dissenting:
Two members of a motions panel of this court are summarily1 placing a stamp of constitutional approval on the pretrial detention of persons accused of murder, as a result of a City Council amendment to a Congressional provision which has not been the subject of a prior judicial analysis.2 This provision, D.C.Code 1981, § 23-1325 (as amended), which ironically bears the title, “Release in capital cases ...,” is distinct in language and statutory scheme from the provision, § 23-1322 (“Detention prior to trial”), which this court, en banc, held constitutional in United States v. Edwards, D.C.App., 430 A.2d 1321, cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1981). In my view the grant of summary affirmance in the instant cases is not only given in needless haste, but is also ill-advised.
I might put aside, for my purposes here, some of the serious issues raised by the appellants;3 to me, the majority’s treatment of procedural due process alone is deserving of this court’s en banc attention.
Moreover, I need not go so far as to embrace all of the due process arguments of appellants in expressing my concern. As I read my colleagues’ decision, it reduces itself to a holding that, since there is a governmental interest in protecting the safety of its citizens, the government may detain indefinitely, on criminal charges, presumptively innocent citizens, without meaningful notice, hearings or findings, when a judicial officer believes such citizens are dangerous. I cannot believe that the problem of crime, serious as it may be, has progressed to the point where we should sanction such a drastic shortcut.
Section 23-1325, in its amended form, provides essentially that a person charged with first-degree murder shall be released pursuant to § 23-1321 unless a judge has reason to believe that no one or more of the conditions of release (such as placement under supervised custody, execution of bail or appearance bonds, restrictions on travel, etc.),4 will reasonably assure against flight *1320or danger. Beyond this the provision merely recites, “If such a risk of flight or danger is believed to exist, the person may be ordered detained.” No reference is made to a hearing, to procedural processes, to standards of proof, to written findings, or to time limitations for detention — all matters which are the subject of requirements written into § 23-1322, the section construed in Edwards. If my two colleagues were suggesting therefore, in relying upon Edwards, that the procedural protections of § 1322 are to be read into § 1325 (however inadequate such protections may have been thought to be by the dissenters in Edwards), I would have less cause for concern. What they are in fact saying is something quite different; they are saying that a person accused of first-degree murder (covered literally within the detention provisions of § 1322 and its protections),5 as a result of the Council’s substitution of “first-degree murder” for the “capital offense” release provisions of § 1325, may be detained indefinitely until trial (no matter how long that trial may be in commencing) on the “belief” of a judicial officer as to their dangerous propensities and without any procedural process except that of an informal hearing of “some type” and findings of some kind (which they define quite differently from the requirements of § 1322).
In the interest of making a quick comparison, I might paraphrase the relevant protections afforded a person accused of murder by the statutory provisions at issue in Edwards. Section 23-1322(b) provides that no person shall be ordered detained prior to trial unless the judicial officer holds a hearing following specified procedures; finds (1) by “clear and convincing evidence” that the person has been convicted of a crime of violence within the ten-year period prior to the alleged murder or that the murder was allegedly committed while on bail or other release with respect to another crime of violence (see subsection (a)(2)), (2) that there are no conditions of release which will reasonably assure the safety of the community, (3) that, on the basis of information presented by proffer or otherwise, there is a substantial probability that the person committed the offense; and unless the officer issues an order of detention accompanied by written findings of fact and the reasons for its entry. Subsection (c) of § 1322 sets out the specified procedural requirements6 of a pretrial detention hearing — requirements going to its initiation and its immediacy, and the right of the accused to representation by counsel, to present information by proffer or otherwise, to testify, to present witnesses and to appeal. Subsection (d) provides for expedited trial, a limitation of 60 days on any ordered detention, and for release under changed circumstances.
Compare, if you will, how the majority of the presently constituted motions panel deals with the failure of § 1325 to afford even the Edwards protections. It dismisses outright appellants’ argument that they may be held in detention indefinitely (potentially for years)7 noting such detention “does not constitute punishment.” Ante at 1313. It says, “Though 1325(a), unlike 1322, does not state that a hearing is required prior to detention without trial, these appellants were given hearings.” Ante at 1315. It concedes that some type of hearing is required but concludes that *1321there is no right to an evidentiary hearing, Significantly here, at least some of the hearings alluded to consisted of little more than arguments by counsel as to the constitutionality of detention. The specific request to introduce evidence by at least one of the appellants was not honored.
In this regard, the majority states, “Though § 1325(a) does not expressly give a defendant the right to present evidence, counsel were permitted to present extensive argument and any information relevant to the bail determination.” Ante at 1316. It holds that there is no requirement here (as provided for in § 1322) that the decision to detain be supported by clear and convincing evidence [of past conduct]. The majority equates the “reason to believe” language of 1325 to the “probable cause” [to arrest] standard of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1974), and holds that probable cause is all that is required.
Following through, the majority holds— and I find this to represent the ultimate in incongruity — that while written decisions with specific findings of fact stating the reasons for detention are not required by Gerstein or Edwards, “this court, to facilitate its review, does require a written statement or its equivalent.” Ante at 1316. I suggest that a written statement might be difficult to formulate on the basis of the summary process which the majority is sanctioning.
As rationale for its holding, the majority reasons essentially that there is no Eighth Amendment right to bail, and that traditionally bail was not afforded to persons accused of capital offenses. I concede that Edwards stands for the first proposition. However, as to the second, even if I were willing to equate first-degree murder to those offenses formerly punishable by death (for which the risk of flight justified exclusion from Eighth Amendment protection)— an equation which the government concedes has been the subject of divided authority (see United States v. Kennedy, 618 F.2d 557 (9th Cir.1980)), — such concession would not dispose of the issue. Although appellants may not be entitled constitutionally to bail, they are entitled constitutionally to Fifth Amendment procedural safeguards which will insure the fair determination that they are so dangerous or prone to flight as to justify even temporary restraint of liberty prior to conviction. These are the “closely circumscribed" safeguards upon which this court relied in Edwards in finding that detention for a maximum of 60 days under § 1322 was regulatory in nature rather than punitive. Edwards, supra at 1333-34, 1337. The majority’s reliance therefore, upon Gerstein v. Pugh, supra, as setting the minimum procedural process due is misplaced. The majority recognizes that Ger-stein sets a standard for Fourth Amendment purposes but states that there is no reason why such standard should not be adequate for Fifth Amendment purposes. The short reason, of course, is that the Supreme Court was very careful to limit its holding to the precise requirement of the Fourth Amendment. (Significantly Ger-stein reveals concern with the permissible duration of pre-hearing detentions. See Fisher v. WMATA, 690 F.2d 1133 (4th Cir., 1982)).
Moreover, I take issue with the suggestion of my two colleagues that Edwards requires no more than the due process protections of Gerstein.8 As I have noted, Edwards was upholding the constitutionality of § 1322 provisions which provide for much more in the way of procedural protections than Gerstein provides. In rejecting the arguments that those provisions were unconstitutional in not providing for confrontation, cross-examination, compulsory process and the standard of proof beyond a reasonable doubt, Edwards, making analogical reference to Gerstein, held that the 1322 “statutory procedures satisfy the minimum demands of procedural due process *1322before a person may be detained pending trial on the grounds of dangerousness to the community.” Id. at 1333 (emphasis supplied). If Edwards is to be interpreted as requiring no notice, no evidentiary hearing, less than a clear and convincing standard of proof, no written findings and no time limitations as to the length of detention, then it might be advisable that the en banc court take another look at Edwards.9
In this regard, I have avoided any temptation to reargue Edwards which remains, uniquely, the only decision in this country to sanction pretrial detention without bail on the alleged grounds of a compelling governmental interest. See Hunt v. Roth, 648 F.2d 1148 (8th Cir.1981), vac. as moot sub. nom Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); Martin v. Strasburg, 689 F.2d 365 (2d Cir., 1982); Huihui v. Shimoda, 644 P.2d 968 (Hawaii 1982). I will not repeat here, therefore, the eloquent plea made by counsel in closing appellants’ argument before the motions panel. I will say, however, that the erosion of personal liberty in stage by stage progression is lulling and infinitely difficult to resist.
I respectfully dissent.10
. Although three judges of this court sit to hear motions of significance, the judges assess the issues without the thorough briefing and extended deliberation attendant to regular appeals.
. Last term, the full court heard en banc a constitutional challenge to a companion section of the Bail Act. See United States v. Edwards, D.C.App., 430 A.2d 1321 (en banc), cert. denied, 449 U.S. 872, 101 S.Ct. 211, 66 L.Ed.2d 92 (1981).
. Appellants have urged that the declaration of emergency by the Council is based upon considerations having no nexus with respect to the crime of Murder I, that retroactive application of the legislation to them is improper, that their detention denies equal protection, and that the statute is vague and overbroad and punitive in nature.
. Section 23-1321 provides that the judicial officer, in determining which conditions of release, if any, will assure appearance and safety of the community, shall take into account the nature and circumstances of the offense, the *1320weight of the evidence, family ties, employment, financial resources, character and mental conditions, past conduct, length of residence in the community, record of convictions and any record of appearance or nonappearance at court proceedings.
.Murder is defined as a crime of violence within the meanings of § 1322(a)(2). See Section 23-1331(4).
. Two of the judges of this court in Edwards thought even these protections constitutionally inadequate to justify a restraint of liberty for 60 days. Id. at 1350 et seq.
. The government concedes that this bondless detention is only limited by invocation of speedy trial rights. Those of us who have balanced those rights under the standards of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), are acutely aware of the time periods involved.
. For this the majority relies upon certain reasoning by Judge Ferren, dissenting in Edwards, which unfortunately did not carry the day.
. Both appellants and the government have relied upon Edwards in advancing their argument as to the penal or regulatory nature of these detentions.
. While the records before us detail interesting constitutional arguments, I cannot conclude that the hearings afforded, or the findings made, are other than deficient.