- Related Topics:
- criminal procedure
preventive detention
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What is preventive detention?
Preventive detention is the practice of incarcerating accused individuals before their trial if it is assumed that their release would be a threat to society or detrimental to the state's ability to investigate a case.
Some countries have attacked the practice as a denial of the rights of the accused. In countries that employ preventive detention, individual rights are more carefully protected.
In 1984, the U.S. Congress passed a preventive detention act that allowed federal courts to detain arrestees before trial if the government demonstrated that no conditions of release would protect the community. The Supreme Court upheld the act in United States v. Salerno (1987), and a number of U.S. states subsequently adopted preventive detention laws.
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How does preventive detention differ from regular imprisonment?
Preventive detention and regular imprisonment differ in purpose and timing. Preventive detention involves incarcerating accused individuals before trial, based on the assumption that their release would pose a threat to society or hinder investigation. It is used when authorities believe the accused might commit additional crimes or obstruct justice if released.
Regular imprisonment, on the other hand, occurs after a conviction. It is a form of punishment imposed on individuals found guilty of a crime. While preventive detention aims to prevent potential future harm, imprisonment serves to punish past offenses and, potentially, to rehabilitate the convicted individual.
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Why do some countries use preventive detention?
Preventive detention is used by some countries to incarcerate accused individuals before their trial if it is assumed that their release would not be in the best interest of society. It is specifically used if it is believed that they would likely commit additional crimes if released or that their release would be detrimental to the state's ability to carry out its investigation.
The procedure has been primarily used in civil-law countries. It is also used to a considerable extent in countries ruled by dictators, where there is often little concern for the protection of individual rights.
Some view the practice as a denial of certain fundamental rights of the accused.
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Who can order preventive detention, and under what circumstances?
Preventive detention involves incarcerating accused individuals before their trial if their release is considered a threat to society or detrimental to the state's investigation.
In countries with strong protections for individual rights, such as France (since 1970) and Belgium, courts decide on and review the need for this detention. However, in countries ruled by dictators, this power often rests with police and prosecuting authorities.
In 1984, the U.S. Congress passed a preventive detention act that allowed federal courts to detain arrestees before trial if the government proved that no release conditions could ensure the safety of individuals and the community. The Supreme Court upheld this act in United States v. Salerno (1987), but this procedure is used sparingly.
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What are some common criticisms or concerns about preventive detention?
Preventive detention, which involves incarcerating individuals before trial based on the assumption that their release would pose a threat to society, has faced criticism as a denial of fundamental rights of the accused.
In countries with greater concern for individual rights, courts have been given control over preventive detention, but critics maintain that the practice in any form does not lend itself to vigorous and continuous protection of individual rights.
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How do legal systems try to protect people's rights when using preventive detention?
Legal systems attempt to protect individual rights during preventive detention through various measures. In countries with civil law traditions, such as France and Belgium, the rights of individuals detained before trial receive careful protection. For example, France placed the practice exclusively in the hands of the courts in 1970. In Belgium, a review must occur monthly for every individual detained to determine if their release would still pose a threat to society.
In the U.S., the preventive detention act allows federal courts to detain arrestees before trial if the government demonstrates that no release conditions could ensure the safety of individuals and the community. The Supreme Court, in United States v. Salerno (1987), found this act constitutional under the Fifth and Eighth Amendments.
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preventive detention, the practice of incarcerating accused individuals before trial on the assumption that their release would not be in the best interest of society—specifically, that they would be likely to commit additional crimes if they were released. Preventive detention is also used when the release of the accused is felt to be detrimental to the state’s ability to carry out its investigation. In some countries the practice has been attacked as a denial of certain fundamental rights of the accused.
The procedure has been used primarily in civil-law countries, in some of which—particularly France and Belgium—the rights of individuals detained before trial were more carefully protected. In 1970 in France the practice was placed exclusively in the hands of the courts. In Belgium a review of every individual detained in this manner must be held monthly to determine if release would still constitute a threat to society.
Preventive detention is used to a considerable extent in countries ruled by dictators. It was also found in the Soviet Union, particularly in cases in which the accused individuals were perceived as political or security threats to the government. In such countries, where there was often little concern for the protection of individual rights, preventive detention was left almost exclusively in the hands of police and prosecuting authorities. Where there is greater concern for individual rights, the courts have been given control, but critics maintain that the practice in any form does not lend itself to vigorous and continuous protection of individual rights.
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In 1984 the U.S. Congress adopted a preventive detention act allowing federal courts to detain arrestees pending trial if the government could show that no release conditions could protect the safety of persons and the community. The act was challenged before the U.S. Supreme Court in United States v. Salerno, decided in 1987. The court held that the preventive detention bill violated neither the due process clause of the Fifth Amendment nor the excessive bail language of the Eighth Amendment. After Salerno, preventive detention laws were adopted in a number of U.S. states.
With the Salerno decision, the notion of preventive detention became available for the first time at a theoretical level. At a practical level, however, little change was caused by the 1984 decision. U.S. courts long recognized that bail could be denied or restricted in capital and other cases where threat of flight was strong. The preventive detention procedure has been used sparingly. Courts may often effectively detain arrestees by setting bail sums low enough not to be constitutionally “excessive” but high enough to make it impossible for the arrestee to gain release on bail. In other cases, bail is granted but with highly restrictive conditions. For example, in 2011 a prominent French politician and international statesman was charged in New York state with sexual assault. He was released on bail in the amount of $1 million but with the condition that he confine himself in a New York apartment under the surveillance of private security guards. See also rights of accused; due process.