Preventive Detention, Suspected Terrorists, and War

COLE FINAL
7/1/2009 12:43 AM
710 CALIFORNIA LAW REVIEW [Vol. 97:693
detention in the pretrial-detention context may be imposed only if the criminalprosecution
model cannot adequately address the state’s compelling interests in
protecting the community or precluding flight of a criminal defendant, it lasts
only for a limited period of time, and it includes a fair, individualized
determination that detention is necessary. 76
Civil commitment, like detention pending trial, also addresses a scenario
in which criminal prosecution cannot adequately address danger to the
community. Persons who lack the requisite mental capability to distinguish
right from wrong or to control their own actions generally cannot be held
criminally liable. Yet they may pose a serious danger to the community. The
Court has accordingly upheld civil commitment where an individual is found,
after a fair adversarial proceeding, to be a danger to himself or others and to
have a mental illness or abnormality that makes it “‘difficult, if not impossible,
for the [dangerous] person to control his dangerous behavior.’” 77 The latter
showing is particularly essential “lest ‘civil commitment’ become a
‘mechanism for retribution or general deterrence’—functions properly those of
criminal law, not civil commitment.” 78
Commitment for dangerousness alone is not constitutionally permitted. In
Foucha v. Louisiana, the Court invalidated a Louisiana statute that authorized
civil commitment on a finding of dangerousness without any finding of mental
illness, stressing that our present system, “with only narrow exceptions and
aside from permissible confinements for mental illness, incarcerates only those
who are proved beyond reasonable doubt to have violated a criminal law.” 79
The civil commitment cases thus underscore that criminal prosecution is, as a
constitutional matter, the presumptive route for addressing socially dangerous
behavior, and that preventive detention is permissible only where for some
reason the criminal process cannot adequately address dangerousness.
The maxim that civil commitment may not be imposed for purposes of
retribution or general deterrence also supports the requirement that detention be
predicated on an individualized showing of need. One might otherwise contend
76. Analogous reasoning supports preventive detention of foreign nationals charged with
deportation pending the outcome of their proceedings, provided they pose a risk of flight or a
danger to the community. See David Cole, In Aid of Removal: Due Process Limits on Immigration
Detention, 51 Emory L.J. 1003, 1029 (2002); see, e.g., Zadvydas v. Davis, 533 U.S. 678, 690-91
(2001).
77. Kansas v. Crane, 534 U.S. 407, 411 (2002) (quoting Kansas v. Hendricks, 521 U.S.
346, 358 (1997)).
78. Id. at 412 (quoting Hendricks, 521 U.S. at 372-73 (Kennedy, J., concurring)). To the
same effect, the Crane Court stated that this requirement was designed “to distinguish the
dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to
civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal
case.” Id. at 413. Similarly, in Hendricks, the Court explained that the requirement of a harmthreatening
mental illness “serve[s] to limit involuntary civil commitment to those who suffer
from a volitional impairment rendering them dangerous beyond their control.” Hendricks, 521
U.S. at 358.
79. 504 U.S. 71, 83 (1992).