IS PRE-TRIAL DETENTION FOR DANGEROUSNESS FAIR?
Still incarcerated in July, 1989, Kevin Mitnick must have taken rather hollow satisfaction in hearing Assistant United States Attorney James Asperger's admission that much of the evidence used to keep him behind bars had turned out to be invalid. Correct or incorrect, the evidence had been used, and seven months passed before Mitnick was given the rights allowed every other prisoner, no matter how vile those other prisoners' crimes.
Mitnick's case suggests three problems in the operation of our pretrial detention laws. First, can we predict dangerousness? Second, how much evidence should be required before denying someone bail? Third, how do we keep detention laws from being used as punishment?
Can We Predict Dangerousness ?
Those who object to pretrial detention laws suggest that it is impossible to predict future dangerousness. Chappel and Monahan, two criminologists studying the issue, concluded that predictions are usually wrong. They found that in three studies, percentages of false predictions of future violent behavior were 86 percent, 95 percent, and 99.7 percent. A study of preventive detention by David Jett appearing in the 1985 American Criminal Law Review concludes that statistics like these refute the logic of denying bail. "The paucity of support for the government's position that violent or dangerous behavior can be predicted brings into question the legitimacy of the 1984 (Bail Reform) Act's method of achieving its goal of protecting society from dangerous individuals."
How Much Evidence Should Be Required Before Denying Someone Bail ?
One of the most glaring problems in the denial of Kevin Mitnick's requests for bail is the degree to which the three decisions denying bail were based on incorrect information. The bail law does not require proof of the facts presented beyond a reasonable doubt. On the contrary, the bail laws do not require that a person faced with pretrial incarceration be informed of information the government will use to support the claim of dangerousness. The right to confront one's accusers, a major part of the protections in criminal trials, is not found in bail hearings.
Kevin Mitnick had no opportunity to confront those who supposedly could have proven the charges that were used to argue against his getting bail. The government was able to use hearsay by merely summarizing what might be proven by competent witnesses without identifying those witnesses.
Most significantly, the prosecutors need only to establish probable cause to believe someone is dangerous for the court to support their motions to deny bail. Later admissions by the United States Attorney's Office established that the facts used to support the motions were false. The limitations on Mitnick's procedural rights allowed the prosecutors to argue from unsubstantiated rumors. Whatever the intent, the result of the prosecution's argument was to deprive Kevin Mitnick of his liberty unfairly.
How Do We Keep the Detention Laws from Being Used for Punishment?
Our Constitution and the rights it protects in the Bill of Rights, are designed to make sure that governmental power is not used unfairly to punish those whose views or behavior are unpopular. In Kevin Mitnick's case, the likelihood seems high that punishment, not just protection of the public were involved in the decision to deny bail.
The courts have often declared that it is impermissible to punish someone before that person is found guilty of a crime. Following that rationale, it is important to ask whether the pretrial detention of an unpopular defendant like Mitnick was punitive. There are two types of punitive application of the bail laws that might be considered. One is the use of detention itself; the other is the imposition of conditions of confinement substantially worse than would be faced after confinement. In Mitnick's case, both seem to have occurred.
Based on my unrepresentative sample, and conversations with several attorneys and former prosecutors, I have little doubt that one of the main reasons Kevin Mitnick was kept in prison was the widespread opinion that he was, as one colleague put it, "a little shit." "They're not supposed to use the law to punish people," one lawyer told me, "but they do."
The novel condition of Mitnick's detention, severely limited telephone use, had the effect of seriously punishing him. Because of administrative problems in enforcing this unusual condition, Mitnick was kept in solitary confinement 23 hours a day. His treatment was similar to those who have violated serious prison rules. He had not violated any of these rules. The reason for his additional punishment was said to be that there weren't enough staff people to keep him from getting access to telephones. So prison authorities just kept him in solitary. Mitnick's attorney, Alan Rubin, alerted Judge Pfaelzer to his client's extra punishment. The Judge took no action, treating Mitnick's punishment as an administrative detail not worth her attention. Some federal courts have ruled that it is impermissible punishment to subject a detainee to conditions of confinement substantially worse than he or she would face upon conviction. Since Kevin would have been kept in solitary confinement only if he violated serious prison rules, the condition of no telephone access, when implemented in the way it was, would certainly seem to be punitive.
I may be unfair in suggesting that the prosecutor, Judge, and jail officials who kept Kevin Mitnick in solitary confinement 23 hours a day were punitive. They may just have been inept. Computer crime is still a spectacular occurrence in the minds of many of those who make the criminal justice system what it is. (Some suggest that is it neither just, nor a system, in short, a double oxymoron.) If no one was able to figure out a way to protect our society from Kevin Mitnick's' making collect calls from jailhouse pay telephones, we are facing a technological time warp of frightening dimension.
A bit of hysteria which attributed near-mythical powers to Kevin Mitnick may explain this over-reaction rather than an intent to do him harm. Such abuse of discretion, however, certainly suggests irresponsibility, if not unethical behavior. Most likely, however, Mitnick's treatment is merely another evidence that far too many in political power at this time prefer to deal with symbols of crime than its substance, whether the crime involved is computer crime, murder, or drug trafficking.
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