Hearing the Danger of an Armed Felon- Allowing for a Detention Hearing Under the Bail Reform Act for Those Who Unlawfully Possess Firearms

This Article advocates an interpretation of the Bail Reform Act that affords courts the ability to hold detention hearings in gun crime cases to evaluate defendants’ potential danger to the community. According to an interpretation advanced by some courts, gun possession offenses do not constitute “crimes of violence” within the meaning of the Act and therefore those charged with such crimes, even ifth ey have a prior felony conviction, are not subject to pre-trial detention. Arguing against this approach, the Article looks to the Bail Reform Act, the relevant federal case law, and the alarming statistics concerning the growing use of firearms in violent crimes to demonstrate that a more expansive interpretation that includes these crimes is not only appropriate, but more consistent with the plain language and original intent of the Act.

The Article divides the current case law into two camps: the so-called “Slim Majority Rule, “favoring the treatment of unlawful firearms possession as a “crime of violence; and the “Minority View” of case law, denying a detention hearing in these cases. Recognizing that there is a significant split among federal district and circuit courts about whether the Bail Reform Act permits a such a hearing, the Article carefully dissects the case law, the use of the term “crime of violence” in other statutory contexts and the reasoning underlying both approaches and concludes that the “Minority View” undermines the most basic purpose of the Bail Reform Act-to enhance public safety. As such, the Article advocates an approach that would allow courts, at a minimum, to hold detention hearings in gun cases to ensure that release of the accused would not pose a danger to the community.