Preventive Detention in Europe and the United States

Abstract

Preventive detention, both within the criminal justice system and outside it (e.g. commitment, quarantine and wartime confinement), is under-theorized. The European Court of Human Rights has recently issued a spate of opinions that begin to deal seriously with the issue, in a more sophisticated manner than American courts have. This paper describes the European decisions, especially the European Court's decision in M. v. Germany, compares those decisions to American and Australian law on preventive detention, and discusses how principles I have developed in other work can further the analysis.