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Friday, October 04, 2013

Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness

For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.  

I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)

Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.

 Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).

Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells.  Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!)  pace my friend Adam Kolber in Against Proportional Punishment).

When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by  the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.

Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).

This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of  folks, e.g., the sexually violent  predator types in Kansas v. Hendricks.  I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).

To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.

And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise.  Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.

Posted by Dan Markel on October 4, 2013 at 03:29 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel | Permalink

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