ABSTRACT
In United States v. Salerno, 481 US 739, the Supreme Court upheld the Bail Reform Act in a five-four decision, saying that preventive detention was a regulatory measure and not a form of punishment under the Constitution. The prisoners were detained indefinitely on preventive grounds, deemed beyond the reach of legal justice. Preventive detention refers to a confinement that aims not to punish but rather to protect the community from the detainee's likely harmful act. Although it is in tension with the guarantees of due process and presumption of innocence under the US Constitution, the practice of preventive detention is well entrenched in three areas of US law: criminal procedure, immigration, and executive war powers. The US Constitution, like the Magna Carta before it, severely curbs the ability of government to detain a person without trial, for it is through such extra ju- dicial detentions that the most severe abuses of rights have traditionally taken place.
