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.” [
McGee, 105 Kan. 574, 581, 185 P. 14, 16 (1919).]