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February 19, 1993


The opinion of the court was delivered by: JACK B. WEINSTEIN


 According to his treating physician Defendant Gregory Scarpa, Sr. is terminally ill with AIDS. Observed in court, his skeletal-like frame, shuffling gait, AIDS-related dementia and scab-covered face confirm this diagnosis. He will shortly die, never to be tried for his alleged heinous crimes as a murderous mafia captain.

 Defendant is presently at the Metropolitan Correctional Center (MCC) in Manhattan awaiting trial on charges of racketeering, racketeering conspiracy, murders, conspiracy to murder and carrying and using a firearm in connection with a violent crime. He suffers from several grave medical problems; his treating physician concludes that he has entered the final stages of this fatal illness. Because he can receive necessary and humane treatment only under the care of his physician, an AIDS specialist, at a hospital, he is granted bail on condition that he be confined to Beekman Hospital under the 24-hour guard of the United States Marshal's Service at his own expense. A copy of the order is attached as Exhibit A.


 Defendant was arrested on August 31, 1992 and charged with conspiracy to murder and carrying and using a firearm in connection with a violent crime. 18 U.S.C. §§ 924(c) and 1959(a). After holding a detention hearing, Magistrate Judge John L. Caden determined that defendant was a danger to the community "based on the nature of the charges against him and evidence proffered by the government at the hearing concerning the defendant's prior violent acts." Defendant was nonetheless released on September 16, 1992 because Magistrate Judge Caden found that conditions were available that would "reasonably assure the appearance of the defendant and the safety of the community." See 18 U.S.C. § 3142.

 Between 12:01 a.m. and 12:11 a.m. on December 29, 1992, defendant made an unauthorized exit from his house. While he was outside his home, an exchange of gunfire occurred, the details of which are not known. Defendant sustained a gunshot wound that resulted in the loss of one eye. The government recovered evidence of defendant's continuing loansharking activity subsequent to his release on bail. Based upon a finding that there was clear and convincing evidence that he violated the terms of his home detention, Magistrate Judge Caden revoked defendant's bail on January 14, 1993. Defendant was remanded to the MCC.

 Defendant was subsequently indicted for racketeering, racketeering conspiracy and three murders, in addition to the murder conspiracy and the firearm offense for which he had originally been charged. He was arraigned on February 18, 1993. He pleaded not guilty and reapplied for bail. He offered the testimony of his doctor, who is an AIDS specialist at Mt. Sinai Hospital and who has been treating defendant since 1990. The government did not offer any medical testimony but relied on evidence before Magistrate Judge Caden that the MCC could provide adequate medical care.

 The doctor's credible and unchallenged testimony established the following facts related to defendant's medical condition and care. A year ago defendant's T-cell count fell into the single digits, from which it was concluded that his life expectancy was measured in months. Defendant's condition has seriously deteriorated since he has been at the MCC. His life expectancy is now only a month or two. He has lost at least 25 pounds since entering the MCC and continues to lose weight rapidly in a cycle described as "AIDS wasting." The weight loss is exacerbated by the fact that defendant lost his stomach in 1986 as a result of a bleeding ulcer and requires a special diet and frequent feedings which the MCC cannot conveniently provide. It was tainted blood received during this operation that apparently was the source of his AIDS. The gunshot sustained by defendant destroyed his left eye and the surrounding area of his face and skull, leaving only soft tissue between his skin and brain. He has an infection on his face that threatens to spread to his brain. Intravenous antibiotics must immediately be administered. Defendant also has been suffering from AIDS-related dementia which has loosened his grip on reality. Defendant requires treatment in a hospital with AIDS specialists and access to his treating doctor.

 Defendant had visible difficulty walking and standing at the arraignment. He has fallen on more than one occasion at the MCC and bled as a result -- thus endangering fellow inmates who volunteer to assist him in moving about. He requires basic nursing care which is unavailable at the MCC. The prevalence of tuberculosis and flu viruses at the MCC gravely threatens defendant in view of his incapacitated immune system.

 Defendant's family attended the arraignment. They were visibly traumatized by defendant's shocking appearance and the prospect that he would continue to suffer a rapid decline in prison without humane care in the last days of his life.


 The United States Constitution places strict limits on the government's ability to imprison those who have been accused of crimes. A person charged with a crime is presumed innocent. See Stack v. Boyle, 342 U.S. 1, 4, 96 L. Ed. 3, 72 S. Ct. 1 (1951) ("Unless [the] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.").

 Punishment comes only after conviction by proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). In limited circumstances, pretrial detention is permitted on a showing that the defendant poses a danger to the community or is likely to flee before a trial can be held. 18 U.S.C. § 3142; United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987) (pretrial detention on basis of future dangerousness is constitutionally permissible). Under our constitutional scheme, preventive detention has been and should remain the exceptional practice:

It is well to remember the magnitude of the injury that pretrial detention inflicts and the departure that it marks from ordinary forms of constitutional governance. Executive power to detain an individual is the hallmark of the totalitarian state. Under our Constitution the prohibition against excessive bail, the Due Process Clause of the Fifth Amendment, the presumption of innocence -- indeed, the fundamental separation of powers among the Legislative, the Executive and the Judicial Branches of Government -- all militate against the abhorrent practice. Our historical approach eschewing detention prior to trial reflect these concerns . . . .

 United States v. Montalvo-Morillo, 495 U.S. 711, 110 S. Ct. 2072, 2080-81, 109 L. Ed. 2d 720 (1990) (Stevens, J., dissenting, joined by Brennan and Marshall, JJ.) (footnotes omitted).

 Even a presumptively innocent defendant who is legitimately found, pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., to pose a danger to the community cannot be incarcerated indefinitely pending trial. "The due process limit on the duration of preventive detention 'requires assessment on a case-by-case basis, since due process does not necessarily set a bright line limit for length of pretrial confinement.'" United States v. Gonzales Claudio, 806 F.2d 334, 340 (2d Cir.), cert. dismissed sub nom., Melendez-Carrion v. United States, 479 U.S. 978, 93 L. Ed. 2d 568, 107 S. Ct. 562 (1986) (quoting United States v. Salerno, 794 F.2d 64, 78-79 (2d Cir. 1986) (Feinberg, C.J., dissenting), rev'd, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987)).

 The Court of Appeals for the Second Circuit recently identified several factors a court should consider in evaluating the permissible length of a particular pretrial detention to protect the community: "(i) the length of detention; (ii) the extent of the prosecution's responsibility for the delay of the trial; and (iii) the strength of the evidence upon which the detention was based . . . ." United States v. Orena, 986 F.2d 628 (2d Cir. 1993). Additional factors not adverted to by the Court of Appeals include: (iv) the defendant's medical condition; (v) the effect on his family while he is incarcerated; and (vi) conditions that can mitigate the dangers supporting detention.

Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.
Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their government believes them to be "dangerous." Our Constitution, whose construction began two ...

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