Preventive Detention and the Democratic State tracks the transformation of preventive detention from an emergency measure into an ordinary law enforcement tool in the democratic world. Historically, democracies used preventive detention only in the extraordinary circumstance in which the criminal justice system was impotent. They preferred criminal prosecution and its strict due process requirements to detaining people for a crime they may never commit. This book shows that major democracies have begun using detention as an insurance policy against dangerous people. In the process, they have embarked on a slippery slope that allows them to use preventive detention to bypass the criminal justice system. Already, detention has established a separate, inferior legal system for certain suspected criminals. Comparing preventive detention in India, England and the United States, the book brings to light its potentially dire consequences for the rule of law, due process rights and democratic principles based on the very real experiences of these countries.

In any society some people pose a risk to others. For hundreds of years preventive detention has been authorised by governments to ensure people are available for criminal proceedings (e.g. remand), in the mental health area, for quarantine, for inebriates, enemy aliens and sexual predators. This book asks and answers some of the fundamental questions about these regimes.

Preventive detention law is a subject which continues to receive great international attention. In recent years the legal rights of detainees have been more and more frequently litigated, and significant new approaches have been developed.

Predictive Sentencing addresses the role of risk assessment in contemporary sentencing practices. Predictive sentencing has become so deeply ingrained in Western criminal justice decision-making that despite early ethical discussions about selective incapacitation, it currently attracts little critique. Nor has it been subjected to a thorough normative and empirical scrutiny. This is problematic since much current policy and practice concerning risk predictions is inconsistent with mainstream theories of punishment. Moreover, predictive sentencing exacerbates discrimination and disparity in sentencing. Although structured risk assessments may have replaced 'gut feelings', and have now been systematically implemented in Western justice systems, the fundamental issues and questions that surround the use of risk assessment instruments at sentencing remain unresolved. This volume critically evaluates these issues and will be of great interest to scholars of criminal justice and criminology.

When can a person be detained by the state solely for the purpose of preventing future harm?It is widely accepted that an actor who is unable to avoid breaking the law because of a mental disorder may not be punished but may be detained for as long as he remains dangerous. But what about those who are not legally insane and who may be held responsible for their behavior? Is it ever permissible to detain them to prevent future harm?Once upon a time the negative answer to this question was also widely accepted:no one who is sane and responsible for his behavior may be detained solely on the ground that he was dangerous and might commit crimes in the future. He might be punished for his behavior, but he might not be detained independently of punishment. However, over the last thirty years the answer to the question has changed.It is now possible (1) to detain before trial solely on the basis of the possibility that the accused will commit the sort of crime he is accused of (but not yet convicted of); (2) in many jurisdictions to detain indefinitely after trial, conviction, and completion of the penal sentence sex offenders and those found guilty but mentally ill (though not legally insane); and (3) to detain indefinitely without trial and conviction those suspected of being terrorists or supporting terrorist activity.This book traces the development in Supreme Court cases and in national legislation of these various grounds of preventive detention, a course of development that the author believes is contrary to what were once considered fundamental principles of American law.

This book analyses the preventative confinement of suspected terrorists with regard to different models of counter-terrorism policy within the context of international human rights law. The book is written from a global perspective drawing on cases and practice from different jurisdictions including the US, the UK and Australia.