From an individual rights perspective, the most troubling scenario is the evolution of a model that uses public health and safety rhetoric to justify procedures that are, in essence, punishment and detention.[406] In this model, judges would have regulatory decisionmaking authority limited only by legislative exhortations to protect society. The potential consequence for a potentially dangerous individual would be indeterminate detention, indistinguishable from punitive imprisonment.[407] Proceedings would be carried out expeditiously affording defendants only limited procedural protections. The detained individual could appeal the adjudication only through habeas corpus proceedings. Under this scenario, a prosecutor could obtain detention through careful adherence to the ritualistic formulation of appropriate standards of proof, yet with proof devoid of substance.[408]

*387 Although this model seems an unthinkable Orwellian scenario, it holds certain attractions. Our society is being torn apart by fears of urban violence, hysteria surrounding the use of drugs, and fears generated by the criminal justice system's failure to adequately respond to these problems. If future Supreme Court decisions do not vere from its jurisprudence of prevention, traditional criminal jurisprudence will gradually be supplanted in many areas. To preserve individual rights, courts should adopt a risk-analysis approach to the jurisprudence of prevention, rather than a punishment model.

[406] See Garbus, Detention U.S.A., THE NATION, Jan. 30, 1988 at 113.

Recently, Judge Vladimir Terebilov, the Soviet Union's highest ranking judge, called for limiting pretrial detention to a maximum of six months. This reform, if enacted, would place the Soviet Union far ahead of the United States and in line with the more enlightened criminal jurisdictions of the world. The United States is one of the few large countries (the others are Chile and South Africa) that permit indeterminate detention of people not convicted of a crime, thanks to the Bail Reform Act of 1984.

[407] Since this is not a criminal model, individuals will not be criminally accused, but only identified as having an arbitrary probability of causing trouble in society.

[408] See supra text accompanying note 234.