concurring:
I concur in the analysis and conclusions in Parts II, III and IV A of Judge Newman’s comprehensive opinion and that portion of part IV B which addresses the eighth amendment issue. However, I concur only in the result with regard to the continued confinement on grounds of dangerousness of appellants Gonzales Claudio and Camacho-Negron. Judge Newman’s opinion rules unconstitutional on its face an important aspect of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. (the Bail Act), and would bar the pretrial detention for even a brief period of time of a competent adult criminal defendant on the basis of danger to the community. I harbor doubts regarding that position. On the facts of this case, I also do not see the necessity of deciding such a broad question. Gonzales Claudio and Camacho-Negron were arrested in Puerto Rico on August 30 and have been detained ever since on the basis that no combination of conditions of release would reasonably assure the community’s safety. The length of detention they have already endured, in addition to other factors, violates due process by inflicting punishment without an adjudication of guilt. I write separately to express this view. Detention for dangerousness for a comparatively short time not at issue here may lead to a different result, and I leave that problem for another day.
I.
This court has never decided whether lengthy pretrial detention designed to prevent dangerous acts is consistent with the due process clause of the fifth amendment. Our decision in United States v. Colombo, 777 F.2d 96 (2d Cir.1985), recognized but did not reach the issue. In Colombo, a district judge concluded that even though Anthony Colombo presented a danger to the community pending trial, he should be released because anticipated pretrial delays would otherwise violate his due process rights. A panel of this court reversed the judgment, stating that this due process determination was premature. The panel noted that at the time of the detention hearing the length of pretrial delay remained a speculative matter, and held that “the possible length of Colombo’s pretrial detention was not a proper basis” for the district judge’s order. The panel concluded that Congress chose the Speedy Trial Act as the primary vehicle for limiting the length of pretrial detention under the Bail Act, see 18 U.S.C. § 3164, but recognized that in complex cases the Speedy Trial Act “might not ‘work perfectly well to protect against lengthy incarceration.’ ” The panel stated that were the issue correctly framed in such a case “the length of a defendant’s pretrial detention [because of danger to the community] might not survive a proper due process challenge,” but it did not reach that issue. Id. at 100-01 & n. 2.
Like Judge Newman, I take at face value the language of Colombo and conclude that the issue now before us is an open one in this circuit. The Third Circuit, relying on Colombo, agrees that “at some point due process may require a release from pretrial detention.” United States v. Accetturo, 783 F.2d 382, 388 (3d Cir.1986). In Accetturo, a case involving three-and-a-half months of pretrial incarceration, the court held that due process does not require a trial judge to consider the probable length of pretrial detention as a factor in making *1006the original decision whether to detain. The court noted the uncertainty that surrounds the scheduling of the trial at the time of the detention hearing, and reasoned that a due process challenge should await a later stage in the proceedings. Id. at 387-88. See also United States v. Portes, 786 F.2d 758, 768 (7th Cir.1986) (rejecting due process challenge as premature, while noting that “at some point, the length of delay may raise due process objections”).
The parties before us disagree over when this case will come to trial. Counsel for appellants maintain that the number of defendants, the complexity of discovery, the return of a superseding indictment and the need to transcribe and translate hundreds of tapes of intercepted conversations in Spanish will make commencement of trial before mid-1987 impossible. On this view, appellants could be detained for two or three years before their guilt or innocence is determined at trial. The government disputes appellants’ prediction but has not offered any estimate of a trial date. However, we need not decide when trial will begin in order to reach the merits of the due process claim. Appellants have been detained for over eight months. That is more than enough to bring the constitutional issue squarely before us. While Congress may not have foreseen such a result, the Speedy Trial Act unfortunately has not protected appellants from lengthy pretrial confinement. The Speedy Trial Act, of course, was not designed to allay due process concerns, but to effectuate the speedy trial provision of the sixth amendment. See Accetturo, supra, 783 F.2d at 394-95 (Sloviter, J., dissenting in part).
The Bail Act raises serious due process issues. The decision whether to detain a defendant before trial implicates one of the most precious interests protected by the due process clause—the defendant’s interest in freedom from incarceration. The “liberty” protected by the due process clause has always included freedom from bodily restraint. Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ct. 1401, 1413-14, 51 L.Ed.2d 711 (1977); see also Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Appellants argue that the Bail Act accordingly deserves the strictest judicial scrutiny. The government suggests that we adopt the more relaxed standard of review articulated in Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). That case rejected a due process challenge to New York’s scheme for detaining juveniles accused of crime in order to prevent them from committing crimes while on release. The Supreme Court held the system was compatible with due process because detention on the basis of dangerousness “serve[d] a legitimate state objective” without “amounting to punishment,” and the procedures established by the statute were “adequate to authorize the pretrial detention of at least some juveniles.” Id. at 264, 269, 104 S.Ct. at 2410.
In Bell v. Wolfish, 441 U.S. 520, 534 n. 15, 99 S.Ct. 1861, 1871 n. 15, 60 L.Ed.2d 447 (1979), the Supreme Court had reserved the question whether any objective other than assuring a defendant’s presence at trial could constitutionally justify pretrial detention. Schall settled the issue in the juvenile context by holding that the concern for sheltering the juvenile from the - consequences of future crimes, when combined with the “legitimate and compelling” interest in protecting the community from those crimes, may justify pretrial incarceration. Id. at 264-68, 104 S.Ct. at 2410-12. Along similar lines, the Bail Act provides for detention on the basis of dangerousness for the purpose of reducing what Congress saw as the “growing problem” of crimes committed by defendants released on bail. S.Rep. No. 225, 98th Cong., 2d Sess. 6 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News at 3188-89 (Senate Report). I assume without deciding that this goal is also sufficiently legitimate and compelling to justify the detention of adult defendants for at least a relatively short period of time, cf. United States v. Freitas, 602 F.Supp. 1283, 1287-88 (N.D.Cal.1985), although the Bail Act, unlike the juvenile statute at issue in Schall, does not seek to *1007protect defendants from the consequences of their own actions.
However, under the due process clause a defendant may not be punished prior to a formal adjudication of guilt. Bell v. Wolfish, supra, 441 U.S. at 535-36, 99 S.Ct. at 1871-72; Wong Wing v. United States, 163 U.S. 228, 235, 237, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896). Persons who are detained under the Bail Act have not received the benefit of a trial and its attendant fifth and sixth amendment safeguards. Pretrial detention thus must not degenerate into punishment, regardless of the reasons the government invokes to justify it. Schall v. Martin, supra, 467 U.S. at 269, 104 S.Ct. at 2412-13. Nevertheless, determining whether the Bail Act imposes punishment is not simple. Whether a sanction constitutes a punitive or merely a regulatory measure depends, first of all, on whether it is imposed for the purpose of punishment. Id.; Bell v. Wolfish, supra, 441 U.S. at 538, 99 S.Ct. at 1873. Absent such an intent to punish, it becomes necessary to assess other factors.
Turning to the question of intent, the legislative history suggests that Congress did not intend to use the Bail Act to punish defendants suspected of being dangerous to the community. Congress indicated that pretrial detention for dangerousness was not intended to advance the traditional penal aims of retribution and deterrence, see Bell v. Wolfish, supra, 441 U.S. at 538, 99 S.Ct. at 1873, but rather to curb future conduct. Senate Report at 8, reprinted in 1984 U.S.Code Cong. & Ad.News at 3191. In defining these statutory goals, Congress relied on the analysis in United States v. Edwards, 430 A.2d 1321 (D.C.App.1981) (in banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982), which upheld against constitutional attack the preventive detention scheme of the D.C. bail statute, in part on the basis that Congress had not enacted it for punitive purposes. Therefore, like Judge Newman, I am willing to assume that Congress’ motives for preventive detention under the Bail Act were not punitive either. See Portes, supra, 786 F.2d at 767; United States v. Freitas, supra, 602 F.Supp. at 1291.
Nevertheless, a conclusion that Congress’ purposes were regulatory does not resolve whether the incarceration of defendants for over eight months founded on the threat they pose to the community imposes punishment. Under Schall and Bell v. Wolfish, it also is necessary to examine the more objective aspects of the sanction: preventive detention must not be excessive in relation to the nonpunitive aims assigned to it. Schall v. Martin, supra, 467 U.S. at 269, 104 S.Ct. at 2413, Bell v. Wolfish, supra, 441 U.S. at 538-39, 99 S.Ct. at 1873-74. In the latter case, the Supreme Court noted several “tests traditionally applied to determine whether a governmental act is punitive in nature,” including
[Wjhether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment — retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in different directions.
441 U.S. at 537-38, 99 S.Ct. at 1873 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963)). In applying the factors just enumerated the government maintains that detention, if regulatory at the start, remains regulatory in nature no matter how long a person is detained and that the length of detention is irrelevant. I disagree with this view. I believe that lengthy delay can transform what might otherwise be a valid regulatory measure into one that is punitive regardless of Congress’ stated intentions. See Portes, supra, at 768; Accetturo, supra, 783 F.2d at 388; Colombo, supra, 777 F.2d at 100-01.
*1008In this case, key objective factors point to the conclusion that the “operation” of the Bail Act, as applied to Gonzales Claudio and Camacho-Negron, has become punishment. Incarceration under the Bail Act certainly entails significant “affirmative restraints” on bodily movement, travel, association with others and hosts of other freedoms. The stakes are much higher, and the disability much more severe, than those involved in juvenile detention systems such as the one considered in Sckall. The special status of juveniles, who are always in the custody either of their parents or of the state in its role as parens patriae, limits their interest in freedom from confinement. Schall, supra, 467 U.S. at 265, 104 S.Ct. at 2410. By contrast, mentally competent adults subject to the Bail Act enjoy the fullest degree of legal protection from government attempts to limit their freedom. The extraordinarily long period of detention at issue here highlights another critical difference between the Bail Act, which does not specify how long a defendant may be held before trial, and the statutes evaluated in Sckall and Edwards, which placed stringent time limits on such detention. The former limited pretrial confinement to a period that generally did not exceed seventeen days,1 the latter to sixty.
Most persuasively of all, under the Bell v. Wolfish analysis, incarceration for periods of as long as eight months has “historically been regarded as punishment,” see Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960). Indeed, the Tenth Circuit recently held that detention of four months before trial constitutes impermissible punishment. United States v. Theron, 782 F.2d 1510, 1516 (10th Cir.1986). Although, for reasons noted below, I disagree with Theron’s precise holding that such detention may not be imposed to prevent flight before trial, the case certainly indicates that the incarceration at issue here is rendered so harsh by its length that it, too, degenerates into punishment. See also United States v. LoFranco, 620 F.Supp. 1324 (N.D.N.Y.) (six-month detention), stay denied, 620 F.Supp. 1327 (1985), appeal dismissed sub nom. United States v. Cheeseman, 783 F.2d 38 (2d Cir.1986). Enforced separation from family, friends and the community by confinement in an institutional setting for many months is clearly punitive under our traditions. No one could persuasively contend that restricting a man or woman to a cellblock for five years without a trial has not historically been seen as punishment. That is an extreme case, and I do not suggest that the due process clause necessarily establishes a bright line regulating all periods of pretrial detention. See Theron, supra, 782 F.2d at 1516-17; Accetturo, supra, 783 F.2d at 388; cf. Edwards, supra, 430 A.2d at 1332 (pretrial detention for 60 days on ground of dangerousness poses “particularly close” due process question). But I am convinced that the general requirements of due process compel us to draw that line at some point well short of the eight months involved here.
Even though detention as lengthy as that involved here generally has been considered punishment which must be preceded by a trial, there are several limited traditional exceptions to this view. One exception concerns the time a defendant spends in custody between arrest and arraignment; such custody has customarily been seen as regulatory rather than punitive. See Gerstein v. Pugh, 420 U.S. 103, 113-14, 95 S.Ct. 854, 862-63, 43 L.Ed.2d 54 (1975). Another exception embraces the civil commitment of mentally ill persons unable to take care of themselves, cf. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Yet another concerns the state’s assumption of physical control over juveniles in its parens patriae capacity without benefit of a trial, a practice so widely and traditionally recognized that all 50 states provide by statute for preventive detention of juveniles. Schall *1009v. Martin, supra, 467 U.S. at 266-68 & n. 16, 104 S.Ct. at 2410-11 & n. 16.
Finally, pretrial detention has “historically” not been seen as punishment when designed to protect the integrity of the judicial process by assuring the defendant’s appearance or preventing his interference with witnesses. See Edwards, supra, 430 A.2d at 1332; see also Stack v. Boyle, 342 U.S. 1, 4-5, 76 S.Ct. 1, 4, 96 L.Ed. 1 (1951) (bail may be set at amount needed to prevent flight). The practice of denying bail for such reasons is well-established. See, e.g., United States v. Martir, 782 F.2d 1141, 1143 (2d Cir.1986); United States v. Affleck, 765 F.2d 944, 956-57 (10th Cir.1985) (in banc) (McKay, J., dissenting); United States v. Jessup, 757 F.2d 378, 387 (1st Cir.1985); see also Bell v. Wolfish, supra, 441 U.S. at 523, 99 S.Ct. at 1865 (parties’ concession that pretrial detention to prevent flight is legitimate). The longstanding practice of denying bail in capital cases belongs to this exception as well, since bail was denied to prevent flight in such cases. Edwards, supra, 430 A.2d at 1326 n. 6.
But here, Gonzales Claudio and Camacho-Negron face continued incarceration solely on the basis of their anticipated propensity to commit future crimes, a reason falling outside any of these established exceptions. Rather, as Judge Newman’s scholarly historical survey shows, detention for dangerousness breaks radically with our bail traditions. Accordingly, the restraint the Bail Act has already placed on the defendants held for dangerousness would historically be viewed as punitive. For that reason, as well as the serious affirmative restraint imposed by their incarceration, their detention on the ground of dangerousness has degenerated into punishment prior to an adjudication of guilt.
II.
The remaining appellants held to prevent flight before trial stand in a different position under the due process clause. As noted above, detention for such purposes has never been characterized as punishment. Under the tests of Bell v. Wolfish and Mendoza-Martinez quoted above, I agree with Judge Newman that detention for that reason comports with due process in this case. While due process may eventually impose a limit on the period of time a defendant may be held to protect the integrity of the judicial process, I do not believe that such a point has been reached here. I note, however, that at least one appellate court has already ruled that incarceration for even such a traditional purpose for four months violates the constitution, see Theron, supra.
For these reasons, on the facts of this case, I concur in the conclusion that due process bars further detention of Gonzales Claudio and Camacho-Negron on the ground of dangerousness and agree with the remand directions as to these appellants.
. The possible, though not usual, extension of the period is referred to in Judge Newman’s opinion, supra, at n. 1.