(dissenting).
The issue in this case is whether the provision of the new Bail Act that provides for detention of “dangerous” persons, 18 U.S.C. § 3142(f), applies to a person already released on bail the day the new Act was passed (October 12, 1984). This court has previously suggested (though it did not expressly hold) that Congress did not intend this provision of the Act to apply, in a sense “retroactively,” to those persons. United States v. Anguilo, 755 F.2d 969, 970 (1st Cir.1985). I believe the suggestion is correct for the following reasons.
First, it is “manifestly unfair” to apply the new detention provision to those released on bail before the new law was passed. See Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Magistrates and judges specifically gave those defendants their provisional freedom. The defendants in all likelihood relied on the fact that (in the absence of misbehavior) they would remain free to prepare their trial defense, to interview witnesses, to consult with their attorneys. Trials, for most members of this class, must be imminent. Application of the new standard to members of this class threatens to interfere severely with ongoing defense preparations, not only because it may place a defendant behind bars just before trial, but also because even appearance at a bail revocation hearing, at this stage in the new Act’s life, involves briefing and arguing a host of novel and difficult legal issues, threatening significantly to divert counsel’s and client’s attention and energies away from the trial on the merits nearly at hand. This burden, along with the likely surprise, adds up to a serious, adverse interference with a settled expectation. That means “unfairness.” See Myers v. Hawkins, 362 So.2d 926, 933 n. 25 (Fla.1978) (“ ‘One of the fundamental considerations of fairness recognized in every legal system is that settled expectations honestly arrived at with respect to substantial interests ought not to be defeated.’ ”) (quoting 2 Sands, Sutherland Statutory Construction § 41.-05 at 261 (4th ed. 1973)).
Second, not to apply the detention provision of the new Act to previously released defendants does not interfere significantly with Congress’s objective: giving judges a way to deal with “dangerous” defendants. The number of persons already free on bail (as of October 12) is rapidly diminishing. The Director of the Administrative Office of the United States Courts reports that approximately 18,000 indictments or charges are pending at any one time. The average length of time between charge and trial is 4.4 months. Thus even if all federal defendants facing charges on October 12 were on release (with an average time of 2.2 months remaining before trial), by now (April 1985) there must be only a handful of pre-October 12 defendants whose trials have not yet begun. Can one say that, in terms of Congressional purpose, it is of critical importance to apply the new Act to this small (and diminishing) class of per*58sons, when Congress itself considered adoption of this “dangerous person” provision for almost twenty years? See S.Rep. No. 225, 98th Cong., 1st Sess. 7 & n. 19 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3189 & n. 19 (Supp. 9A).
Third, the courts that have considered this question have held that the Act does not apply to this class of persons. United States v. Fernandez-Toledo, 749 F.2d 703, 705 (11th Cir.1985) (per curiam) (holding that such persons have rights that have “vested” and that “it would be manifestly unjust” to apply the new Act to them); United States v. Mitchell, 600 F.Supp. 164 (N.D.Cal.1985) (“Congress apparently did not contemplate that individuals released pursuant to [the old Act] would be subject to sanctions under [the new Act].”); see United States v. Payden, 759 F.2d 202 (2d Cir.1985) (reversing district court decision ordering detention, under provisions of the new Bail Act, of defendant whose release had been ordered pursuant to provisions of the old Bail Act). Even were I less convinced of the correctness of Anguilo, I would hesitate to create a split in the circuits over this particular legal issue.
Fourth, there is additional support in the language of the new Bail Act itself. The new Act does not contain a provision that allows the government to recall a defendant solely for the purpose of applying the new, stricter standard of release. The new Act (like the old) does provide for reconsideration and modification of release conditions, see § 3142(c) (allowing imposition of “additional or different conditions of release”), but this provision does not authorize a “modification” that changes a release order into an- unconditional detention order. The new Act also permits the government to seek bail revocation, see § 3148, but only if the government can show that the defendant has violated his release conditions. Of course, there is substantial authority for the proposition that courts have an' “inherent power” to revoke bail when necessary to insure the defendant’s appearance or to protect the integrity of the judicial process. See, e.g., Carbo v. United States, 82 S.Ct. 662, 667-69, 7 L.Ed.2d 769 (Douglas, Circuit Justice) (protection of witnesses) (1962); Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) (Harlan, Circuit Justice) (protection of witnesses and “orderly progress of the trial”); United States v. Abrahams, 575 F.2d 3 (1st Cir.) (risk of flight), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); United States v. Melville, 306 F.Supp. 124, 127 (S.D.N.Y.1969) (same); United States v. Graewe, 689 F.2d 54 (6th Cir.1982) (per curiam) (protection of witnesses and judicial process); United States v. Gilbert, 425 F.2d 490 (D.C.Cir.1969) (per curiam) (protection of witnesses); United States v. Bentvena, 288 F.2d 442 (2d Cir. 1961) (integrity of judicial proceedings); cf. United States v. Anguilo, supra, at 972. But there is no authority extending that “inherent” power to instances of defendant “dangerousness.”
Finally, the legislative history of the new Act, as the majority effectively concedes, proves little. Its language demonstrates congressional concern both for preventing crimes and for treating accused persons fairly. See, e.g., S.Rep., supra, at 22 (noting “the importance of the interests of the defendant which are implicated in a pretrial detention hearing” and the “due process” considerations in establishing the procedural requirements of the new Act).
The arguments advanced in favor of applying the new provision (in a sense) retroactively to those previously released are unconvincing. The government says that, if the new Act does not apply in its entirety to these defendants, then no law applies to them, for Congress repealed the old 1966 Bail Reform Act as of October 12, 1984. This argument is incorrect. When, for some reason or other, a new provision in a new law does not (or cannot) apply to a particular situation or person, courts typically hold that the former law survives and governs that circumstance or person, whether or not the new law “expressly” repeals the old law as of a certain date. Thus, for example, Congress has repealed the Youth Corrections Act as of October 12, 1984, see Pub.L. No. 98-473, Title II, *59§ 218(a)(8), 98 Stat. 1837, 2027 (1984), but, as the Department of Justice has recognized, it may be unconstitutional under the ex post facto clause to apply certain portions of Congress’s substitute to certain defendants who committed crimes prior to that date. See U.S. Dept, of Justice, Handbook on the Comprehensive Crime Control Act of 1984 and Other Criminal Statutes Enacted by the 98th Congress 32 (1984). As to those persons, the Department says, the old (repealed) law will still apply. Id. See also United States v. Romero, 596 F.Supp. 446 (D.N.M.1984). A similar approach in this case is in accord with well established legal precedent. See, e.g., United States v. Payden, supra (holding that defendant’s bail status should be determined under provisions of old Bail Act, even after its repeal, where bail application had first been considered under provisions of old Act); United States Gypsum Co. v. Uhlhorn, 232 F.Supp. 994, 1004 (E.D.Ark.1964), aff'd, 366 F.2d 211 (8th Cir. 1966), cert. denied, 385 U.S. 1026, 87 S.Ct. 753, 17 L.Ed.2d 674 (1967); State v. McMillin, 150 Colo. 23, 370 P.2d 435 (1962) (en banc); In re Opinion of the Justices, 89 N.H. 563, 198 A. 249 (1938); Waddell v. Mamat, 271 Wis. 176, 72 N.W.2d 763 (1955); see generally 82 C.J.S. Statutes § 435 at 1010-11 (1953). Thus, to hold that Congress did not intend to apply the “dangerous person” provision retroactively does not create a legal vacuum.
The government also argues that it is not unfair to apply the new provision to this particular defendant because he did not in fact rely upon guarantees of continued freedom. It does not make sense here, however, to apply an “unfairness” test on a case-by-case basis. The very act of doing so creates unfair burdens, for it injects a new, and potentially unresolvable, issue into each bail revocation proceeding. Rather, to prevent serious unfairness the Act must not apply to the class of persons already released on bail on October 12, avoiding unfairness by creating a bright, judicially administrable line.
Further, the government argues that not to apply the new provision retroactively leaves it without a remedy against one (allegedly like the defendant here) who commits a crime while free on bail. This is not so. For one thing the government could indict the person for that crime (whether it was committed before or after October 12, 1984), at which point the government could seek his detention under the new law. For another thing, the new Bail Act allows the magistrate to attach a new condition to a defendant’s pre-October 12 bail order — the condition that he not commit new crimes while on release. To attach this condition to the bail of one previously released does not seem unfair. Indeed, the old Act provides magistrates and judges with the express authority to modify release conditions. See 18 U.S.C. § 3146(e) (repealed October 12, 1984). In this case, the magistrate attached a condition on October 31, 1984, that Zannino not commit any crimes while on release. Thus, Zannino’s release conditions currently (and lawfully) permit revocation if the government shows that he has committed crimes after October 31, 1984. See § 3148(b). In addition, the government is free to seek his indictment for any offense committed before that date, or to seek further modification of his release conditions, § 3142(c).
Finally, the majority points to a provision in' the former 1966 law that allows a magistrate to impose “additional or different conditions of release” upon a person free on bail. Bail Reform Act of 1966, 18 U.S.C. § 3146(e), repealed by Bail Reform Act of 1984, 18 U.S.C. § 3142(c). The majority thinks the existence of this provision makes it more fair to apply the new law retroactively to those already free on bail. I disagree, basically because a new “release” condition seems to me very different from an unconditional detention order.
For the foregoing reasons, I believe Congress did not intend the “dangerous person detention” provision of the new Bail Act to apply to those already free on bail on October 12.
And, I would affirm the judgment of the district court.