Invitation

The Fourth Conference on the Future of Adversarial and Inquisitorial Systems

Preventive Detention and Criminal Justice

The issue for this year’s conference is preventive detention as a system of criminal control. The issue is seen in the sexual predator laws on the U.S. side of the Atlantic and the two-track system of criminal dispositions among many of the countries of continental Europe. Significant cases are the Hendricks and Crane cases in the U.S. and the recent M. v. Germany in the ECtHR. What is at issue is not pre-trial detention, but non-punitive detention after trial or after a finding of dangerous behavior by a court. Detention after an insanity acquittal is an example, but a not very troublesome one, of this sort of preventive detention. The troublesome cases are cases in which a person not legally insane is held in indefinite detention as a result of dangerousness, usually evidenced by dangerous behavior, in order to prevent future dangerous behavior, whether or not the past dangerous behavior resulted in a crime, and whether or not the the person is also punished for the past behavior. The underlying question for this system of crime control is whether and how it is to be justified, if it cannot be justified as retribution and deterrence. Moreover, the question of justification has grown more pressing in the last few years. Recent attempts to deal with terrorism have resulted in indefinite detention without trial of terrorism suspects – a form of administrative detention. The question is whether all these forms of preventive detention will submit to a single unified theory.