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United States v. Salerno

Citation. United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697, 55 U.S.L.W. 4663 (U.S. May 26, 1987)
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Brief Fact Summary.

Respondent, Salerno, in connection with his ties to la cosa nostra, was arrested on charges of various RICO violations. This action arose when he challenged the fact that he was detained without bail.

Synopsis of Rule of Law.

Detention, which is regulatory, in order to keep a criminal from flight, is not impermissible pre-trial punishment.


Anthony “Fat Tony” Salerno was indicted on several violations of the Racketeering, Influence and Corrupt Organizations Act (RICO), along with mail and wire fraud, extortion and various criminal gambling violations. After it was determined that he was the boss of la cosa nostra crime family, the government established that no condition or combination of conditions would ensure the safety of any person or the community and, under the provisions of the Bail Reform Act of 1984, asked that he be detained until trial. At the trial level, this request was granted; however, the Second Circuit Court of Appeals found that the authorization of pretrial detention on the ground of possible future dangerousness to be an unconstitutional deprivation of liberty. The government appealed.


Whether pre-trial detention of a potentially dangerous criminal is punitive and therefore and unconstitutional deprivation of liberty without due process of law.


In an opinion, written by Chief Justice Rehnquist, the Supreme Court found that such a detention is regulatory and, when there are “sufficiently compelling governmental interests” the detention of dangerous persons can be justified because of the threat posed to society by their release.


Justice Marshall wrote the dissent, maintaining that by upholding the validity of the Bail Reform Act, the Court was opening the door to further detentions and, as long as a criminal defendant is presumed innocent until proven guilty, they should be not be deprived of their freedoms without due process. Thus, this dissent argued that the Act was unconstitutional.


The Bail Reform Act is a sticky area when considering constitutionality of pre-trial detainers. In this case, the defendant was later proven to be the boss of a large crime organization; however, to detain him on the possibility of future danger to society does arguably remove the presumption of innocence.

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