concurring in part and dissenting in part:
I applaud the majority’s decision to require clear and convincing evidence of dangerousness before allowing pretrial detention, and thus its overruling of our conflicting utterance in DeVeau v. United States, 454 A.2d 1308 (D.C.1982). Like Judge Fer-ren, however, I reject the conclusion that this evidence of dangerousness may be established through mere hearsay, and that due process requires no more than the cursory procedural protections approved in United States v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). Moreover, because of the context in which this case has arisen, been argued and decided, I deem it important to say that I persist in my conviction that pretrial detention without bail is not justified in non-capital cases.1 See Edwards, supra, 430 A.2d at 1365 (Mack, J., dissenting).
The notion that, pending trial, a defendant accused of a non-capital offense may be detained without bail must rest upon two broad assumptions. These assumptions, embraced to provide practical solutions to crime escalation but raising troubling constitutional considerations, are: first, that the Eighth Amendment injunction against excessive bail implies no underlying right to bail; and second, that the interest of an accused in remaining at liberty may be counterbalanced by society’s interest in protection against persons thought to be dangerous. Engrafted on these broad assumptions are myths that are debunked by day-to-day experience— the myth that dangerousness can be predicted with any degree of accuracy and the myth that pretrial detention is not punitive but regulatory. Put aside for a moment the fact that this notion reduces our Constitution to esoteric symbolism; a solution based upon a house of cards can hardly be expected to be a solution.
The extent to which the lulling ploy of public safety may in fact pose a threat to public protection is concealed by an attractive but insidious logic. As the public interest in safety increases, the reasoning goes, the relative liberty interest of a “criminal” is progressively reduced. Thus it is that a member of the public who is accused of a serious crime may enjoy less constitutional protection than a member of the public accused of a minor offense— even though, remarkably, the latter may prove to be guilty and the former innocent! When we become willing to countenance pretrial detentions without bail on the basis of nothing more than the seriousness of a charge, we become impervious to assertions of the rights of an accused, and porous to arguments that equate an accusation with a foregone conclusion of guilt. That is too great a price to pay, particularly in the absence of empirical data that the “routine” detentions alluded to by Judge Ferren have provided the sought-after solution. Indeed, they have accomplished little more than to generate new problems.
In sum, I join the majority only in its adoption of the “clear and convincing” evi-dentiary standard for the determination of dangerousness before pretrial detention.2 I join Judge Ferren in his reasoning that the evidence must be more than hearsay, and that the procedural limitations of Edwards, to which, this court still clings, are inadequate to comport with due process.
. Mr. Lynch was charged with first-degree murder, a crime traditionally subject to capital punishment. The majority’s cross references to, and reliance upon, Edwards (where the crime was not capital) prompt my discussion here.
. I should add that I also agree with the majority’s analysis as to the "mootness" issue.