In the case of United States v. Salerno et al., 1986, the U.S. Supreme Court upheld the constitutionality of a law allowing for pretrial detention in federal criminal cases under certain circumstances. The respondents, Anthony Salerno and Vincent Cafaro, were arrested on charges related to organized crime activities and detained prior to trial based on a provision in the Bail Reform Act of 1984 that allowed such detention if there was clear evidence that no release conditions would "reasonably assure...the safety of any other person and the community." They challenged this provision as violating their Fifth Amendment due process rights and Eighth Amendment prohibition against excessive bail. However, by a vote of 6-3, with Chief Justice Rehnquist writing for majority opinion, it was held that neither constitutional right had been violated because Congress intended pretrial detention not as punishment but rather as regulation aimed at preventing danger to community; thus it did not violate Due Process Clause or Excessive Bail Clause.

In the dissenting opinion for United States v. Salerno et al., Justice Thurgood Marshall argued that the Bail Reform Act of 1984, which allowed for pretrial detention based on future dangerousness, violated the Due Process Clause of the Fifth Amendment and was therefore unconstitutional. He contended that liberty is a fundamental right and any infringement upon it must be narrowly tailored to serve a compelling state interest. While acknowledging public safety as such an interest, he asserted that preventive detention based on potential future crimes was too broad a measure to meet this standard. Furthermore, he expressed concern about presumptions against bail in certain cases under the Act undermining presumption of innocence until proven guilty - a cornerstone principle in American jurisprudence.