McPherson v. United States

*1348STEADMAN, Associate Judge,

concurring:

I am in complete agreement with the analysis of the statutory issue contained in Part I of the majority opinion. I think, however, that the result in Part II can be reached simply by an application of the crucial fact that appellant here is being held without bad under D.C.Code § 23-1325(a) (1996) not only because she poses a danger to the community but also because she presents an unacceptable risk of flight, a distinct alternative ground for detention.1 Therefore, if she can be held on the ground of risk of flight against a facial constitutional challenge to the statute, the trial court’s detention order must be affirmed.2

United States v. Salerno, 481 U.S. 739, 749, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987), makes clear that, as far as substantive due process is concerned, “an arrestee may be incarcerated until trial if he presents a risk of flight.”3 Thus, appellant’s detention without set time limits on the basis of risk of flight does not offend substantive due process, and we need not here reach the issue whether the independent basis of dangerousness may do so.

With respect to the equal protection argument, it seems to me that since appellant’s indeterminate detention for risk of flight does not offend substantive due process, her detention on that ground cannot infringe on any “fundamental right.” Therefore, I look to the so-called rational basis test as the standard of review. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394-95, 72 L.Ed.2d 786 (1982).4 In order to meet this test, the addition of assault with intent to kill while armed (AWIKWA) to § 1325(a) must “bear[ ] some fair relationship to a legitimate public purpose.” Id. Plainly, AWIKWA, with its component of an actual intent to kill, bears a close relationship in seriousness to murder in the first degree, and these crimes may require a longer period of time to prepare for trial. While certain other offenses involving risk of death are not included, they are arguably distinguishable,5 and, in any event, “a statute is not invalid under the Constitution because it might have gone further than it did.” Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966) (quoting Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 336, 73 L.Ed. 722 (1929)).

. The majority opinion quotes the trial court’s specific reference to appellant’s prior Bail Reform Act violation and her incentive here not to appear in the face of a potential life sentence.

. The government did not address the possibility of such a disposition until oral argument on this appeal. Ordinarily I might be chary of relying upon such a belated assertion, although it is true that a trial court order can be affirmed on any legitimate ground. However, I am mindful of the fact that we are here asked to address constitutional issues, which courts are reluctant to decide unless directly and necessarily presented, as well as the fact that we do not issue advisory opinions, even at the behest of all parties. See District of Columbia v. Wical Ltd. Partnership, 630 A.2d 174, 182 (D.C.1993).

. See also De Veau v. United States, 454 A.2d 1308, 1313 (D.C.1982), overruled in part by Lynch v. United States, 557 A.2d 580, 581-82 (D.C.1989) (en banc) ("There is no constitutional right to bail.”). While De Veau involved first-degree murder arrestees, id. at 1310, the defendants in Salerno were indicted for a number of violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), including conspiracy to commit murder, but not murder itself, 481 U.S. at 743, 107 S.Ct. at 2099. No need exists here to determine the sweep of the power to hold arres-tees pending trial as applied to lesser sorts of offenses than murder or offenses of roughly comparable severity.

. The briefs of neither party address whether the so-called intermediate standard of review might be applicable and I, therefore, do not consider that possibility here.

. As the government points out, assault with intent to murder while armed is a special category reserved, as a practical matter, for cases involving sixteen and seventeen-year-old defendants tried as adults. See United States v. Hobbs, 594 A.2d 66, 67-69 (D.C.1991). Similarly, murder in the second degree, unlike AWIKWA, does not necessarily require a specific intent to kill. See Comber v. United States, 584 A.2d 26, 38-39 (D.C.1990) (en banc).