Deadly dilemmas III: some kind words for preventive detention.

• Author: Allen, Ronald J.
• Position: Symposium: Preventive Detention

1. INTRODUCTION

   "Preventive detention" is a phrase guaranteed to provoke moral indignation on the part of many citizens and legal experts alike, leading to charges that it is un-American and caustic to our traditional legal and moral values. (1) Preventive detention appears to its critics to involve, among other things, an egregious short-circuiting of the traditional legal doctrine that the state is justified in apprehending and incarcerating its citizens only when there is probable cause to believe that such persons have either harmed others, or come very close to doing so, with only a small space for restraining someone preventively. By contrast, preventive detention envisages the arrest, conviction, and punishment of persons, not because of grievous harms they have actually committed or risks of grievous harm they have already imposed on others but because of suspicions that--left to their own devices--they are disposed to commit acts likely to cause grave harm in the future. As the phrase itself suggests, preventive detention involves the incarceration of persons not as punishment for harms already wrought but as a device for preventing future harms that the state surmises they are likely to inflict if not incarcerated.

   In the view of many, such policies perversely turn traditional legal (and moral) thinking topsy-turvy by legitimizing the incarceration of potential wrongdoers not for harms they have committed but for harms that they might do in future should we fail to incapacitate them. Moreover, at least in the view of its critics, preventive detention's tendency to favor detention for future dangerousness ignores the retributionist theory of just deserts as the only acceptable rationale for punishment and holds, instead, that a fully legitimate and entirely free-standing aim of incarceration is crime prevention.

   In this Article, we intend to explore whether preventive detention is the unwelcome and subversive innovation it is widely depicted as being. While we have no intention of defending all or even most forms of preventive detention in their concrete instantiations, we think that preventive detention is, under many circumstances, a legitimate and principled part of the criminal law. More than that, we shall show that preventive detention--though not explicitly by that name--has long been, and continues to be, a core part of Anglo-Saxon legal practice. And at the deepest level, the animating principle of preventive detention--that the government may intervene in order to prevent future harms--rather than being an anomaly of a scandalous backwater of criminal law in fact is a general organizing principle of government. Its detractors have neglected this because of their inaccurate characterization of law generally, criminal law specifically, and the peculiar focus on one small part of legal regulation--serious felonies in particular--that neglects how that aspect of legal regulation is embedded in law generally. In addition to its overly reductive nature, the standard commentary on the criminal law involves another equally debilitating flaw of being excessively prescriptive and ignoring the law as it is. Whether because of the moralistic tone or not, the standard commentary neglects that how and whether to engage in preventive detention is another example of the unavoidable deadly dilemmas of governing. (2) As we shall show, eliminating preventive detention from the law would not just eliminate the "wrong" of incarceration prior to a conviction for a specific act but in addition would add innumerable "wrongs" of criminal acts against people that would have not occurred had the perpetrator been under state control.

   Before we turn to explore how pervasive preventive detention has become in American criminal (and parts of civil) law and precisely what the real trade-offs are that it poses, it is crucial to formulate as clearly as we can precisely what preventive detention means. Its critics in particular tend to adopt a hyperbolic version of what preventive detention amounts to, as we shall see shortly. Simply put, our proposal is that preventive detention is best understood as being simultaneously a policy about what constitutes a crime and about what justifies governmental intervention. On the former front, preventive detention entails that an activity, A, can be properly considered a crime (and defined as such by statute) if it is plausible to believe that doing A substantially increases the risk that grievous harm to innocent citizens will ensue eventually from A.

   If A leads immediately and directly to such harm, of course, then we likewise have a criminal act. On that issue, preventive detention and traditional retributionist theories are on the same page. Where the two sides tend to differ--so far as characterizing crimes goes--is about whether an act or event that in itself produces no harm should nonetheless be criminalized, if it significantly increases the risk that future harm will ensue. Preventive detention theorists are much more inclined to criminalize such activities than retributionists are.

   Attitudes toward sentencing are even more sharply divided between the two camps. Retributionists incline to the view that the punishment should fit the crime, and that the function of punishment is to give criminals no other than their just deserts. On this view, once a felon has "repaid his debt to society," he is to be released and can begin life anew with a fresh slate, so far as the criminal law is concerned. Preventive detentionists, on the contrary, hold that the principal function of punishment or incarceration is to protect society from dangerous persons. The greater the danger that someone represents, the longer his incapacitation should be. Where serial felons are concerned, retributionists generally incline to the view that their prior crimes should be ignored in the sentencing phase, since the defendant has already served his time for his previous convictions. Detentionists, by contrast, hold that a pattern of numerous prior convictions makes it much more likely that the defendant will continue to be a risk to society and therefore warrants longer (sometimes much longer) incarceration.

   Opponents of preventive detention rarely couch that doctrine in the terms that we have just used. Instead they ask us to imagine a system of law in which persons perceived to be dangerous by the police are arrested, held without charge, and incarcerated for an indefinite period until, if ever, the state decides that they no longer constitute a danger. This would indeed qualify as a form of preventive detention but not one that anyone with the slightest respect for the rule of law would espouse. To see how misleading this characterization is, imagine the following scenario: We have a state in which the police arrest those they think guilty of a crime. After a brief preliminary hearing in which a judge routinely confirms the verdict of the police, convicted suspects who committed grievous crimes are summarily executed while those convicted of lesser crimes are sent to prison for three months. Such a criminal justice system would clearly be retributionist and the graduation in punishment mirrors the severity of the crime. Still, this example would be no refutation of retributionism in general since there are plenty of conceivable retribution-based models that do not ride roughshod over our notions of due process and fair play. By the same token, preventive detention does not entail indefinite detention nor a denial of the fight to be informed upon arrest of the charges one faces nor the possibility of incarcerating someone for any significant length of time without due process. What preventive detention does entail is that assessments of the danger posed by the defendant to society can play a role both in defining the character of a criminal act and in determining the punishment appropriate for it. The fact that we can imagine both retributionist and detentionist schemes that would be nightmarish is no argument against either since neither camp holds that its own theories of crime and punishment are sufficient (only necessary) for the construction of an acceptable system of criminal justice.

   Our core question, then, is simply this: Do/should we incarcerate persons only as just punishment for the serious harm(s) they have already done to their fellow citizens or as a mechanism for shielding the latter from future harms that the former may well perpetrate? The answer to that question, as we shall see, must be: a mixture of both. While many of the paradigmatic categories of criminal wrongdoing involve the (usually intentional) infliction of serious harm (murder, rape, aggravated assault, kidnapping, arson, and the like), vast categories of crimes--including many serious felonies--do not require the doing of harm or, in some cases, even the intention of doing harm. The latter actions are nonetheless designated as crimes because they are taken as adequate indicators that their perpetrators are disposed to engage in dangerous acts.

   If such persons are not stopped in their tracks before doing harm, they are apt to engage in actions that may inflict grievous harm on innocent victims. These non-harmful preliminary acts are criminalized precisely because they betoken future dangerousness. Given this characterization of preventive detention, it has to be acknowledged that current trial and incarceration policies involve heavy elements of preventive detention, broadly understood. We often deprive persons of their liberty because of a seemingly well-grounded fear that, left to their own devices, they might do serious harm to others. We lock them away not to ensure that they get the just deserts for their previous harm doing (in some cases, they have not yet done any harm) but as a way of protecting society from the future harmful consequences of their dangerous behavior.

   This becomes clear once one...