The limits of the preventive state.

• Author: Steiker, Carol S.
• Position: Supreme Court Review

1. PUNISHMENT VS. PREVENTION

   Our federal Constitution has a lot to say about crime and punishment. Even in the "structural" part of the Constitution, which is not often thought to be the source of much criminal regulation, references to criminal law and criminal procedure abound. For example, the drafters took care to enumerate the crimes for which federal officials are subject to impeachment and removal from office(1) and for which federal law-makers are exempt from arrest during Congressional sessions.(2) And they specifically provided for Congress' power to punish the crimes 5 of counterfeiting,(3) treason,(4) piracy,(5) and violations of "the Law of Nations."(6) Moreover, entire species of penal laws bills of attainder and ex post facto laws--are placed by the Constitution outside of the reach of both state and federal legislators.(7) And certain procedures are required not only for treason trials,(8) but also for criminal trials more generally--in particular, trial by jury'" and the availability of the writ of habeas corpus in peacetime.(10)

   The Bill of Rights more famously and in more detail occupies itself' with both substantive and procedural criminal law. The Eighth Amendment's proscription of "excessive bail," "excessive fines," and "cruel and unusual punishments" has been interpreted by the Supreme Court to limit both federal and state officials in their legislative and judicial capacities.(11) The Fifth Amendment's repudiation of double jeopardy can also be read as a substantive limit on the government's power to punish.(12) Moreover, the Fifth and Sixth Amendments speak directly and in significant detail about the procedures necessary in "criminal case[s]"(13) and "criminal prosecutions,"(14) requiring, among other things, grand jury indictments,(15) the privilege against self-incrimination, speedy trials, impartial .juries, confrontation of witnesses by the accused, compulsory process for the accused, and the assistance of counsel for the defense. And the "due process" clause of the Fifth and Fourteenth Amendments has been held to require even more in the way of procedural protections in criminal cases, most notably the requirement of proof beyond a reasonable doubt for conviction.(16) Finally, the Fourth Amendment's prohibition of "unreasonable searches and seizures," while not on its face limited to criminal cases, has been elucidated extensively--indeed, virtually exclusively--in the realm of the regulation of police practices in criminal cases.(17)

   The Supreme Court, the lower federal courts, and state courts of all levels have elaborated extensively on the meaning of most of these constitutional proscriptions and requirements in the thirty-plus years since the Warren Court's criminal procedure "revolution," when most of the provisions of the Bill of Rights relating to criminal investigation and prosecution were made applicable to the states.(18) As a result, the constitutional regulation of the criminal process has become its own legal subspecialty, with its own courses, casebooks, treatises, and experts. It is taken for granted, both in the legal academy and in the wider world of legal institutions, that the constitutional problems posed by the creation and enforcement of criminal laws are distinct and distinctively important. To coin a phrase, the limits of "the punitive state"(19) have been explored extensively (if not resolved successfully) both by courts and legal commentators.

   In contrast, courts and commentators have had much less to say about the related topic of the limits of the state not as punisher (and thus, necessarily as investigator and adjudicator of criminal acts) but rather as preventer of crime and disorder generally. Indeed, courts and commentators have not yet even recognized this topic as a distinct phenomenon either doctrinally or conceptually. Of course, one way to prevent crime is to punish criminals, thereby incapacitating (and perhaps even rehabilitating) them during the period of their incarceration, deterring the specific individuals involved from further criminality, and deterring others by example. But punishment is not the only, the most common, or the most effective means of crime prevention. The state can also attempt to identify and neutralize dangerous individuals before they commit crimes by restricting their liberty in a variety of ways. In pursuing this goal, the state often will expand the functions of the institutions primarily involved in the criminal justice system--namely, the police and the prison. But other analogous institutions, such the juvenile justice system(20) and the civil commitment process, are also sometimes tools of, to coin another phrase, the "preventive state."

   The preventive state is all the rage these days, and it can be seen in many different guises. One set of prophylactic measures involves giving the police more authority to intervene earlier to prevent, as opposed to merely detect and investigate, crime. For example, "community policing" initiatives are sweeping the country's urban police departments, and one thing that these often divergent policies seem to have in common is enhancing the preventive role of police officers.(21) Localities are also seeking to give the police broader preventive authority by enacting new substantive offenses such as "drug loitering" or "gang loitering."(22) The federal government has enhanced federal law enforcement's preventive power by reviving and expanding the practice of civil forfeiture based only upon "probable cause.(23) And the Supreme Court has authorized several important aspects of preventive policing under the Fourth Amendment. For example, the Court has extended its holding that a limited Terry "stop-and-frisk" of a person is justified without probable cause in order to prevent harm to police officers to legitimize similar prophylactic "frisks" of cars(24) and even houses.(25) And the Court has added significantly to the (formerly) short list of searches and seizures that may be done without any individualized suspicion whatsoever.(26)

   Another set of prophylactic measures involves direct restraints by legislatures on the liberty of certain individuals believed to be particularly dangerous. For example, pre-trial preventive detention of both juveniles and adults has become much more common in recent years.(27) Many states are seeking to prevent sexual assaults, particularly those against children, by enacting sex offender registration and/or community notification statutes28 and by creating or reviving "sexually violent predator" statutes that permit the indefinite civil commitment of convicted sex offenders who would otherwise be released at the end of their prison terms.(29)

   This diverse set of preventive practices and policies has created (or at least exacerbated) two important legal problems, one of which is beginning to get a lot of attention, and one of which is hardly recognized at all. The problem currently attracting attention is the problem of identifying those preventive practices and policies that are "really" criminal punishment and thus subject to the range of constitutional constraints, both substantive and procedural, that delimit the use of the criminal sanction. For example, must the civil forfeiture of property used or acquired in the course of criminal behavior be "proportionate" in the way in which criminal punishment must be under the Eighth Amendment?(30) If and when does the Double Jeopardy Clause of the Fifth Amendment apply to separate civil forfeiture and criminal proceedings,(31) or to separate civil penalty and criminal proceedings?(32) Does the preventive detention

   of pre-trial detainees constitute criminal punishment without trial in violation of the Due Process Clause?(33) And does the indefinite civil commitment of "sexually violent predators" at the conclusion of their prison terms constitute new punishment in violation of the Ex Post Facto and Double Jeopardy provisions of the Constitution?(34) More generally, should putatively civil penalties and restraints be considered "really" criminal punishments based on the government's motivation, if one can be discerned? Or on the effect such penalties and restraints have on the individual on whom they are imposed? Or on how the relevant community would understand the imposition of such penalties and restraints? Scholars as well as courts have begun to engage these cases and questions, offering different theories of how we might identify hidden but "real" criminal punishment that must be subject to our constitutional constraints on "the punitive state."(35)

   The urgency and complexity of this first problem has tended to obscure a second problem, which is also in need of careful attention, but which has not yet been generally recognized as a problem. What constitutional and/or policy limits are there on the non-punitive "preventive" state? Even if certain policies and practices do not implicate the special substantive and procedural constraints that we place on criminal punishment, they may well implicate other constitutional provisions and/or policy concerns. This point is all too often lost. Courts and commentators often tend to conclude, too quickly, that if some policy or practice is not "really" punishment, then there is nothing wrong with it. And they often treat preventive searches and seizures as inherently far less problematic than those engaged in for the purposes of investigating and prosecuting crime.

   Not only do courts and commentators often trivialize objections to actions of a "merely" preventive (as opposed to punitive) state, they also do not tend to see the various preventive policies and practices canvassed above as part of a unified problem. Instead, the cases and commentary on these issues have a fragmented and haphazard quality. On the procedural side, the legal issues posed by "preventive" policing have not generally been seen as related to the larger category of...