McGeorge Law Review Volume 40 | Issue 4 Article 3 1-1-2008 Limits of Preventive Detention, The Rinat Kitai-Sangero The Academic Center of Law and Business, Israel Follow this and additional works at: https://scholarlycommons.pacific.edu/mlr Part of the Criminal Law Commons Recommended Citation Rinat Kitai-Sangero, Limits of Preventive Detention, The, 40 McGeorge L. Rev. (2016). Available at: https://scholarlycommons.pacific.edu/mlr/vol40/iss4/3 This Article is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in McGeorge Law Review by an authorized editor of Scholarly Commons. For more information, please contact [email protected]. The Limits of Preventive Detention Rinat Kitai-Sangero* TABLE OF CONTENTS 1. INTRO DUCTION ............................................................................................ 904 II. ARGUMENTS AGAINST THE GROUND OF DANGEROUSNESS ........................ 908 A. The Ability to Predict Dangerousnessand the Elusive Concept of Dangerousness .................................................................................. 908 B. Detention as Punishment ....................................................................... 915 C. A Presumption of G uilt .......................................................................... 920 III. BALANCING THE PRESUMPTION OF INNOCENCE AGAINST THE PUBLIC INTEREST IN PREVENTING HARM ................................................................. 923 IV. SETTING LIMITS ON PREVENTIVE DETENTION ............................................. 925 A. Clear Evidence of Dangerousness ........................................................ 925 B . L im its on Duration ................................................................................ 927 C. P roportionality...................................................................................... 928 D. Conditions of Confinem ent .................................................................... 929 E. Payment of Compensation........................................................ 930 F. Seeking Less Restrictive Alternatives .................................................... 931 V . C O N CLU SIO N ................................................................................................ 932 ABSTRACT The purpose of this Article is to propose a framework for preventive detention and to call for strict limits on its use. The Article examines preventive detention mainly from the perspective of the presumption of innocence. It claims that the presumption of innocence has an important bearing on preventive detention and should set heavy limits on its use, including: solid evidence, due process, periodic review, requirement of proportionality,compensation, pleasant conditions of confinement, and a strict duty to explore all other alternatives for preventing harm before imposing detention. These limits are designed to make the use of preventive detention very difficult under normal circumstances. * Senior law lecturer, The Academic Center of Law and Business, Israel. I would like to thank Boaz Sangero, Neil Zwail, Yoav Hammer, and the editorial staff of the McGeorge Law Review for their helpful comments. 2009 / The Limits of Preventive Detention I. INTRODUCTION Preventive detention entails the incarceration of a person who has not been convicted of a criminal offense, based on his dangerousness, in order to prevent him from causing public harm. Its primary manifestations are pretrial detention, the administrative detention of persons suspected of being terrorists or enemy combatants, and the involuntary civil commitment of sex offenders following the completion of their prison terms. Despite the various contexts of these cases, dangerousness constitutes the sole basis for depriving sane persons of their liberty in the absence of convictions. For the sake of convenience, I shall hereinafter refer to all such deprivations of liberty as "detention." Not long ago, one commentator, in discussing the Salerno ruling'-which upheld the constitutionality of pretrial detention on the ground of dangerousness under the Bail Reform Act of 1984-referred to this judgment as "the world turned upside down."2 Some scholars, however, believe that pure preventive detention is not unthinkable.3 Normally,4 society uses the criminal trial to cope with the dangerousness of sane persons. However, the criminal trial, conducted according to traditional rules of evidence and procedure, is not always adequate for punishing an offender. Evidence may be inadmissible or insufficient to prove guilt beyond a reasonable doubt. Additionally, the prosecution may not be able to bring evidence at trial for reasons having nothing to do with the reliability of the evidence itself, such as concern for a witness's life and safety or to avoid exposing sources. Moreover, the trial process is inadequate for dealing with future offenses. Since the state is forbidden from inflicting punishment for a future act, the question arises as to what society can do regarding someone perceived to be dangerous. What is it supposed to do, for example, with respect to the member of a terrorist organization who conducts a normative and peaceful lifestyle, but is ready to carry out a terror attack the moment he is assigned his mission? Should society remain idle until a crime is committed? Assuming that deterrence may be ineffective in some situations, is there anything that can be done to cope with the high risk that a potential offender poses to society? Is 1. United States v. Salerno, 481 U.S. 739 (1987). 2. Sidney Bernstein, Supreme Court Review, 23 TRIAL 89, 90 (1987). 3. Michael Louis Corrado, Punishment and the Wild Beast of Prey: The Problem of Preventive Detention, 86 J. CRIM. L. & CRIMINOLOGY 778,779 (1996). 4. Therefore, as Slobogin rightly emphasizes, preventive detention is inappropriate if a person is amenable to criminal prosecution. Christopher Slobogin, A Jurisprudenceof Dangerousness,98 Nw. U. L. REV. 1,28-29 (2003). 5. See Emanuel Gross, Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy Have the Right to Hold Terrorists as BargainingChips?, 18 ARIZ. J. INT'L & COMP. L. 721, 762 (2001); Mark D. Villaverde, Note, Structuring the Prosecutor'sDuty to Search the Intelligence Community for Brady Material,88 CORNELL L. REV. 1471, 1527 (2003). 904 McGeorge Law Review / Vol. 40 society unable to act just because the potential offender has not yet committed an offense? The United States Supreme Court has not recognized a regime of pure preventive detention. Although, in principle, the Court has upheld the constitutionality of the involuntary confinement of sex offenders not suffering from insanity after the completion of their prison terms,6 it has nevertheless stressed the need to identify something special in sex offenders who are civilly committed against their will in order to distinguish between them and other dangerous persons.7 In Kansas v. Hendricks, a mental abnormality or a personality disorder that makes it difficult for someone to control his dangerous behavior was deemed a condition for civil commitment," whereas, in Kansas v. Crane, the Court required that the state prove "serious difficulty in controlling behavior" for such commitment to be considered constitutional.9 In another case, the Court held that a sane person with an incurable antisocial personality disorder should be released from a state psychiatric hospital since dangerousness alone (even when accompanied by a diagnosis of antisocial personality disorder) is not a proper basis for the deprivation of liberty within a regime of civil commitment.'° Additionally, a general power to arrest dangerous persons is recognized within a framework of administrative detention aimed at terror suspects." Such detention is outside, and operates parallel to, the normal criminal process.'2 Its classic objective is to prevent harm to national security during a state of emergency. 3 Regardless of whether the fight against terrorism should be defined as war and subject to the rules of war,14 the assumption of such detention is that the state may more easily trample upon civil rights during a state of emergency." 6. Kansas v. Hendricks, 521 U.S. 346 (1997). 7. Kansas v. Crane, 534 U.S. 407 (2002). 8. Hendricks, 521 U.S. at 356, 358, 360. 9. Crane, 534 U.S. at 413. 10. Foucha v. Louisiana, 504 U.S. 71, 82-83 (1992). 11. See George J. Alexander, The Illusory Protection of Human Rights by National Courts During Periods of Emergency, 5 HUM. RTS. L.J. 1 (1984); Andrew Harding & John Hatchard, Introduction, in PREVENTIVE DETENTION AND SECURITY LAW: A COMPARATIVE SURVEY 1, 3 (Andrew Harding & John Hatchard eds., 1993). 12. See Gross, supra note 5, at 753-54. 13. Harding & Hatchard, supra note 11, at 4; Steven Greer, Preventive Detention and Public Security- Towards a General Model, in PREVENTIVE DETENTION AND SECURITY LAW: A COMPARATIVE SURVEY 23, 36 (Andrew Harding & John Hatchard eds., 1993); see also The King v. Superintendent of Vine Street Police Station, exparte Liebmann, (1916) 1 K.B. 268, 275-76 ("I think it right, therefore, to add that, deeply impressed as I am with the sanctity of the liberty of the subject, I cannot forget that above the liberty of the subject is the safety of the realm ...."). 14. Regarding the equivalence between war and the fight against terrorism, see, for example, Curtis A. Bradley & Jack L. Goldsmith, CongressionalAuthorization and the War on