Preventive detention is the incarceration or detention of an individual deemed to pose a risk to society. Versions of preventive detention operate both within and outside the criminal justice system. Within the justice system, both pretrial detention and the criminal detention of dangerous persons differ from traditional criminal imprisonment in that they address potential—not actual—offending on the grounds of risk. The emergence of a postrehabilitation “new penology” has transformed dangerousness and risk prediction into key concepts. Outside of the criminal justice system, preventive detention has been used to quarantine contagious patients, civilly commit mentally ill persons, and isolate Japanese American citizens during World War II. The use of preventive detention varies across jurisdictions, but its use is often controversial, since it raises difficult questions about what it means to punish and how to balance the rights of dangerous persons against those of society at large.
In the mid-1970s, the criminal justice system’s focus upon criminogenic pathologies yielded to a focus on incapacitation. For example, noting that a handful of offenders commit a disproportionate volume of crime, Peter Greenwood published a 1982 report outlining the logic of selective incapacitation. Malcolm Feeley and Jonathan Simon characterized the shift from rehabilitation to a criminal justice system based on risk analysis and the incapacitation of the dangerous classes as a “new penology.”
In the United States, Fifth Amendment guarantees of due process and Eighth Amendment prohibitions against excessive bail and cruel and unusual punishment provide constitutional limits upon the use of preventive detention. However, these prohibitions are not absolute. For example, courts enjoy broad discretion in detaining pretrial defendants on the basis of dangerousness. The District of Columbia Court Reform Act of 1970 permitted judges to detain dangerous defendants, even those who might otherwise post bail (ensuring appearance at trial), so long as the defendant was granted an expedited trial (and released if trial had not commenced within 60 days). In Schall v. Martin (1984), the U.S. Supreme Court upheld a New York law authorizing the detention of juveniles on the basis of dangerousness. The court noted that sufficient due process safeguards existed, and that detention served a regulatory, not a punitive, purpose. Employing similar reasoning in U.S. v. Salerno (1987), the court upheld the preventive detention of adult defendants under the Bail Reform Act of 1984. In these cases, the court effectively held that the government’s legitimate interest in community safety can outweigh a criminal defendant’s liberty interests.
The United States can detain citizens via quarantine orders, such as during the Spanish flu epidemic of 1918. In 2007, attorney Andrew Speaker was diagnosed with extremely drug-resistant tuberculosis and served with an involuntary quarantine order. However, it is not just contagious disease that justifies preventive detention. Authorities can involuntarily commit psychiatric patients who represent a danger to themselves or others. On this basis, the federal government and many states have implemented regimes of involuntary, indefinite civil commitment for high-risk sexual offenders. The U.S. Supreme Court upheld civil commitment legislation in Kansas v. Hendricks (1997). Upon release from prison, Leroy Hendricks was civilly committed under Kansas’s Sexually Violent Predator Act (requiring both a mental abnormality and risk of reoffending).
Although Hendricks acknowledged that he might not be able to control his pedophilia, he claimed that civil commitment violated prohibitions against double jeopardy and ex post facto laws and did not provide adequate due process protection. Upon review, however, the court held that the Act established sufficient due process procedures and concluded that, because Hendrick’s detention was civil, not criminal punishment, the prohibitions against double jeopardy and ex post facto laws did not apply. The state’s ability to preventively detain sexually violent persons (SVPs) does have limits, however. In Kansas v. Crane (2002), the court considered the case of a defendant who claimed that he could control his behavior and challenged his commitment as a violation of due process. In Crane, the court held that the state must demonstrate that sexually violent persons suffer from some volitional impairment.
Another controversial form of preventive detention is the incarceration of enemy combatants. During World War II, in Korematsu v. United States (1944), the court upheld the authority of the U.S. government to compel the relocation of approximately 110,000 Japanese Americans into internment camps. Since the September 11, 2001, terrorist attacks, some individuals suspected of involvement in terrorism (e.g., Zacarias Moussaoui) have been charged criminally in federal court and imprisoned in federal correctional institutions; others, however, have been detained at the U.S. military facility in Guantanamo Bay, Cuba. Enjoying neither the constitutional protections of traditional criminal defendants nor the rights afforded to prisoners of war, the enemy combatants in Guantanamo Bay languished in what some commentators called a legal “black hole.” The legality of such detention was challenged in Hamdi v. Rumsfeld (2004). Yaser Esam Hamdi, a U.S. citizen, challenged his detention as a violation of due process. The court acknowledged the government’s authority to detain enemy combatants, including its own citizens, but ruled that the government cannot detain U.S. citizens indefinitely without access to due process protections enforced through judicial review.
Preventive detention is also applied to noncitizens. The U.S. Immigration and Naturalization Service (INS), folded into the Department of Homeland Security in 2003, uses preventive detention. While intended as a short-term solution, many immigrants have been detained under harsh conditions for years. In 2010, nearly 400,000 immigrants were detained. In Zadvydas v. Davis (2001), the Supreme Court held that illegal immigrants can be detained if they are under a deportation order and the United States cannot identify a country to accept them. Citing Salerno, the court noted that indefinite detention is not permitted; if detention exceeds six months, the government must articulate special circumstances or demonstrate removal in the foreseeable future. In Demore v. Kim (2003), the court held that the INS could detain for the purpose of deportation, even in the absence of evidence of dangerousness or flight risk, as long as mandatory detention was subject to “stringent time limitations.”
Preventive detention is used outside of the United States, as well. It has been enacted through statutes such as New South Wales’s 1905 Habitual Criminals Act, New Zealand’s 1906 Habitual Criminal Act, and the United Kingdom’s 1908 Prevention of Crime Act. Though the statutes differ in the offenders who are targeted and the conditions under which the sentence can be imposed, several nations authorize the indefinite detention of dangerous persons on the basis of risk: Australia, Belgium, Denmark, Germany, Finland, Norway, New Zealand, and the United Kingdom. Focusing upon serious violent and sexual offenders, these jurisdictions employ preventive detention as a nonpunitive mechanism to protect the public. Some countries (e.g., New Zealand) authorize indefinite preventive detention only as part of a trial sentence, while others (e.g., Germany) permit its imposition near completion of a definite sentence.
Preventive detention is controversial and raises difficult questions. Despite the construal of preventive detention in terms of protective incapacitation instead of criminal punishment, thorny ontological questions about punishment remain. Dangerous persons serving indefinite sentences of preventive detention are typically incapacitated in prisons, under prison conditions. Merely labeling it as “nonpunitive” may not make it so. Those
sentenced to preventive detention often serve prison terms that exceed the maximum punishment normally available for the crime.
Some suggest they are not punished for what they have done, but rather for who they are. Questions about the validity and reliability of risk-assessment instruments make these questions even harder. Incapacitation of those who have served their sentence (i.e., civil commitment) raises difficult questions about double jeopardy and ex post facto laws; incapacitation of those who have never been sentenced (i.e., enemy combatants) raises questions about the ability of the state to sacrifice the liberty interest of an individual to safeguard the well-being of the community.
- Contreras, Jorge. “Public Health Versus Personal Liberty—The Uneasy Case for Individual Detention, Isolation and Quarantine.” SciTech Lawyer, v.7/4 (2011).
- Dow, Mark. American Gulag: Inside U.S. Immigration Prisons. Berkeley: University of California Press, 2004.
- Feeley, Malcolm M. and Jonathan Simon. “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” Criminology, v.30/4 (1992).
- Fletcher, George P. “Black Hole in Guantanamo Bay.” Journal of International Criminal Justice, v.2/1 (2004).
- Greenwood, Peter W. Selective Incapacitation. Santa Monica, CA: RAND, 1982.
- Jackson, Patrick. “The Impact of Pretrial Preventive Detention.” The Justice System Journal, v.12 (1987).
- Miller, Marc and Martin Guggenheim. “Pretrial Detention and Punishment.” Minnesota Law Review, v.75 (1990).
- Robinson, Paul H. “Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice.” Harvard Law Review, v.114 (2001).
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