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1. Distinguishing Public Health Restrictions from Punishment

Although a state's power to protect the public health is broad, it is restricted to preventing future harm. The state may not punish a person under its public health police powers.[45] In public health law, administrative deprivations of liberty are tolerated because their purpose is not to punish.[46] The Supreme Court's acceptance of the idea that confinement to prevent criminal activity is not necessarily punishment marked the beginning of the modern jurisprudence of prevention. Central to all the prevention decisions is the unbundling of punishment and deprivation of liberty in ostensibly criminal law cases.
*339 The distinction between allowable restrictions and forbidden punishment is sometimes finely drawn. For example, being put in the community pesthouse was seldom a pleasant prospect,[47] and with the closing of pesthouses, public health restrictions have frequently been carried out in prisons.[48] The courts have steadfastly allowed persons to be held in a penal institution if the purpose is regulatory rather than penal.[49] In the classic case, a prostitute may be confined in jail as quarantine measure[50] without the due process protections that would be necessary to put her in the same jail cell[51] as a punishment for prostitution.[52]
In the old public health cases, courts recognized that involuntary detention in a jail is little different from being incarcerated in the same jail.[53] In its recent decisions, the Supreme Court has been less scrupulous in recognizing the trauma of detention. The Court has explicitly rejected the argument that a deprivation of liberty should be determined by the physical characteristics of the place where one is detained.[54] The poetic notion that being in prison does not make one a prisoner[55] is sadly *340 at odds with the reality of prison life.[56] The personal consequences of detention cannot be ignored. They must not, however, overshadow society's interest in self-defense.

[45] See infra notes 49-52.
[46] See infra notes 49-52.
[47] See Ex parte McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919), discussing the confinement of men infected with venereal disease in a prison. The court rejected the petitioner's claim that he was being punished without due process, concluding that, "While it is true that physical facilities constituting part of the penitentiary equipment are utilized, interned persons are in no sense confined in the penitentiary, and are not subject to the peculiar obloquy which attends such confinement."
[48] See Ex parte McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919), discussing the confinement of men infected with venereal disease in a prison. The court rejected the petitioner's claim that he was being punished without due process, concluding that, "While it is true that physical facilities constituting part of the penitentiary equipment are utilized, interned persons are in no sense confined in the penitentiary, and are not subject to the peculiar obloquy which attends such confinement."
[49] See Ex parte Fowler, 85 Okla. Crim. App. 64, 184 P.2d 814, 820 (1947).
[50] For a review of authority, see Ex Parte Company, 106 Ohio 50, 139 N.E. 204 (1922).
[51] See In re Dayton, 52 Cal. App. 635, 199 P. 548 (1921); In re Arata, 52 Cal. App. 380, 383, 198 P. 814, 816 (1921).
[52] See, e.g., Ex parte Caselli, 62 Mont. 201, 203 P. 364, 365 (1922) (discussing the rights of a quarantined person to due process protections):
In my opinion, the Fourteenth Amendment to the Constitution of the United States and sections 6 and 7 of article 3 of the Constitution of the state of Montana, relied on by complainant's counsel, have no application to this class of cases. I cannot conclude that the makers of the two Constitutions ever contemplated a situation where a state would be rendered powerless to protect itself by prompt and speedy action from the spread of a contagion which by neglect might reach to and affect any considerable number of people in a community.
[53] Ex parte Martin, 83 Cal. App. 2d 164, 170, 188 P.2d 287, 291 (1948).
[54] Bell v. Wolfish, 441 U.S. 520 (1979).
[55] "Stone walls do not a prison make,
Nor iron bars a cage;
Mindes innocent and quiet take
That for an Hermitage;
If I have freedome in my Love,
And in my soule am free
Angels alone that sore above,
Injoy such Liberty."
RICHARD LOVELACE, LUCASTA. "To Althea From Prison,"' st. 4.
[56] "The vilest deeds like poison weeds,
Bloom well in prison air;
It is only what is good in Man
That wastes and withers there:
Pale Anguish keeps the heavy gate,
And the Warder is Despair.
OSCAR WILDE, THE BALLAD OF READING GAOL, part V, st. 5.

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