FRENCH EXPERIENCE WITH PREVENTIVE DETENTION (FROM RESOLVED - THAT US LAW ENFORCEMENT AGENCIES SHOULD BE GIVEN SIGNIFICANTLY GREATER FREEDOM IN THE INVESTIGATION AND/OR PROSECUTION OF FELONY CRIME, 1977 - SEE NCJ-49061)

• NCJ Number: 49066
• Author(s): W L CRAIG; W A DOBROVIR
• Date Published: 1977
• Length: 8 pages
• Corporate Author: Library of Congress
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: REPRINTED FROM AMERICAN BAR ASSOCIATION JOURNAL, V 57, (JUNE 1971), P 565-569

Annotation

THE FRENCH EXPERIENCE WITH PRETRIAL DETENTION IS DISCUSSED, AND POSSIBLE USE OF PREVENTIVE DETENTION IN THE UNITED STATES IS CONSIDERED IN LIGHT OF THE FRENCH EXPERIENCE.

Abstract

IN THE UNITED STATES, THE FIRST DECISION A COURT MAKES ABOUT A PERSON UNDER ARREST IS THE SETTING OF BAIL OR OTHER CONDITIONS OF RELEASE. HOWEVER, THE DISTRICT OF COLUMBIA COURT REFORM AND CRIMINAL PROCEDURE ACT OF 1976 ESTABLISHED A SYSTEM OF PREVENTIVE DETENTION WITHOUT TRIAL, WITHOUT BAIL FOR THE FIRST TIME IN THE COUNTRY. IT APPLIES TO PERSONS ACCUSED OF A DANGEROUS CRIME, AND THE ORDER MUST BE BASED ON A CERTIFICATION BY THE PROSECUTOR THAT THE SAFETY OF THE COMMUNITY REQUIRES DETENTION OF THE PERSON. SINCE THE UNITED STATES HAS NO EXPERIENCE WITH PREVENTIVE DETENTION, THE SYSTEM USED IN FRANCE IS EXAMINED TO ASSESS POTENTIAL DANGERS TO INDIVIDUAL RIGHTS UNDER SUCH A SYSTEM. IN 1970, FRANCE ADOPTED A REFORM OF PRETRIAL DETENTION AFTER SEVERAL INCIDENCES FOCUSED NATIONAL ATTENTION ON THE CONDITIONS OF PRETRIAL DETENTION AND ITS HARMFUL EFFECT ON PERSONS ACCUSED OF CRIMES. THE REFORM PROVIDED ALTERNATIVES TO HARSH DETENTION OF ACCUSED PERSONS, LIMITED THE POWERS OF THE MAGISTRATE TO ORDER DETENTION, AND RECOGNIZED THE RIGHT OF DETAINED PERSONS TO RECEIVE COMPENSATION UPON SUBSEQUENT ACQUITTAL. IN LIGHT OF THE FRENCH EXPERIENCE WITH PREVENTIVE DETENTION, THESE STATEMENTS CAN BE MADE: (1) A JUDGE WHO HAS THE POWER TO INCARCERATE IS MORE LIKELY TO DO SO; (2) JUDGES TEND TO BE FRIENDLY WITH PROSECUTORS AND THIS INTERFERES WITH FAIRNESS IN DETERMINING PRETRIAL DETENTION; (3) INCARCERATION OF INNOCENT PERSONS IS UNAVOIDABLE UNDER SUCH A SYSTEM; AND (4) IF PREVENTIVE DETENTION WERE USED IN THE UNITED STATES, A COMPENSATION PROCEDURE SHOULD BE INTRODUCED TO CHECK JUDICIAL ABUSE. (DAG)