Preventive detention legislation enables an individual to be incapacitated to prevent harm from occurring either before they cause harm or to stop them causing more harm. Preventive detention legislation stands in contrast to the traditional retrospective orientation of the criminal justice system, whereby the state responds to harm that has occurred, such as by prosecuting and punishing criminal acts. There are many types of preventive detention legislation, including those
- prescribing limited or indefinite detention;
- prescribing detention in a prison or other institutional setting, such as a mental health facility;
- empowering a judge or member of the executive to order detention; and
- directed at persons who have been charged with a criminal offense, convicted of a criminal offense, or neither.
A common feature of contemporary preventive detention legislation is a reliance upon assessments of risk and dangerousness (i.e., what an individual might do) rather than past acts (i.e., what an individual has done), even if the latter forms part of the prediction of future harm. It is for this reason that preventive detention legislation is controversial, and debate exists as to its place in a justice system. This article discusses the different types of preventive detention legislation and explores key policy challenges and legal concerns they raise.
There are a number of different preventive detention legislative regimes, with some connected to, and many separate from, the criminal justice system.
Civil Commitment
Civil commitment laws enable the preventive detention of a person who has severe substance dependence, mental illness, an infectious disease, or other legislative precondition. This type of preventive detention is protective and therapeutic, designed to protect the public and the individual subject to an order, and is ordered following civil proceedings that are separate from the criminal justice process. For example, in New York, civil commitment laws enabling the preventive detention of persons with mental illness require clear and convincing evidence that the person has a mental illness (as defined in the relevant legislation), needs psychiatric care and treatment, and is a risk of serious harm to themselves or others.
Civil commitment may also be used as a diversionary pathway out of the criminal justice system, for example, for persons with mental illness who have committed a minor offense and who are in need of care and treatment.
Immigration Detention
In a number of countries, including Australia, the United Kingdom, and the United States, a person may be administratively detained when a decision is being made about whether to admit or remove the person. Foreign national prisoners, for example, can also be detained at the completion of their sentence pending deportation.
Preventive Detention Absent Charge: Criminal Justice and Military Contexts
There are also forms of preventive detention legislation that do not require a precondition, such as mental illness. An individual need not even be charged with a criminal offense. In the United Kingdom, for example, a terrorist suspect can be detained for up to 14 days by the police without charge to enable the police to obtain, preserve, or examine evidence for use in criminal proceedings. In Australia, anti-terrorism preventive detention orders can be made against a person who has not been arrested or charged. Police may detain a person for up to 14 days to prevent a terrorist attack or to preserve evidence following an attack.
Preventive detention without charge or trial also occurs in a military context. Since 2001, the United States has detained noncitizens believed to be part of Al-Qaeda or engaged in terrorism-related activity without trial in Guantanamo Bay, Cuba. Wartime internment, used during both world wars by many nations, and in Northern Ireland into the 1970s, is another example of this form of preventive detention against enemies or enemy aliens regarded as a threat to the state.
Pretrial Preventive Detention
Pretrial preventive detention occurs where an individual who has been charged with a criminal offense is remanded in custody until they stand trial, on the basis of their dangerousness or risk. This type of preventive detention was found to be constitutional in the United States in the 1987 case United States v. Salerno, which related to the provisions of the federal Bail Reform Act of 1984. The Bail Reform Act requires a federal court to order the detention of persons charged with certain serious felonies if the court finds that the safety of any person or the community cannot be ensured by release conditions.
According to the World Pre-trial/Remand Imprisonment List, in November 2016, the recorded number of persons in pretrial or remand detention (defined as detention prior to sentence) is more than 2.5 million, with a further 500,000 estimated in countries without data. The study also reported that there were approximately 467,000 people in pretrial detention/remand imprisonment in the United States.
Preventive Detention of Accused Persons Found Unfit to Stand Trial
If a person is mentally unfit to stand trial, that is, unable to comprehend the proceedings and communicate at the time of a criminal trial, he or she cannot be tried without unfairness and injustice. Preventive detention regimes exist to allow for persons found unfit to stand trial to be held, for purposes of treatment, in prison or another institutional setting such as a mental health facility. Some jurisdictions, such as New Zealand, provide for limited detention. For example, a person found unfit to stand trial in relation to an offense carrying a sentence of life imprisonment can be preventively detained for a maximum of 10 years. In the Australian state of Western Australia, by comparison, a person found unfit to stand trial may be indefinitely detained, without trial, for any offense that has a penalty of imprisonment.
Preventive Detention at Sentence
Preventive detention can also be imposed at the time of sentence, through indefinite or indeterminate sentencing regimes. These types of regimes allow a judge to impose a nominal or tariff sentence, at the completion of which the individual will be preventively detained if and until a parole board determines the person can be released as they no longer pose a threat to the community. For example, the United Kingdom introduced a regime of indeterminate sentences, imprisonment for public protection, which commenced operation in 2005. This regime was directed at serious sexual and violent offenders who a court was satisfied posed a significant risk to the public of serious harm through further offending. After serving a tariff sentence, an individual would be preventively detained until the parole board was satisfied he or she posed no risk to the public. In 2010, the Chief Inspector of Probation and the Chief Inspector of Prisons jointly reported that there were 70 people being sentenced to imprisonment for public protection each month. The regime was abolished in 2012. It was replaced with an extended determinate sentence framework, where the sentence can be extended by a court but not longer than the maximum penalty for the offense.
Postsentence Preventive Detention
In contrast to measures imposed at sentence, postsentence regimes enable preventive detention to be imposed at the end of an offender’s sentence of imprisonment. This type of preventive detention is ordered not at the time of sentence but proximate to its expiration. Following Washington and Minnesota in the early 1990s, sexual predator laws enabling the preventive detention of sexually violent offenders with mental or personality disorders at the end of their sentence have been introduced in 19 states and at the federal level in the United States. In the 1997 case Kansas v. Hendricks, the United States Supreme Court held that the government must prove that the individual has a condition that makes controlling the dangerous behavior difficult or impossible. In 2006, there were reported to be 4,534 people detained under sexually violent predator laws in the United States.
The United States is not the only country to have adopted this kind of preventive detention. Since the 2000s, many Australian jurisdictions have introduced legislation permitting the postsentence preventive detention of serious sex offenders, high-risk violent offenders, and terrorist offenders. These orders enable an offender to be detained in custody, indefinitely, at the completion of their sentence when it is shown that he or she poses a serious danger to the community if released.
Dangerousness and Risk in Preventive Detention Legislation
Preventive detention legislation raises significant policy, legal, and human rights concerns. These include concerns related to constitutional validity, principles of procedural fairness, the presumption of innocence, proportionality and finality in sentencing, principles against retrospectivity and double punishment, and the right to security and liberty of the person.
Pretrial and postsentence preventive detention orders straddle the civil-criminal divide. For example, although postsentence preventive detention orders are connected to a criminal process, in that an individual may be detained upon the completion of a term of imprisonment, they are imposed consequent to civil proceedings for the purpose of public protection—not punishment—and at a point in time after that which is traditionally accepted in the criminal justice system. An individual may be detained without the enhanced procedural and evidentiary safeguards that attach to the criminal justice system.
A key issue for preventive detention regimes is the accuracy and reliability of risk assessments. A preventive detention regime that is not founded on accurate and reliable risk assessments will be error prone, thus undermining its ability to protect the public by targeting those individuals likely to cause harm or reoffend. Preventive detention regimes have not always contained a predictive element. In the 19th century, early laws enabling indefinite detention at sentence were concerned with incapacitating habitual offenders, with their danger viewed as emanating from their recurrent breach of the law, until they were reformed. It was not until the 1970s, with the growth of actuarialism and risk in the prediction of dangerousness, that preventive detention regimes began to be concerned with what an offender might do. The United Kingdom’s imprisonment for public protection regime demonstrates the policy challenges preventive detention regimes pose. Prior to its repeal, the regime was criticized for the difficulties it created for prisoners to prove they no longer posed a risk and for drastically increasing the prison population and rates of mental illness among prisoners.
Postsentence preventive detention is arguably geared toward achieving the most accurate prediction of dangerousness and future offending. Rather than attempting to assess risk at the time of sentence, postsentence regimes enable the making of an order proximate to the expiration of the offender’s sentence. The goal is to facilitate the most reliable assessment of risk and increase the likelihood that it will apply only to those who pose a high risk to the community prior to release. However, Patrick Keyzer and Bernadette McSherry highlight that this form of preventive detention can be counterproductive. Their interviews with professionals working in the area unveiled concerns about the increased risks created by postsentence preventive detention regimes. One main concern is that they only target known offenders and do not reduce recidivism. The community, relying on the regime, falsely believes they are protected from sex offenders. A second is that the regime increases offenders’ anger and dissatisfaction.
Preventive detention legislation is not a new legal development, although it is an increasingly prominent feature of the legal landscapes of Western nations after the terrorist attacks of September 11, 2001. The growing emphasis on risk also has implications for how those subject to the law are conceived. Eric Janus argues that risk is becoming the new marker of otherness, replacing race, gender, disability, and sexual orientation. He argues that the anti-terror and sex offender legislative schemes in the United States are creating an alternative system of justice without, or with a diluted version of, the normal civil liberties protections afforded.
References:
- Anniston, H. (2015). Dangerous politics: Risk, political vulnerability and penal policy. Oxford, UK: Oxford University Press.
- Ashworth, A., & Zedner, L. (2014). Preventive justice. Oxford, UK: Oxford University Press.
- Janus, E. S. (2006). Failure to protect: America’s sexual predator laws and the rise of the preventive state. Ithaca, NY: Cornell University Press.
- Keyzer, P., & McSherry, B. (2013). The preventive detention of “dangerous” sex offenders in Australia: Perspectives at the coalface. International Journal of Criminology and Sociology, 2, 296–305.
- McSherry, B. (2014). Managing fear: The law and ethics of preventive detention and risk assessment. New York, NY: Routledge.
- Walmsley, R. (2016). World pre-trial/remand imprisonment list (3rd ed.). Retrieved from http:// www.prisonstudies.org/sites/default/files/resources/ downloads/wptril_3rd_edition.pdf