Punishment and the wild beast of prey: the problem of preventive detention.

• Author: Corrado, Michael Louis

Of course, the moral education theory says nothing about whether the execution of criminals might be justified not as punishment but as a method of "legitimate elimination' of criminals who are judged to have lost all of their essential humanity, making them wild beasts of prey on a community that must, to survive, destroy them. Whether such a justification of criminal execution can be morally tolerable is something I do not want to explore here.(1)

1. INTRODUCTION

   Recent work on the philosophy of punishment is deeply unsatisfying. While the criminal law expands to include forfeitures where there has been no conviction and detention based on dangerousness, philosophers and legal commentators continue on as if the problem of punishment were some hothouse specimen, ignoring the jungle outside the window. In a world where the perception of dangerousness has led to dangerous remedies, philosophers either turn a blind eye, insisting that the state can't restrict freedom except for a crime committed - in spite of the fact that the state does, and in some cases must, restrict freedom where there has been no crime at all - or else they defer that problem to another time.

   We cannot defer the issue any longer. Too much is happening. The Supreme Court has said that the limitations upon the state's authority to punish do not apply to detention for dangerousness because it is not punishment but regulation.2 What does that do to our motto that no one should be punished except for a crime? It passes it by and leaves us wondering what the limitations on regulation are, and whether there is now any point in talking about the limitations on punishment. In a more recent case, however, the Court did seem to pull back,(3) holding that when someone was acquitted by reason of insanity, the state could not continue to detain him after he regained his sanity, even if he remained dangerous.(4) This seems to mean that detention on grounds of dangerousness was not permissible after all. But as justice O'Connor made clear in her concurring opinion, the states may eliminate the insanity defense altogether,(5) which means that people innocent of crimes because of insanity would be convicted and imprisoned nevertheless - a good functional substitute for detention on grounds of dangerousness.(6)

   These issues have come to the Court's attention because legislatures, under the press of popular outrage, have acted to put dangerous people away by restricting the insanity defense, by denying bail on grounds of dangerousness, and by passing sex offender and habitual criminal statutes that punish out of proportion to the crime. These are important things happening in the criminal law, but we do not have any clear sense of how to talk about them. Most of our thought has been given to punishment, but punishment and detention on grounds of dangerousness are two different things. Thus, the fact that no one may be punished unless they have committed a crime is no reason, by itself, to think that pure preventive detention is wrong. At the same time, there is something very disturbing about taking away the personal freedom of someone who has not yet violated the criminal law. Although this feeling is difficult to articulate, it seems to have something to do with the notion of freedom - the notion that someone who is still capable of choosing and acting freely has not yet forfeited his right to do so. It is hard to give any meaning to this intuition without falling into the worst sort of platitude. It is certainly not enough to argue, as some have, that the mere fact of human freedom is self-evidently an obstacle to preventive detention.7 It is not; if it were self-evident, everyone who gave serious thought to the matter would be able to see it, and that just has not happened.

   My aim in this Article is to begin to develop a theory that will make sense of these competing ideas - that pure preventive detention is appropriate in some situations as the only solution to a grave social problem, on the one hand, and that it is never appropriate because it is an attack on freedom, on the other. It is indeed the freedom of the actor that stands in the way of a simple light to detain. But the way in which it does that is rather complex, and the argument to that effect is not, I confess, a knock-down argument. However, it does salvage what there is of good sense in the notion that the problem is human freedom, and it does suggest a middle ground.

2. The Problem of Preventive Detention

   1. SALERNO

      In 1987, the Supreme Court of the United States decided, in United States v. Salerno,8 that detention of dangerous individuals was not punishment but regulation, and therefore, detention fell outside the limits the Constitution drew around the institution of punishment.(9) It was not punishment, the Court held, because it was not intended as punishment(10) - a point not easily dismissed. An essential element of our current understanding of punishment is the intent to punish. Mere infliction of pain or restriction of freedom is not punishment unless it is intentional, and is in response to some offense, real or perceived.

      The issue in Salerno was the recent Bail Reform Act under which bail could be denied to those accused of crimes on the basis of dangerousness alone, even if no threat to the adjudicatory process (like flight or intimidation of witnesses) existed.(11) The defendants in the case had protested that such pretrial detention, based solely on the ground that they were dangerous, was punishment of the innocent. They charged that those who were merely accused and not yet convicted were innocent in the eyes of the law; while they could be detained to insure their appearance at trial, they could not be detained on the ground that they were dangerous to the community. The defense argued that to detain them on the latter grounds would be analogous to punishing them for future crimes and therefore, would be unconstitutional.(12)

      These arguments had found favor in the Second Circuit Court of Appeals,(13) which explains the government's determination to have the case heard by the Supreme Court despite the fact that the case was is an attack on freedom, on the other. It is indeed the freedom of the actor that stands in the way of a simple light to detain. But the way in which it does that is rather complex, and the argument to that effect is not, I confess, a knock-down argument. However, it does salvage what there is of good sense in the notion that the problem is human freedom, and it does suggest a middle ground. technically moot.(14) The government's determination was rewarded when the Court held that the pretrial detention provisions were not unconstitutional:

      The mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. To determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent. Unless Congress expressly intended to impose punitive restrictions, the punitive/regulatory distinction turns on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]." Congress ... perceived pretrial detention as a potential solution to a pressing societal problem. There is no doubt that preventing danger to the community is a legitimate regulatory goal 15

      This maneuver may remind you of the "definitional stop" argument (as Hart called it) in defense of utilitarianism.(16) When the retributivist says that an exclusive interest in utility would justify punishing the innocent, the utilitarian replies: "But that wouldn't be punishment at all, since punishment is by definition something imposed on a person for a crime he has committed!" As Hart pointed out, it is not a very persuasive argument.(17) Our aim isn't to label imprisonment of the innocent as something other than punishment; we want to determine whether and why it is wrong. And so we might reply to the Court: you have sidestepped the issue by calling it regulation"; you can't make imprisoning the innocent acceptable just by calling it regulation.

      And yet, why not? We do allow the state to deprive people of freedom in cases in which it is not meant as punishment; and when it is not meant as punishment, we do not insist on the safeguards that punishment requires. Taxation restricts freedom; enforced military service restricts freedom; quarantine of those with contagious diseases restricts freedom. Whatever we think of those impositions, it would be foolish to insist that they could be imposed only on people who had committed crimes. The law restricts our freedom when it permits zoning ordinances. We think such restictions are justified when they are called for by the general welfare. We may believe that compensation is required when property rights are limited, but it would seem odd to suppose that only the property of convicted criminals can be zoned.

      So what should prevent the legislature from detaining those who are innocent, if they are found to be dangerous? The Court in Salerno was dealing with a statute that limited such treatment to those indicted for, though not yet convicted of, serious crimes.(18) The difficulty lies in finding a principle that would limit the justification of detention to just those cases. Certainly, the Salerno Court did not succeed in doing so. In general terms, the Court said, that "[t]here is no doubt that preventing danger to the community is a legitimate regulatory goal."(19) Then, the Court stated that "[w]e have repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest."(20) The Court then pointed out that, as our cases hold, this right [to liberty] may, in circumstances where the government's interest is...