ABSTRACT
Preventive detention is a deprivation of liberty, instigated by the government through incarceration or other means, which is based on an assessment that the person deprived of liberty represents a risk of harm to society. So defined, preventive detention takes place in a number of contexts, sometimes explicitly, sometimes implicitly. Moving from the least intrusive to the most intrusive examples, explicit preventive detention occurs in connection with police stops and frisks; civil commitment; pre-trial detention; quarantine; indeterminate sentence and parole decision-making; sexually violent predator statutes; detention of enemy combatants and “terrorists;” and administration of the death penalty (when dangerousness is a designated aggravating factor). Preventive detention goals can be implicit in connection with arrests for various crimes such as loitering, possession of drugs or weapons, conspiracy and attempt; sentences within a determinate range; three-strikes statutes; and the death penalty (when dangerousness is not a designated aggravating factor).
