Donald Payden had served time for cocaine dealing, but he fully expected to be released on bail while awaiting trial on another cocaine charge in New York this fall.
To his surprise, U.S. District Court Judge David Edelstein denied bail and ordered Payden held in preventive detention, calling him a danger to the community.
The legal basis for Edelstein's decision -- and the decisions of judges in 154 other cases throughout the nation since October -- was a provision in the Comprehensive Crime Control Act of 1984, a new federal law that strips away some rights and civil liberties of defendants and convicted persons -- and in other cases simply makes life more difficult for them.
In addition to providing for preventive detention, the new law abolishes parole for federal crimes, establishes a commission to determine sentences, narrows the range of the insanity defense and gives federal law enforcement authorities more power to take the assets of persons convicted of narcotics violations or organized crime.
Lawyers in the Justice Department's Criminal Division have been seeking passage of such legislation for years to provide better balance between what Attorney General William French Smith calls "the forces of law" and "the forces of lawlessness."
"People are going to be safer in this country as a result of this law," said Assistant Attorney General Stephen Trott, head of the Criminal Division.
The preventive detention provision -- perhaps the most controversial -- states that bail can be denied to defendants charged with federal crimes who are a danger to the community. Previously, judges could deny bail only if there was substantial risk that the defendant would not appear for trial.
Preventive detention will help prosecutors "lock up a small group of rabid maniacs who are terrorizing others," said Trott.
But some criminal defense lawyers and lawyers for the American Civil Liberties Union are uncomfortable with the law -- particularly with the provision allowing judges to deny bail on the basis of a defendant's potential danger to the community, which in turn is based largely on probable cause for arrest and the defendant's record.
"It's a reversal of the presumption of innocence," said David Landau of the ACLU. "Judges are saying, 'You are dangerous because you're charged with this, and you have to prove you're not dangerous to be released on bail.' "
Defense lawyers also question whether preventive detention will achieve its goal of decreasing violence. They say few defendants commit another serious crime while awaiting trial. They also note that the new law applies only to federal crimes, including bank robbery, terrorism, drug distribution, mail fraud, transporting guns and embezzlement. Defendants in some of the most violent crimes -- murder, rape and armed robbery -- would not be denied bail under the law.
The establishment of a sentencing commission and sentence guidelines will eliminate much of judges' discretion. Beginning in 1986, federal judges will consult the commission's guidelines to determine the sentence for each convicted person.
Judges will be required to explain in writing any departure from the sentencing guidelines. The law permits defendants and prosecutors to appeal sentences harsher or more lenient than the guideline sentence.
Once the sentence is final, the convict will serve it in full and will not be eligible for parole, although a sentence could be shortened 15 percent for good behavior.
The Justice Department's Trott supports the guidelines. Sentencing by judges today is a "fraud," he said. "The real sentencing was being done by parole officials."
The American Bar Association also supports the sentencing guidelines and reduced discretion of judges. "There has been a wide disparity in sentences for the same crime ," said Tom Smith of the ABA. "The sentencing guidelines will narrow the disparity by providing to judges a measure by which they can compare the sentence they have in mind with other sentences."
But the ACLU's Landau noted that under the old system any disparity in sentences was corrected by the parole board.
Landau also said prosecutors will have increased power because they will be able to threaten to charge defendants with a specific crime carrying a specific sentence unless they plead guilty, Landau said.
Another provision would limit the insanity defense to those who are unable to comprehend the wrongfulness of their acts. A defendant with a serious mental disease who says he committed a crime because "voices" ordered him to do it could not use the insanity defense.
"It eliminates the present kind of battle of experts you see where we have a struggle over whether or not there was a lack of volition, where it's a question of whether or not there was irresistible impulse," said Associate Attorney General D. Lowell Jensen.
The law also would give federal law enforcement authorities broader powers to seize property, goods and money in narcotics cases and organized crime activities. Previously federal authorities could keep only the contraband seized during an arrest.
Under the new law, however, authorities can keep or sell all assets -- including homes -- of a defendant convicted in a drug or organized-crime case. The convicted person can keep only assets that he or she can prove did not result from the illegal activity.
To ensure that the defendant does not dispose of assets between arrest and trial, the government has new powers to freeze assets.
Prosecutors say the new provisions will strip away some remaining "benefits" of crime -- because convicted persons will no longer return to illegally accumulated wealth when they leave prison.
Some defense attorneys say it could result in inadequate legal defense for clients because they would not have access to their money and other assets.
The defense attorneys' fear is not without basis. Neal R. Sonnet, a Miami defense attorney and former federal prosecutor, this month received a letter from Assistant U.S. Attorney Brian Leighton regarding Sonnet's defense of two men charged with operating a continuing drug enterprise in California.
Leighton wrote, "The government hereby puts you on notice that any and all assets belonging to the defendants are forfeitable to the United States, including any attorneys fees or other valuable consideration received by you, or to be received by you for your representation of the defendant."
Said Sonnet: "People have a right to be represented by the lawyer of their choice. If the Justice Department wants to say that any lawyer who represents a person like this does so at his own peril, then I think this needs to be straightened out in the courts or in Congress."
But the Justice Department sees the matter differently. "If you have drug money, you're not allowed to buy a plane with it, a house with it, or more drugs with it," said Trott. "Why should there be a different rule for lawyers' fees? That money is blood money."