III. Reconciling Traditional Public Health Jurisprudence and
the Jurisprudence of Prevention
For the past generation, civil rights activists have pushed
the courts to apply ever more rigorous standards to criminal prosecutions. At
the same time, conservatives have pushed the courts to give the states more
authority to contain crime, drugs, and degeneracy. The collision of these political
agendas has resulted in the jurisprudence of prevention: courts have preserved
the protections of criminal law, but have also given states the authority to
avoid some of these protections through civil detentions.
In the prevention cases, the Supreme Court has transformed the
traditional police power to restrict disease carriers into a general power to
restrict individuals whose criminal activity poses a threat to society.
In its infancy, prevention jurisprudence was merely an ad hoc approach *385
that appeared in disparate cases. With Allen,
it has moved into adolescence. Prevention jurisprudence is characterized by
highly technical distinctions between punishment and regulation,
meticulous attention to requiring only the bare minimum of procedural due process,
and the granting of broad authority to decision makers.
These characteristics mirror traditional public health authority.
In the public health model, the decisionmaker is the public
health official; the standard for the decision is reasonable medical probability;
the individual is treated, and released after the danger of communicability
has passed; and the health department is concerned only with future acts.
This model works very well for gonorrhea.
It is potentially most restrictive in the case of pan-drug-resistant tuberculosis.
Most public outcry over the traditional public health model has surrounded HIV/AIDS
because the untreatability and inevitable fatality of the disease could be called
on to justify the use of such Draconian measures such as indefinite confinement.
The jurisprudence of prevention represents legislative and judicial reaction
to the real and perceived dangers in *386
American society. The fear
is that courts will use the jurisprudence of prevention to impose punishment
without affording the procedural protections that the Constitution requires
in a criminal context.
The fear that traditional public health authority will be used
for sinister ends is exacerbated by the prevention cases. All such rulings have
been controversial, drawing fire from dissenting justices
and from scholarly commentators.
than recognizing the pattern that is emerging from these isolated cases, however,
the critics have focused on the arbitrariness of the Supreme Court's actions.
mirrors the introduction of the doctrine of ferae naturae, that a wild animal
belongs to the person who catches it, into modern oil and gas law. Oil and gas
were once thought to run free underground. By analogy with the law applying
to the capture of wild animals, it was decided that oil and gas belonged to
whomever captured it.
See supra Part II,
Section B, subsection 5.
See supra Part II,
Section B, subsection 6.
See supra Part II,
Section B, subsection 7.
Bell, 441 U.S. at 560-62;
Salerno, 107 S. Ct. at 2101; Allen, 478 U.S. at 370. See supra note 190 and
See supra note 231
and accompanying text.
Schall 467 U.S. at
278-281. See supra note 283 and accompanying text.
This model does not
involve judicial hearings except as necessary to obtain police cooperation in
apprehending a recalcitrant disease carrier. If a person is unjustly confined,
the only recourse is a habeas corpus petition.
In this context, "working
well"' reflects that disease carriers are rapidly treated and returned to the
community. The ease and speed of treatment reduces the necessary restriction
of individual liberty to a minimum. "Working well"' is harder to evaluate in
the face of 3 million cases of gonorrhea a year. See HETHCOTE, supra note 90
Once a person becomes
symptomatic with tuberculosis he may die unless he is provided prolonged treatment
with antituberculosis drugs. It is a difficult disease to treat and requires
treatment with somewhat toxic drugs for several months. In some cases, the bacillus
becomes resistant to the drugs and thus becomes untreatable. Patients with infectious,
drug resistent tuberculosis pose a particular problem because some of the persons
that they infect will also develop drug resistent tuberculosis. Pan-drug resistent
tuberculosis is frequently fatal in adults and children, despite all available
Richards, supra note 1, at 149; see also B. KETCHER, L. YOUNG,
& M. KODA- KIMBEL, APPLIED THERAPEUTICS: THE CLINICAL USE OF DRUGS 682 (1983).
[T]he point of mandatory
AIDS antibody testing is the degradation of gays and the reconsecration of heterosexual
supremacy as a sacred value, even though mandatory testing, to date, has not
been directly aimed at gays nor, indeed, has made any mention of them. AIDS-testing
legislation is not to be understood as business-as-usual public policy-making
aimed at maximizing overall social utility or realizing public goods--it can
adequately be understood only in terms of the nature and function of social
rituals, in particular, purification rituals.
Mohr, Policy, Ritual, Purity: Gays and Mandatory AIDS Testing,
15 L., MED. & HEALTH CARE 178 (1987).
See Allen, 478 U.S.
at 375 (Stevens, J., dissenting).
Law--Criminal Law and Procedure: Pretrial Detention--Bail Reform Act of 1984,
101 HARV. L. REV. 169, 179 (1987). This article is illustrative because it recognizes
the difficult problem posed by defendants such as Salerno who are willing to
kill to avoid prosecution. It does not, however, accept that this real danger
justifies beggaring the presumption of innocence. While this is an admirable
position from an individual rights perspective, it oversimplifies the role of
the Court in preserving societal harmony. For a nonjudgmental discussion of
the impact of the decision and its potential mitigation through pretrial services,
see Wanger, Limiting Preventive Detention Through Conditional Release: The Unfulfilled
Promise of the 1982 Pretrial Services Act, 97 YALE L.J. 320 (1987).
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