Abstract
College students have a knack for identifying classes that they can safely forgo attending as long as they complete the assigned readings. The students who choose to attend such classes, conversely, may well conclude that they can dispense with doing the readings because their lecture notes are adequate preparation for exams. Presumed Dangerous: Punishment, Responsibility, and Preventive Detention in American Jurisprudence has analogous qualities. People already familiar with the judicial decisions and legal principles discussed in this compact volume are not apt to greatly enhance their understanding by turning its pages. On the other hand, those who begin reading the book having little background in the issues covered within will likely find that they have learned enough at its conclusion to have made their investment worthwhile.
It is no accident that Presumed Dangerous has the trappings of a college professor’s lecture materials. That is precisely what it is. Michael Louis Corrado, an Arch T. Allen Distinguished Professor of Law at the University of North Carolina, presented a series of lectures in May 2012 at the University of Trento in Italy. The book, originally published by the University of Trento, essentially reproduces those lectures.
The volume explores five contexts in which U.S. laws authorize or have been relied on to authorize preventive detention, that is, allowing individuals to be confined because of what they might do in the future rather than in response to their past conduct. Its chapters address liberty deprivations caused by the denial of bail; the insanity defense and consequent civil commitment; the civil commitment of sex offenders, including those who already have served prison sentences following criminal conviction; the detention of “undesirable aliens” whose deportation is stymied by other countries’ unwillingness to receive them; and the extended confinement of suspected terrorists and unlawful combatants without trial. Unifying the examination of these issues is the palpable tension that Corrado identifies in attempts to reconcile preventive detention in these contexts with two “fundamental principles that have, until recently, been at the heart of the American criminal justice system” (p. 3).
[1.] Punishment and the threat of punishment are the only permissible means of using force for controlling crime by those who are generally responsible for what they do, regardless of how dangerous they may be. [2.] Preventive detention and treatment are the only permissible means of using force for controlling crime by those who are dangerous because of a lack of general responsibility. (p. 3, emphasis in original)
Although understandably removed from the presumed knowledge base of the Italian students comprising the audience for the lectures on which Presumed Dangerous is based, the issues, statutes, and case law discussed in the book, as well as the exquisite difficulty of plumbing the right balance in these contexts between individual freedoms and social protection, will be familiar to many American readers. For example, the chapter discussing preventive detention through the denial of bail focuses on United States v. Salerno, 481 U.S. 739 (1987), in which the Supreme Court upheld the constitutionality of the 1984 federal Bail Reform Act and its provision authorizing the pretrial incarceration of individuals charged with serious crimes on a showing (supported by clear and convincing evidence) that their release would likely put others at risk. Just five pages are devoted to explaining the history and traditional purposes of bail and the justices’ reasoning in Salerno, perhaps enough to introduce these topics but certainly to do no more than that. The chapter devoted to the civil commitment of sex offenders who have a “mental abnormality” and an inability to control their behavior is likewise abbreviated, spanning just 16 pages. It centers on Kansas v. Hendricks, 521 U.S. 346 (1997) and whether confining sex offenders under such pretenses blurs (if it does not cross) the line that separates treatment of the criminally irresponsible from simple incapacitation or anticipatory punishment.
Their objective being to identify, rather than fully analyze or settle such questions, much of interest necessarily remains unexplored in the chapters devoted to these and other topics. For example, it is possible, if not likely, that the Bail Reform Act’s authorization of the pretrial detention of arrestees because of their potential danger to the community, upheld in Salerno, simply formalized a practice that judges have long utilized without saying as much. It is not uncommon for bail to be set at such astronomically high levels that it might as well have been denied altogether, and it is far from clear whether that practice owes more to the defendant’s likely future dangerousness than securing his appearance for trial. Searching for a way to limit the reach of Hendricks’ approval of the civil commitment of sex offenders who suffer only from a “mental abnormality” (rather than a mental illness) Corrado offers a “radical” (p. 71) compromise. He suggests that “violent sexual crimes be admitted as prima facie evidence of a lack of control” (p. 71) and that civil commitment might be justified when offenders display a pattern of engaging in such conduct. This apparently noble attempt to limit the reach of a precedent that threatens to unleash the much more widespread preventive detention of repeat offenders who commit other types of crimes rests on assumptions and entails implications that demand considerably more discussion than the lecture-based text is able to provide.
Much the same is true for similarly momentous questions that swirl around the other preventive detention policies examined in Presumed Dangerous. Intriguing issues lurk immediately beneath the surface of the pages used to explore the insanity defense, the prolonged detention of undesirable aliens who cannot easily be deported, and the indefinite confinement without trial of suspected terrorists in the name of national security. But there those issues remain, tantalizingly inviting recognition and analysis, yet introduced only at a level sufficient to whet the appetite of an audience rooted in a land where the U.S. Constitution and the jurisprudence it has spawned are literally foreign subjects.
It would be difficult to go into the depth that issues of this complexity and importance demand in lectures under any circumstances and certainly in lectures delivered to an international audience. The audience members who actually heard the lectures that Professor Corrado delivered at the University of Trento doubtlessly were much enriched, as would be others who are new to the issues and the fundamental tensions that inhere in using law to resolve the delicate balance between individual liberty and societal protection. However, Americans who have “done the reading”—who already have been introduced to the issues covered and the associated legal principles—might easily be excused for not attending to the pages that essentially preserve and report the delivered lectures.