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.
As the Supreme Court confronts new laws molded by these fears, it retraces old
patterns of jurisprudence and establishes a new public health jurisprudence
Nation states fear pestilential diseases because they can destroy
the social order.
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.
Epidemics have ravaged the United States at several points in
its history. In response, legislatures granted public health authorities substantial
and the courts supported this delegation
of power based on society's right of self-defense.
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.
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.
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.
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. . . . "
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.
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.
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
and In re Winship.
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.
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).
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).
W. H. MCNEILL, PLAGUES AND
PEOPLES 160-65 (1976).
H. ZINSSER, RATS, LICE AND
HISTORY 129 (1963).
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.
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).
J. H. POWELL, BRING OUT YOUR
DEAD (1949) [hereinafter POWELL].
While there is certainly
a component of prevention in all criminal law cases, it has historically been
subrogated to the issue of punishment.
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.
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.
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)
397 U.S. 358 (1970).
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