“Nothing Else but Mad”: The Hidden Costs of
Preventive Detention
ABHI RAGHUNATHAN*
It is a bedrock principle of criminal law that the state must prove all elements
of a crime beyond a reasonable doubt to obtain a conviction and deprive an
individual of his liberty. This high burden of proof is generally considered to be
a reflection of the famous Blackstone formulation that it is better for the law to
incorrectly release ten guilty men than convict one innocent man.
Despite the endurance of this acceptable ratio of ten false negatives to one
false positive in the criminal law, the Supreme Court has never formulated a
similar “Blackstone ratio” for the law of civil commitment. Civil commitment is
a form of preventive detention, which is often defined as the state’s confinement
of an individual without a criminal conviction because it fears he may hurt
himself or others. For over thirty years, the Court has held that the state cannot
deprive a mentally ill individual of his liberty through civil commitment unless it
proved with clear and convincing evidence that he was both mentally ill and
dangerous. And for over thirty years, the Court has consistently refused to
define the term dangerous. This refusal has produced a string of confusing
Supreme Court opinions in recent decades that has resulted in gradual expansion of preventive detention, especially for the mentally ill, without any discussion of the accompanying normative costs.
This Note will explain why the Court should define danger, analyzing the
Court’s decisions on civil commitment and preventive detention as well as
recent psychiatric research on mental illness and violence risk assessment. This
Note argues that the Court needs to address the costs of preventive detention by
crafting a definition of danger that takes two factors into account: the likelihood
of a potential harm and the seriousness of a potential harm. This definition will
help legislators determine whether the costs of a preventive-detention scheme
outweigh the benefits. This Note concludes by suggesting that a preventivedetention scheme should be upheld only where, at a minimum, its estimated
benefits outweigh its estimated costs.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
968
I. THE TANGLED GROWTH OF PREVENTIVE DETENTION . . . . . . . . . . . .
971
A.
THE EARLY RELIANCE ON PROCEDURE IN ADDINGTON V. TEXAS
....
972
* Georgetown Law, J.D. 2011; Princeton University, A.B. 2002. © 2012, Abhi Raghunathan. I would
like to thank Professor Heathcote Wales for his extraordinary support and guidance in the development
of this Note. I would also like to thank my family and especially my wife, Nicola.
967
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B.
THE EXPANSION OF PREVENTIVE DETENTION AMONG JUVENILES
..................................
973
1.
Schall v. Martin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
974
2.
United States v. Salerno . . . . . . . . . . . . . . . . . . . . . . . .
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AND ARRESTEES
C.
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THE CONTINUED GROWTH OF PREVENTIVE DETENTION AMONG THE
...................................
977
1.
Jones v. United States . . . . . . . . . . . . . . . . . . . . . . . . .
977
2.
Foucha v. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . .
979
3.
Kansas v. Hendricks . . . . . . . . . . . . . . . . . . . . . . . . . . .
981
4.
Kansas v. Crane . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
983
II. THE LIMITS OF VIOLENCE RISK ASSESSMENT . . . . . . . . . . . . . . . . . .
985
MENTALLY ILL
A.
A STANCE AGAINST LONG-TERM VIOLENCE RISK ASSESSMENT
....
986
B.
THE MACARTHUR VIOLENCE RISK ASSESSMENT STUDY
.........
986
1.
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
987
2.
The MacArthur Study and Traditional Risk Factors . . . .
987
3.
The MacArthur Study and Iterative Classification Trees .
988
III. DEFINING DANGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
990
A.
THE UTILITARIAN JUSTIFICATION FOR PREVENTIVE DETENTION
...
990
B.
THE CRITERIA FOR DANGER
...........................
992
C.
APPLYING THE HAND FORMULA TO A DEFINITION OF DANGER
....
993
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
995
INTRODUCTION
“Mad call I it; for, to define true madness,
What is’t but to be nothing else but mad?”
—William Shakespeare1
In traditional criminal law, the state must prove all elements of a crime
beyond a reasonable doubt to obtain a conviction and deprive an individual’s
1. WILLIAM SHAKESPEARE, HAMLET act 2, sc. 2, lines 93–94 (W.G. Clark & W.A. Wright eds., Oxford
Univ. Press 1887).
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liberty.2 The normative basis for requiring such a high burden of proof was
memorably expressed over two hundred years ago by Sir William Blackstone,
who wrote that “it is better that ten guilty persons escape, than that one innocent
suffer.”3 Blackstone’s ratio has provided a useful way of describing the proportion of false positives to false negatives that society has been willing to tolerate
in criminal cases. It states that the law is so wary of inflicting a criminal
punishment on an innocent person that it would rather incorrectly release ten
guilty persons (false negatives) than incorrectly convict one innocent person (a
false positive).4
Despite the endurance of this acceptable ratio of false positives to false
negatives in the criminal law, the Supreme Court has never formulated a similar
“Blackstone ratio” for the law of civil commitment.5 Civil commitment is a
form of preventive detention, often defined as the state’s confinement of an
individual without a criminal conviction because the state fears he may hurt
himself or others.6 Over thirty years ago, the Court held that the state cannot
deprive a mentally ill individual of his liberty through civil commitment unless
it proved with clear and convincing evidence that he was both mentally ill and
dangerous.7 And for over thirty years, the Court has consistently refused to
define the term dangerous.8 This refusal has produced a string of confusing
Supreme Court opinions that threaten to undermine the principle that preventive
detention is an exception in our legal system, not the norm.9 The Court’s
continuing ad hoc approval of new schemes of preventive detention and refusal
to define what it means by the term dangerous has gradually expanded preven-
2. See In re Winship, 397 U.S. 358, 364 (1970).
3. 4 WILLIAM BLACKSTONE, COMMENTARIES *358–59.
4. See Alexander Volokh, Aside: n Guilty Men, 146 U. PA. L. REV. 173, 198 (1997). In Winship,
Justice Harlan stated in a concurring opinion that “I view the requirement of proof beyond a reasonable
doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go free.” Winship, 397 U.S. at 372 (Harlan, J.,
concurring). Tribe has argued that the beyond a reasonable doubt standard is best thought of as an
acknowledgement that we cannot require absolute certainty for a verdict but that the cost of spelling out
the amount of certainty we require in a trial with precision would be too high. See Laurence H. Tribe,
Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L. REV. 1329, 1375 (1971).
However, Harlan’s concurrence is usually considered an endorsement of the Blackstone formulation.
See, e.g., Volokh, supra.
5. See infra Part I.
6. See David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97
CALIF. L. REV. 693, 695–97 (2009) (discussing basic features of preventive detention); Christopher
Slobogin, A Jurisprudence of Dangerousness, 98 NW. U. L. REV. 1, 3–4 (2003) (same). This Note
focuses on civil commitment of the mentally ill but also discusses some types of civil commitment that
deprive individuals of their liberty solely on the basis of danger, such as juvenile detention and the Bail
Reform Act of 1984. See infra section I.B.
7. Addington v. Texas, 441 U.S. 418, 431–32 (1979). The Court has allowed for some exceptions to
this general rule, including the civil commitment of individuals found not guilty by reason of insanity.
E.g., Jones v. United States, 463 U.S. 354, 356–57 (1983); see generally infra section I.C.
8. See infra Part I.
9. See United States v. Salerno, 481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and
detention prior to trial or without trial is the carefully limited exception.”).
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tive detention, especially for the mentally ill, without any discussion of the
accompanying normative costs.10
In determining whether a preventive detention scheme is constitutional, the
Court has preferred to examine the procedural protections established by the
state rather than delve into substantive issues.11 Important, unanswered substantive questions relating to the definition of danger, however, underlie the Court’s
discussions of procedural matters: What ratio of false positives to false negatives is justified in civil commitment?12 And should that ratio change depending
on the seriousness of harm that the state is trying to prevent? This Note will
explain why the Court should answer such questions by analyzing the Court’s
civil commitment and preventive-detention decisions, as well as recent psychiatric research on mental illness and violence risk assessment.
This Note will argue that the Court should define what danger means in its
rulings on preventive detention.13 This Note will suggest a definition of danger
that includes the seriousness of a potential harm and the likelihood that a
10. See Alan M. Dershowitz, On “Preventive Detention,” N.Y. REV. BOOKS, Mar. 13, 1969, available
at http://www.nybooks.com/articles/archives/1969/mar/13/on-preventive-detention (“What we learn about
our ability to predict may be discouraging to those who advocate preventive detention.”).
11. See Kansas v. Hendricks, 521 U.S. 346, 352–53, 364–65 (1997) (upholding the Kansas Sexually
Violent Predator Act partly because of the procedural protections it gave to alleged sexually violent
predators).
12. For the purposes of this Note, in civil commitment, a false positive is defined as someone
detained by the state who would not have hurt himself or others if he had been free. A false negative is
defined as someone who was not detained by the state who hurt himself or others while free.
13. One could argue that legislators should be free to define danger as they see fit. In Patterson v.
New York, the Court held that a state could require a defendant to prove an affirmative defense by a
preponderance of the evidence without violating the Due Process Clause. 432 U.S. 197, 210–11 (1977).
The Court’s decision suggested that it was willing to give legislators freedom to define the elements of
a crime however they wanted as long as they followed the basic procedural requirements of Winship of
requiring the state to prove all of the elements of a crime beyond a reasonable doubt. See John Calvin
Jeffries Jr. & Paul B. Stephan III, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88
YALE L.J. 1325, 1345–47 (1979).
I will address the Patterson argument in more detail in Part IV but want to discuss it briefly here. This
Note rejects that due process in the area of civil commitment can be satisfied by implementing only
procedural protections. Jeffries and Stephan argue that even the Court has suggested viewing Winship
and Patterson purely on procedural grounds can lead to substantively unsatisfying results. Id. at
1346–47. For example, Jeffries and Stephan state that “[a] normative principle for protecting the
‘innocent’ must take into account not only the certainty with which facts are established but also the
selection of facts to be proved.” Id. at 1347. They argue that Winship and Patterson call for “proof
beyond a reasonable doubt of facts sufficient to justify penalties of the sort contemplated.” Id. at 1365
(emphasis added). Thus, they argue, “Winship should be read to assert a constitutional requirement of
proof beyond a reasonable doubt of a constitutionally adequate basis for imposing the punishment
authorized.” Id.
This Note argues that a similar logic should be applied to find a substantive limit on the power to
define danger in the law of civil commitment. Legislators retain necessary discretion to specify what
they mean by dangerous, but, given that civil commitment is preventive rather than punitive in nature,
legislators should be under a similar restriction to tailor civil commitment to the danger they are trying
to prevent. To do this task, some definition of danger is required that accounts for the probability and
severity of harm. See infra Part III. Otherwise, legislators could, for example, be given free rein to
detain the mentally ill solely for the status of being mentally ill, which the Court explicitly prohibited in
O’Connor v. Donaldson. 422 U.S. 563, 575 (1975).
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COSTS OF PREVENTIVE DETENTION
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potential harm will occur. Then, drawing from the Hand Formula in tort law,
this Note will argue that the Court should state that preventive detention is
justified only when, at a minimum, the potential danger of a future harm,
measured by its likelihood of occurring and its potential seriousness, outweighs
the cost of an incorrect preventive detention. By doing so, the Court will
provide legislators a rubric to weigh the costs and benefits of a preventive
detention scheme.
This Note will focus primarily on the Court’s decisions on civil commitment
of the mentally ill but will also examine several other influential decisions on
preventive detention when the Court has failed to define danger. Part I will look
at the Court’s preventive-detention jurisprudence in three types of cases. It will
first discuss the Court’s initial enactment of procedural guidelines for civil
commitment of the mentally ill, then analyze how the Court approved the
expansion of preventive detention among juveniles and arrestees, and finally
show how the Court’s continuing failure to define danger has led to increased
civil commitment of the mentally ill. Part II will present recent psychiatric
research suggesting that long-term predictions of violence among the mentally
ill remain inaccurate, raising the question of whether preventive detention
should be authorized to prevent relatively minor harms, such as simple battery,
or only serious harms, such as homicide. Part III will propose a definition of
danger and explain how the Court should look to tort law in weighing the costs
and benefits of preventive detention.
I. THE TANGLED GROWTH OF PREVENTIVE DETENTION
In 1975, the Court first held in O’Connor v. Donaldson that the state could
not civilly commit a mentally ill individual unless it also found that he was
dangerous.14 The Court firmly stated that “there is still no constitutional basis
for confining such persons involuntarily if they are dangerous to no one and can
live safely in freedom.”15 The Court, however, did not define what dangerous
meant.16 Since O’Connor, the Court’s jurisprudence on civil commitment has
largely focused on procedural rather than substantive matters, failing to answer
important substantive questions such as what it means to be dangerous. This
Part will first examine how the Court initially focused on procedural rather than
substantive questions in Addington v. Texas. Then, it will show how a continued
reliance on procedural questions in Schall v. Martin and United States v. Salerno
led to increased preventive detention of juveniles and arrestees. Finally, it will
explore preventive detention of the mentally ill in Jones v. United States,
14. 422 U.S. 563, 573–75 (1975). Donaldson also argued that it was unconstitutional for state law to
indefinitely confine the mentally ill if they were not being given any treatment. Id. at 570–72. The Court
decided the case on the issue of dangerousness and stated, “[T]here is no reason now to decide whether
mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory
confinement by the State . . . .” Id. at 573.
15. Id. at 575.
16. See id.
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Foucha v. Louisiana, Kansas v. Hendricks, and Kansas v. Crane. It will explain
the significance of each case, the Court’s reasoning, and the consequences of
leaving important normative questions unaddressed.
A. THE EARLY RELIANCE ON PROCEDURE IN ADDINGTON V. TEXAS
After Frank O’Neal Addington, the appellant in Addington v. Texas, was
“arrested on a misdemeanor charge of ‘assault by threat’ against his mother,”17
his mother filed an application under state law to involuntarily commit him to a
mental institution.18 Two psychiatrists testified that Addington “suffered from
psychotic schizophrenia and that he had paranoid tendencies.”19 They also
stated that he was “probably dangerous both to himself and to others.”20
On the surface, Addington was a case about procedural protections. The
Texas Supreme Court had previously held that the state only needed to meet a
“preponderance of the evidence” standard in civil commitment proceedings,21
but the trial court in Addington required the jury to find “clear, unequivocal and
convincing evidence” that Addington was “mentally ill” and required “hospitalization in a mental hospital for his own welfare and protection or the protection
of others.”22 Addington appealed the jury instructions, arguing that the state
should be required to meet the same “beyond a reasonable doubt” standard it
did in criminal cases.23
The United States Supreme Court rejected Addington’s proposal, holding that
the state did not have to meet a beyond-a-reasonable-doubt burden in civil
commitment cases.24 The Court also rejected the Texas Supreme Court’s preponderance-of-the-evidence standard, reasoning that the “individual should not be
asked to share equally with society the risk of error when the possible injury to
the individual is significantly greater than any possible harm to the state.”25
Instead, the Court held that a “clear and convincing” standard stricter than a
preponderance-of-the-evidence standard but not as rigorous as beyond-areasonable-doubt standard was the best way to balance society’s interest in
preventing harm with the individual’s liberty interest.26
While the Court’s holding in Addington concerned the procedural issue of
how heavy the state’s burden of proof should be, the case also had as a subtext
the substantive issues involved in civil commitment. The Court acknowledged
17. Addington v. Texas, 441 U.S. 418, 420 (1979).
18. Id.
19. Id. at 421.
20. Id.
21. Id. at 422 (referencing State v. Turner, 556 S.W.2d 563 (Tex. 1977)).
22. Id. at 421. The Texas Supreme Court held that the lower court had made a harmless error by
requiring a burden of proof higher than mere preponderance of the evidence because the higher
standard was more favorable to the committed defendant. Id. at 422.
23. Id. at 421–22.
24. Id. at 432.
25. Id. at 427.
26. Id. at 433.
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that jury instructions on the burden of proof allocated the risk of an incorrect
decision between the parties in a case:27 “Increasing the burden of proof is one
way to impress the factfinder with the importance of the decision and thereby
perhaps to reduce the chances that inappropriate commitments will be ordered.”28 A very rigorous standard like beyond a reasonable doubt, by preventing false positives, was critical to ensuring that the punitive sanctions of the
criminal law were not inflicted on large numbers of innocent people.29 On the
other hand, the Court reasoned, a preponderance-of-the-evidence standard where
the parties “share the risk of error in roughly equal fashion” was appropriate in
civil suits between private parties because there were no issues of individual
liberty at stake.30 Under the Court’s reasoning, a clear-and-convincing standard
fell somewhere in the middle.31
That middle, however, is extraordinarily broad. A preponderance-of-theevidence standard suggests that a less than one-to-one ratio of false positives to
false negatives is acceptable.32 A beyond-a-reasonable-doubt standard suggests
that a less than one-to-ten ratio of false positives to false negatives is acceptable.33 That leaves much leeway for the acceptable ratio of false positives to
false negatives in a clear-and-convincing standard. Furthermore, the Court’s
procedural decision failed to clarify what type of danger justified civil commitment. In Addington’s case, a misdemeanor arrest and prior commitments in
mental institutions was clear-and-convincing evidence to render him dangerous.34 But what did this classification of Addington as dangerous mean? Did it
mean that civil commitment was justified because there was a six-in-ten chance
that he might commit a misdemeanor battery against his mother? Or did it mean
that there was a two-in-ten chance that he might kill her? The Court did not
address such questions and thus provided legislators with no rubric to weigh the
costs of preventive detention schemes.
B. THE EXPANSION OF PREVENTIVE DETENTION AMONG JUVENILES AND ARRESTEES
This section will examine how the Court approved the expansion of pretrial
preventive detention of juveniles in Schall v. Martin and arrestees in United
States v. Salerno. It will show how the Court’s reasoning in both cases led to the
significant expansion of preventive detention because of its reluctance to specify
what type of conduct counted as dangerous.
27. Id. at 423.
28. Id. at 427.
29. Id.
30. Id. at 423.
31. Id. at 431.
32. See id. at 423.
33. See supra note 4 and accompanying text. While the standard does not literally suggest ten false
positives to one false negative, it has generally been interpreted as such. See Volokh, supra note 4, at
198.
34. Addington, 441 U.S. at 420–21.
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1. Schall v. Martin
In Schall, the Court upheld a New York statute that authorized the pretrial
detention of an accused juvenile delinquent if a family court judge determined
there was a “serious risk” that the juvenile would commit a crime if released.35
Martin, the appellee, was arrested on charges of robbery, assault, and criminal
possession of a weapon.36 Concerned about Martin’s lack of supervision and the
fact that he had allegedly committed his crimes late at night, a judge ordered
him detained.37 Martin filed a class action lawsuit on behalf of himself and
others challenging the constitutionality of the preventive-detention scheme
under the Due Process Clause and the Equal Protection Clause.38
In its decision, the Court noted that the preventive detention had a very
limited duration because it could only extend to a maximum of seventeen
days.39 The Court also determined that juveniles were entitled to a hearing
during their first appearance before they were detained.40 After finding that the
statute had sufficient procedural protections that allowed for juveniles to challenge their detention, the Court upheld the statute.41 Such procedural protections, the Court held, were sufficient to minimize the harm from an incorrect
preventive detention.42
Martin also argued that the statute gave judges too much leeway to detain
juveniles.43 He claimed that judges under the statute could rely on vague claims
of risk to detain youths in substandard facilities.44 The statute did not describe
what types of factors judges could use to determine whether a juvenile posed a
serious risk of committing a crime if released.45 In practice, judges stated that
they relied on “numerous factors” that included information from the charges,
the juvenile’s prior record, and evidence about the degree of parental supervision.46
The Court rejected Martin’s claim,47 noting that it had consistently declined
to accept the position that judicial decision makers should no longer try to
predict future conduct just because academics believed it was too difficult to do
so.48 Instead, the Court endorsed determinations based on predictions of future
35. Schall v. Martin, 467 U.S. 253, 255–57 (1984). The statute authorized the determination of
“serious risk” at a first appearance proceeding. Id. at 255 n.1. The statute did not mention a standard of
proof but instead stated that the judge has discretion to order such a detention. Id.
36. Id. at 257.
37. Id. at 258.
38. Id. at 261.
39. Id. at 270.
40. Id. at 269–70.
41. Id. at 256–57.
42. Id. at 277.
43. Id. at 278.
44. Id. at 278, 290.
45. Id. at 278.
46. Id. at 279.
47. Id. at 278–79.
48. Id. at 262, 278–79.
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COSTS OF PREVENTIVE DETENTION
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violence because “there is nothing inherently unattainable about a prediction of
future criminal conduct.”49
Although Schall did not involve civil commitment of the mentally ill, the
Court’s reasoning in the case demonstrated its commitment to using procedural
protections rather than substantive considerations to safeguard against the states’
abuses of preventive detention.50 The Court’s approach allowed it to ignore
serious normative concerns over the acceptable ratio of false positives to false
negatives raised by the scheme. The Court’s analysis suggested it was aware
that the New York detention scheme, like any preventive-detention scheme,
would produce some false negatives—juveniles would be detained even though
they would not have committed another crime had they been released.51 Yet the
Court did not rely on a burden of proof to determine what the acceptable ratio of
false positives to false negatives should be.52 Instead, the Court seemed implicitly to accept any ratio of false positives to false negatives because detentions
under the scheme were “strictly limited in time.”53 Perhaps most stunningly, the
Court downplayed the detainees’ liberty interests, equating the detention of
juveniles by the state as similar to remanding juveniles to the custody of their
parents: “[J]uveniles, unlike adults, are always in some form of custody.”54
2. United States v. Salerno
The Court confronted a more expansive preventive-detention statute in United
States v. Salerno.55 In Salerno, the Court examined the Bail Reform Act of
1984, which allowed the government to detain arrested individuals without bail
if a judicial officer found “clear and convincing evidence”56 that “no condition
or combination of conditions will reasonably assure the appearance of the
person as required and the safety of any other person and the community . . . .”57 Citing procedural protections in the statute such as the right to a
hearing, the limited time period of the detention before trial, and the statute’s
application to only a subsection of arrested individuals, the Court held the law
was constitutional.58 While conceding the “‘general rule’ of substantive due
49. Id. at 278.
50. See id. at 269.
51. See id. at 279.
52. See id.
53. Id. at 269. The maximum length of detention under the scheme was seventeen days. Id. at 270.
In a dissenting opinion, Justice Marshall argued that the Court’s approval would lead to the detention of
many juveniles who would not commit any crimes. Id. at 296–97 (Marshall, J., dissenting).
54. Id. at 265.
55. 481 U.S. 739, 755 (1987).
56. 18 U.S.C. § 3142(f) (1988).
57. 18 U.S.C. § 3142(e)(1).
58. Salerno, 481 U.S. at 746–47, 751–52. The Court also rejected an Eighth Amendment challenge
to the statute, holding that the state had shown compelling interests for the denial of bail such as
prevention of harm. Id. at 754–55. In addition, the Court found that the statute did not violate
substantive due process as a punishment before a trial because it was “regulatory” rather than punitive
in nature. Id. at 746–47.
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process that the government may not detain a person prior to a judgment of guilt
in a criminal trial,” the Court reasoned that the Bail Reform Act was one of “a
sufficient number of exceptions” establishing the “authority of the government,
in special circumstances, to restrain individuals’ liberty prior to or even without
criminal trial and conviction . . . .”59
The Court’s approval of the Bail Reform Act laid the groundwork for an
expansion of the conduct that counted as dangerous enough to permit preventive
detention. The Bail Reform Act authorized detention hearings for inmates
convicted of various specific crimes, including any crime that qualified as a
“crime of violence,”60 which the Federal Code defined broadly to include “an
offense that has as an element of the offense the use, attempted use, or
threatened use of physical force against the person or property of another.”61
Moreover, judges had widespread latitude to order detention of an eligible
prisoner under the Act if they found that “no condition or combination of
conditions will reasonably assure the appearance of the person as required and
the safety of any other person and the community . . . .”62 The Court stated that
judicial officers were “not given unbridled discretion in making the detention
determination” because they had to consider specific factors enumerated by
Congress.63 Yet those factors were very broad, allowing judges to consider the
“arrestee’s background and characteristics, and the nature and seriousness of the
danger posed by the suspect’s release” in addition to the details of his crime.64
In theory, this grant of authority meant a judge could order the detention of
someone arrested on a vandalism charge because the judge was concerned about
the arrestee’s living conditions and demeanor.65
Thus, the Court’s decision in Salerno resulted in the practical expansion of
preventive detention to cover large numbers of arrestees without any normative
discussion of the accompanying costs. First, the Court failed to discuss what
type of harm it was trying to prevent. The Court suggested that Congress
enacted the statute to reduce “the alarming problem of crimes committed by
persons on release,”66 yet the Court failed to consider whether the statute was
meant to deprive liberty to prevent any crime or only serious crimes. A
balancing of an individual’s liberty interest against society’s interest in safety
would suggest that detaining an individual for months out of fear he may
commit a misdemeanor property crime while released does not make sense; the
individual has a strong liberty interest while society probably has a relatively
minor interest in preventing a property crime. However, society may have a
59.
60.
61.
62.
63.
64.
65.
66.
Id. at 749.
18 U.S.C. § 3142(f)(1)(A).
See 18 U.S.C. § 3156(a)(4)(A) (1988) (emphasis added).
See 18 U.S.C. § 3142(e)(1) (1988).
See Salerno, 481 U.S. at 742–43.
See id. (citing 18 U.S.C. § 3142(g)).
Cf. id. at 752.
Id. at 742 (quoting S. REP. NO. 98-225, at 3 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3185).
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sufficiently strong interest in preventing a homicide to justify a lengthy preventive detention. The statute and the Court, however, did not make such a
distinction.
Second, the Court again failed to consider the ratio of false positives to false
negatives produced by the Act. Some of the detained arrestees would not have
committed an act that hurt others while on bail. Yet the Court does not address
how many false positives would be acceptable under the Act, suggesting that
under the clear-and-convincing-evidence standard, any ratio of false negatives
to false positives that is higher than one to one and lower than or equal to ten to
one suffices. But it is unclear why that should be the case. Additionally, as
discussed above, society’s interest in preventing a future crime diminishes
significantly as the seriousness of the crime decreases. The Court could have
specified the types of crimes that justified detention and considerably narrowed
the acceptable range of false positives to false negatives in this case, but it did
not do so.67
C. THE CONTINUED GROWTH OF PREVENTIVE DETENTION AMONG THE MENTALLY ILL
This section will discuss four cases: Jones v. United States, Foucha v.
Louisiana, Kansas v. Hendricks, and Kansas v. Crane. It will show how the
Court has failed to specify the appropriate ratio of false positives to false
negatives or the seriousness of danger required for preventive detention, leading
to increased civil commitment of the mentally ill without a serious discussion of
the normative costs of doing so.
1. Jones v. United States
In 1983, the Court held in Jones v. United States that a state could civilly
commit an individual found not guilty by reason of insanity to a term longer
than the prison sentence he would have faced if he had been convicted of the
original crime.68 In 1975, Michael Jones was arrested after trying to steal a
jacket from a department store.69 If he had been convicted on a charge of
attempted petit larceny, he would have faced a maximum prison sentence of one
year.70 However, Jones agreed to a plea of not guilty by reason of insanity and
was committed to St. Elizabeths, a mental hospital in Washington, D.C.71 At a
subsequent hearing, a psychologist testified that Jones had “paranoid schizophre67. The Court relied heavily on its reasoning in Salerno when deciding Zadvydas v. Davis in 2001,
which concerned a federal system for detention of immigrants waiting to be deported. 533 U.S. 678,
696–98 (2001). In Zadvydas, the Court held that the government had to rebut an immigrant detainee’s
showing “that there is no significant likelihood of removal in the reasonably foreseeable future” if it
wanted to detain him for more than six months. Id. at 701. The Court noted that “indefinite detention of
an alien would raise a serious constitutional problem” because “[f]reedom from imprisonment . . .
lies at the heart of the liberty that [the Due Process] Clause protects.” Id. at 690.
68. 463 U.S. 354, 368–69 (1983).
69. Id. at 359.
70. Id.
71. Id.
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nia” and was “a danger to himself and to others.”72 Under D.C. law, Jones faced
the burden of demonstrating that he was no longer mentally ill or dangerous to
be released from civil commitment.73
In Addington, the Court had held that the state faced the burden of showing a
defendant was mentally ill and dangerous with clear-and-convincing evidence
to civilly commit him.74 But in Jones the Court upheld the D.C. commitment
scheme even though it placed no such burden on the state.75 The Court held that
insanity acquittees were a special class of individuals who could be civilly
committed if they successfully presented an affirmative defense that they were
not guilty by reason of insanity.76 Because the defendant in such a case had
presented an affirmative insanity defense that included an admission he had
committed a criminal act, the Court reasoned, there was “good reason for
diminished concern as to the risk of error.”77 The Court noted that the criminal
nature of a case diminished concerns that the state was detaining individuals for
“mere ‘idiosyncratic behavior.’”78
Under the Court’s logic, the fact that a defendant presented an insanity
defense on his own volition sufficed to label him both mentally ill and dangerous enough to merit confinement.79 Yet an insanity defense only addresses a
defendant’s lack of responsibility for a prior act; it says little about the defendant’s potential responsibility for future acts.80 The Court’s reasoning in Jones,
however, suggests that the insanity defense applies to both responsibility for a
prior act and propensity to commit future criminal acts.81 The Court’s reasoning
also assumes that all insanity acquittees are likely enough to commit another
dangerous act to merit detention.82 But surely some acquittees who are confined
would not have committed another “dangerous” act had they been released. The
Court did not consider how many such false positives society should accept to
prevent some future violent acts from being committed.
The Court in Jones gave the government more procedural leeway in cases in
which the “acquittee himself advances insanity as a defense” to civilly commit
the mentally ill.83 Still, the Court’s reasoning also stands out for its broad
72. Id. at 360.
73. Id. at 358. Under D.C. law, the acquittee was entitled to a hearing to determine whether he
should be released within fifty days of his original commitment. A patient was civilly committed under
a finding of clear and convincing evidence. Once committed, a patient could also be released upon a
certification of recovery by the hospital. Id. at 358–60.
74. Addington v. Texas, 441 U.S. 418, 427 (1979).
75. See 463 U.S. at 370.
76. See id. The acquittees had the burden of showing not guilty by reason of insanity under a
preponderance-of-the-evidence standard. Id.
77. Id. at 367.
78. Id. (quoting Addington, 441 U.S. at 427).
79. See id. at 370.
80. See id.
81. See id.
82. Cf. id.
83. Id. at 367.
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substantive outlining of what types of acts suffice to allow the state to label an
individual as dangerous. The Court approvingly stated that “‘danger’ may be to
property rights as well as to persons.”84 It also noted that prior attempts at
suicide by Jones when he had previously been confined could suffice to render
him dangerous.85 Yet the Court did not specify what it means to be dangerous.
Instead, the Court’s reasoning suggests that propensity to commit any crime is
sufficient to render an individual dangerous.
This broad definition of danger provides no guidance to legislators trying to
weigh the costs and benefits of preventive detention because it does not
differentiate between crimes that produce serious harm, such as homicide, and
crimes that result in minor harms, such as shoplifting. The Court’s interpretation
allows states to confine large numbers of mentally ill individuals in institutions
to prevent relatively minor crimes. Such a result seems inefficient and difficult
to defend on normative grounds. After all, the costs of detaining thousands of
mentally ill individuals for years probably outweigh the relatively minor benefits of preventing shoplifting and other crimes with minimal economic and
emotional costs. Yet, under the Court’s logic, shoplifting is as dangerous as
homicide. This bizarre result comes from the Court’s failure to grapple with
what the definition of danger should include.
2. Foucha v. Louisiana
In 1992, the Court tried to reestablish the principle that preventive detention
was to be an exception rather than the norm when it overruled Louisiana’s use
of civil commitment in Foucha v. Louisiana.86 Terry Foucha, the petitioner, had
been found not guilty by reason of insanity on charges of aggravated battery and
illegal discharge of a firearm.87 But Foucha stopped showing signs of mental
illness after being admitted to a mental institution, prompting a superintendent
to recommend his discharge even though he had “an antisocial personality.”88
The trial judge appointed “a two-member sanity commission.”89 One doctor on
the commission testified that, while Foucha “was in ‘good shape’ mentally,”
Foucha had “an antisocial personality, a condition that is not a mental disease
and that is untreatable,” and also testified that Foucha had “several altercations”
at the mental institution and that “he, the doctor, would not ‘feel comfortable’”
certifying Foucha as not dangerous to himself or others.90 The trial court then
held that Foucha could still be detained because he had not met his burden
under state law of showing he was no longer dangerous by a preponderance of
84.
85.
86.
87.
88.
89.
90.
Id. at 365 n.14.
Id.
504 U.S. 71, 73 (1992).
Id. at 73–74.
Id. at 75.
Id. at 74.
Id. at 74–75.
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the evidence.91
The Court’s jumbled opinion in Foucha can be interpreted in several ways.
First, the Court reasoned that Foucha should be released because the state could
no longer show that he was both mentally ill and dangerous.92 The Court
reasoned that “[d]ue process requires that the nature of commitment bear some
reasonable relation to the purpose for which the individual is committed.”93
Thus, the Court held, the state could only detain Foucha if he was not mentally
ill by showing clear-and-convincing evidence he was dangerous.94
The Court was also concerned that Louisiana’s scheme could result in
widespread detention of individuals for large numbers of crimes for extended
periods of time.95 The scheme was not limited to specific crimes.96 Also, unlike
the previous detention schemes that the Court had upheld in Schall97 and
Salerno,98 the Foucha detention scheme did not have a fixed time.99 This
possibility of indefinite detention troubled the Court.100
Finally, the Court was concerned about insufficient procedural protections in
Foucha. Under a traditional civil-commitment statute, the state has the burden
of showing an individual is mentally ill and dangerous with clear-andconvincing evidence.101 Here, Foucha had to show that he was no longer
mentally ill or dangerous under a preponderance of the evidence.102 Also, the
Court was troubled that Foucha was not entitled to an adversary hearing under
the statute.103
Although the Court’s opinion can lend itself to various interpretations, the
common thread that runs through all of them is a sense that the Court was
uncomfortable with giving states too much power to civilly commit a large
portion of the population. If the Court had approved a state’s ability to detain an
individual solely on the basis of a personality disorder, it would have allowed
states to detain a broad spectrum of the American population.104 The Court
seemed to be uncomfortable with approving a scheme that could openly turn
preventive detention into a norm.
The Court’s reasoning in Foucha did touch on the appropriate size and
structure of a civil commitment scheme, but it did not deal with other serious
91. Id. at 75.
92. Id. at 78.
93. Id. at 79.
94. Id. at 80 (citing Jones v. United States, 463 U.S. 354, 362 (1983)). Louisiana conceded that it did
not consider an antisocial personality to be a mental illness in Foucha’s case. See id. at 75.
95. See id. at 85.
96. See id. at 82–83.
97. Schall v. Martin, 467 U.S. 253, 255–57 (1984).
98. United States v. Salerno, 481 U.S. 739, 751–52 (1987).
99. Foucha, 504 U.S. at 82–83.
100. Id.
101. See Addington v. Texas, 441 U.S. 418, 427 (1979).
102. See Foucha, 504 U.S. at 81–82.
103. See id.
104. See infra notes 126–27 and accompanying text.
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normative aspects. In Foucha, the Court was concerned that too many people
would be swept up for too long. But it was not worried that the statute might
sweep up too many people incorrectly. The Court again failed to address what
the proper scope of false positives to false negatives should be in a civil
commitment scheme. After Foucha, states knew they had to institute some type
of hearing and fixed periods of review for their civil commitment schemes, but
they received no new guidance from the Court on how to weigh the interests of
individuals who would be detained even though they would not have committed
a crime had they been free.
Moreover, the Court in Foucha also failed to examine whether preventive
detention should target all potential harms or only serious ones. By neglecting
to delve into this important normative issue, the Court gave states freedom to
target nearly any potential harm; states could treat the prevention of minor
misdemeanors and serious felonies as equally valid goals. Indeed, Justice
O’Connor noted in a concurring opinion that “[i]t might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if,
unlike the situation in this case, the nature and duration of detention were
tailored to reflect pressing public safety concerns related to the acquittee’s
continuing dangerousness.”105 But Justice O’Connor did not define what continuing dangerousness meant.106 Her concurring opinion suggests that states could
institute relatively minor procedural safeguards and obviate the need to examine
the normative questions underlying the procedures.107 The Court’s reasoning
thus allowed the expansion of civil commitment of the mentally ill without any
real discussion of the normative costs of such an approach.
3. Kansas v. Hendricks
The Court’s focus on procedure allowed it to continue avoiding normative
issues in Kansas v. Hendricks and Kansas v. Crane. In Hendricks, the Court
upheld the constitutionality of the Kansas Sexually Violent Predator Act, which
allowed the state to involuntarily confine individuals found to be sexually
violent predators108 even if they had completed their criminal sentences.109
105. See Foucha, 504 U.S. at 87–88 (O’Connor, J., concurring).
106. Id.
107. Id. at 86–90.
108. The Act defined a “sexually violent predator” as “any person who has been convicted of or
charged with a sexually violent offense and who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in the predatory acts of sexual violence.” Kansas v.
Hendricks, 521 U.S. 346, 352 (1997) (quoting KAN. STAT. ANN § 59-29a02(a) (1994)) (internal
quotations marks omitted). In addition, the Act defined mental abnormality as “a congenital or acquired
condition affecting the emotional or volitional capacity which predisposes the person to commit
sexually violent offenses in a degree constituting such person a menace to the health and safety of
others.” Id. (quoting KAN. STAT. ANN. § 59-29a02(b) (1994)) (internal quotation marks omitted).
109. Id. at 351. Under the Act, a court first detained an individual if it found “probable cause” to find
that he was a “sexually violent predator” until a trial. Id. at 352. After a court-ordered evaluation, the
state had the burden of showing “beyond a reasonable doubt” in a trial that the individual was a
“sexually violent predator” who should be detained. Id. at 353.
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Hendricks, the appellee, had served ten years in prison after being convicted of
taking “indecent liberties” with two thirteen-year-old boys.110 He was slated to
be released to a halfway house, but the state moved to confine him after he
admitted to repeatedly abusing children whenever he was free.111
Hendricks argued that the statute was unconstitutional because it allowed
preventive detention based on a finding of a “mental abnormality” rather than
the “mental illness” in cases such as Addington and Foucha.112 The Kansas
Supreme Court agreed, holding that the statute’s definition of mental abnormality violated substantive due process because it was too broad.113 However, the
Supreme Court upheld the statute after stressing that it gave defendants strong
procedural safeguards such as a high burden of proof, the right to counsel, and
the right to cross-examine witnesses.114 The Court drew on its reasoning in
Foucha in finding that the statute would not lead to the commitment of large
numbers of the mentally ill because it only applied to a small percentage of the
state population: individuals who had “evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in
the future if the person is not incapacitated.”115 Finally, the Court noted that the
Act’s definition of sexually violent predators narrowed the class of individuals
to those who were especially dangerous because they were “unable to control
their dangerousness.”116
The Court’s holding stressed the importance of procedural protections in the
statute, but its reasoning relied heavily on the fact that the statute only applied
to a very narrow segment of the population: sexually violent predators.117 The
Court’s focus in Hendricks, like in Foucha,118 was on the total number of
mentally ill individuals who could be subject to commitment, not on the number
of incorrect commitments that might ensue. This judicial focus seems misplaced. A civil commitment statute could be upheld on normative utilitarian
grounds even if it affected large numbers of people as long as it did not
incorrectly detain individuals. For example, consider a statute that allowed
detaining a million mentally ill individuals who were all 100% likely to commit
a murder within two years if they had been free. Despite the widespread reach
of such a statute, it would likely be normatively sound on utilitarian grounds
because it results in no false positives, thus having minimal costs, and uses
110. Id.
111. Id. at 354–55.
112. Id. at 358–59.
113. Id. at 356.
114. Id. at 353.
115. See id. at 357. The Court also found that the statute did not violate the Double Jeopardy Clause
because it was enacted for a civil purpose, not for criminal law purposes of punishment or deterrence.
Id. at 361–62. It also found that the statute did not constitute a punishment that violated the Ex Post
Facto Clause. Id.
116. See id. at 358.
117. See id. at 353, 357.
118. Foucha v. Louisiana, 504 U.S. 71, 83, 86 (1992).
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detention to prevent serious harms, thus producing a large benefit.
However, because any preventive-detention scheme is likely to produce some
false positives, performing a cost-benefit analysis requires coming up with a
way to calculate two variables: the cost of a false positive and the benefit of
preventing a harm. Then, a normative analysis would examine whether the total
costs of false positives outweigh the total harms (which would factor in both the
number and seriousness of prevented harms). Without such deliberation, the
public will not be able to realize the true cost of preventive detention: the
individuals who will lose their liberty even though they would have committed
no harm if not detained.
4. Kansas v. Crane
In Crane, the Court’s continuing avoidance of normative questions led to
another unfortunate result: the blurring of mental illness and dangerousness.
Because it evaded defining danger, the Court in Crane ended up equating
mental illness with danger. Michael Crane, the appellee, was a convicted sexual
offender who was civilly committed under the Kansas Sexually Violent Predator
Act by a Kansas district court after a jury trial because he had exhibitionism and
antisocial personality disorder.119 The Kansas Supreme Court reversed, holding
Crane could only be committed under Hendricks if the state could show he was
“completely unable” to control his behavior.120 But the United States Supreme
Court overruled the Kansas Supreme Court, holding that the state did not have
to show that Crane was completely unable to control his behavior to commit
him. Instead, the Court held that the state only had to show that there was
“proof of serious difficulty in controlling behavior” to commit Crane as someone who was dangerous.121
The Court remanded the case and ordered the lower court to consider factors
such as “the nature of the psychiatric diagnosis, and the severity of the mental
abnormality itself” before making a decision on civil commitment.122 The Court
suggested that an inability to control future actions distinguished “the dangerous
sexual offender whose serious mental illness, abnormality, or disorder subjects
him to civil commitment from the dangerous but typical recidivist convicted in
an ordinary criminal case.”123 This connection of lack of control to dangerousness is perhaps the closest the Court has come to identifying what type of
conduct qualifies as dangerous enough to merit civil commitment.
However, the Court’s definition did little to clarify important normative
119. Kansas v. Crane, 534 U.S. 407, 410–11 (2002).
120. Id. at 411. In Hendricks, the Court upheld the statute in part because it applied to a narrow class
of individuals. Kansas v. Hendricks, 521 U.S. 346, 358 (1997). The Court noted in Hendricks that
pedophiles were a narrow class of individuals who were mentally ill and dangerous because they were
“unable to control their dangerousness.” Id.
121. Crane, 534 U.S. at 413.
122. Id.
123. Id.
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matters. Instead, it conflated mental illness and dangerousness. The Diagnostic
and Statistical Manual of Mental Disorders, the leading text used by psychiatrists in making diagnoses, states that a mental disorder is “a clinically significant behavioral or psychological syndrome or pattern that occurs in an
individual.”124 In other words, a mental disorder is something an individual is
unable to control. Therefore, the Court’s definition of the dangerousness as
required for civil commitment suggests that danger means mental illness and
vice versa. This logic contradicts the central holding of O’Connor v. Donaldson,
which treated mental illness and danger as two separate factors required for
civil commitment of the mentally ill.125
The Court’s conflating of mental illness and dangerousness could lead to
widespread expansion of civil commitment. Antisocial personality disorder, for
example, is “considered a manifestation of a behavioral, psychological, or
biological dysfunction in the individual.”126 Some experts estimate that up to
30% of mentally ill individuals in clinical settings may also have antisocial
personality disorder.127 Thus, the substantive definition used by the Court for
dangerous conduct could theoretically result in the widespread commitment of
the mentally ill. Legislative discretion is the only limit on this transformation of
civil commitment from an exception in the legal system to a norm. Moreover,
this expansion comes despite the Court’s statements that preventive-detention
schemes should be narrowly tailored to meet specific, compelling state interests.128
The Court’s ad hoc treatment of preventive-detention cases on procedural
grounds led the way to this constitutional morass. The Court never defined
whether preventive detention should be used to prevent only serious harms or
all harms. And it never determined an acceptable ratio of false positives to false
negatives in civil commitment. By consistently refusing to specify the danger
preventive detention was supposed to prevent, the Court has given legislatures
tremendous freedom to enact new detention schemes but no rubric to weigh the
normative costs of their decisions. Not surprisingly, legislatures have enacted
increasingly open-ended preventive-detention schemes without any discussion
of the accompanying consequences: the detention of individuals who would
never have committed a crime (false positives) and the detention of individuals
124. AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS xxxi (4th ed.
2000).
125. 422 U.S. 563, 573–75 (1975).
126. See AM. PSYCHIATRIC ASS’N, supra note 124, at xxxi, 686 (defining personality traits as
“enduring patterns of perceiving, relating to, and thinking about the environment and oneself that are
exhibited in a wide range of social and personal contexts.”) (emphasis added). The Diagnostic and
Statistical Manual of Mental Disorders also states that “[o]nly when personality traits are inflexible and
maladaptive and cause significant functional impairment or subjective distress do they constitute
Personality Disorders.” Id. at 686.
127. See id. at 704.
128. See United States v. Salerno, 481 U.S. 739, 750 (1987) (arguing that the Bail Reform Act of
1984 was valid partly because it only applied to a specific subset of criminals).
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to prevent relatively minor crimes that may have been more efficiently addressed through the traditional criminal justice system.129 As a result, preventive detention has become a dangerous tool that allows for the deprivation of
liberty without acknowledging that doing so may accomplish little good but
much harm.
II. THE LIMITS OF VIOLENCE RISK ASSESSMENT
Traditional criminal law only punishes acts that an individual is convicted of
committing.130 However, the law of civil commitment exists to determine
whether detaining an individual will prevent him from committing a future act
that causes harm.131 Thus, an exploration of how to define dangerousness
should include some analysis of the difficulty of predicting whether a mentally
ill person will commit a violent act in the future. In recent years, the field of
violence risk assessment has come to two conclusions. First, many experts
acknowledge that actuarial methods are more accurate at predicting future acts
of violence than clinical diagnoses.132 Second, leading psychiatric organizations
have stated that long-term predictions of violence among the mentally ill remain
too inaccurate to be dependable sources for a decision to detain an individual.133
For the purposes of this Part, which focuses on the MacArthur Violence Risk
Assessment Study, the term predictions will refer to the actuarial methods used
by the researchers in that study, not to clinical diagnoses.
This Part will show how the field of violence risk assessment is still largely
inaccurate at predicting whether a mentally ill individual will commit a violent
act in the long term. First, it will examine the American Psychiatric Association’s position on the proper use of violence risk assessment of the mentally ill.
Then, it will describe the MacArthur Violence Risk Assessment Study, the
leading current project examining predictions of dangerousness among the
mentally ill. It will conclude by suggesting that long-term predictions of future
violence by the mentally ill remain inaccurate, raising the question of whether
preventive detention should be authorized to prevent all potential harms or just
serious ones that could result in death or serious bodily harm.
129. See generally supra sections I.C.3–4.
130. See Robinson v. California, 370 U.S. 660, 666–76 (1962) (holding a state cannot criminalize
addiction because it is just someone’s status as a sick person and not an act). See generally SANFORD H.
KADISH, STEPHEN J. SCHULHOFER & CAROL S. STEIKER, CRIMINAL LAW & ITS PROCESSES 182–212 (8th ed.
2007) (discussing the requirement of an actus reus for punishment of a crime). The Model Penal Code
also requires an actus reus for a criminal conviction. MODEL PENAL CODE § 2.01(1) (1962) (“A person is
not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the
omission to perform an act of which he is physically capable.”).
131. See Addington v. Texas, 441 U.S. 418, 426 (1979).
132. See generally JOHN MONAHAN ET AL., RETHINKING RISK ASSESSMENT: THE MACARTHUR STUDY OF
MENTAL DISORDER AND VIOLENCE (2001) (exploring the implications of research, especially the MacArthur Study of Mental Disorder, on determining the likelihood of future violence).
133. See Brief for American Psychiatric Association as Amicus Curiae Supporting Petitioner at 14,
Barefoot v. Estelle, 463 U.S. 880 (1983) (No. 82-6080) [hereinafter APA Barefoot Brief].
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A. A STANCE AGAINST LONG-TERM VIOLENCE RISK ASSESSMENT
For at least thirty years, psychiatrists have acknowledged the limits of being
able to predict long-term violence. In 1981, John Monahan published a landmark book that reviewed studies in which psychiatrists and psychologists
predicted the risk of violence by mentally ill individuals who had already
committed violent acts.134 One study Monahan reviewed found that 41% of
inmates predicted by staff to be dangerous but released by the court were
arrested for a violent crime over the next three years, compared with 31% of
those predicted not to be dangerous—a difference of only ten percentage
points.135 Monahan found that, at their best, psychiatrists and psychologists
were correct just one out of three times in predicting future violent acts by those
individuals.136
The Court disregarded these concerns about inaccuracy. In 1983, the Court
held in Barefoot v. Estelle that “the adversary process” could “sort out the
reliable from the unreliable evidence and opinion about future dangerousness”
in dismissing an Eighth Amendment claim that psychiatrists were not competent
in predicting future acts of violence by the mentally ill.137 In so doing, the Court
rejected the position of the American Psychiatric Association (APA).138 The
APA, citing Monahan’s work, had argued in an amicus brief that “[t]he large
body of research in this area indicates that, even under the best of conditions,
psychiatric predictions of long-term future dangerousness are wrong in at least
two out of every three cases.”139 In addition, the APA noted that “judgments
concerning the long-run potential for future violence and the ‘dangerousness’ of
a given individual are ‘fundamentally of very low reliability.’”140 In a dissenting
opinion, Justice Blackmun cited such concerns and argued that the Court should
not allow such dubious evidence into a judicial proceeding.141
B. THE MACARTHUR VIOLENCE RISK ASSESSMENT STUDY
The MacArthur Violence Risk Assessment Study is perhaps the most authoritative and detailed contemporary research study on mental health and predic134. JOHN MONAHAN, U.S. DEP’T OF HEALTH & HUMAN SERVS., THE CLINICAL PREDICTION OF VIOLENT
BEHAVIOR 45–50 (1981). The book, inter alia, reviewed five studies: HENRY J. STEADMAN & JOSEPH J.
COCOZZA, CAREERS OF THE CRIMINALLY INSANE: EXCESSIVE SOCIAL CONTROL OF DEVIANCE (1974); TERENCE
P. THORNBERRY & JOSEPH E. JACOBY, THE CRIMINALLY INSANE: A COMMUNITY FOLLOW-UP OF MENTALLY ILL
OFFENDERS (1979); Joseph J. Cocozza & Henry J. Steadman, The Failure of Psychiatric Predictions of
Dangerousness: Clear and Convincing Evidence, 29 RUTGERS L. REV. 1084 (1976); Harry L. Kozol et
al., The Diagnosis and Treatment of Dangerousness, 18 CRIME & DELINQ. 371 (1972); and Henry J.
Steadman, A New Look at Recidivism Among Patuxent Inmates, 5 BULL. AM. ACAD. PSYCHIATRY & L.
200 (1977). See MONAHAN, supra, at 45–50.
135. See MONAHAN, supra note 134, at 45.
136. Id. at 47–49.
137. 463 U.S. 880, 901 (1983).
138. See APA Barefoot Brief, supra note 133.
139. Id.
140. Id. at 20 (citation omited).
141. Barefoot, 463 U.S. at 924 (Blackmun, J., dissenting).
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tions of future violence.142 This section will first explain the background of the
MacArthur Study, then describe its results, and end by concluding that the study
confirms it is still too difficult to reliably predict future violence, even among
the severely mentally ill.
1. Background
The MacArthur Study tried to determine whether researchers could accurately use actuarial methods to predict whether mentally ill individuals would
commit an act of violence within a year.143 The researchers in the MacArthur
Study examined 1,136 individuals admitted to acute civil inpatient facilities in
three cities.144 Each individual was interviewed by a research interviewer and a
research clinician to determine whether the individual matched risk factors
predictive of future violence.145 Those risk factors included age, gender, anger,
delusion, psychopathy, child abuse, prior history of violence, hallucinations,
diagnosis, and violent thoughts.146 The researchers conducted regular follow-up
interviews with the patients, as well as with their close friends or family
members, to determine if they had committed other acts of violence.147 Finally,
the researchers used a special type of classification system, called an iterative
classification tree, to examine whether they could accurately predict whether an
individual would commit another violent act up to one year after release.148
2. The MacArthur Study and Traditional Risk Factors
The MacArthur Study found that, on the whole, individual risk factors such
as schizophrenia, depression, or delusions were surprisingly inaccurate at predicting future violence. For example, the popular belief has long been that having a
major mental disorder such as schizophrenia is highly correlated with future
violence.149 The MacArthur Study found that only 17.9% of those with a major
mental disorder (which included schizophrenia, mania, depression, and other
major disorders, including psychotic disorders) and no substance abuse committed an act of violence within one year.150 However, 31.1% of those with a major
142. See MONAHAN ET AL., supra note 132, at 16. In April 2001, “the entire dataset from the
MacArthur Violence Risk Assessment Study was made publicly available” on the Internet. THE
MACARTHUR VIOLENCE RISK ASSESSMENT STUDY: EXECUTIVE SUMMARY, http://www.macarthur.virginia.edu/
risk.html (last updated Sept. 2005) [hereinafter MACARTHUR SUMMARY].
143. MACARTHUR SUMMARY, supra note 142.
144. See id. The researchers examined individuals from a range of racial backgrounds in three cities:
Pittsburgh, Pennsylvania; Kansas City, Missouri; and Worcester, Massachusetts. Id.
145. MONAHAN ET AL., supra note 132, at 17. “Violence,” as used in the study, referred to two types
of violence. First, serious violence included battery that produced injury, sexual assaults, use of a
weapon, or threats made with a weapon. “Other aggressive acts” included batteries that did not result in
injuries and other minor actions. Id. at 17.
146. MACARTHUR SUMMARY, supra note 142.
147. MONAHAN ET AL, supra note 132, at 17.
148. See MACARTHUR SUMMARY, supra note 142.
149. MONAHAN ET AL, supra note 132, at 61–62.
150. Id. at 63.
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mental disorder and substance abuse committed an act of violence, while 43%
of those with some other mental disorder and substance abuse committed a
violent act.151 Perhaps most surprisingly, the 17.9% violence rate for those with
major mental disorders was significantly lower than the overall violence rate in
the entire sample of 27.5%.152 In addition, the one-year violence rate for
schizophrenics was only 14.8%, compared with 28.5% for those with depression and 22% for those with bipolar disorder.153
The MacArthur Study raised questions about other mental disorders traditionally considered indicators of future violence. Delusions, including fears that an
individual was being spied upon, actually had a slightly negative correlation
with future violence.154 Hallucinations, including command hallucinations, were
not significantly correlated with future acts of violence.155 On the other hand,
the study did find a strong predictive value between a diagnosis of psychopathy
and future violence.156
The MacArthur Study also examined factors such as an individual’s gender,
criminal history, history of childhood abuse, and neighborhood.157 Although
some of those factors did show significant correlation with future violence,158
Monahan et al. concluded “[t]he complexity of the findings . . . underscores the
difficulty of identifying main effect or univariate predictors of violence.”159
3. The MacArthur Study and Iterative Classification Trees
The MacArthur Study’s use of iterative classification trees remains its biggest
contribution to the field of violence risk assessment. A classification-tree approach uses different combinations of risk factors to define an individual as
having either a high or a low risk of committing a violent act.160 In a classification tree, a first question is asked of all persons being assessed.161 Based on the
answer to that question, additional questions are asked until each person is
151. Id.
152. Id. at 64 tbl.4.1.
153. Id. at 64.
154. Id. at 73–74. While 22.8% of those with delusions committed another act of violence, 29.4% of
those without delusions committed another act of violence. Id. at 74 tbl.4.3.
155. Id. at 79.
156. Id. at 67. The MacArthur Study used a version of a test known as the Hare Psychopathy
Checklist to measure the psychopathy of patients. Id. at 65–67. The test measures factors like an
individual’s lack of remorse, deceit, and lack of empathy, and included factors such as prior arrest
history. Id. The study found that the prevalence of violence was significantly lower for “nonpsychopathic patients” than for “potentially psychopathic patients” (21.9% to 49.7%). Id. at 67–68 & tbl.4.2.
157. MACARTHUR SUMMARY, supra note 142.
158. For example, the study found that a history of prior violence is a strong predictor of future
violence of psychiatric patients. MONAHAN ET AL., supra note 132, at 44–47. “The data suggest quite
clearly . . . that, regardless of how the measure is obtained, prior violence and criminality are strongly
associated with the postdischarge violent behavior of psychiatric patients.” Id. at 47.
159. Id. at 90.
160. MACARTHUR SUMMARY, supra note 142.
161. MONAHAN ET AL., supra note 132, at 93; John Monahan et al., Developing a Clinically Useful
Actuarial Tool for Assessing Violence Risk, 176 BRIT. J. PSYCHIATRY 312, 312 (2000).
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classified as having either a high likelihood of committing a violent act or a low
likelihood of committing a violent act.162 This approach differs from the
traditional approach to actuarial risk assessment, in which everyone responds to
the same set of questions and is classified as high risk or low risk based on a
handful of factors.163
For example, consider an individual with psychopathy. Under a traditional
risk-assessment system, that individual might be deemed as having a 36%
likelihood of being prone to violence.164 However, an iterative tree would first
examine whether an individual had psychopathy.165 Then, based on the answer
to that question, it would consider whether the individual abused alcohol or
drugs.166 If the individual answered “yes,” it would then consider whether the
individual had attempted suicide.167 Finally, if the individual answered “no” to
the question of suicide, it would then consider whether the individual had been
abused as a child.168
The result of the questions might be a determination that an individual with
psychopathy, alcohol and drug abuse, no suicide attempt, and a history of
childhood abuse would have a 58% chance of committing a violent act within
twenty weeks.169 Thus, the iterative classification tree allows researchers to
combine risk factors to create a more detailed, individualized risk-assessment
scheme.170
The MacArthur Study, in both its scope and its results, demonstrates significant progress in the field of violence risk assessment. However, it also shows
the uncertainties and doubts that remain in the field of violence prediction
among the mentally ill. First, the MacArthur Study’s strongest predictive tools—
iterative classification trees—only examined the probability of violence up to
twenty weeks after discharge.171 The Study confirmed the limits of long-term
violence prediction, reaffirming the APA’s longstanding position that long-term
predictions of violence among the mentally ill are notoriously inaccurate.172
Second, the Study itself acknowledges one certainty: human nature is too
complicated to reduce to a single cause or causes of violence.173 The researchers concluded that “the complexity of human behavior has thus far frustrated
these attempts to find unitary causes of and solutions to violence.”174 They also
162.
163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.
174.
See MONAHAN ET AL., supra note 132, at 93.
See id. 93–95.
See id. at 100 fig.5.2.
See id.
See id.
See id.
See id.
Cf. id.
See id. at 126–27.
Id. at 127.
APA Barefoot Brief, supra note 133, at 14.
MONAHAN ET AL., supra note 132, at 142–43.
Id. at 142.
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emphasized the uncertainty left even by the most complex iterative classification trees:
Our data are most consistent with the view that the propensity for violence is
the result of the accumulation of risk factors, no one of which is either
necessary or sufficient for a person to behave aggressively toward others.
People will be violent by virtue of the presence of different sets of risk
factors. There is no single path in a person’s life that leads to an act of
violence.175
Thus, taken as a whole, the MacArthur Study demonstrates that while the
field of violence risk assessment is improving, it is still too new and uncertain to
be treated as a reliable predictor of whether many mentally ill individuals will
commit another act of violence.
III. DEFINING DANGER
This Note has examined the consequences of the Court’s failure to define
danger and explained how recent research suggests that violence risk assessment of the mentally ill will produce significant numbers of false positives—
incorrect detentions of individuals who would not have committed any harm
had they been free. This Part will examine the normative justifications for
preventive detention and explore how preventive-detention schemes could be
better crafted to reflect those justifications. First, it will briefly describe the
utilitarian justification for preventive detention and the substantive principles
that undergird the Court’s procedural protections. Then, it will explain why a
definition of danger should include both the likelihood of a potential harm and
the seriousness of a potential harm. Finally, it will draw from the Hand Formula
in tort law to argue that preventive detention should only be justified when, at a
minimum, its potential benefits outweigh its potential costs.
A. THE UTILITARIAN JUSTIFICATION FOR PREVENTIVE DETENTION
Preventive detention is usually justified on utilitarian grounds.176 Preventive
detention, such as civil commitment, is not “punitive.”177 Instead, scholars like
Stephen Morse argue that it is best understood as a type of societal selfdefense.178 Under this conception of preventive detention, it is a “forwardlooking form of legal regulation that aims to prevent future harm . . . .”179 Any
175. Id. (emphasis added).
176. See, e.g., Stephen J. Morse, Preventive Confinement of Dangerous Offenders, 32 J.L. MED. &
ETHICS 56, 158 (2004).
177. E.g., David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97
CALIF. L. REV. 693, 695–97 (2009).
178. See Stephen J. Morse, Blame and Danger: An Essay on Preventive Detention, 76 B.U. L. REV.
113, 116 (1996).
179. Id.
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system of preventive detention will likely produce some false positives.180
Therefore, a utilitarian justification requires a cost–benefit analysis of preventivedetention schemes to determine whether the costs of incorrectly depriving
individuals of their liberty outweigh the benefits of preventing future harm.181
The Court’s continuing failure to perform such an analysis and provide some
definition of danger and its reasoning in Patterson v. New York suggest that the
Court is conflating state justifications for preventative detention with state
justifications for criminality.182 In Patterson, the Court held that a state could
require a defendant to prove an affirmative defense by a preponderance of the
evidence without violating the Due Process Clause.183 In its decision, the Court
suggested that states retained legislative freedom to define the elements of a
crime as they saw fit184 unless they offended “some principle of justice so
rooted in the traditions and conscience of our people as to be ranked as
fundamental.”185 In Foucha, the Court cited Patterson for “the general rule that
the definition of both crimes and defenses is a matter of state law . . . .”186 This
line of reasoning suggests that states should have freedom to define danger just
as they have freedom to define criminality as long as they do not violate a
fundamental principle of justice.
This argument is unsatisfactory for several reasons. First, it ignores a critical
distinction between the civil and the criminal law. Civil law, unlike the criminal
law, is not punitive in nature. The purpose of civil commitment is to prevent
some future harm rather than to punish a prior act.187 When legislatures pass
preventive-detention statutes, they are not defining elements of a conduct that
society has deemed worthy of punishment; instead, they are describing whether
the probability that an individual will perform a harmful act in the future
justifies depriving him of his liberty.188 Thus, the Court’s enumeration of
procedural guidelines is necessarily based on substantive considerations of the
probability and seriousness of future harm that justifies preventive detention.
Second, some scholars have argued that it is incorrect to interpret Winship
and Patterson as the Court’s approval of purely procedural protections that
180. Id. at 118.
181. Id. at 118–19. Some scholars have suggested normative justifications for preventive detention
that have ontological roots. For example, Slobogin argues that preventive detention should be applied to
dangerous persons who are not deterred by criminal punishment and have thus lost their right to be
punished. See Slobogin, supra note 6, at 4. Yet, such a distinction does not make sense because it could
be applied to many criminals subject to the traditional criminal justice system. After all, many
murderers are not deterred by the traditional criminal punishment because they believe they will not be
caught.
182. 432 U.S. 197, 210–11 (1977).
183. Id.
184. See id. at 202.
185. Id. (quoting Speiser v. Randall, 357 U.S. 513, 523 (1958)).
186. Foucha v. Louisiana, 504 U.S. 71, 96 (1992) (citing Patterson, 432 U.S. at 210).
187. See, e.g., United States v. Salerno, 481 U.S. 739, 747 (1987).
188. See id.
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otherwise give legislatures broad leeway to define the elements of a crime.189
Jeffries and Stephan argue that “[a] normative principle for protecting the
‘innocent’ must take into account not only the certainty with which facts are
established but also the selection of facts to be proved.”190 Under their interpretation, Winship and Patterson suggest procedural “prerequisites essential for
imposing liability along with a required proportionate relationship between the
wrong done and the punishment authorized.”191
This scholarship, in addition to the reasoning behind the Court’s establishment of procedural protections, suggests that substantive considerations underpin the Court’s procedural protections for civil commitment. These substantive
considerations suggest that there has to be some relationship between the danger
feared and the type of civil commitment imposed. Indeed, the problem of
proportionality is amplified for civil commitment. Given that civil commitment
is preventive rather than punitive in nature, legislators should be under a similar
restriction to tailor their definitions of danger to reflect the harm they are trying
to prevent. As the next section will explain, the Court has to define danger so
legislatures can tabulate the costs of their preventive detention schemes and
perform a cost–benefit analysis.
B. THE CRITERIA FOR DANGER
The definition of danger necessarily includes two factors: the probability of a
harm and the seriousness of a harm.192 If detention schemes do not have to be
proportionally related to the harm they are trying to prevent, then legislators
could be given free rein to detain the mentally ill solely for the status of being
mentally ill. Yet the Court has explicitly stated such a detention scheme is
unconstitutional.193 Such a result exemplifies the essential problem of leaving
danger undefined in civil commitment: legislatures cannot tailor proportional
schemes because they do not know what they are trying to prevent.
A definition of danger has to take into account the probability that a feared
harm will take place.194 Albert Alschuler has argued that any analysis of
predictions used as the basis for preventive detention should examine the ratio
of “true positives” to “false positives.”195 Alschuler states that the reason for
189. See Jeffries & Stephan, supra note 13, at 1344–46.
190. Id. at 1347.
191. Id. at 1365 (emphasis added). In Patterson, the Court hinted at these substantive considerations
when it stated that “there are obviously constitutional limits beyond which the States may not go in this
regard.” Patterson, 432 U.S. at 210. The Court made this statement in suggesting that a state could not,
for example, presume a defendant was guilty. Id. But Jeffries and Stephan argue that the statement also
indicates the Court’s recognition that the case involved underlying substantive as well as procedural
issues. See Jeffries & Stephan, supra note 13, at 1365.
192. See, e.g., Albert W. Alschuler, Preventive Pretrial Detention and the Failure of InterestBalancing Approaches to Due Process, 85 MICH. L. REV. 510, 540 (1986); Morse, supra note 176, at 69.
193. O’Connor v. Donaldson, 422 U.S. 563, 573–75 (1975).
194. Alschuler, supra note 192.
195. See id.
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this determination is that “[o]nly a ‘true positive’ prediction can prevent a
crime; only a ‘false positive’ prediction can lead to incarceration that in fact
serves no incapacitative purpose.”196 Thus, performing a cost–benefit analysis
necessitates establishing some acceptable measurement of the number of false
positives society is willing to accept to prevent harm.
A definition of danger should also include a second factor: the seriousness of
a potential harm. It makes little normative sense to treat all harms the same,
regardless of whether they are serious, like murder, or minor, like petty shoplifting. Some scholars, like Morse, even suggest that preventive detention should
be used only to prevent serious harms.197 Morse has stated that preventive
detention could be justified “[i]f the potential harm were grave enough, if the
prediction technology were good enough, if the preventive response were
maximally humane and minimally intrusive under the circumstances, and if the
preventive action were preceded by adequate due process . . . .”198 Others, such
as Slobogin, argue that the ratio of false positives to false negatives should vary
in relation to the harm feared.199 This legal scholarship mirrors the distinction in
criminal law sentences for minor crimes and serious crimes.
Therefore, danger can be defined as the seriousness of a potential harm and
the probability of a potential harm. This definition provides legislatures guidance in weighing whether the harm of the danger they are trying to prevent
justifies the incorrect preventive detentions—false positives—likely to result in
any significant new scheme.
C. APPLYING THE HAND FORMULA TO A DEFINITION OF DANGER
After defining danger, the Court should also provide some guidance on how
to weigh the harm caused by an incorrect preventive detention against the threat
of a potential harm. In 1947, Judge Billings Learned Hand created a formula to
measure whether an individual had breached his duty of care in a tort case.200
Hand’s formula states that we should compare the burden of a precaution (B)
against the probability of harm (P) multiplied by the seriousness of the harm, or
cost of a false negative (L).201 An individual would breach his duty if P*L was
greater than B.202
A similar cost–benefit formula can be adapted to the task of measuring
whether the preventive detention of an individual is justified. In this modified
Hand formula, we would take the probability of violence, P, multiply it against
196. Id. Whereas Alschuler focuses on the ratio of true positives to false positives, this Note
generally focuses on the ratio of false positives to false negatives to mirror Blackstone’s ratio for the
purpose of analytical consistency. The specifics can vary, but any measurement of the cost of preventive
detention has to account for the false positives any system will produce.
197. See Morse, supra note 176, at 69.
198. Id. (emphasis added).
199. See Slobogin, supra note 6, at 4.
200. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
201. Id.
202. Id.
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the seriousness of the harm by a false negative, L, and divide the result by T, the
time period over which we are predicting violence (I assume that the time
period is constant for the sake of simplicity). We would compare PL/T with D,
the cost of depriving an individual of his liberty. The preventive detention of an
individual would be justified only where PL/T is greater than D.
The results of the MacArthur Study suggest that the P will be low in cases
involving long-term preventive detention.203 According to the study, long-term
risk assessments of violence may still contain large numbers of false positives.204 Moreover, while some short-term iterative classification-tree methods
can produce some relatively accurate predictions, even they can still produce
significant numbers of false positives.205 Finally, the MacArthur researchers
defined violence somewhat broadly to include cases of battery.206 If they had
limited their predictions to crimes with low base rates, such as murder or sexual
assault, the predictive rates of even their best iterative classification trees would
have likely been significantly lower.207
This uncertainty suggests that we should discount the P, or probability of a
harm, to a small value in many cases of violence risk assessment because the
chances of obtaining an accurate prediction will often be relatively low.208
Regardless of whether we compare false positives and true positives or false
positives and false negatives, P is likely to be small. Under this analysis, it
appears that preventive detention would only be justified when the L in the
formula—the seriousness of the harm by a false negative—is quite large,
perhaps even at the level of serious bodily injury or death to an individual or
others. In other words, one way to interpret the MacArthur Study is to argue
that it demonstrates that we should resort to preventive detention only in serious
cases because violence risk assessment still contains a great deal of uncertainty.
A second possibility would be to apply preventive detention to a wide range
of harms. Under this scenario, P would likely be higher because it would apply
to crimes with higher base rates than murder or sexual assault. However, L
would be lower. To reduce the cost of preventive detention, D, we could
improve the actual conditions of preventive detention or vary the ratio of false
positives to false negatives (or true positives) that would be acceptable by the
degree of the harm feared. We could, for example, accept a much higher ratio of
false positives to false negatives to prevent a murder than to prevent shoplifting.
Taken together, the Court’s reasoning, as well as the utilitarian justifications
for preventive detention, suggest that, at a minimum, preventive detention
should be imposed only when the potential danger, which includes both the
probability of harm and the seriousness of harm, outweighs the harm caused by
203.
204.
205.
206.
207.
208.
See MONAHAN ET AL., supra note 132, at 142–43.
See id.
See id.
See supra note 142 and accompanying text.
See supra section II.B.
See supra section II.B.
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an incorrect preventive detention. With this minimum baseline and rubric,
legislators will begin acknowledging the costs of new preventive-detention
schemes. Without such a guide, however, legislators will be able to continue
creating new preventive-detention schemes that threaten to turn civil commitment into the norm rather than an exception. This type of ad hoc expansion of
civil commitment carries a terrible cost. Society will remain unclear on the
normative prices of new preventive-detention schemes. Are they approving
schemes that permit imprisonment only to prevent serious crimes because they
do not want to detain large numbers of false positives? Or are they content to
approve preventive detention for minor offenses even if their new schemes
capture large numbers of false positives? As described in Part I, the Court has
not delved into such normative questions. If it keeps ignoring them, the real
costs of preventive detention will remain hidden.
CONCLUSION
This Note hopes to provoke discussion of an important factor in evaluating
preventive detention, especially in the context of civil confinement of the
mentally ill: the definition of danger. This debate should determine the seriousness of harms that we want to prevent, the likelihood that the harms will occur,
and the acceptable costs of incorrectly detaining individuals to prevent those
feared harms. The Court’s avoidance of these important questions carries a
terrible price: it leaves legislators and lower courts unable to measure the costs
or effectiveness of new preventive detention schemes. Without such an accounting, the list of preventive-detention “exceptions” is likely to grow without
serious discussion of the consequences. A good-faith attempt to establish the
true costs and benefits of preventive detention may not stem this expansion, but
it will make clear the price we are willing to pay in liberty to assure ourselves
we may have prevented a potential harm.