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JULY 1994

Article 9 - Liberty and Security of Person

Arrest and Detention:  General.  Both the U.S. 
Constitution and a number of statutes and rules of 
criminal procedure protect individuals against 
arbitrary arrest and detention.  The Constitution 
greatly restricts the ability of the government at 
all levels to infringe on the liberty of its 
citizens; several provisions bear directly on the 
power to arrest and detain.  The Fifth Amendment 
provides that no person shall be "deprived of . . . 
liberty . . . without due process of law."  
Similarly, the Fourteenth Amendment provides that no 
state shall "deprive any person of . . . liberty . . 
. without due process of law."  The Fourth Amendment 
provides that all persons shall be free from 
unreasonable searches and seizures, and "no Warrants 
shall issue, but upon probable cause, supported by 
Oath or affirmation, and particularly describing the 
place to be searched, and the persons or things to 
be seized."  Finally, the Sixth Amendment provides 
that in all criminal prosecutions, the accused shall 
be given a "speedy and public trial, by an impartial 
jury of the State," and persons shall be "informed 
of the nature and cause of the accusation" brought 
against them.  These constitutional protections 
apply (with one exception not relevant to this 
inquiry) to the states under the Due Process Clause 
of the Fourteenth Amendment.  See Wolf v. Colorado, 
338 U.S. 25, 27-28, 33 (1949); Malloy v. Hogan, 378 
U.S. 1, 8 (1964) (Fifth Amendment privilege against 
self-incrimination); Benton v. Maryland, 395 U.S. 
784, 793-96 (1969) (Fifth Amendment double jeopardy 
clause); Hurtado v. California, 110 U.S. 516, 535 
(1884) (Fifth Amendment due process clause); Klopfer 
v. North Carolina, 386 U.S. 213, 222-23 (1967) 
(Sixth Amendment speedy trial clause); Gideon v. 
Wainwright, 372 U.S. 335, 342 (1963) (Sixth 
Amendment right to counsel).

The constitutional provisions described above form 
the bases for strict rules regarding the arrest and 
detention of suspects in the United States; these 
rules are applied and enforced at all levels of 
government.  First, persons may be detained upon a 
finding that there is probable cause to believe they 
have committed a crime.  A judicial officer must 
authorize such detention either by issuing a warrant 
for the person's arrest, or by approving such arrest 
shortly after it occurs.  Subsequently, the judicial 
officer must authorize the continued detention of 
the person following a hearing wherein it is 
determined whether there is reason to believe the 
suspect will flee from justice or will pose a threat 
to the public if released.  There is usually a 
presumption that the person shall be released 
pending trial with or without executing an 
appearance bond although  exceptions may exist where 
the crime is particularly heinous.  See, e.g., 18 
U.S.C.    3142 et seq.  

Additionally, states through their separate laws 
guarantee that individuals will not be arbitrarily 
arrested and detained by state authorities and also 
require prompt notification of charges and a speedy 
trial.  States are obligated at a minimum to adhere 
to the requirements of the U.S. Constitution, but 
they may adopt greater protections in their own 
statutes or state constitutions. 

Arrest.   In the United States, a person ordinarily 
may be deprived of liberty for only a brief period 
unless such person (1) has been formally arrested 
and charged, by complaint or indictment, with a 
crime, or (2) refuses to obey a lawful court order 
(but only for as long as he refuses to obey).  The 
primary protection against the government's 
unwarranted deprivation of a person's liberty is in 
the Fourth Amendment to the Constitution.  It 

     The right of the people to be secure in their 
persons, houses, papers, and effects, against 
unreasonable searches and seizures, shall not be 
violated, and no warrants shall issue, but upon 
probable cause, supported by oath or affirmation, 
and particularly describing the place to be 
searched, and the persons or things to be seized.

The Fourth Amendment requires two things:  (1) the 
arrest must be "reasonable" and (2) an arrest 
effected by a warrant must be backed by a showing, 
under oath, of probable cause and a particular 
description of the person to be arrested.  The 
"seizure" of a person under the Fourth Amendment can 
include a formal arrest or a detention by government 
officials where, under the totality of the 
circumstances, the person reasonably believes that 
he or she is not free to leave.  United States v. 
Mendenhall, 446 U.S. 544, 554 (1980).

The Fourth Amendment does not require that an arrest 
be effected by a judicially-authorized warrant.  
Whether the arrest is made with or without a 
warrant, the Amendment requires that there be 
probable cause.  Probable cause exists when the 
police have knowledge or information of facts and 
circumstances sufficient to allow a person of 
reasonable caution to believe that an offense has 
been or is being committed by the person to be 
arrested.  Beck v. Ohio, 379 U.S. 89, 91 (1964); 
Brinegar v. United States, 338 U.S. 160, 175-76 
(1949).  In this respect, U.S. law and practice does 
not permit "preventive detention."  

A police officer may arrest a person without first 
securing a warrant or a complaint if, for example, 
he observes the person engaged in the commission of 
a crime.  However, the officer must then promptly 
swear out a complaint before a judge or magistrate.  
Fed. R. Crim. P. 3 describes a complaint as "a 
written statement of the essential facts 
constituting the offense charged."  In addition, a 
person who has been arrested or otherwise subject to 
significant restraints on his liberty is entitled to 
a hearing before a judge or magistrate; the judicial 
officer determines whether a prudent person would 
conclude that there is probable cause to believe 
that the accused committed the offense.  Gerstein v. 
Pugh, 420 U.S. 103 (1975). 

If the police officer seeks a warrant prior to 
arrest, a judicial officer will issue a warrant or 
summons if he finds (in the complaint or affidavits 
appended to the complaint) probable cause to believe 
that the defendant committed the alleged crime.  
Under Fed. R. Crim. P. 4(c), the warrant must 
describe with particularity the person to be 
arrested and the offense, and it must direct that 
the person then be brought before the nearest 
available magistrate.  

The requirement that arrests not be effected absent 
probable cause and that an independent and neutral 
judicial officer make the probable cause 
determination goes far to protecting against 
arbitrary detention in criminal cases.  Nor may a 
person be arrested, whether or not he is to be 
detained in custody, without being promptly informed 
of the basis for the arrest and detention.

Reasons for Arrest and Detention.  Federal law 
requires that the arrestee must be given a copy, 
immediately upon arrest, of the arrest warrant (if 
the arresting officer has a copy) or, at a minimum, 
must be informed of the offense charged and given an 
opportunity to see the warrant as soon as 
practicable.  Fed. R. Crim. P. 4(d)(3).  In the case 
of warrantless arrest, the arresting authority 
generally must inform the arrestee of the cause of 
his arrest.  State practice is similar.  There may 
be exceptions for state  arrests, however, in the 
limited circumstances where the arrest is for an 
offense committed in the actual presence of the 
arresting officer or person, or the officer arrests 
the person after an immediate and hot pursuit or 
after an escape.  See, e.g., People v. Beard, 46 
Cal.2d 278, 294 P.2d 29 (1956).

Right to Counsel.  In addition, the requirement that 
the accused be provided assistance of counsel 
promptly in a criminal case protects against 
arbitrary detention.  First, under the Fifth 
Amendment and the rule imposed by the Supreme Court 
in Miranda v. Arizona, 384 U.S. 436, 444, 478-79 
(1966), before questioning a person in "custody," 
police officers -- state and federal -- must inform 
the person that he or she has a right to remain 
silent, that any statements he or she makes can be 
used against him or her at a criminal trial, that he 
or she has the right to the presence of a lawyer, 
and that if he or she cannot afford a lawyer one 
will be appointed.  "Custody" for purposes of 
Miranda does not necessarily require that the person 
be formally arrested and charged; it is sufficient 
if his or her freedom of action has been deprived in 
any significant way.  Miranda, 384 U.S. at 444.  Nor 
does it matter whether the custodial interrogation 
is focusing on a major crime or a minor violation.  
Some types of detention, however, may be so 
insignificant, such as a routine traffic stop, that 
Miranda warnings are not required because the 
defendant is not deemed in custody.  Berkemer v. 
McCarthy, 468 U.S. 420, 441-2 (1984).

By operation of Miranda, once a person requests the 
assistance of a lawyer during questioning the 
interrogation must stop until counsel is provided.  
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).  
While there is no requirement that counsel be 
promptly provided, there can be no continued 
custodial interrogation without counsel.  In the 
event the person in custody wishes to speak with an 
attorney and is denied the opportunity to do so, any 
evidence the police obtain  -- either directly or as 
a "fruit" of the initial statement -- as a 
consequence of the denial of counsel will be 
excluded at trial.  

In addition to the requirement under Miranda that 
persons in custodial interrogation situations be 
informed of their right not to answer questions and 
their right to the presence of an attorney, the 
Sixth Amendment requires that "in all criminal 
prosecutions, the accused shall . . . have the 
Assistance of Counsel for his defense."  The Supreme 
Court has ruled that the Sixth Amendment right to 
counsel is triggered by the initiation of 
adversarial judicial proceedings against the 
accused, either by formal charge, preliminary 
hearing, indictment, information, or arraignment.  
Kirby v. Illinois, 406 U.S. 682, 689 (1972).  This 
provision applies to the states as well.  Gideon v. 
Wainwright, 372 U.S. 335 (1963).

The protections of Miranda v. Arizona as well as 
Gideon v. Wainwright and other Sixth Amendment cases 
generally are invoked to guarantee that persons who 
are not already represented will receive the 
assistance of counsel.  Should a detainee already 
have an attorney and wish to contact that attorney, 
no statute or rule prohibits him from doing so, even 
though that person's constitutional right to counsel 
may not yet have attached.  If for some reason the 
request to contact his attorney is not immediately 
honored, the government will be barred from using as 
evidence any statements the detainee made to 
officers in response to questioning after the 
attempt to contact the lawyer; the government also 
cannot use information derived from those 

Initial Appearance.  At both the federal and state 
levels, all persons who have been arrested or 
detained must be brought before a judicial officer 
promptly even when the arrest has been made pursuant 
to a warrant issued upon a finding of probable 
cause.  Officers who arrest a person without a 
warrant must bring that person before a magistrate 
for a judicial finding of probable cause within a 
reasonable time.  Gerstein v. Pugh, 420 U.S. 103 
(1975).  Though "reasonable time" is undefined, the 
Supreme Court has held that it generally cannot be 
more than 48 hours, see County of Riverside v. 
McLaughlin, 111 S.Ct. 1661 (1991).  Some states may 
apply more stringent statutory or constitutional 
requirements to bar detention for even that length 
of time.  If there is "unreasonable delay" in 
bringing the arrested person before a magistrate or 
judge for this initial appearance, confessions or 
statements obtained during this delay period may be 
excluded from evidence at trial.

Not all delay over 48 hours will be deemed 
unreasonable.  For example, the Supreme Court 
suggested in one case that a delay of three days 
over a 3-day holiday weekend was not violative of 
the person's due process rights.  Baker v. McCollan, 
443 U.S. 137, 145 (1979).  In other instances, for 
example when the police seek to check the 
defendant's story, delay greater than 48 hours may 
also be found to be reasonable.  Mallory v. United 
States, 354 U.S. 449, 455 (1957).

In arrests for violations of federal law, Fed. R. 
Crim. P. 5 requires that an arresting officer bring 
the accused before the nearest available magistrate 
without unnecessary delay.  If a federal magistrate 
or judge is not available, the person must be 
brought before a state or local official.  See 18 
U.S.C.   3041; Fed. R. Crim. P. 5(a).  At this 
proceeding, called an "initial appearance," the 
judge or magistrate informs the accused of the 
charges against him, informs the suspect of his 
right to remain silent and the consequences if he 
chooses to make a statement, his right to request an 
attorney or retain counsel of his choice, and of the 
general circumstances under which he may obtain 
pretrial release.  Fed. R. Crim. P. 5(c).  The 
magistrate will also inform the accused of his right 
to a preliminary hearing, assuming that the person 
has not yet been indicted by a grand jury, and allow 
reasonable time to consult with his attorney.  Fed. 
R. Crim. P. 5(c).

Pretrial Release.  In the federal system and the 
various states, the general rule is that persons 
awaiting trial will not be detained in custody 
unless the judicial officer cannot be assured that 
there are conditions of release that will reasonably 
guarantee the safety of the public and the 
appearance of the person at the criminal trial.  
Since the amount of bail is not the only factor in 
determining the risk that a charged person would 
flee before trial, his financial status may not be 
the overriding concern.  Courts frequently take into 
account such other factors as the seriousness of the 
crime (and the severity of the penalty the person is 
likely to face if convicted), the strength of the 
evidence, and the individual's ties to the community 
in assessing the likelihood that he will appear at 
his trial.  

A person lacking the financial means to secure 
release by a cash bond or by arranging for a bail 
bondsman to act as a surety may be released on other 
conditions which might reasonably guarantee 
appearance at trial.  Such conditions may include 
requirements to report regularly to a designated law 
enforcement or pretrial services agency, to limit 
his travels or remain under house arrest, to comply 
with a curfew, and the like.  The court may also 
impose conditions of release that are designed to 
protect the public safety, such as prohibitions 
against contacting or associating with certain 
individuals.         If release on bail is ordered, 
the amount of bail should be set at a figure 
sufficient to guarantee the person's availability at 
trial.  Stack v. Boyle, 342 U.S. 1, 4 (1951).  A 
person with fewer assets would, theoretically, be as 
unwilling to forfeit all his property as a person 
with substantial assets.  Under that analysis, bail 
could be set at a much lower figure for the detainee 
of lesser wealth.  However, as a practical matter 
courts may have less confidence in ordering low bail 
or alternatives to the pledging of property for 
persons who pose a risk of flight for other reasons, 
such as the aforementioned severity of the crime and 
lack of community ties, and who also lack 
substantial financial assets that would be risked by 
pretrial flight.  

In federal courts, the Bail Reform Act, 18 U.S.C.    
3141 et seq., provides that, except for the 
categories of particularly dangerous persons or 
persons likely to flee if not detained, defendants 
awaiting trial can be released on personal 
recognizance, upon the execution of an unsecured 
appearance bond, or upon other conditions.  The 
other conditions may include a requirement that the 
defendant remain in the custody of a designated 
custodian or that the defendant's movements be 
subject to electronic monitoring, that the defendant 
restrict his travel outside the jurisdiction, that 
the defendant post a cash bond or pledge property as 
security for his promise to appear at trial, or that 
the defendant execute a bail bond with a solvent 

The Bail Reform Act also provides that when a 
judicial officer "finds that no condition or 
combination of conditions will reasonably assure the 
appearance of the person as required and the safety 
of any other person and the community, he shall 
order the detention of the person prior to trial."  
18 U.S.C.   3141(e).  In certain circumstances the 
statute allows a rebuttable presumption against 
release pending trial.  18 U.S.C.   3142(e),(f)(1).  
The rebuttable presumption arises if (1) within the 
past five years the defendant while released pending 
trial on another matter, had committed a crime of 
violence, a crime for which the maximum sentence was 
life imprisonment or the death penalty, a serious 
drug felony, or (in conjunction with other 
circumstances) any other felony, or (2) the judge 
finds probable cause to believe that the defendant 
committed a serious drug or firearms felony.  
Subject to rebuttal by the defendant, the court 
shall find that no condition or combination of 
conditions will reasonably assure the appearance of 
the person if released before trial or the safety of 
any other person and the community.  The court may 
also deny release pending trial if it finds a 
serious risk of flight or that the defendant will 
obstruct or attempt to obstruct justice, or threaten 
or attempt to threaten, injure, or intimidate a 
prospective witness or juror.  18 U.S.C.   

At a detention hearing under the statute, the 
arrested person has the right to counsel, to cross-
examine witnesses called by the government, and to 
testify and present witnesses and evidence on his 
behalf.  If after the hearing the judicial officer 
finds that no conditions of pretrial release can 
reasonably ensure the safety of other persons and 
the community, he must state his findings of fact in 
writing and support his conclusions with "clear and 
convincing evidence."  18 U.S.C.   3142(f), (i).  
The statute further spells out the factors that the 
judicial officer must consider:  the nature and 
seriousness of the charge, the strength of the 
government's evidence, the detained person's 
background and characteristics, and the nature and 
seriousness of the danger that would be posed if the 
detained person was released.  18 U.S.C.   3142(g).  

A person subject to pretrial detention -- either 
because the individual cannot "make" the bail which 
has been set or because the court has declined to 
release him under any circumstances -- may appeal to 
a higher court.  Stack v. Boyle, supra.  Under 
federal law, if the person is ordered detained by a 
magistrate, he may file a motion with the district 
court for revocation or amendment of the order.  The 
statute requires that the motion shall be determined 
"promptly."  18 U.S.C.   3145(b).  If the district 
court denies the motion, he may appeal the order to 
the court of appeals.  That appeal too shall be 
determined "promptly."  18 U.S.C.   3145(c).  The 
remedy of appeal is guaranteed to persons regardless 
of their ability to pay for an attorney; an indigent 
defendant who wishes to appeal the decision will be 
assisted by court-provided counsel, and the indigent 
appellant will not have to pay any court costs or 
filing fees in order to perfect his appeal.

Approximately 62 percent of federal offenders were 
released prior to disposition of their cases in 
1990.  Of those who were not released, two-thirds 
were denied bail and were detained after a hearing 
at which it was determined that they posed a danger 
to the community.  Defendants denied pretrial 
release because of their potential danger were held 
an average of 88 days before disposition of their 

State procedures for setting and making bail are 
relatively similar to the federal process, although 
there are significant variations in law and practice 
among the fifty jurisdictions.  States take into 
account different factors in setting bail, and some 
have no statutory factors for setting bail.  
Nonetheless, certain factors are usually considered, 
including the seriousness of the offense, the 
strength of the case against the suspect, and the 
suspect's prior criminal record.  Bail is usually 
arranged through a cash payment, an agreement with a 
bail bondsman, or on the suspect's personal 

In 1990, an estimated 65 percent of defendants 
facing felony charges in the nation's 75 most 
populous counties were released prior to the 
disposition of their cases.  More than half were 
released within a day of arrest, and 80 percent were 
released within a week of their arrest.  Of the 35 
percent who remained in custody pending disposition 
of their criminal cases, approximately one in six 
defendants were denied release on bail; the other 
five in six were unable to post the required bail 
amount.  Felony defendants detained prior to 
disposition were held in custody for an average of 
37 days.

Right to Speedy Trial.  In addition to providing the 
protection of the right to counsel, the Sixth 
Amendment also guarantees that "[in] all criminal 
prosecutions, the accused shall enjoy the right to a 
speedy and public trial . . . ."  This speedy trial 
protection applies to state as well as federal 
prosecutions. In federal courts, the rights is 
implemented by the Speedy Trial Act, 18 U.S.C.    
3161 et seq.  Many states have adopted similar 
statutes.  The right to speedy trial is discussed in 
greater detail under Article 14.

The Military Justice System.  In military 
jurisprudence, the apprehension and restraint of 
individuals are addressed in the Uniform Code of 
Military Justice, Articles 7 through 14, 10 U.S.C. 
   807-14.  The civilian term "arrest" is equivalent 
to the military term "apprehension".  Under the 
Uniform Code of Military Justice (UCMJ), Article 7, 
10 U.S.C.   807, an individual may be apprehended 
only upon reasonable belief that an offense has been 
committed and that the person apprehended committed 

This matter is expounded in Rule for Court-Martial 
302, Manual for Courts-Martial (1984).  This rule 
details that warrants are not required for 
apprehension (except in certain cases involving 
private dwellings) and that reasonable force may be 
used to effect the apprehension.

The imposition of restraint is effected pursuant to 
UCMJ, Article 9, 10 U.S.C.   809, and is more 
particularly described in Rule for Court-Martial 
304, Manual for Courts-Martial.  Pretrial restraint 
is moral or physical restraint on a person's liberty 
and may consist of, in order of increasing severity:  
conditions on liberty (orders directing a person to 
do or refrain from doing specified acts), 
restriction in lieu of arrest (orders directing the 
person to remain within specified limits, while 
still performing full military duties), arrest 
(orders directing the person to remain within 
specified limits, while not performing full military 
duties), and confinement (physical restraint, 
imposed by order of competent authority, depriving a 
person of freedom pending disposition of charges).

Rule for Court-Martial 305 discusses pretrial 
confinement in great detail.  Only a commanding 
officer, to whose authority a civilian or officer is 
subject, may order pretrial restraint of that 
civilian (subject to trial by court-martial) or 
officer.  Any commissioned officer may order the 
pretrial confinement of an enlisted member.  An 
individual may be ordered into pretrial confinement 
only if there is probable cause to believe that an 
offense triable by court-martial has been committed, 
the person confined committed it, and confinement is 
required by the circumstances.

The person confined must be notified immediately of 
the nature of the offense charged; the right to 
remain silent and that any statement made may be 
used against such person; the right to retain 
civilian counsel at no expense to the government; 
the right to military counsel at no cost; and 
procedures for review of the pretrial confinement.

Within 72 hours of ordering an individual placed 
into pretrial confinement or being notified that a 
member of the unit is in pretrial confinement, the 
commander must decide whether or not the confinement 
will continue.  The commander must order the 
prisoner's release unless the commander believes 
upon probable cause that a court-martial offense has 
been committed; the prisoner committed it; 
confinement is necessary because it is foreseeable 
that the prisoner will not appear at trial 
proceedings; the prisoner will engage in serious 
criminal misconduct; and less severe forms of 
restraint are inadequate.

Within seven days of the imposition of the 
restraint, a review must be conducted of the 
adequacy of probable cause to believe the prisoner 
has committed an offense and of the necessity of 
continued pretrial confinement.  The review is 
conducted by a neutral and detached officer, who 
must consider the confining commander's decision, 
written matters, and any presentation made by the 
prisoner and the prisoner's counsel, who are allowed 
to appear at the review.

 Once the charges for which the prisoner is being 
held are referred to trial by court-martial, the 
pretrial confinement is subject to review by the 
military judge.  Should the judge determine the 
pretrial confinement resulted from an abuse of 
discretion, the military judge shall order 
administrative credit for any pretrial confinement 
served as a result of the abuse.  There is no avenue 
for compensation to a prisoner who is determined to 
have been wrongly confined.

Under Rule for Court-Martial 707, the prisoner must 
be brought to trial within 120 days of the 
imposition of restraint.  Pretrial confinees and 
post-trial confinees may be quartered in the same 
facility and may use common areas (such as 
dayrooms), but their actual quarters must be 
separate.  Habeas corpus procedures are available to 
an accused through Federal District Court.

Recently, Congress enacted a "bill of rights" for 
military members who are required to submit to a 
mental health examination (National Defense 
Authorization Act, Pub L. No. 102-484, 106 Stat 
2315, 1506 (1992)).  The commander must consult a 
mental health professional prior to referring a 
member for a mental health evaluation.  The 
commander must provide the member with a written 
notice that includes an explanation for the 
referral, the name of the mental health professional 
consulted by the commander, and how to contact an 
attorney or inspector general for assistance in 
challenging the referral.  The member may have an 
attorney to assist in redress; have the assistance 
of the inspector general to review referral; and be 
evaluated by a mental health professional of the 
member's own choosing.  The Act prohibits using 
mental health referrals against members for whistle 
blower activities.  It also includes special 
procedures for emergency or inpatient evaluations.  
The Act requires the Secretary of Defense to revise 
applicable regulations to incorporate these 
requirements.  These requirements do not become 
effective until the regulation revision is 

Detention to Secure the Presence of a Witness.  A 
person may also be held in custody to secure his 
presence as a material witness at an upcoming trial.  
The Supreme Court has stated that the "duty to 
disclose knowledge of crime . . . is so vital that 
one known to be innocent may be detained in the 
absence of bail, as a material witness."  Stein v. 
New York, 346 U.S. 156, 184 (1953).  Federal law 
accordingly has a material witness statute, 18 
U.S.C.   3144, that provides:

     If it appears from an affidavit filed by a 
party that the testimony of a person is material in 
a criminal proceeding, and if it is shown that it 
may become impracticable to secure the presence of 
the person by subpoena, a judicial officer may order 
the arrest of the person and treat the person in 
accordance with the provisions of [the Bail Reform 
Act].  No material witness may be detained because 
of inability to comply with any condition of release 
if the testimony of such witness can adequately be 
secured by deposition, and if further detention is 
not necessary to prevent a failure of justice.  
Release of a material witness may be delayed for a 
reasonable period of time until the deposition of 
the witness can be taken pursuant to the Federal 
Rules of Criminal Procedure.

Custody of the witness may be obtained by means of 
an arrest warrant secured from a judge upon a 
showing of probable cause to believe that the 
testimony of the witness is material and that it may 
be impracticable to secure the witness's presence by 
subpoena.  Bacon v. United States, 449 F.2d 933, 
937-39 (9th Cir. 1971); United States v. Coldwell, 
496 F. Supp. 305, 307 (E.D. Okl. 1979); United 
States v. Feingold, 416 F. Supp. 627, 628 (E.D.N.Y. 
1976).  Where a material witness is held in custody 
under that provision, the prosecutor is obligated to 
make a biweekly report to the court explaining why 
it is necessary that the witness continue in 
detention in lieu of giving a deposition under the 
Federal Rules of Criminal Procedure.  Fed. R. Crim. 
P. 46(g). In addition, the witness held in custody 
must be given appointed counsel if the witness is 
financially unable to afford a lawyer.  In re Class 
Action Application for Habeas Corpus on Behalf of 
All Material Witnesses in Western Dist. of Texas, 
612 F. Supp. 940, 943 (W.D.Tex. 1985).

Detention for Contempt of Court.  A person may also 
be held in custody as a means of ensuring compliance 
with a court order.  The decision to take a 
contemnor into custody is reserved for the judge, 
and is subject to appeal to a higher court.  Courts 
have the inherent power to enforce compliance with 
their lawful orders through civil contempt.  
Shillitani v. United States, 384 U.S. 364, 370 
(1966).  A finding of civil contempt and the remand 
of the individual into custody solely for the 
purpose of coercing obedience to lawful orders is 
not viewed as criminal punishment.  Id.  Court-
ordered detention under its civil contempt powers 
may continue indefinitely but not forever.  United 
States ex rel. Thom v. Jenkins, 760 F.2d 736, 740 
(7th Cir. 1985).  The continued incarceration must 
be subject to court review at reasonable intervals 
or when requested by either party.  Moreover, the 
decision to maintain a person in custody in order to 
compel his compliance is appealable to a higher 
court; the standard of review of a trial court civil 
contempt sanction is the abuse of discretion 
standard: if there is clear and convincing evidence 
of the contemnor's violation of a court's prior 
lawful order, the trial court would have broad 
discretion in finding civil contempt and imposing 
sanctions, and the finding and the sanction would be 
reversed only for abuse of discretion.  Peppers v. 
Barry, 873 F.2d 967, 968 (6th Cir. 1989); Stotler & 
Co. v. Able, 870 F.2d 1158, 1163 (7th Cir. 1989); 
United States v. Hefti,  879 F.2d 311, 315 (8th Cir. 
1989), cert. denied, 110 S. Ct. 1125 (1990).

Commitment for Mental Disease. Persons suffering 
from a mental disease or defect may be detained and 
treated based upon a judicial finding that the 
release of such persons would be dangerous to 
themselves or others.  "Involuntary civil 
commitment" is the process by which individuals 
alleged to have a mental illness or other mental 
impairment are deprived of their liberty and 
confined to an inpatient hospital setting for 

The U.S. Supreme Court has held that persons who 
have not been convicted or suspected of any criminal 
conduct may be detained if it can be determined 
that, by reason of a mental disease or defect, they 
are likely to cause harm to themselves, or to 
others.  United States v. Addington, 441 U.S. 418 
(1978).  All states have civil commitment statutes 
that allow a person to be committed to a mental 
health facility for treatment and care.  Because 
such statutes permit the state to deprive citizens 
of their liberty, the state is required to satisfy 
an exceptionally high standard of proof, 
illustrating both the mental state of the individual 
and the imminent danger posed by the person.  As the 
Supreme Court noted in 1978, "the individual's 
interest in the outcome of a civil commitment 
proceeding is of such weight and gravity that due 
process requires the state to justify confinement by 
proof more substantial than a mere preponderance of 
the evidence."  United States v. Addington, supra, 
at 427.  Most states require "clear and convincing" 
evidence to be presented, others possess a "clear, 
cogent, and convincing" standard, and a few states 
require an even higher standard of "clear, 
unequivocal and convincing" proof.

While the states and the federal government retain 
the power to commit individuals in the various 
circumstances noted above, the U.S. Supreme Court 
"repeatedly has recognized that civil commitment for 
any purpose constitutes a significant deprivation of 
liberty that requires due process protection."  
United States v. Addington, supra, at 425; see also 
Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. 
Cady, 405 U.S. 504 (1972); In re Gault, 387 U.S. 1 
(1967); Specht v. Patterson, 386 U.S. 605 (1967).  
Recognizing the unique, non-criminal status of 
individuals detained in this manner, the Supreme 
Court has affirmatively noted that "in a civil 
commitment state power is not exercised in a 
punitive sense."  United States v. Addington, supra, 
at 428. 

The same rules apply to the states.  State law 
usually requires, as a prerequisite to involuntary 
confinement, proof that patients have a mental 
disability that renders them dangerous to themselves 
or others, or, less commonly, gravely disabled and 
unable to care for basic needs.  The process is 
initiated when a third party petitions a local court 
asking the court to commit an individual.  Following 
receipt of the petition, the court holds a hearing 
to determine whether the individual whose commitment 
is sought meets the jurisdiction's commitment 
standard.  An emergency commitment can be ordered 
without a hearing for a period of time which is 
usually 72 hours.  Allegedly mentally ill 
individuals are represented by counsel in these 
proceedings, but other procedural requirements vary 
from state to state.  In addition, the Miranda rule 
described above applies to state custodial 
interrogations.  See, e.g., Etelle v. Smith, 451 
U.S. 454 (1981).

Voluntary commitment includes procedures where 
individuals sign  themselves into a facility for 
treatment as well as actual third-party- initiated 
commitments or admissions to hospitals.  State 
statutes typically permit the superintendent of a 
facility to admit an individual if the 
superintendent believes the person to be "suitable 
for admission," and parents may commit their 
dependent children through various procedures 
without a court hearing.  The U.S. Supreme Court has 
held, however, that the deprivation of liberty 
involved in so- called voluntary commitment requires 
that a neutral fact-finder determine the child's 
suitability for commitment.  Parham v. J.R., 442 
U.S. 584 (1979). 

A person who is acquitted on a criminal charge by 
reason of insanity may continue to be confined after 
acquittal only after a determination that the 
individual is both mentally ill and dangerous.  
Foucha v. Louisiana.  112 S.Ct. 1780 (1992).

All states provide patients with the right to habeas 
corpus to contest the legality of their commitments.  
Moreover, state statutes afford patients a right to 
have the need for their confinement reviewed 
periodically.  These statutes are an outgrowth of 
the Supreme Court's holding in Donaldson v. 
O'Connor, 422 U.S. 563 (1975), that even where an 
individual's initial commitment may have been 
founded on a legally adequate basis, confinement 
cannot continue after the basis no longer exists.

Detention of Illegal Immigrants.  Noncitizens who 
are apprehended attempting to enter the United 
States illegally (excludable aliens) or who are 
apprehended following entry into the United States 
(deportable aliens) may be detained pending 
exclusion or deportation hearings or returned to 
their home countries.  Detention is generally based 
on the conclusion that a particular alien poses a 
danger to the community or is likely to abscond.

In the case of some excludable aliens who have 
committed serious crimes in the U.S. and have served 
their criminal sentences, or who have serious mental 
illnesses, immigration detention has lasted for 
considerable periods due to concerns that the 
particular aliens involved pose a danger to the 
community and the refusal of their home country to 
accept them back.  Their detention, which is 
currently authorized under section 236(b) of the 
Immigration and Nationality Act, has repeatedly been 
challenged as unauthorized by law, unconstitutional 
or arbitrary and in violation of international law, 
with limited success to date.  See Alvarez-Mendez v. 
Stock, 746 F. Supp. 1006, aff'd 941 F.2d 956 (1992), 
cert. denied, 113 S. Ct. 127 (1992) (general 
principles of international law allegedly forbidding 
arbitrary detention were not applicable to detention 
of Cuban national found excludable and deportable; 
detention to protect society is not punishment); 
Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), 
cert. denied, Ferrer-Mazorra v. Meese, 479 U.S. 889 
(1986) (the Attorney General has implied authority 
to detain excludable aliens indefinitely); but see 
Barrera-Echavarria v. Rison, 21 F.3d 314 (9th Cir. 
1994), pet. reh'g. filed (May 16, 1994) (granting 
habeas corpus to a Mariel Cuban).

Both excludable and deportable aliens in the United 
States have a  right to apply for habeas corpus (see 
below), as well as political asylum and withholding 
of exclusion/deportation.  The application of U.S. 
immigration law to illegal aliens, and their rights 
in immigration proceedings, are discussed in detail 
under Article 13.

Habeas Corpus Relief.  The procedures set out above 
guarantee that throughout the U.S. a neutral judge 
will promptly and repeatedly be available to make 
judgments about the lawfulness of detention.  In 
addition, habeas corpus is an historic remedy 
available to persons subject to restraint of their 
liberty.  Hensley v. Municipal Court, 411 U.S. 345, 
351 (1973).  Art. I,   9, cl. 2 provides that "the 
privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Rebellion or 
Invasion the public Safety may require it."  Through 
habeas corpus a person may obtain an immediate 
judicial hearing on the legality of the detention 
and an order directing the official who holds him in 
custody to release him, if appropriate.  Wales v. 
Whitney, 114 U.S. 564, 574 (1885).  In particular, a 
person in custody who has not been formally arrested 
and provided a preliminary hearing, as is required 
by law, may seek immediate release through an 
application for a writ of habeas corpus that he may 
file in either federal or state court.  See United 
States ex rel. Davis v. Camden County Jail, 413 F. 
Supp. 1265, 1268 n.3 (D.N.J. 1976).

The process for obtaining habeas corpus relief is 
less onerous than other remedies; the Supreme Court 
has emphasized that the "very nature of the writ 
demands that it be administered with the initiative 
and flexibility essential to insure that 
miscarriages of justice within its reach are 
surfaced and corrected."  Harris v. Nelson, 394 U.S. 
286, 291 (1969); Hensley v. Municipal Court, 411 
U.S. at 350.

The right of a person to habeas corpus relief 
generally depends on the legality or illegality of 
his detention, i.e., whether the fundamental 
requirements of law have been complied with, and not 
on the underlying issues of guilt or innocence.  
However, the fundamental requirements of the law 
require that a person cannot be subject to detention 
unless a neutral and detached magistrate makes an 
independent finding that there is sufficient 
probable cause to believe that person committed an 
offense.  Gerstein v. Pugh, 420 U.S. 103, 119 

Because there are other constitutional and statutory 
guarantees, the writ of habeas corpus is little used 
in practice as a remedy for protecting detainees in 
criminal cases.  The writ can also be used to review 
a final conviction -- in addition to the statutory 
right to appeal one's conviction  -- as well as to 
challenge execution of a sentence or to challenge 
confinement that does not result from a criminal 
conviction, such as the commitment into custody for 
mental incompetency or detention for immigration 
reasons.       Right to Compensation.   U.S. law at 
the federal and state levels provides ample remedies 
to victims of unlawful arrests and other 
miscarriages of justice.  As described under Article 
2, victims of unlawful arrest or detention may 
collect damages from federal law enforcement 
officials for violations of their constitutional 
rights, Bivens v. Six Unknown Named Agents of 
Federal Bureau of Narcotics, 403 U.S. 388 (1971), 
and Congress has by statute provided for similar 
relief against state officials, 42 U.S.C.   1983.  
Victims also have rights to compensation against 
state officials under provisions of state law.  In 
both contexts, the defendants to such actions may 
raise the defense of qualified immunity, which is 
designed to protect the discretion of law 
enforcement officials in the exercise of their 
official functions.  In some instances, immunity has 
been waived by statute, such as the Federal Tort 
Claims Act.  In other cases, compensation may be 
available through insurance, or by special act of 
the legislature.  There is, however, no 
constitutional or statutory requirement of 
compensation for all persons who have been arrested 
unlawfully.  For this reason, and because the U.S. 
Government believes that few, if any, states 
actually provide an absolute right of compensation 
to all victims of unlawful arrest regardless of the 
circumstances, the U.S. conditioned its acceptance 
on the following understanding:

     The United States understands the right to 
compensation referred to in Articles 9(5) and 14(6) 
to require the provision of effective and 
enforceable mechanisms by which a victim of an 
unlawful arrest or detention or a miscarriage of 
justice may seek and, where justified, obtain 
compensation from either the responsible individual 
or the appropriate governmental entity.  Entitlement 
to compensation may be subject to the reasonable 
requirements of domestic law.
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