Abstract
Preventive detention is an approach utilized by governments to attempt to manage “dangerous people,” particularly terror suspects and sex offenders, and to prevent them from committing future potential crimes. Traditionally, it was aimed at dealing with individuals with repeated serious offenses and with severe mental health issues, but more recently, it has also been used to try and control individuals suspected of planning terrorist attacks. Preventive Detention: Asking the Fundamental Questions (edited by Patrick Keyzer) questions the foundations for and implications of these types of detention. It notes that increases in preventive detention create a risk that historic divisions between criminal and civil law will become blurred and that guarantees for the protection of citizens and rehabilitation opportunities of perpetrators will be harmed. The book discusses preventive detention in its varying forms in countries across the globe, examines the theoretical underpinnings of the approach, and considers its consistency with international human rights. In doing so, it brings together contributions of respected international experts with the aim of guiding lawmakers, policymakers, and academics in the area of penal and public policy.
The book contains 12 chapters from 15 authors. The editor starts by outlining the four types of preventive detention that can be identified, which include the following: preventive detention in prison ordered as part of a prison sentence; preventive detention in secure facilities that are not prisons; preventive detention that is said to be nonpunitive and for therapeutic objectives, but nevertheless takes place in a prison; and control orders and supervision orders that incorporate detention and that have a preventive objective (e.g., restrict the movements of suspected terrorists). The remainder of the book covers a wide variety of examples of the types of preventive detention that have emerged over the last decade.
In the second chapter, Vivien Stern describes the more recent worldwide expansion of the preventive detention approach. For example, the United States has set the pace with the “three strikes and you’re out” policy, and the approach of dealing with fellow citizens involved in crime as enemies needing harsh punishment was further established after the terrorist attacks of 2001. The chapter further deals with indeterminate sentences and how this leads to a growth of the prison population. By 2010, England and Wales led Europe in locking up people on an indeterminate basis with nearly 24 people per 100,000 of the general population serving an indeterminate sentence, compared with 0.81 in France, 2.51 in the Netherlands, and 1.69 in Sweden (p. 21). “Control orders” are the second area Stern considers, which as they were applied in the United Kingdom may include an 18-hr curfew, electronic tagging, restrictions on movements and phone/Internet access, and allowing the police to enter the house at any time. She further illustrates the impact of control orders with the example of Cerie Bullivant, whose “life had been wrecked” as a consequence of the application of a control order.
Christopher Slobogin, in his chapter, develops a theory that attempts to account for new forms of preventive detention. The concept of “undeterrability” is introduced to refer to situations in which preventive detention would be justifiable. In some situations, a potential perpetrator cannot be deterred, for example, because he suffers from serious mental disorders, is under orders to kill, or is otherwise unaffected by the prospect of criminal penalties. In that case, the state’s interest in protecting its citizens would outweigh the individual’s liberty, and this would permit noncriminal confinement such as preventive detention. Yet, there are many situations in which “undeterrability” is not relevant but preventive detention has been made available nevertheless.
The human rights framework is dealt with extensively by Kris Gledhill in his chapter. The author pays specific attention to detention orders of criminal courts in England and Wales, as well as to hospital orders and ancillary orders that restrict freedoms of those subject to them. Applicable provisions and the case law of both the European Convention on Human Rights and the International Covenant on Civil and Political Rights are discussed in the chapter.
In his chapter on preventive detention in New Zealand, Warren Brookbanks focuses on public protection orders. Since 2004, New Zealand has had extended supervision orders, a form of executive control designed for pedophiles who, while having completed sentences of imprisonment, are considered to present a high risk of further sexual offending against juveniles. Brookbanks concludes that preventive detention is sparingly used in New Zealand. However, a new proposal, the Public Safety (Public Protection Orders) Bill, goes significantly further in impugning fundamental rights and freedoms. It permits the indefinite detention of offenders released at the end of a finite prison sentence.
Indefinite preventive detention practices in Australia and Germany are dealt with by Brendan Gogarty, Benedict Bartl, and Patrick Keyzer. Their chapter first reviews the historical use of indefinite detention provisions in Germany, which were first introduced in 1933. The chapter also discusses the use of Australian preventive detention provisions. It then discusses the judgments of the Human Rights bodies like the European Court of Human Rights (ECHR) and the United Nations Human Rights Committee (UNHRC), and the trend they reveal in their decisions toward rehabilitation and to oppose initiatives toward locking people up without giving them opportunities for treatment.
Control orders as they are structured and being used in Australia are considered more in-depth by Rebecca Welsh in her chapter. These orders are designed to restrict the movement and freedom of association of people suspected of participating in planning to commit terror attacks. The author concludes that the preventive detention paradigm is expanding from terrorism-related situations into the broader criminal justice system, despite a lack of evidence for their effectiveness.
Ian Freckelton goes into a variety of decisions regarding Habeas Corpus, the common law principle that no one shall be deprived of his liberty without a judgment by his peers or by the law of the land. He concludes that habeas corpus actions remain the most effective form of assertion of rights in case of unlawful detention. The author expresses his hopes that such jurisprudence will continue to evolve internationally.
The next two chapters (by Ian Coyle and Robert Halon, and by Astrid Birgden) review the issue of risk assessment that forms a constitutive element for the application of preventive detention. Without a prediction of future danger, interventions such as preventive detention would not be justifiable. Yet the question remains of how correct these risk assessments are. Numerous studies have shown that statistical predictions of dangerousness (assessments of unacceptable risks) are more often correct than clinical predictions are, and Birgden (p. 228) makes clear that purely clinical judgments are accurate in only one third of all predictions. She concludes that despite issues with ethics and psychological and psychiatric assessments of risk, prevention schemes are likely to remain in Australia. Punishment through incapacitation is not against human rights, as long as it is reasonable and for a finite period. Preventive schemes however break this rule, the author concludes.
Coyle and Halon in their contribution note a tendency to overestimate risks; false positives are more easily accepted now than in earlier times. The consequences of incorrect assessments (not only by experts but also by courts) may be that people who would not commit a wrong when they would retain their freedom will increasingly be preventively detained or undergo other invasive interventions. These findings should lead to concern, but such a concern seems largely absent at present as appears from the chapters mentioned. The authors warn for conflating the risk of recidivism with the consequences or gravity of harm that might flow from such recidivism.
Andrew Coyle discusses prisons, the aims they serve and the restriction of freedoms they cause. What is the justification for the use of imprisonment? What is it intended to achieve and of what should it consist? This chapter attempts to answer and to provide a theoretical basis for these questions. The author does so out of his own experience as a governor of various prisons, including the infamous the Peterhead Prison in Scotland. Important purposes of imprisonment are discussed, such as to punish the offender, deterrence, reform, and public protection. Prison terms lead to the loss of a number of other rights in the domain of family life, so the author argues. The author concludes that the deprivation of liberty that is at the core of imprisonment is per se a punishment.
Loughnan and Selchow in their contribution discuss the wide proliferation of preventive detention regimes. Their chapter intends to make the reader aware of the sociopolitical complexity of preventive detention. They identify several relevant aspects of the rationality of prevention, the technology of “risk,” and the essential dimensions of the practice of security. They emphasize the nature of expansion that seems inherent to this type of prevention; it is not tamed or limited. Their conclusion is that a discussion on preventive detention must be embedded in a public debate about the future of society.
The most worrying message that emerges from the book is that there seems to be no end to the ways that can be developed to restrict people in their movements, to lock them up, or to control them. Over the recent decades, countries across the world have witnessed a marked expansion of the rationality of prevention. This book provides a fascinating perspective on the past, present, and future of such preventive detention schemes—a topic that should not be neglected—and provides a basis for a more informed discussion of this important topic.