Preventive Detention: Process, Reasons and Benefits

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Table of Contents

Introduction
Preventive Detention Procedure
Preventive Detention in India
Preventive Detention in New Zealand and Germany
Preventive Detention in the United States of America
How Prevention Detainees Are Recognized
Conclusion
Reference List

Introduction

Crimes are as old as a human race. To maintain social justice and ensure that the entire population is safe, governments maintain a criminal justice system. One form of crime is personification for personal gain. This is a criminal offense and the court should punish the offender, however, before imposing a sentence a judge must consider some factors to ensure that the sentencing given is just and meets its intended purpose.

In criminal justice management, there are times that a person (referred to as a suspect) may be detained under the control of the police/ criminal justice system not because he has been proved to have committed a crime but because of the perceived likelihood that he/she is a menace to the society. The general rule is that there should be nobody who is imprisoned without having been proved to have committed a certain crime or being aware of the reason which has led to his arrest.

However, there are times of public interest or for surveillance programs that this rule may be overlooked. When a person is arrested and detained in state custody without having committed an offense but as a deterrent of a perceived likelihood of offense commitment, then this is called Preventive detention (Stephen, 2009). This paper looks into the Preventive detention process; some reasons as to why this is done and the benefits of such a law in a country’s crime management policy.

Preventive Detention Procedure

Different countries have different criminal justice system and there is one way of crime management in different countries. The same happens to preventive detention. The approach is different in various countries. However, following are the common characteristics of a preventive procedure;

The suspect is detained without being informed of the reason for his detention
At the prevention detention period investigations are undertaken by police and the detained cannot be represented by a lawyer
One has limited prisoner’s rights
Whatever the suspect says can be used against him in trial case
Formal crime procedure is limited to police investigations (Fagan & Guggenheim, 1996).

The following are the rights that a suspect is denied;

Right to Warrant of Arrest and Reason of Arrest

The detainee is denied the right to demand an arrest warrant from the arresting party. There are exemptions to this rule in cases of national/ jurisdiction warrant. After the offender is satisfied that the arresting officer is legitimized to undertake the arrest then he has the right to know why he has been arrested.

Right to Address One Testimony

In hearing (when still under detainee terms) a detainee does not have the right to speak on his behalf proving whether he committed the alleged crime or not. He is allowed to present documentary evidence to prove his case, however any information that he gives can be used against him in court. He has the right to keep quiet though.

Right to a Witness

The detainee has no right to have a witness who testifies in the case. The witness is only interrogated separately by the investigating team to ascertain whether the information he is giving in court is consistent and applicable in the particular case. Some witnesses are not admissible in court.

Right to Interrogate

A detainee has no right to interrogate any person who is witnessing in the case. This is mostly one who is witnessing against the offender. In case there is risk in such an interrogation, the prosecutor may grant a detainee this right.

Right to Fair Hearing and Appeal (This is Right after Detention Period)

An offender has the right to be tested and proven guilt in a formal court that administers the kind and level of crime that he has committed. During hearing all sides of the case should be listened to and decisions made according to the law of a county or precedent case applicable.

In cases where the offender feels that he has not been treated in the right way, he has the right to appeal. Appealing take a formal process prescribed by a country’s laws. It is restricted in terms of time of making one, the court that can hear it among other individual country restrictions (Bolick, 1997).

These rights empower the offender in ensuring that he has been treated in the right way and given a chance to give his case out.

Different countries allow such a detention in diverse circumstances, for example in case of treason threats, disease outbreaks or terrorists attack threats. People targeted mostly formerly imprisoned people, people who are known to be threats or results of a surveillance exercise.

There are generally two forms of preventive detention which are;

Preventive detention to avoid a perceived crime
Preventive detention to sick personalities, for instance, the case of contagious diseases; this sometimes is not regarded as a preventive deterrent since it is done for treatment purposes.

Under normal circumstances, after the suspect has been found guilty, he /she is handed over to the correction department. The department is responsible for probation, parole, and custodial functions. Custodial functions are administered by the prisons where the offenders are denied freedom of movement thus hindering them from committing further crimes. The prisons have the goal of ensuring that the offenders are reformed and given skills that will assist them in integrating into society again. Probation is limiting the movement of the offender without actually placing them in prison. It gives the law enforcer a close monitoring of the offender; there are some restrictions that the offender is supposed to follow during this period. Parole is the release of an offender before the end of a jail term but with more strict restrictions than in cases of probation (Anon, 2007).

Preventive Detention in India

The constitution of India recognizes that there are some crimes that may require preventive detention. It provides that the police have the power to keep a person under these terms for a period as long as three months. When investigating a case, according to the constitution, if the police are faced with a situation that they feel that the available evidence may be distorted or have prior belief that the area that they are to search has the required evidence then they are allowed to go ahead and search. On the other hand, if a person consents to be searched, then he can be searched without a warrant. Police are the first contact that a suspect has.

They are the ones who investigate the wrongdoing and make arrests. When they come into contact with a scene of crime, they are supposed to correct all the evidence that can support a case in a court of law. When warranted, they are allowed to use force and other legal coercion in their efforts to keep peace and order they interrogate the suspect and advise the court on the proceeding of the case.

After the end of three months, the suspect is allowed to enjoy all the rights of an accused person. He can even bring a lawyer to challenge the decision made to detain him. This right is given in fundamental rights and freedom in India’s Constitution.

Preventive Detention in New Zealand and Germany

New Zealand and Germany have a similar take on deterrent detention where it is prescribed by a competent judge to a person who is thought to be dangerous if he was to be released to the people. In most cases this happens to murderers, rapists, those who have attempted treason as recidivist pedophiles. They have a minimum period that one can be detained under such terms which is five years but a judge can extend this to lifetime. The major difference with the trend in New Zealand, Germany and that in India is that in New Zealand and Germany it is the court that determines the prevention whereas in India it is affected before someone is aligned in court. It is done during the time of investigation.

Courts are the place that disputes are settled and justice administered. They involve public offices which are trial and appellate courts, prosecution and public defender offices. There is also the participation of the private sector when the suspect is represented by a private lawyer. After the case has been heard by a judge, the suspect is allowed to defend himself as well as produce any evidence and/or witnesses to support his/her defense.

The prosecutor represents the state; he is the one to prove that the suspect indeed committed the crime. The victim of the criminal acts as a witness in the case a crime is against the state and not the victim. The prosecutor may have to produce witnesses and any evidence that was collected from the scene of crime to support a case. After the court has found the suspect guilty, there are various ways of punishing the offender; they include monetary fines, probation sentencing, and imprisonment. The punishment will be based on the laws that govern the concerned country (Turner, 2007). The offender has the right to object to the decision of the court by filing an appeal within the stipulated time according to the laws of the country.

Preventive Detention in the United States of America

Increased advocacy for human rights in United States of America has led to high recognition and respect of human rights. Sixth Amendment to the United States Constitution of the country’s constitution grants its citizens the right to speedy prosecuting. It is seen that it is the right of a person to be tried in court in the soonest period possible. The structure of the country’s constitution does not seem to support detention and it is in the same spirit that there are moves to close down Guantanamo prison.

However, Megan’s law is seen as another fashion of preventive detention although the suspect is not retained in police custody. Megan’s law is a law in the United States of America that aims at disclosing a sexual offender’s information to designated places for the public to see and have the information. The places are those that can be assessed freely by the people of the nation (Levenson & Cotter, 2005). The information that is disclosed to the public is controlled, it may include the photo of the culprit, the physical address or/and his physical direction: the areas may be in newspapers, public places, and government websites.

A recent case was found on April 29, 2010, the New York Times reported a case that was unfolding about sexual abuse of children by the priests in the Catholic Church (Bennhold, 2010 April 26). The media was the one that gave the situations of the case. In this instance, the newspaper article writer condemned the act and asked the pope to react to it. In the same spirit, the pope got the pressure from the media and on May 11, 2010 an article in the same newspaper gave the proceeds of the case and the pope came out clear condemning the act. The media here is the one that did give the church the pressure to admit the act. By doing this, the solution to the vice is seen from the efforts of the media.

How Prevention Detainees Are Recognized

Use of Previous Information

When a person has been arrested, there is some data that is left with the police. This is mostly done if someone has been arrested in connection to a serious crime. In all countries there has been a fresh training of police officers different from the traditional one where emphasis is now put on surveillance and information gathering. Surveillance will involve the use of an information database that interpolates the situation and offer information about a likelihood of a risk. After the information is gathered, it is interpolated to predict the occurrence of a crime in a particular area.

Before the crime has occurred, there is some information available that can be interpolated and prevent the occurrence of the crime before it has actually happened. To fight crime, law enforcers are not waiting for a crime to happen so as they can react, but they are putting on surveillance measures to predict the occurrence of crime and curb it before it is too late. The use of computers has also assisted in a great deal where they are used to collect data, interpolate it, and make sense out of it. This assists enforcers to make sound decisions.

Intelligent Information

This occurs mostly when the police have a tip-off that a certain person is likely to cause a crime. When this happens they may weigh options and detain the person before the said crime is done. Different governments have deployed crime experts in and outside their boundaries. These are supposed to collect data and gather intelligence. The crime experts are not permanently stationed in a certain country but can be deployed somewhere in case of any available intelligence. It is also important to recognize the effort that the country has embarked on in training the immigration officers on the need to protect the boundaries against the entry of terrorists. These involve the CID, FBI among others.

Community policing is another source of information; this is where the police and the community jointly put on measures that are aimed at solving crime in their area. It involves the public offering the police information that they require in the fighting of crime. When an offender is released from prison, the public is given undefined role to ensure that the behavior of the offender is checked after release. At the same time it focuses on ensuring that the public assists the released offender to integrate into the society again (Head, 2005).

Advantages of Preventive Deterrent

The method offers a pre-occurrence crime-fighting mechanism. With advanced crime-fighting mechanisms; there will be increased security in the countries and the world at large. The crime rate will go down and justice administered in the correct way at the right time. When rate of crime has reduced, investors will get confidence in certain countries and invest in them. The result is an improved economy that can feed its population. A secure place is good for business both local and international. The government expenditure on crime can be used for other purposes. Sentencing is a form of punishment that is aimed at retribution, incapacitation, deterrence, rehabilitation, and restitution.

It results in retribution; this is ensuring that vengeance has been done. The offender should be made to pay for all damages that the victim underwent. He should also remain behind bars for a period that is proportional to the “weight” of the crime.
It incapacitates a potential offender; this means that offender’s freedom of movement is limited. This will assist as a punishment and as a way to stop another such crime that the offender may have been planning. I will ensure that the accused will spend some time in prison.
It deters occurrence of a crime; a sentence is supposed to deter occurrence of a future crime. To do this I will give a sentence that is long enough to make the offender feel the pain and one that the general public will find stiff; this is off-course in consideration of the case at hand.
It rehabilitates; sentencing is aimed to change the behavior of an offender; to do this I will ensure that I subscribe some counseling lessons to the offender as he serves his jail term.
When well administered it is a good Restitution route; after a sentencing period, the offender has to get back to society. To be able to integrate back again in the right way, I would recommend that counseling be given to the sentenced and general education to the public.

Disadvantage

The method takes effect before a crime has taken place; this may result in imprisonment of an innocent person. This is seen as a violation of human rights which requires somebody to be imprisoned if he has actually committed a crime.

Information can sometimes be altered to misguide police who will result in arresting people who have not committed a crime. The move is mere speculation and can injure the citizens of a country.

Conclusion

When a person is arrested and retained in state custody, without having committed an offense but as a deterrent of a perceived likelihood of offense commitment, then this is called Preventive detention. Criminal justice administration is a way of convicting a criminal. It starts with the investigation by the police and ends with punishing the offender. It is administered to enforce the concerned country’s criminal laws.

The system should be transparent as well as by the law to ensure that no innocent person will be convicted and all offenders face the law. In some special cases, the normal process of criminal justice is ignored for the benefit of society. This is when preventive deterrence comes into place. It assists in preventing the occurrence of a crime and is thus a better preventive method than prosecuting offenders.

Reference List

Anon. (2007). Preventive Detention. Time International (Canada Edition), 169(23), 13.

Bennhold, K. (2010). Future Pope’s Complex Role in Abuse Case in Austria. New York Times.

Bolick, C. (1997). Civil Rights and the Criminal Justice System. Harvard Journal of Law & Public Policy, 20(2), 391.

Fagan J., & Guggenheim, M.1996). Preventative Detention and the Judicial Prediction of Dangerousness for Juveniles: A Natural Experiment. Journal of Criminal Law and Criminology 86.2: 415-448.

Head, M. (2005). Detention and the Anti-Terrorism Legislation. University of Western Sydney Law Review 9: 1. Web.

Levenson, S. J., & Cotter P. L. (2005). The Effect of Megan’s Law on Sex Offender Reintegration. Journal of Contemporary Criminal Justice 21 (1): 49–66.

Stephen, L. (2009). Proposed executive order on preventive detention: holes in the story. The Examiner.

Turner, C. (2007). Ethical Issues in Criminal Justice Administration. American Jails, 20(6), 51.

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