As America moves into the twenty-first century, we must determine to what extent individual liberties must be sacrificed for the common good. Ideals of liberty and privacy are stretched to the limit as modern fears of street crime merge with ancient fears of plague.[1] As the Supreme Court confronts new laws molded by these fears, it retraces old patterns of jurisprudence and establishes a new public health jurisprudence of prevention.[2]

Nation states fear pestilential diseases because they can destroy the social order.[3] Historically, civilizations have been terrorized by communicable diseases:

In earlier ages, pestilences were mysterious visitations, expressions of the wrath of higher powers which came out of a dark nowhere pitiless, dreadful, and inescapable. In their terror and ignorance, *330 we did the very things which increased death rates and aggravated calamity. . . . Panic bred social and moral disorganization; farms were abandoned, and there was shortage of food, famine led to civil war, and, in some instances, to fanatical religious movements which contributed to profound spiritual and political transformations.[4]

Epidemics have ravaged the United States at several points in its history. In response, legislatures granted public health authorities substantial power,[5]and the courts supported this delegation of power based on society's right of self-defense.[6] In hindsight, some of these disease control measures were ineffective, some even detrimental. Yet, these measures did serve the broader purpose of preserving order by assuaging fear through action and authority.[7]

A series of recent United States Supreme Court decisions has produced a neo- public health jurisprudence. The new public health cases all involve quasi- criminal proceedings in which defendants stood accused of threatening the public welfare through violent action. In stepwise fashion, the Court has approved ever greater restrictions on the liberty of individuals who have not been convicted of a crime. Although these decisions may seem unrelated to disease control, they apply traditional public health rationales and procedures to individuals who pose a threat to society.

This jurisprudence of prevention builds on the foundation of traditional public health jurisprudence--society's right to restrict individuals for the common good. The link between the old disease control cases and the Supreme Court's recent decisions is that both attempt to preserve social order through prevention rather than punishment. Although pragmatically a detainee may care little whether he is locked up for punishment or to prevent future harm, jurisprudentially the difference is profound. The courts have required few procedural safeguards in public health cases because persons are deprived of liberty to protect the public *331 welfare, not as a punishment.[8]

In the prevention cases, the Supreme Court has allowed the disassociation of punishment and prevention in criminal law: states may now restrict the liberty of individuals to protect the public welfare, irrespective of the nature of the threat. In adopting the kernel of traditional public health jurisprudence, the right of societal self-defense, the prevention cases also approve the three hallmarks of public health jurisprudence: 1) deference to non-judicial expert decision makers; 2) postrestriction judicial review through habeas corpus, rather than full prerestriction judicial review; and 3) proof of future dangerousness based on scientific rather than criminal law standards of proof.

The prevention decisions signal an increasing willingness of the Supreme Court to subrogate individual liberty to the common good.[9] This shift from individualistic to communal values will profoundly affect many areas of jurisprudence, and the most direct effect will be the revival of traditional public health jurisprudence. At present there is profound confusion among public health officers. The nation's public health system is in disarray; major public health responsibilities--from fighting critical epidemics such as AIDS, to keeping drinking water safe--"have become so fragmented that deliberate action . . . is often difficult, if not impossible. . . . "[10]A driving force behind this fragmentation of public health efforts is the perception on the part of health officers that they no longer have the authority to restrict an individual's liberty to protect the public safety. They assume that the strides made by the Supreme Court and the Congress in the protection of individual liberty have been at the expense of public health authority.[11] Through its new public health decisions, however, the Court has reaffirmed the substantive and procedural foundations of the traditional disease control cases. Having applied these principles in new contexts, the Court should not now abandon them when it reviews traditional disease control cases.[12]

*332 This Article first traces the evolution of the theme of punishment versus prevention through the traditional public health cases. The second section of the Article elucidates these threads in the new prevention cases. The discussion of the prevention cases begins with an analysis of In re Gault[13] and In re Winship.[14] These cases represent the Supreme Court's traditional position that all crime-related detentions are punishments requiring full due process protections. It is the explicit rejection of the due process absolutism expressed in Gault and Winship that marks the beginning of a modern jurisprudence of prevention.

The discussion of the prevention cases focuses on their adoption of traditional public health themes. In these opinions, the Supreme Court has limited the presumption of innocence to criminal trials, endorsed the preventive detention of adults and juveniles to prevent future criminal acts, upheld legislative measures providing for confinement of individuals through civil actions without criminal due process protections, and allowed detention of individuals under the authority of expert decisionmakers.

The final section of this Article discusses the ramifications of preventive jurisprudence. Through the use of civil standards of proof, these decisions legitimize prospective efforts to control certain types of criminal behavior, broaden the state's authority to confine the dangerous mentally ill, and permit confinements to be carried out expeditiously. These decisions also pose the threat of totalitarianism. The Article concludes with an analytic framework for balancing public protection against individual liberty.

[1] For a more specific discussion of a traditional approach to HIV/AIDS, see Richards, Communicable Disease Control in Colorado: A Rational Approach to AIDS, 65 DEN. U.L. REV. 127, 127-129 1988 [hereinafter Richards]; Richards & Bross, Legal Aspects of Sexually Transmitted Disease Control: Private Rights and Public Duties, in SEXUALLY TRANSMITTED DISEASE (2d ed., forthcoming).

[2] This Article does not review mental health jurisprudence, except as related to the determination of dangerousness. The state has traditionally had the right to confine the mentally ill, conditioned on a proper determination of mental illness. See O'Conner v. Donaldson, 422 U.S. 563 (1975); Parham v. Georgia, 442 U.S. 584 (1979). Mental health cases are not a satisfactory basis for restricting future conduct of physically ill persons because they have a much larger component of parens patriae power than do the public health cases. Neither does this Article pose a general theory of imprisonment. For an excellent review of the jurisprudence of imprisonment, see Zimring & Hawkins, Dangerousness and Criminal Justice, 85 MICH. L. REV. 481, 482-94 (1986).

[3] W. H. MCNEILL, PLAGUES AND PEOPLES 160-65 (1976).

[4] H. ZINSSER, RATS, LICE AND HISTORY 129 (1963).

[5] As discussed later in this Article, courts have sanctioned involuntary vaccinations, detention, and treatment of suspected venereal disease carriers, the isolation of tuberculosis carriers, and the general authority to do whatever is necessary to control the spread of communicable diseases.

[6] It has therefore been adjudged that the States may legislate to prevent the spread of crime, and may exclude from their limits paupers, convicts, persons likely to become a public charge, and persons afflicted with contagious or infectious diseases. These and other like things having immediate connection with the health, morals, and safety of the people, may be done by the States in the exercise of the right of self-defense.

Plumley v. Massachusetts, 155 U.S. 461, 478 (1894).

[7] J. H. POWELL, BRING OUT YOUR DEAD (1949) [hereinafter POWELL].

[8] While there is certainly a component of prevention in all criminal law cases, it has historically been subrogated to the issue of punishment.

[9] But note that the jurisprudence of prevention is not a sound basis for abandoning criminal due process protections when the state intends to punish, rather than to prevent future harm. Once an act is committed, the rationale for expedited procedures and abbreviated due process disappears. On the other hand, it must be acknowledged that the commission of dangerous acts in the past may indicate that the individual will commit dangerous acts in the future.

[10] Cimons, Panel Stresses Public Health Risks; Study Finds System Now Lacks Ability to Offer Safeguards, L.A. Times, Sept. 8, 1988, Part 1 at 18, col. 1.

[11] Id.

[12] Recent commentary asserting the unconstitutionality of traditional disease control measures, including deprivations of liberty, has been written with a view to homosexual HIV carriers. It would be incongruous for the Court to strike a disease control measure limiting homosexual practices when the Court has already found that majoritarian moral beliefs are sufficient to support the criminalization of homosexual sexual activity. See Bowers v. Hardwick, 478 U.S. 186, 196-97 (1986) (Burger, C. J., concurring)

[13] 387 U.S. 1 (1967).

[14] 397 U.S. 358 (1970).