The Supreme Court in Allen v. Illinois further refined the regulatory detention punitive incarceration dichotomy. Allen was a criminal action, but the statute at issue also provided for indefinite civil detention in a maximum security prison.[293] The defendant protested that his detention was a punishment imposed without proper due process, and in particular that the statute did not protect the accused's privilege against self-incrimination.[294] The Supreme Court found that the detention was regulatory, not punitive.[295] Because the need for accurate fact-finding is critical to regulatory detentions, the Court rejected defendant's complaint that he was forced to incriminate himself.[296]

Terry Allen was accused of hiding in a woman's car, forcing her to drive him to a "romantic place,"' and then forcing her to have sexual relations with him. The victim was able to escape without further injury.[297] The State of Illinois charged Allen with the crimes of unlawful restraint and deviate sexual assault.[298] While the charges were pending, the state moved to declare Allen a sexually dangerous person under the Illinois law that provided for the indefinite civil commitment of such *373 persons.[299]

After a bench trial, an Illinois judge determined that Allen was a sexually dangerous person[300] and remanded him to the Menard Psychiatric Center, a maximum security facility.[301] Reviewing Allen's appeal, the Illinois Supreme Court identified three questions for decision: 1) Are Miranda warnings required before a defendant is examined by a psychiatrist pursuant to a court order in a sexually dangerous person proceeding? 2) Did the defendant waive any applicable privilege against self-incrimination? 3) Did the state prove beyond a reasonable doubt that the defendant was a sexually dangerous person as defined by the statute?[302]

The Illinois Supreme Court, relying on People v. Pembrock[303] and People v. English,[304] found that a proceeding to have a person committed under the sexually dangerous person statute was civil in nature,[305] and that in a civil proceeding there is no constitutional requirement that the defendant be given Miranda warnings.[306] The court found that there was no privilege against self-incrimination in a sexually dangerous person proceeding, but held that statements made during these proceedings could not be used against a defendant in subsequent criminal proceedings.[307] The court also found there was sufficient evidence to find beyond a reasonable doubt that Allen had a propensity to commit sexual assault.[308] Allen appealed to the United States Supreme Court, arguing that the commitment hearing was a criminal proceeding and, therefore, that he was entitled to full criminal procedural protections.[309]

*374 As a prevention case, the critical issue in Allen is the extent to which the State has authority to restrict individual liberty without triggering criminal law protections. The Allen Court recited the rule that legislative labeling of a statute as civil is not dispositive.[310] However, the rationale of Allen expanded the state's discretion to fashion civil remedies for what traditionally have been considered criminal wrongs; the increased discretion follows from the Court's rejection of defendant's contention that In re Gault prevented him being deprived of liberty without being afforded the privilege against self-incrimination.[311] This ruling allowed Illinois to incarcerate a technically innocent, mentally competent individual without full criminal law protections. The Court made clear in its rejection of Gault that Illinois' characterization of the statute as potentially benefiting the defendant was crucial. The Illinois law escaped criminal law scrutiny simply because the legislature denied that it intended to punish confinees.

Allen explicitly overruled Gault to the extent that Gault had purported to govern every deprivation of liberty:

First, Gault's sweeping statement that "our Constitution guarantees that no person shall be 'compelled' to be a witness against himself when he is threatened with deprivation of his liberty,"' is plainly not good law. Although the fact that incarceration may result is relevant to the question whether the privilege against self-incrimination applies, Addington demonstrates that involuntary commitment does not itself trigger the entire range of criminal procedural protections.[312]

The Court also found that the Illinois statute served a parens patriae role in providing treatment to mentally ill individuals.[313] This treatment component defeated defendant's objection that the statute was wholly punitive. Although the treatment was carried out in a maximum-security facility, the Court found that the confinement was not inconsistent with the statute's purpose, and noted further that states have the right to protect the community from persons who are dangerous due to mental *375 illness.[314]

The Allen Court emphasized that excessive reliance on criminal law protections, especially the privilege against self-incrimination, can reduce the accuracy of determinations of dangerousness.[315] This focus reflects a shift from the criminal law perspective that the defendant is best off with a determination of innocence to the public health perspective that the defendant is better off being treated.[316] Ultimately, the Court identified support for the statute's relaxed procedural requirements in the special role of the states in our federal system, concluding that the "essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. . . . "[317]

The Court expands this notion of flexibility in the subsequent cases of Hilton v. Braunstill[318] and United States v. Salerno.[319] While Allen allowed Illinois to confine an individual without full due process protections, it was predicated on a determination beyond a reasonable doubt that the defendant had committed a crime. In Hilton and Salerno, the Court found that adults could be confined to prevent future harm without proof beyond a reasonable doubt that they had committed crimes in the past.

[292] 478 U.S. 364 (1986).

[293] Id. at 369; and see infra note 299.

[294] Allen v. Illinois at 370.

[295] Id. at 374.

[296] Id. at 375.

[297] People v. Allen, 107 Ill.2d 91, 481 N.E.2d 690, 693-94 (1985).

[298] 481 N.E.2d at 692.

[299] Ill. Rev. Stat. ch. 38, para. 105-1.01 (1985) (quoted in Allen v. Illinois, 478 U.S. at 366 n.1) defines sexually dangerous persons as follows:

"All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons."

[300] People v. Allen, 481 N.E.2d at 692-93.

[301] Allen v. Illinois, 478 U.S. at 372.

[302] People v. Allen, 481 N.E.2d at 692.

[303] 62 Ill.2d 317, 342 N.E.2d 28 (1976).

[304] 31 Ill.2d 301, 201 N.E. 455 (1964).

[305] People v. Allen, 481 N.E.2d at 695.

[306] Id. at 696.

[307] Id.

[308] Id. at 697.

[309] Defendant's basic theory was, "If it walks like a duck . . . . " The state provided some, but not all, criminal procedures; the result of the proceeding was that defendant was sent to a maximum security prison. Allen v. Illinois, 478 U.S. at 370; see also id. at 377-79 (Stevens, J., dissenting).

[310] The Illinois legislature expressly designated proceedings under the Act as civil in nature. Discussing the effect of this designation, the Supreme Court stated:

As a petitioner correctly points out, however, the civil label is not always dispositive. Where a defendant has provided "the clearest proof"' that "'the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention"' that the proceeding be civil, it must be considered criminal and the privilege against self-incrimination must be applied.

Allen v. Illinois, 478 U.S. at 369 (citation omitted).

[311] Id. at 372.

[312] Id. at 372-73 (citation omitted).

[313] Id. at 373.

[314] Id. (citing Addington, 441 U.S. at 426).

[315] The Court's analysis of the value of the privilege against self- incrimination was in the context of distinguishing Mathews v. Eldridge, 424 U.S. 319 (1976), which dealt with the application of the privilege in a property deprivation case:

As the Supreme Court of Illinois and the State have both pointed out, it is difficult, if not impossible, to see how requiring the privilege against self-incrimination in these proceedings would in any way advance reliability. Indeed, the State takes the quite plausible view that denying the evaluating psychiatrist the opportunity to question persons alleged to be sexually dangerous would decrease the reliability of a finding of sexual dangerousness. As in Addington, "to adopt the criminal law standard gives no assurance"' that States will reach a "better"' result.

Id. at 374-75.

[316] Allen v. Illinois, 478 U.S. at 375.

[317] Id. at 375 (citing Addington, 441 U.S. at 431).

[318] 107 S. Ct. 2113 (1987). See infra subsection 6.

[319] 107 S. Ct. 2095 (1987). See infra subsection 7.