Breyer, J., dissenting
they have committed a minor crime and then hold them without a bail hearing for months or years. This possibility is not simply theoretical. See Appendix B, infra.
In Jennings, I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a “person” of his or her “liberty… without due process of law.” U. S. Const., Amdt. 5. See 583 U. S., at ___ (dissenting opinion) (slip op., at 5). This practice runs counter to “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of ” the Founders’ “ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856). It runs counter to practices well established at the time of the American Revolution. Jennings, supra, at ___–___ (slip op., at 9–10). And it runs counter to common sense: Why would the law grant a bail hearing to a person accused of murder but deny it to a person who many years before committed a crime perhaps no greater than possessing a stolen bus transfer? See Appendix B, infra.
I explained much of the constitutional problem in my dissent in Jennings. Rather than repeat what I wrote there, I refer the reader to that opinion. See Jennings, supra, at ___ (slip op., at 1). I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community.
The majority’s reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained “when… released,” the majority’s reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as punishment. Supra, at 4, 10–11. See, e. g.,
