B. A Risk Analysis Basis for the Jurisprudence of Prevention
A risk-analysis jurisprudence concedes that there are special
cases in which the need to protect society outweighs an individual's right to
traditional constitutional protections.
Although courts have always recognized that there are exceptions to constitutional
there has not been a rigorous
effort to define the conditions that trigger an exception. This tension is very
apparent in Schall and Barefoot, in which it was argued that the methodologies
used to predict future dangerousness were so flawed as to be meaningless.
The Supreme Court only increased this tension by rejecting substantive due process
arguments out of hand, relying on the adversarial process to "sort the wheat
from the chaff"'.
If the prevention cases share a common jurisprudential basis
with traditional public health cases, they also share an analogous risk calculus.
The parameters used to determine the risk of a communicable disease may be transformed
into a formulation for ascertaining a detainee's risk of future dangerousness.
If we call the risk factor for a communicable disease (R), then (R) is determined
by the severity (S) of the disease, its transmissibility (T), and the number
of persons at risk (P): (R) = (S)(T)(P). Severity is a complex term that integrates
the duration *388
of the disease with the mortality and morbidity.
Transmissibility is a measure of the ease with which the disease may spread
from individual to individual. Transmissibility varies greatly for different
The population at risk is
determined by individual susceptibility, patterns of high risk behavior, and
and geographic constraints
The higher (R), the greater the threat to citizens and to the
stability of the community. In a constitutional context, the balance between
individual liberty interests and societal protection will shift away from individual
rights with increasing (R). When (R) is very low, such as for the common cold,
there is no rational relationship between detention or other intrusive measures
and disease control. When (R) is very high, as for pan-drug- resistant tuberculosis,
then the rationale for intrusive state action,
including permanent isolation, is compelling.
*389 A parallel risk analysis in prevention cases might
allow a rigorous evaluation of individual detentions, focusing on factors similar
to those relevant to traditional public health risk analysis:
1) the threat to society posed by the behavior in question;
2) the probability that the defendant would engage in the dangerous
3) the number of persons at risk of engaging in the dangerous
The resulting risk calculus might have factors of (R) for the
risk to society, (T) for the threat posed by the activity under consideration,
(D) for the probability of dangerousness, and (N) for the number of possible
offenders: (R) = (T)(D)(N).
The greater (R), the greater the state's right to protect itself
from the activity in question. Protective measures would range from minimal
to systematic regulation,
to prospective actions
to prevent possible future activity.
More significantly, as (R) decreases, the importance of substantive due process
For example, in Salerno the Appeals Court postulated the threatened
destruction of an airliner by terrorists.
Intuitively, (R) would be very high for this scenario. The high risk involved
would provide the state with a sufficient basis to detain the suspected terrorist
with only summary proceedings. Given these factual assumptions, the risk of
an improper detention would be outweighed by the risk of the airliner's
Modifying the facts shifts the risks dramatically. If the concern
is that a student organization has been infiltrated by extremists who might
incite the students to violent action, then (T) and (D) will be critical. Because
the nature of the violent action is unknown, it will be difficult to determine
its threat and thus (T) will be low. Since there is also great uncertainty about
the probability of any action, (D) will be small. Thus, the risk associated
with this activity is insignificant, (T)(D)(N) is small, and detention would
require a heavy burden of proof.
Although risk calculus is not meant to provide an algorithmic
model for judging individual liberty deprivations, it is a useful tool for discussing
prevention questions in a more rigorous manner than is allowed by traditional
constitutional formulations. Because risk analysis splits complex problems into
simple components, a risk analysis may also help in the recognition of polycentric
problems that defy single component solutions.
Courts and legislatures have often based their actions on an
implicit risk analysis.
with these implicit analyses is that their underlying assumptions are not open
to scrutiny and challenge.
analytical risk analysis is most sorely needed when courts and legislature attempt
to make scientifically valid legal policy, because although scientific research
can provide valuable insights on the nature of social problems, it seldom provides
unambiguous answers that can be executed through statutory rules. A science-based
legal policy must rely on expert decision-makers to apply knowledge to specific
factual situations; a legislatively or judicially imposed risk analysis would
serve to *391
limit the discretion of these experts.
The alternative is to have jurors evaluate the expert's decisions based on no
more than the personal credibility of the expert. As illustrated in Barefoot,
a "beyond a reasonable doubt"' standard is little protection if the underlying
substantive issue is improperly framed.
Explicit risk analysis may seem to undermine constitutional
protections. Yet the Supreme Court has always balanced the individual's right
to liberty against the state's right to protect itself. From the "clear and
present danger"' limitation on free speech, to restrictions on free exercise
of religion by military personnel, the Court has shown time and again that there
are no absolutely protected freedoms. Explicit risk analysis would give greater
rigor to vague, legalistic formulations such as "strict scrutiny"' and "reasonable
The analogy between detention to prevent crime and isolation
to control disease is not perfect, but the parallel is more than a surface resemblance.
A systematic attempt should be made to apply risk analysis techniques that have
been developed for disease spreading behavior to the larger universe of socially
destructive behavior. Risk analysis would provide a basis for more humane imposition
of individual restriction than is practiced by the Supreme Court today.
The notion of "traditional"'
constitutional protection is, of course, a fairly slippery concept. Most criminal
law constitutional protections are of recent origin, as are civil rights protections.
It might be argued that the line between traditional protections and the historical
lack of constitutional protections from state imposed restrictions lies somewhere
between 1945 and 1960.
See, e.g., Ex parte
McCardle, 74 U.S. 506 (1868) (war and insurrection); Carlson v. Landson, 342
U.S. 524 (1952) (immigration and naturalization); Korematsu v. United States,
323 U.S. 214 (1944) (detention of American citizens of Japanese ancestry during
See also Schall, 513
F. Supp. at 707; Barefoot, 463 U.S. at 896-97. Subsequent research on the 31
named defendants in Schall determined that the 24 who could be located had continued
to engage in criminal activities. See KRAMER, AT A TENDER AGE 242 (1988).
Barefoot, 463 U.S.
at 901 n.7.
For example, the common
cold is a disease with a very low severity because it has a short duration,
causes only moderate discomfort and has a very low mortality. HIV infection
is a very severe disease because it is untreatable, its duration is not self-limited
and it causes significant morbidity and ultimately death in all infected persons.
The severity of tuberculosis varies depending on the susceptibility of the organism
to the available treatments and the resistance of the patient to the disease.
Most cases of tuberculosis are treatable and cause only limited symptoms. There
are strains of tuberculosis that are resistant to all available antitubercular
drugs. These strains cause a disease that is disabling and frequently fatal.
For example, the common
cold is highly infectious and is spread through respiratory secretions. This
results in a highly transmissible disease. Gonorrhea is highly infectious, but
is only spread through sexual contact. Thus, gonorrhea is less transmissible
than a cold but is still sufficiently transmissible to have an incidence of
3 million cases a year. Tuberculosis is spread through respiratory secretions
but, unlike cold and gonorrhea, is not highly contagious. Leprosy is extremely
difficult to transmit, requiring both close personal contact with an infected
person and a defective immune system.
Gonorrhea is a demographically
determined disease because it is confined to persons who are sexually active.
This is implicitly
limited to the universe of actions that have medical rationales. It would not
include punitive measures such as forced labor or torture.
As diseases such as
HIV bring public health issues before the courts again, it should be possible
systematically to evaluate proposed restrictions by following this risk calculus.
Following this form, a public health risk brief should include:
1) an analysis of the severity of the disease, including its
treatability, mortality, morbidity, and special factors (e.g., whether the disease
causes a congenital syndrome in the children of infected pregnant women) that
would influence a risk assessment;
2) an analysis of the transmissibility of the disease, including
the component of voluntary action involved in transmission and the probability
of an effective contact (i.e., a contact that transmits the disease) during
3) a description of the population at risk, including both its
demographics (i.e., the number of persons at risk and their identifying characteristics,
such as age, sex, ethnicity, etc.) and special characteristics of subpopulations
This format would aid public health officials in evaluating
the constitutionality of proposed disease control measures. It would also allow
courts to better separate factual medical issues from political and policy issues.
For example, Utah and California might agree on the medical risk of gonorrhea,
but disagree on the extent of individual restriction that the risk would justify.
For example, a violent
sexual offender would pose a greater risk than a chronic writer of hot checks.
While this is certainly
a difficult determination, there is evidence that for certain crimes, such as
sexual abuse, offenders tend to be recidivists. See the excellent discussion
of preventive detention in Alschuler, Preventive Pretrial Dentention and the
Failure of Interest- Balancing Approach to Due Process, 85 MICH. L. REV. 510,
This is the most constitutionally
troubling criterion. But it is necessary if we are to pose rational solutions
to problems that affect grossly different sized populations: one might "detain"'
every suspected psychopathic serial killer, but that remedy that would be unworkable
for suspected illegal drug users.
Publishing would fall
into this category. The First Amendment embodies the idea that publishing is
a benefit to society. The state is limited to prohibiting narrowly described
activities such as child pornography.
For example, the right
to fly an airplane is heavily regulated because of the risk to society of incompetent
This is the domain
of criminal law.
This is the traditional
domain of public health jurisprudence.
As Barefoot illustrates,
due process and strict standards of proof offer scant protection when the underlying
issue to be proved is as insubstantial as an arbitrary probability of future
Salerno, 794 F.2d at
The best example may
be drug use. Drug laws treat opiates (heroin, morphine, codeine, etc.) the same
way as stimulants (cocaine, amphetamine, etc.). Pharmacologically and psychologically
they are profoundly different. Even a heavy opiate user can lead a productive
life and not pose a threat to society. Opiate-associated crime is driven by
the unavailability of the drug, rather than the pharmacology of the drug. Conversely,
heavy stimulant usage leads to an agitated, paranoid psychosis. This psychosis
is incompatible with everyday responsibilities and leads to antisocial actions,
irrespective of access to the drug. By ignoring these differing risk profiles,
the United States has allowed illegal drug usage to shift from potentially manageable
substances to unmanageable stimulants.
See American Textile
Mfrs. Inst. v. Donovan, 452 U.S. 490, 514 (1980).
The Supreme Court used
an implicit risk analysis in Florida v. Riley, 109 S. Ct. 693, 697 (1989) to
extend the "plain view"' exception of the Fourth Amendment to anything visible
to a police officer in a helicopter. In his dissent, Justice Brennan criticized
this implicit analysis because it ignores the value of privacy to non-criminals:
"By casting its "risk analysis"' solely in terms of the expectations and risks
that 'wrongdoers' or 'one contemplating illegal activities' ought to bear, the
plurality opinion, I think, misses the point entirely. . . . " Id. at 703 n.6.
In Industrial Union
Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), the
Court invalidated OSHA's benzene regulations because they were not supported
by a proper risk analysis as required by Congress. The Court used the requirement
of a risk analysis to check the otherwise unlimited power of OSHA to promulgate
workplace exposure standards. 448 U.S. at 653.
See supra note 231
and accompanying text. Arguably, Texas capital murder defendants would be better
protected by a law that requires the expert to make specific findings on the
probability of dangerousness (D) and the nature of that dangerousness (T). The
jury would then determine if the product of these factors outweighed the value
of the defendant's life.
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