NCJ Number
12713
Journal
Texas Law Review Volume: 51 Issue: 7 Dated: (NOVEMBER 1973) Pages: 1277-1324
Date Published
1973
Length
48 pages
Annotation
THE AUTHOR SUGGESTS THAT 'PREVENTIVE DETENTION' BE REGARDED AS A CONTINUUM BASED ON THE DEGREE TO WHICH PRIOR ACTS INFLUENCE PRESENT OR FUTURE DETENTION.
Abstract
BROADLY CONCEIVED, MOST PUNISHMENTS ARE DESIGNED, AT LEAST IN PART, TO PREVENT FUTURE CRIMES--THE PREVENTIVE COMPONENT BEING A MATTER OF DEGREE. PUT ANOTHER WAY, PREVENTIVE CONFINEMENT IS A CONTINUUM. AT ONE POLE IS THE PURELY PREVENTIVE SYSTEM--THE 'PSYCHOLOGICAL' EXPLORATION FOR CRIMINAL 'TENDENCIES' DESIGNED TO IDENTIFY AND CONFINE THE POTENTIAL CRIMINAL AT THE EARLIEST POSSIBLE STAGE IN HIS LIFE. THERE HAVE BEEN THOSE WHO HAVE ADVOCATED PREVENTIVE MEASURES--FROM PREVENTIVE EXECUTION TO REMEDIAL EDUCATION--AGAINST PERSONS WHO HAD NOT YET COMMITTED FORMALLY PUNISHABLE ACTS, BUT WHO WERE PREDICTED TO BECOME CRIMINALS. AT THE OTHER POLE IS THE CONVICTED CRIMINAL'S SENTENCE OF IMPRISONMENT. ALTHOUGH FORMALLY IMPOSED AS PUNISHMENT FOR HIS PAST CRIME, IT HAS THE IMPORTANT EFFECT OF PREVENTING FUTURE CRIMES, AT LEAST DURING THE SENTENCE. BETWEEN THESE TERMINAL POINTS ON THE PREVENTIVE CONTINUUM LIE A WIDE VARIETY OF CONFINEMENT MECHANISMS EMBODYING DIFFERENT COMPONENTS OF PREVENTION. FOR THE PURPOSES OF THIS ANALYSIS, HOWEVER, THREE POINTS ARE CONSIDERED: CONFINEMENT THAT REQUIRES NO PRIOR ACT, CONFINEMENT BASED ON SUSPICION OF A PRIOR ACT, AND CONFINEMENT THAT, WHILE REQUIRING PROOF OF A PRIOR ACT, EXCEEDS THE DURATION NORMALLY ASSOCIATED WITH A CRIMINAL CONVICTION FOR THE SAME CONDUCT. THE AUTHOR NOTES THE VARIOUS DEVICES WHICH HAVE BEEN EMPLOYED IN SECURING A PREVENTIVE CONFINEMENT, INCLUDING THE USE OF A 'CIVIL' RATHER THAN A CRIMINAL LABEL. HE ALSO NOTES THE THEORIES USED TO ATTACK SUCH PROCEEDINGS - EQUAL PROTECTION, DUE PROCESS, AND THE RIGHT TO TREATMENT. (AUTHOR ABSTRACT)