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What are the pros and cons of preventive detention? How might it affect crime control? Due process?

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Preventive detention is the concept of detaining someone who has not committed any crime under the presumption that they might do so in the future.

The cases in which preventive detention is commonly considered justified are those of people with diminished responsibility, judgment, or cognitive capacity. For example, if someone was under the influence of drugs or alcohol, had dementia, was having an acute psychotic episode, or was suicidal, temporary preventive detention would prevent harm to that person or others in a humane fashion. Similarly, a young child might be temporarily detained for his or her own safety.

In the case of an adult of sound mind, preventive detention is far more problematic. Essentially, it would involve depriving someone who has committed no actual crimes of their liberty. The most contentious example is pre-trial detention. Since people are presumed innocent until proven guilty in the United States legal system, those awaiting trial are, by legal definition, innocent. Yet, on the other hand, someone who was, say, caught in the act of committing murder with several reliable witnesses and videotapes, is obviously a quite different case than someone who was spotted loitering near the scene of a crime but for whom there is no direct evidence of a connection to the crime. Also, there are different types of crimes of which someone might be accused. A person accused of being a repeat sex offender or rapist or murderer is obviously a potentially greater threat to society than someone accused of possessing a small amount of marijuana in a state where it is still illegal or a teen accused of stealing a lipstick or video game from a shop.

Those concerned with bail reform note that preventive detention is often simply a punishment for being poor. Someone who is accused of committing a non-violent minor crime but cannot afford bail is effectively incarcerated for long periods until his or her case can come to trial. This violates a constitutional guarantee of due process, is a waste of tax dollars, and is morally problematic.

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In general, preventive detention is a practice that would be good because it would help to prevent crime, but bad because it would infringe on the basic right that people have to liberty unless they are convicted of a crime through the due process of the law.

Preventive detention is the detention of a person so as to prevent crime and/or to maintain order.  A person who is held in preventive detention is not being held because of what they have already done.  Instead, they are being held to prevent them from doing something that they might do in the future.

It is clear that preventive detention would be a good way of preventing and controlling crime.  If we locked up the people who were most likely to commit crimes, there would be much less crime because those people would not have the ability to commit crimes (at least not crimes against the general public).  We already use preventive detention on some people, most notably sex offenders who are deemed high risks of reoffending. We believe that it is worth it to do this because the benefit to society (protecting people from the offenders) outweighs the cost to the offenders’ rights.

However, allowing more expansive preventive detention programs would infringe on our basic right to due process. The 5th and 14th Amendments guarantee that we cannot be deprived of our liberty without the due process of law.  This means that we cannot generally be imprisoned unless we are convicted of a crime. Imprisoning people for what they might do in the future would seem to go against the spirit of this guarantee.

This is a case in which there is a tradeoff. We could expand preventive detention if we wanted to increase our ability to control crime, but we would pay for it by losing some of the liberty that we prize so dearly.

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