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A. The Background of the Prevention Decisions

The primal fear of communicable diseases no longer exists in late twentieth century America. While there have been isolated incidences of hysteria over AIDS, this does not compare with the fear and Draconian actions that accompanied epidemics of polio and other easily communicated diseases. Contemporary fears focus on crack dealers,[94] juvenile gangs,[95] rapists,[96] serial murderers, and other post-industrial urban nightmares.[97] These fears imprison the elderly in their homes,[98] fuel the "war on drugs,"' and exert pressure on legislatures to pass ever more stringent criminal laws.[99] Yet, stricter criminal laws have little effect on crime *347 rates.[100] The failure of traditional criminal laws has led legislatures to pass laws to restrain persons suspected of posing a threat to society. The prevention cases arise from constitutional challenges to these laws.
The prevention cases have announced a stark rejection of the traditional rule that individuals may not be detained without full criminal due process protections. This rule, established in the cases of In re Gault[101] and In re Winship,[102] was based on the premise that confinement constitutes punishment irrespective of the intent of the law authorizing the confinement, and that full due process protections are therefore required for all detentions.[103] The rejection of Gault and Winship is the cornerstone of prevention jurisprudence.

[94] Enoch Thomas was nine when he started running errands for crack dealers. His budding career ended at age 11, with a bullet fired point-blank through his head.
Known as "Shrimpy,"' he was a small kid with a sweet smile. The deal he died for was tiny by the multi-billion dollar standards of the drug business but big enough for his employers to kill him and dump his body, encased in a see-through plastic bag, two blocks from his home.
Debusmann, In America's Underbelly, a Deadly Mix of Poverty and Drugs, The Reuter Library Report, Sept. 18, 1988.
[95] On Jan. 30, Karen Toshima was one of thousands of people who went to Westwood Village to have an enjoyable evening. Instead, she found death from a bullet fired by a member of a street gang. In her death, she joined the 60 percent of victims of gang murders who, like her, were innocent bystanders. Every person who was in Westwood Village on Jan. 30 can truthfully say, "But for the grace of God, it could have been me,"' because Karen was not killed by a personal enemy. She was killed by our common enemy, a wantonly violent member of a street gang.
Gang Shooting in Westwood, L.A. Times, Feb. 18, 1988, Part 2, at 6, col. 3 (home ed.).
[96] A man known as the "Elevator Rapist"' was sentenced to 175 years in prison by a judge who wanted him "kept from the community for the rest of his natural life."
The man, Ronnie Matthews, 29 years old, was sentenced Monday in State Supreme Court in Manhattan to consecutive terms on 15 counts of robbery, rape, sodomy and sexual abuse.
Man given 175 Years for Rapes in Harlem, N.Y. Times, Aug. 31, 1988, at B3, col. 1 (city ed.).
[97] "A Saturday afternoon three days before Christmas. A dingy, noisy subway train rolls under Greenwich Village and approaches the World Trade Center. Five shots ring out in eight seconds. Four black youths lie wounded. Bernhard Goetz becomes a legend."' Up in Arms over Crime; As the Goetz case showed, Americans are fearful and angry, TIME, April 8, 1985, at 28.
[98] French police on Friday charged two men with the murders of a number of old women who were strangled in their Paris homes over the past three years.
Police named the accused as Thierry Paulin, 24, from the French Caribbean island of Martinique, and his friend Jean-Thierry Mathurin, from French Guyana. They were both arrested on Wednesday.
Two Men Charged with Murders of Elderly Paris Women, The Reuter Library Report, Dec. 4, 1987.
[99] But then what can you expect from people who often seem to concern themselves with the rights of criminals and forget about the rights of the people the criminals prey on. (Applause.) We believe justice demands that a crack dealer with a machine gun who murders a police officer in the line of duty should give up his life as his punishment. (Applause.) We must protect our protectors, and that means the death penalty for these vicious killers. (Applause.) If you ask me, there are no Americans braver and no citizens more precious than the men and women who guard us--our state and local police. (Applause.)
Federal News Service, Sept. 22, 1988 (remarks of President Reagan to Texas GOP fundraising dinner, George Brown Convention Center, Houston, Texas).
[100] C.E. SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 189 (1978).
[101] 387 U.S. 1 (1967).
[102] 397 U.S. 358 (1970).
[103] Id. at 365.

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