Preventive Detention and the “Psychopath”: Us and International Perspectives

Preventive detention laws eschew the normal protections of the criminal law, basing detention on the fear of future crime. These laws hold a strong allure, particularly in times of moral panic, but they challenge the legitimacy of the standard social contract in liberal democracies, and thus require at least the appearance of constitutional constraint. This chapter explores the growth of preventive detention laws in the US and other liberal democracies, and the attempts to find principled and real limits in constitutional and human rights jurisprudence. It concludes that these attempts have been only partially successful, and have often been based on the construction of a legally degraded “other” – akin to the morally dead “psychopath” - falling outside of the normal protections of the law. Though most modern preventive detention schemes have been aimed at so-called “sexual predators,” the Chapter ends with a cautionary tale, describing the broad and persistent use of preventive detention in India.