Bryan Dearinger

Document Type




This Article analyzes each of those decisions and, by way of two hypothetical cases, addresses the applicability and constitutionality of the AWA Amendments. Part I examines the applicability of the "mandatory" pretrial release conditions of the AWA Amendments, concluding that the conditions are not as automatic as Congress may have wished. Part II sets forth a brief history of the Bail Reform Act and discusses the seminal constitutional attacks made upon its bail provisions, including those made in United States v. Salerno. Part III applies the lessons learned from Salerno and its progeny to the recent attacks on the AWA Amendments under the Excessive Bail Clause of the Eighth Amendment, the Due Process Clause of the Fifth Amendment, and the separation of powers doctrine. It concludes that the mandatory pretrial release provision is facially unconstitutional under the Fifth and Eighth Amendments or, at the very least, unconstitutional as applied to the vast majority of defendants charged with an AWA-enumerated offense, and that the provision violates the separation of powers doctrine if it has the effect of mandating detention without any role for the district court in the bail calculus. Recognizing the lack of political room for meaningful legislative reform on the criminal war against sex crimes, the Conclusion of this Article calls instead for Congress to repeal or redraft the mandatory pretrial release provision of the AWA Amendments to cure the unconstitutional defects that are poisoning our criminal justice system at the pretrial stage. In the alternative, the Conclusion urges Congress to bolster the legislative record of the Amendments with findings that explain why mandatory-as opposed to discretionary-conditions are necessary to fulfill the AWA's goal of protecting children from sexual exploitation and violent crime.

Beyond assisting Congress or opening the scholarly debate on this topic, this Article will be useful to the practitioners and judges who face these cases on a regular basis. The issues raised in this Article should give pause and provide guidance to the federal bench and bar in an area where sex offense legislation grows more complex and onerous; where law enforcement technology evolves rapidly, yet unevenly; and where unconstitutional dangers lurk behind even the most well-intentioned laws.



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