As courts have reviewed the constitutionality of laws that ostensibly protect the public health and safety, they have developed consistent standards for defining an acceptable exercise of public health authority. The courts have allowed substantial restrictions on individual liberty as part of public health laws that seek to prevent future harm rather than to punish past actions. If a court finds that a law is directed at prevention rather than punishment, it will allow the state to do the following:

1. Rely on expert decision makers.

2. Provide for judicial review through habeas corpus proceedings rather than through prerestriction hearings.

3. Use a scientific, rather than a criminal law, standard of proof.

Although a state’s power to protect the public health is broad, it is restricted to preventing future harm. The state may not punish a person under its public health police powers. Administrative deprivations of liberty are tolerated only if their purpose is not punitive. The distinction between allowable restrictions and forbidden punishment is sometimes finely drawn. For example, being put in the community pesthouse was seldom a pleasant prospect, and with the closing of pesthouses, public health restrictions have frequently been carried out in prisons and jails. In one such case, the court rejected the petitioner’s claim that he was being punished without due process, concluding, “While it is true that physical facilities constituting part of the penitentiary equipment are utilized, interned persons are in no sense confined in the penitentiary, and are not subject to the peculiar obloquy which attends such confinement.” [ Ex parte McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919).]