A. The Punishment-Oriented Prevention Model
From an individual rights perspective, the most troubling scenario
is the evolution of a model that uses public health and safety rhetoric to justify
procedures that are, in essence, punishment and detention.
In this model, judges would have regulatory decisionmaking authority limited
only by legislative exhortations to protect society. The potential consequence
for a potentially dangerous individual would be indeterminate detention, indistinguishable
from punitive imprisonment.
would be carried out expeditiously affording defendants only limited procedural
protections. The detained individual could appeal the adjudication only through
habeas corpus proceedings. Under this scenario, a prosecutor could obtain detention
through careful adherence to the ritualistic formulation of appropriate standards
of proof, yet with proof devoid of substance.
*387 Although this model seems an unthinkable Orwellian
scenario, it holds certain attractions. Our society is being torn apart by fears
of urban violence, hysteria surrounding the use of drugs, and fears generated
by the criminal justice system's failure to adequately respond to these problems.
If future Supreme Court decisions do not vere from its jurisprudence of prevention,
traditional criminal jurisprudence will gradually be supplanted in many areas.
To preserve individual rights, courts should adopt a risk-analysis approach
to the jurisprudence of prevention, rather than a punishment model.
See Garbus, Detention
U.S.A., THE NATION, Jan. 30, 1988 at 113.
Recently, Judge Vladimir Terebilov, the Soviet Union's highest
ranking judge, called for limiting pretrial detention to a maximum of six months.
This reform, if enacted, would place the Soviet Union far ahead of the United
States and in line with the more enlightened criminal jurisdictions of the world.
The United States is one of the few large countries (the others are Chile and
South Africa) that permit indeterminate detention of people not convicted of
a crime, thanks to the Bail Reform Act of 1984.
Since this is not a
criminal model, individuals will not be criminally accused, but only identified
as having an arbitrary probability of causing trouble in society.
See supra text accompanying
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