Preventive Incarceration

Preventive incarceration has had a range of meanings. It could refer to the pretrial imprisonment, without the right to bail, of a person accused of a serious crime [Page 1173]usually because a judge determines that the person is dangerous to society. It could refer to civil proceedings to commit a person to state custody based on mental illness, again because the individual is a threat to herself or others. Its purpose is not supposed to be punishment, but rather isolation from society. Although preventive incarceration or detention statutes date from about 1900, for instance in India and the United States, their use has more recently been discussed in the context of terrorist threats based on intelligence gathering.

A specific example of this type of incarceration, at least in the United States, concerns sexual offenders and involuntary civil commitment. This can serve as an illustration of some of the legal and psychological issues involved. In the 1990s, public outrage over habitual sexual offenders prompted some states to enact sexual predator statutes. These statutes empower officials to involuntarily confine and treat sexual offenders indefinitely upon completion of a criminal sentence. The legislative rational for these statutes is that states must protect their citizenry from persons who have a history of sexual deviance pursuant to the government's parens patriae and police powers duties. The legislation provides for the civil commitment of dangerous sexual offenders who are highly likely to reoffend with a sex crime upon their release from prison.

In 1990, Washington became the first state to enact a sexual predator statute. Since then, many other states have enacted statutes that provide for the involuntary civil commitment of sex offenders, including Arizona, California, Colorado, Connecticut, Florida, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Dakota, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, and Wisconsin. The statutes presume that sexual predators have a mental abnormality or disability and that they are persons who lack the ability to control their sexual deviancy.

These civil commitment statutes have similar procedural processes governing the post-prison confinement of sexual predator offenders. A local prosecutor will be notified that a sexual offender is about to be released from prison. If a prosecutor decides to pursue civil commitment, she will begin an involuntary civil commitment hearing or trial to determine if the offender is too dangerous to be released. The commitment proceeding can be held before a judge or jury. Depending upon the burden of proof required by state law, if the prosecutor proves beyond a reasonable doubt or by clear and convincing evidence that the offender is a sexual predator, then the offender will be committed to a secure facility. The commitment can be indefinite and the offender will be held until it is shown that the offender is no longer a threat to the community.

Constitutional challenges to sexual predator statutes have questioned whether the statutes satisfy the U.S. Constitution's due process clause. Substantive due process prohibits a state from limiting an individual's fundamental rights unless the state has a compelling state interest. In addition, the legislature should narrowly tailor the state statute to achieve that interest. Concerning sexual predator statutes, states argue that they must protect the community from the substantial harm that a sexual predator can inflict upon victims of rape and sexual assault, particularly when the offender has been deemed a pedophile or sexual psychopath.

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