NCJ Number
14003
Journal
University of Cincinnati Law Review Volume: 43 Issue: 1 Dated: (1974) Pages: 1-60
Date Published
1974
Length
60 pages
Annotation
REVIEW OF AND RATIONALES FOR EARLY ENGLISH COMMON LAW MECHANISMS USED FOR DETAINING PERSONS IN THE ABSENCE OF A CRIMINAL CONVICTION.
Abstract
WHILE LITTLE ATTENTION HAS BEEN GIVEN TO ARTICULATING A JURISPRUDENCE OF PREVENTIVE CONFINEMENT, THE AUTHOR STATES THAT AT LEAST TWO APPROACHES HAVE PROVIDED SOME JUSTIFICATION FOR THE PRACTICE. THE FIRST OF THESE HE CALLS THE 'DANGEROUS OR INCHOATE ACT' APPROACH UNDER WHICH SOCIETY CAN INTERVENE BEFORE A CRIMINAL ACT HAS CAUSED ACTUAL HARM. THIS RATIONAL SERVES AS A BASIS FOR ATTEMPT, CONSPIRACY, AND SOLICITATION CRIMES. THE SECOND APPROACH IS CHARACTERIZED AS 'THE DANGEROUS PERSON APPROACH' IT DOES NOT REQUIRE THE COMMISSION OF ANY SPECIFICALLY PROSCRIBED PAST ACT AS A CONDITION TO INTERVENTION. A PERSON MAY BE CONFINED BECAUSE IT HAS BEEN PREDICTED THAT HE MAY COMMIT A DANGEROUS OR HARMFUL ACT AT SOME FUTURE TIME. MOST SUCH PREDICTIONS WILL, IN FACT, BE BASED UPON SUSPICION THAT THE PERSON COMMITTED CERTAIN PAST ACTS; BUT THESE ACTS GENERALLY NEED NOT BE PROVED; NOR NEED THEY HAVE BEEN PROHIBITED BY LAW. SOME OBVIOUS EXAMPLES OF THE DANGEROUS PERSON APPROACH ARE THE CONFINEMENT OF PREDICTED SABOTEURS OR SPIES DURING WARTIME, COMMITMENT OF MENTALLY ILL PERSONS THOUGHT TO BE DANGEROUS, AND PRE-TRIAL PREVENTIVE DETENTION OF CRIMINAL DEFENDANTS ON THE BASIS OF LIKELY FUTURE CRIMINALITY. ILLUSTRATIONS ARE PROVIDED BY AN HISTORICAL REVIEW OF THE DEVELOPMENT OF ENGLISH LAW FROM THE PRACTICE OF OUTLAWING AND EXILING OFFENDERS TO COMMANDING RELATIVES TO GUARD A DANGEROUS PERSON AND PUT UP A FINANCIAL SECURITY FOR HIS GOOD BEHAVIOR THROUGH THE DEVELOPMENT OF ASYLUMS FOR THE CRIMINAL, THE INSANE, AND THE POOR. SEE NCJ-30529 FOR PART 2. (AUTHOR ABSTRACT MODIFIED)