention unconstitutional majority ask answer apparent majority inconvenient iii essence case may found ironically enough provision act majority refer title supp iii provides othing section shall construed modifying limiting presumption innocence pith purpose statute abhorrent limitation presumption innocence majority untenable conclusion present act constitutional arises specious denial role bail clause due process clause protecting invaluable guarantee afforded presumption innocence principle presumption innocence favor accused undoubted law axiomatic elementary enforcement lies foundation administration criminal law coffin society belief reinforced centuries innocent state proved guilty like companion principle guilt must proved beyond reasonable doubt implicit concept ordered liberty palko connecticut established beyond legislative contravention due process clause see estelle williams winship see also taylor kentucky kentucky whorton stewart dissenting sure indictment without legal consequences establishes probable cause believe offense committed defendant committed upon probable cause warrant defendant arrest may issue period administrative detention may occur evidence probable cause presented neutral magistrate see gerstein pugh defendant committed trial may detained custody magistrate finds conditions release prevent becoming fugitive connection charging instrument evidence nothing fact trial release trial conditioned upon accused giving adequate assurance stand trial submit sentence found guilty like ancient practice securing oaths responsible persons stand sureties accused modern practice requiring bail bond deposit sum money subject forfeiture serves additional assurance presence accused stack boyle citation omitted novel proposition bail clause plays vital role protecting presumption innocence reviewing application bail pending appeal members american communist party convicted smith act justice jackson wrote grave public danger said result defendants may expected addition done since conviction assume defendants disposed commit every opportune disloyal act helpful communist countries still difficult reconcile traditional american law jailing persons courts anticipated yet uncommitted crimes imprisonment protect society predicted unconsummated offenses unprecedented country fraught danger excesses injustice williamson ed opinion chambers omitted iv connection peculiar facts case evident constitutional defects statute upholds today respondent cafaro originally incarcerated indeterminate period request government believed professed believe release imminently threatened safety community threat apparently vanished government point view cafaro agreed act covert agent government eloquent demonstration coercive power authority imprison upon prediction dangers almost inevitable abuses pose cherished liberties free society fair summary history say safeguards liberty frequently forged controversies involving nice people rabinowitz frankfurter dissenting honoring presumption innocence often difficult sometimes must pay substantial social costs result commitment values espouse end day presumption innocence protects innocent shortcuts take believe guilty injure wrongfully accused ultimately dissent judgment commitment order executed immediately ordinary course present case certainly moot respect salerno january however district judge sentenced salerno unrelated proceedings issued following order apparently government consent inasmuch defendant anthony salerno ordered detained case presently detained pretrial case anthony salerno et ss cr mjl hereby ordered bail status defendant anthony salerno case shall remain prior january sentencing pending order order ss cr ro sdny owen characterization cafaro activities along account process cafaro became government agent appears affidavit executed former assistant attorney filed district proceedings instant case occurred case submitted affidavit warren neil eggleston dated march ss cr mjl sdny particulars government agreement cafaro including precise terms agreement release bail included record declined order relevant documents placed us reply brief solicitor general stated october cafaro temporarily released medical treatment still subject pretrial detention order cafaro case also continues present live controversy reply brief solicitor general inform release involved execution personal recognizance bond reveal cafaro become cooperating witness understand solicitor general representation cafaro still subject pretrial detention order reconciled fact release million personal recognizance bond preventing danger community enactment enforcement criminal laws indeed legitimate goal system achievement goal left primarily constitution contain explicit delegation federal government power define administer general criminal law bail reform act limit definition dangerousness likelihood defendant poses danger others commission federal crimes federal preventive detention may thus ordered act danger asserted government danger defendant violate state law majority nowhere identifies constitutional source congressional power authorize federal detention persons whose predicted future conduct violate federal statute punished federal conclude frequently expressed concern principles federalism vanishes threatens interfere attainment desired result majority refers statement carlson landon bail clause adopted congress english bill rights act wm mary sess ch ii england clause never thought accord right bail cases merely provide bail shall excessive cases proper grant bail sufficient answer meager argument made time justice black eighth amendment american bill rights english bill rights carlson landon supra dissenting opinion bill rights contained written constitution one whose purposes protect rights people infringement legislature provisions whatever origins interpreted relation purposes majority denial bail capital cases traditionally rule rather exception course considered presumption generations judges defendant danger execution extremely strong incentive flee particular case presumed likelihood flight made irrebuttable probability violate due process clause thus majority perceives exception nothing example traditional operation system bail also true majority observes government entitled assurance incarceration necessary defendant obstruct justice destruction evidence procuring absence intimidation witnesses subornation perjury cases government benefits presumption particular defendant likely engage activities inimical administration justice majority offers authority proposition bail traditionally denied prospectively upon speculation witnesses tampered cf carbo ed douglas chambers bail pending appeal denied intimidating phone calls made witness also severely beaten justice stevens dissenting may times government interest protecting safety community justify brief detention person committed crime see ante see also greene stevens dissenting use judge feinberg example indeed difficult accept proposition government without power detain person virtual certainty otherwise kill group innocent people immediate future salerno dissenting opinion similarly unwilling decide today police may never impose limited curfew time crisis questions obviously presented case lurk background preclude answering question presented broad manner justice marshall nonetheless firmly agree justice marshall provision bail reform act allowing pretrial detention basis future dangerousness unconstitutional whatever answers questions mentioned clear pending indictment may given weight evaluating individual risk community need immediate detention evidence imminent danger strong enough warrant emergency detention support preventive measure regardless whether person charged convicted acquitted offense case example unrealistic assume danger community present respondents large justify detention indicted require measure moment grand jury found probable cause believe committed crimes past equally unrealistic assume danger vanish jury happens acquit justice marshall demonstrated fact indictment consistent presumption innocence eighth amendment excessive bail clause used create special class members alone eligible detention future dangerousness several factors combine give uneasy feeling case decides today facts set forth part justice marshall opinion strongly support possibility government much interested litigating test case resolving actual controversy concerning respondents threat safety community since salerno convicted sentenced crimes need employ novel pretrial detention procedures cafaro case even curious apparently large content case argued salerno lawyer even though interests appear conflict salerno merits must reached answer arguments made parts ii iii justice marshall dissent conclusion faithful fundamental principles understood traditions people law lochner new york holmes dissenting accordingly respectfully dissent evidence overwhelmingly establishes skyjacker example insane time act virtually certain resume violent behavior soon set free must conclude way protect society predictable harm find innocent man guilty crime capacity commit greene government proof future dangerousness dependent prediction result indictment respondents posed threat potential witnesses judicial system