Preventive Detention: Definition & Laws

Instructor: Todd Clifton

Todd Clifton has a B.S. degree in Criminal Justice, has a M.S. degree in Management & Leadership, has a diploma in private investigation, and has helped former criminals reenter free society.

What happens to a criminal after the crime but before the trial? This lesson will define preventive detention, and cover legal history of its use in the justice system.

Reason for Confinement

Preventive detention is used to protect society.

Have you ever wondered what happens when someone is arrested for a terrible crime? Sure they'll go to trial, but what about in the meantime? Are they left free to roam the streets? What if they fled or committed another, maybe even violent crime?

Actually, there are laws and processes dealing with this very issue. Preventive detention involves the detainment (confinement) of a person in order to keep them from committing future crimes and/or from escaping future prosecution.

Protection of Society

Preventive detention's main purpose is the protection of society by limiting the ability of dangerous individuals to cause harm. This is relevant to a number of situations and can apply to:

  1. The holding (detaining) of wartime individuals to prevent them from fighting against a nation
  2. Holding an individual before trial to prevent their escape
  3. Holding the mentally ill to protect them and society
  4. Holding an individual who has a disease that could harm society

Legal Process

You might be wondering how this works with a couple key constitutional amendments. For example, due process entailed in the Fifth Amendment involves allowing potential criminals freedom until it is absolutely necessary for society to take it away. And what about the excessive bail component of the Eighth Amendment? The Supreme Court has decided that neither are violated by reasonable preventive detention.

These decisions stem from laws enacted by political leaders during the 1960's. During this time, bail (release of a person before trial in exchange for holding that person's money) was too burdensome for those with limited financial resources. If there was not enough money for bail, they remained confined. This was thought to be unjust. Therefore, law was created to make the situation more just.

Federal Bail Reform and Problems

The 1966 Federal Bail Reform Act was created to provide those with less financial resources the opportunity to be free before they faced trial. However, they were still supposed to be present for the upcoming trial. This Act seemed like a good way to create a more just situation. Unfortunately problems arose. Crime increased during this time, and there was thought to be a connection to this new Act.

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