Preventive Detention's Slippery Slope

Over the last several decades, liberal democracies have begun to adopt preventive detention as an ordinary law enforcement measure. In the past, they confined preventive detention to the extraordinary circumstances in which the criminal justice system simply could not act – such as during a war or insurrection or for the mentally ill and dangerous when neither deterrence nor prosecution is feasible. Since the rise of the risk society, these liberal democracies have begun erasing the principled distinctions that kept preventive detention as an extraordinary measure. India serves as the cautionary tale of what happens when risk aversion is allowed to drive preventive detention policy. While no liberal democracy is likely to wholly replicate India's permissiveness, which includes a constitutional right to preventive detention, it provides one important lesson – above all others – that once a government adopts preventive detention as an ordinary measure, no matter how bad the consequences, it is almost impossible to let it go. Using the information from parts II and III of this book, this chapter compares India, England and the US to highlight that liberal democracies need to take seriously the slippery slope arguments that preventive detention proponents too easily dismiss. The comparison demonstrates that India's descent down preventive detention's slippery slope is not an aberration for a true democracy but the same path that the US and England are currently cutting. The chapter begins by showing the necessity of redefining the slippery slope based on the real experiences of these three countries. While the risk of authoritarianism is ever present when detention is substituted for prosecution, the bottom of the slippery slope in a true democracy is the ordinary and regular use of detention as a law enforcement tool. The chapter then examines the rise of the risk society in each country that is leading them to use preventive detention as an ordinary law enforcement tool. While India developed into a risk society differently than the two liberal democracies, the effect of elevating risk to a primary societal concern is no different. Next, this chapter examines the current justifications for preventive detention to mark the stark difference between the traditional requirements for a state of exception and how it is used now. It then compares the choice of the deviant other treated as deserving of preventive detention in each society.