concurring:
I concur in affirming the judgment holding unconstitutional New York’s preventive detention law for accused juvenile delinquents, N.Y. Family Court Act § 739(a)(ii) (McKinney 1975), but my reasoning differs from that set forth in Judge Winter’s thoughtful opinion for the Court. All members of the panel are in agreement that, even if the Constitution permits preventive detention of those not yet found to have violated adult penal statutes or juvenile delinquency laws, this New York provision fails to comport with the requirements of the Due Process Clause of the Fourteenth Amendment. The majority concludes that section 739(a)(ii) denies liberty without due process because in the “vast majority” of instances where detention has been ordered either “mistakes in judgment” have been made concerning the finding of serious risk that the accused may commit a crime or the detention has been imposed “solely as punishment for unadjudicated crimes.”1 373, supra. The “mistakes in judgment” are said to be fostered by the statute’s “procedurally and substantively unlimited terms,” that is, the statute’s grant of limitless discretion to Family Court judges making the detention decision has in fact led to an unacceptable number of mistaken decisions. These instances of detention imposed for the purpose of punishment are found to conflict directly with the constitutional requirement that punishment be imposed only after adjudication of guilt. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). I am less certain than the majority that the record supports a conclusion of a significant number of instances where detention was imposed either mistakenly or for purposes of punishment. Nevertheless, under traditional analysis of the requirements of the Due Process Clause, I am persuaded that New York’s statute is unconstitutional because it permits liberty to be denied, prior to adjudication of guilt, in the exercise of unfettered discretion as to an issue of considerable uncertainty — likelihood of future criminal behavior. In short, the statute denies due process, in my judgment, not because it has been shown to yield an unacceptable number of mistaken or impermissible results, but simply because it needlessly creates an unacceptable risk of such results.
Traditional due process analysis requires consideration of three factors in determining the constitutional adequacy of procedures by which a governmental interest is advanced at the expense of an individual interest: (1) “the private interest that will be affected by the official action,” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards,” and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).
The private interest impaired by § 739(a)(ii) is personal liberty, obviously of fundamental importance. The power of arrest, subject to Fourth Amendment limitations, permits that interest to be impaired in advance of an adjudication of guilt, but not under procedures that fail to provide “sufficiently clear guidance for police, prosecutors, and the courts” so that the Fourth Amendment is observed. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1174 (2d Cir. 1974). The precise private interest at issue in this case is personal *376liberty after arrest and before trial under circumstances where a court has already determined that there does not exist a substantial probability of flight.2
The governmental interest is the prevention of future crimes, obviously of great significance in general, but of high value in a particular case only to the extent that the pretrial detention of a person will prevent the commission of a crime that he would have committed if not detained, or will at least significantly reduce the risk of his committing such a crime. Of course, while detained the person will not commit an ordinary street crime against members of the public; the uncertainty in determining whether his pre-trial detention advances a governmental interest arises from the difficulty of predicting whether he would have committed a crime if not detained, or assessing at least the probability of his doing so. That difficulty requires consideration of the third due process factor, the risk of an erroneous deprivation and the probable value of safeguards.
The hazards of predicting human behavior are well known. They are not diminished when the issue is whether a person arrested for one crime will, in the interval prior to his trial, commit another crime. Presumably, the legislative judgment reflected in New York’s statute rests primarily on the traditional rationale for preventive detention: a person who has committed a crime may have a propensity for committing crimes, and the likelihood that an arrested person has in fact committed a crime may be a sufficient basis for including him in the class of those who are likely to commit other crimes. Perhaps, in addition, the legislature believed that some persons accused of crime may expect that they will be convicted and may estimate that they are unlikely to receive enhanced punishment for a crime committed prior to sentencing on the initial charge. Under the stress of apprehending punishment, they may mistakenly think they can with impunity commit a “free” crime.3
The spirited debate over preventive detention has focused primarily on whether the “propensity” rationale has sufficient validity to justify the risk of detaining some individuals after arrest who in fact would not have committed a crime if not detained prior to trial.4 It is not necessary in this case to assess the ultimate issue whether the Constitution prohibits pretrial detention on the basis of uncertain predictions of future criminal behavior. See Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968) (Chambers’ opinion of Black, J., questioning whether dangerousness is “ever” a justifiable ground for denying bail). The far narrower issue here is whether the risk of an erroneous prediction about future crime is high and whether safeguards not included in section 739(a)(ii) would be of value. To state the issue is to answer it. The proponents of preventive detention doubtless assess the risk of erroneous determinations somewhat lower than do the opponents, but on the present state of knowledge concerning predictions of criminal behavior, only the foolhardy would deny that even with carefully circumscribed decision-making, a significant risk of erroneous prediction remains.
*377New York’s statute does not include readily available limitations that would reduce the risk of error. First, the statute places no limits on the crimes for which the person subject to detention has been arrested. Even the most ardent advocates of -preventive detention do not claim that commission of any crime, no matter how minor, provides an adequate basis for predicting commission of a future crime. Second, the judge ordering detention is not required to make any evaluation of the degree of likelihood that the person committed the crime of which he is accused. The statute authorizes pretrial detention without a finding of probable cause.5 Third, the judge is not required to assess the individual’s background; a juvenile with solid family support, no prior criminal record, and attending school or working is subject to preventive detention in the unfettered discretion of the Family Court judge, even when arrested for non-violent crimes. Fourth, the statute places no limits on the type of crimes that the judge believes the detained juvenile might commit if released. Though a legislature has broad power to proscribe a variety of conduct as criminal, it does not necessarily have equivalent power to authorize pretrial detention because of the risk that the detained person might commit any of the acts, no matter how minor, for which criminal penalties have been established. Fifth, the statute does not specify any standard of proof by which the judge must be persuaded of a serious risk of future crime.6 In marked contrast to the limitations in the well-known District of Columbia preventive detention statute upheld in United States v. Edwards, 430 A.2d 1321 (D.C. App. 1981), the New York provision permits the judge to order detention of any juvenile accused of any crime whenever he determines that there is a “serious risk” of any future crime.7 In my judgment, the Due Process Clause forbids the exercise of such unbridled discretion to inflict a deprivation as serious as loss of liberty in advance of trial on the basis of a highly uncertain prediction of future criminal behavior.8
For these reasons I concur in the affirmance of the judgment of the District Court.
. It is arguable that, with respect to those accused of crime, pretrial detention imposed solely for the purpose of preventing the commission of future crimes prior to trial is punishment. With respect to those convicted of crime, the imposition of added confinement, beyond the penalties for the specific offense, is nonetheless punishment despite the prospective purpose of preventing future harm. Specht v. Patterson, 386 U.S. 605, 608-09, 87 S.Ct. 1209, 1211-12, 18 L.Ed.2d 326 (1967). The extension of that principle to those accused of crime raises the broad issue of whether pretrial detention to prevent future crime is ever permissible, an issue that need not be faced in deciding this case. For purposes of this appeal, I am willing to assume that pretrial detention ordered for the purpose of preventing future crime serves a regulatory purpose.'
. The juvenile may be detained if “there is a substantial probability that he will not appear in court on the return date.” N.Y. Family Court Act § 739(a)(i) (McKinney 1975).
. Since the challenged statute authorizes detention only on the basis of a prediction of commission of a future crime, it does not purport to rest on other rationales advanced in support of some juvenile detention statutes that concern protecting the juvenile from dangerous home conditions or assuring his availability for study or treatment. See Comment, A Due Process Dilemma: Pretrial Detention in Juvenile Delinquency, 11 John Marshall J. Prac. & Proc. 513 (1978); Note, The Right to Bail and the Pre“Trial" Detention of Juveniles Accused of “Crime," 18 Vand. L. Rev. 2096 (1965).
. Compare Hruska, Preventive Detention: The Constitution and the Congress, 3 Creighton L. Rev. 36 (1969), and Mitchell, Bail Reform and the Constitutionality of Pretrial Detention, 55 Va. L. Rev. 1223 (1969), with Tribe, An Ounce of Detention: Preventive Justice in the World of John Mitchell, 56 Va. L. Rev. 371 (1970), and Hickey, Preventive Detention and the Crime of Being Dangerous, 58 Geo. L.J. 287 (1969).
. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975) (“[T]he Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.”). .Even if some standard of proof less than probable cause would suffice to justify detention for the three to six days prior to the probable cause hearing mandated for all pretrial detainees, see N.Y. Family Court Act § 739(b) (McKinney 1975), New York’s preventive detention statute contains no standard at all.
. Cf. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (requiring standard of “clear and convincing” proof to justify civil commitment to a mental hospital); Speiser v. Randall, 357 U.S. 513, 525- 26, 78 S.Ct. 1332, 1341 42, 2 L.Ed.2d 460 (1958) (emphasizing importance of burden of proof when liberty of criminal defendant is at stake).
. Even the Nebraska constitutional provision mandating preventive detention, which was declared unconstitutional by the Eighth Circuit for lack of individualized decision-making, applied only to those accused of three serious crimes, treason, murder, and aggravated sexual offenses, and then only “where the proof is evident or the presumption great.” Neb. Const, art. I, § 9; Hunt v. Roth, 648 F.2d 1148 (8th Cir. 1981), vacated as moot per curiam, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982).
. The appellees’ claim of a denial of liberty without procedural due process does not assert that the New York statute lacks such traditional procedural requirements as notice and hearing. Of the five deficiencies I have noted, only the absence of a specified burden of proof concerns the type of procedural device normally comprehended within the requirements of procedural due process. Yet all of the deficiencies are procedural in the sense that they augment the risk of erroneous fact-finding, which is the risk sought to be reduced by the procedural component of due process. Cf. Carlson v. Landon, 342 U.S. 524, 543, 72 S.Ct. 525, 536, 96 L.Ed. 547 (1952) (upholding the Attorney General’s authority to deny bail to a narrowly described class of aliens, prior to deportation hearings, because “the Attorney General is not left with untrammeled discretion as to bail” and must “justify his refusal of bail by reference to the legislative scheme”).