Justice Rehnquist: "In our society liberty is the norm and detention without trial is the carefully limited exception . . . ."
Ironically, those words are from a 1987 Supreme Court decision that upheld the constitutionality of preventive detention and thereby guaranteed that the gap between the ideal and the reality of the criminal justice system would widen.
His words have given me little comfort during the nearly five years that I've been held in preventive detention in Baltimore and Washington -- with more years likely before I finally go to trial. True, during that period I served 19 months for contempt and for a conviction on related matters. But even if those cases hadn't existed, I would still have been spent the past five years in preventive detention.
I'm still awaiting trial, yet I've already been behind bars far longer than KKK leader Don Black, who served 24 months for stockpiling automatic weapons and explosives for an invasion of the Caribbean nation of Dominica. I've been locked up longer than Michael Donald Bray, who served 46 months for bombing 10 abortion clinics. In fact, I've now served more time in preventive detention than the maximum three years I could have received on the original charge against me.
My case is complex and confusing, and you may not be sympathetic to my political views and activities. But ask yourself: Should I be one of those "carefully limited exceptions"?
The story begins in May 1985, when I was arrested in a Baltimore apartment by an FBI team searching for a group of fugitive revolutionaries. Although I was not a fugitive and had no outstanding charges, I was arrested, handcuffed and hauled down to an FBI car. The initial charge was assault on an FBI agent -- that is, resisting being pushed into the car.
The magistrate who arraigned me questioned whether the "assault" really happened but granted the U.S. attorney's request that I be held in preventive detention. In theory, the government has the burden of showing that bail should be denied; in practice, magistrates and judges usually grant such requests and defendants have the new burden of proving why they should be granted bail.
Over the next few months, the prosecutor added new charges -- possession of two guns and of false identification -- and preventive detention was reaffirmed.
Under the Bail Reform Act of 1984, a prosecutor can request preventive detention only if a crime of violence is involved. In my case, the unproven and contrived assault charge served as the required violent act. The prosecutor also must prove that the defendant is either a "threat to the community" or cannot be prevented from fleeing by "any condition or set of conditions." To establish my "dangerousness," the U.S. attorney cited my three prior arrests.
It was true. I had been arrested before. Since the 1960s I've been active in a broad range of human rights and social justice issues. I've picketed, protested, demonstrated and defended myself and others when we've been attacked by the police. In 1969, I was arrested three times in anti-war and anti-racism demonstrations. I was released on bail in each case and appeared for all court dates. I violated none of the conditions of release. I successfully completed two years of unsupervised probation.
Nonetheless, the judge in Baltimore decided I should be held in preventive detention. At a later hearing, the judge articulated his rationale: I should be denied bail in part because I had stated in court that "I live by revolutionary and human principles." That decision has twice been upheld by the 4th Circuit Court of Appeals.
Now the story gets confusing:
On Jan. 15, 1986, I began serving a contempt sentence for refusing to provide a handwriting sample in connection with the charges.
On Jan. 26, 1986, a mistrial was declared on grounds of illegally seized evidence, but I remained in preventive detention while the government appealed.
On Feb. 18, 1987, I began serving a two-year sentence on a New York conviction for making a false statement in applying for a passport.
On July 15, 1987, my imprisonment for contempt ended.
In February 1988, I completed one year of the New York sentence and was paroled -- back into preventive detention.
Three months later, an entirely new element entered the picture -- and further delayed the Baltimore trial. On May 11, 1988, I was indicted along with five other political activists here in Washington on charges of conspiracy and bombing the Capitol and other government and military buildings to protest the contra war against Nicaragua and the 1983 invasion of Grenada. (No one was hurt in the bombings.)
My codefendants had been arrested at various times and in various states in 1984 and 1985 on charges similar to the weapons and indentification charges I face in Baltimore. They since have been convicted and are now serving outrageously long sentences because of their politics -- 12, 35, 58, 58 and 70 years. We still face trial on the bombing and conspiracy charges and are being held in the D.C. Jail.
I had a new bail hearing in D.C. on July 1, 1988 before U.S. District Judge Harold Greene, even while held in preventive detention in Baltimore. I was ordered held in preventive detention here, too -- and the Baltimore case was held in abeyance pending the outcome of the D.C. trial.
In April 1989, the D.C. trial judge dismissed the charges against three of my codefendants for double jeopardy, and the government appealed. Since the appeal could take up to a year to be resolved, I again requested bail. This time, Judge Greene ruled that detention for more than a year would violate due process and ordered my release on the same bail conditions that the Baltimore courts had rejected. Again the Baltimore court rejected those conditions.
So now I am in the curious position of being "free" on bail in Washington but held in preventive detention here for the Baltimore court. My Baltimore case probably won't come to trial until I complete my Washington trial, and my Washington trial won't occur until the government's appeals run the course -- whenever that is.
Under preventive detention, you start off with two strikes against you. The decision on bail is made within three days of the arrest -- a time when the defendant is lucky to find a lawyer, let alone have time to prepare for a hearing. And fighting against preventive detention takes up much time and energy that should be spent on the case itself.
Being in prison before trial means you can't contact, interview and select witnesses. It means making collect phone calls to your attorney or witnesses and having them monitored. You can't review evidence against you or accumulate evidence in your defense. And it's practically impossible to go to the prison law library.
When the Bail Reform Act was passed in 1984, the government projected that preventive detention would apply to only "a small group of detainees." In 1985, the first full year it was in effect in the federal system, and the last year for which I could find Justice Department statistics, preventive detention was imposed in 29 percent of all federal criminal cases -- including virtually every felony case involving a left-wing political defendant. From what I've seen, the other groups over-represented in these statistics are African Americans, Hispanics and the poor. Every lawyer I've spoken with believes that that percentage is considerably higher now. If only 10 or 20 percent of those held in preventive detention are acquitted (the Justice Department will not release the actual figure), that means hundreds, if not thousands, of people are being arbitrarily imprisoned and punished.
The prospect that more people who should be "innocent until proven guilty" will serve long pre-trial sentences is frightening enough. But more frightening still is the prospect that our nation, instead of solving its deep social problems and injustices, is bartering its most important liberties for a "law and order" non-solution.
Laura Whitehorn identifies herself as a political prisoner awaiting trial in the Resistance Conspiracy Case.