Dangerous People?

One of the striking facts about the Virginia Tech shootings was how predictable the murderer’s identity was. The authorities knew long before his rampage that Cho Seung-Hui was not merely “troubled,” but dangerous. A court had ruled two years previously that he posed an “imminent danger to himself as a result of mental illness.” As a result, he was civilly committed to an outpatient mental-health clinic. He checked out the next day, however, without being effectively treated.

In the wake of the shootings, many commentators have decried the gradual decline in involuntary commitment to mental health facilities. The courts, so the thinking goes, should have been more aggressive, and should have committed Cho to an inpatient facility, and not released him until he was judged to be no longer dangerous. But this sort of confinement poses awkward questions. The mentally ill are confined — locked up — not because they have done anything wrong, but because they might be dangerous in the future.

Sun Podcast: A podcast is available for this column. Click here [1] to listen to or to download it.To lock people up, not because they are criminals, but because they are dangerous, subverts many of our normal notions of due process. To go free, a criminal defendant needs to rebut a factual allegation; he needs to show that he didn’t commit a particular act. A prisoner confined for being dangerous, however, is in a much more precarious position. “Danger” cannot be proven beyond a reasonable doubt to a jury of laymen, but can only be assessed by expert judgment.

To avoid making such judgments, American civil law does not have a general category of “dangerous persons” other than the mentally ill. Sane individuals can normally be imprisoned only after a criminal conviction, for a crime they have already committed. Civil confinement, as it is called, is restricted to those judged to be “mentally abnormal.”

This category, in addition to violent psychotics and the like, includes repeat sex offenders, a group that society has become increasingly eager to keep off the streets. Many states now allow the government to confine serious sex offenders even after they have served their criminal sentence. Proponents of such “civil confinement” laws argue that these individuals have so strong a compulsion to sexually abuse others that it would be dangerous to release them, and that so long as they are a menace, they should be confined.

Enemy prisoners in wartime are yet another class of prisoners, held not as criminals, but as menaces. Unlike the mentally ill, they are held outside of the ordinary legal system entirely. The United States is currently holding hundreds of prisoners at Guantanamo Bay, and many others at detention sites in Afghanistan, Iraq and elsewhere. These detainees are not criminals, and often can be charged with no crimes, since American civilian courts do not have jurisdiction over acts committed by foreign nationals outside the United States. Altering the law to cover such cases is an unattractive option. Scooping up foreigners, and trying them before American civilian courts, for acts that were legal when and where they were committed, is a precedent that the government is rightly loathe to set.

Non-judicial detention is absolutely necessary. School shootings and suicide bombings have this in common: the perpetrators do not expect to survive, are prepared to go to great lengths to kill others and cannot be deterred. The normal criminal justice system is not designed or equipped to stop such acts. Stopping such acts requires preemptive confinement.

But on what terms should so extraordinary a confinement be imposed? There is a striking parallelism between the military’s procedures for detaining enemy combatants, and our civil responses to mental illness. These parallels may help us understand each case by reference to the other.

In many states, the mentally ill can be confined after an administrative hearing, with no jury. The standard of proof is generally “clear and convincing evidence,” not the proof beyond a reasonable doubt required for criminal conviction. Likewise, terror detainees are evaluated by military review boards, not civil juries. The standard of proof required to hold prisoners at Guantanamo is not precisely defined, but prisoners are routinely released as “no longer dangerous.” Locking people away and forgetting them is, of course, abhorrent, and both the mentally ill and terror detainees, are reevaluated on a yearly or bi-yearly basis.

Preemptive confinement, while necessary, must not be overused, and the courts have created a number of limitations on its use domestically. Only the “mentally abnormal” may be confined, and only if they pose a substantial risk. Similarly, detention in wartime is constrained by the scope of the war. The prisoners held at Guantanamo are in our custody either because a government with jurisdiction over them turned them over, or because they were seized in an area of active combat operations. The U.S. does not have a general legal right to take prisoners from the soil of the United States or friendly powers.

The procedures appropriate for the mentally abnormal are obviously different from those suitable for handling enemy combatants in wartime. The threats posed by the two groups and our legal obligations to each are very different. In both cases, though, the normal mechanisms of reactive justice are insufficient, and society has a compelling interest in confining them, not as punishment, but as prevention. Likewise in both cases, we must balance the risk posed by a dangerous individual versus the rights of that individual, and the risk of confining the innocent.

There is no guarantee that a court would have found Cho to be “abnormal,” or that harmless individuals will not be confined. Consequently, we owe ourselves, and our prisoners, a clear account as to when this sort of confinement is appropriate, and what standards of proof apply. We owe it to society to do our utmost to protect the innocent from those who, either from illness or malice, would do them harm.

Ari Rabkin is a graduate student in Computer Science. He can be contacted at asr32­@­c­o­r­n­ell.edu. Between the Lines appears Thursdays.