553621

research-article2014
CJBXXX10.1177/0093854814553621Criminal Justice and Behavior

Book Review

Keyzer, P. (Ed.). (2013). Preventive Detention: Asking the Fundamental Questions. Cambridge, UK:
Intersentia. 307 pp. ISBN 978-1-78068-117-7.

Preventive detention is an approach utilized by governments to attempt to manage “dangerous peo-

ple,” particularly terror suspects and sex offenders, and to prevent them from committing future
potential crimes. Traditionally, it was aimed at dealing with individuals with repeated serious offenses
and with severe mental health issues, but more recently, it has also been used to try and control indi-
viduals suspected of planning terrorist attacks. Preventive Detention: Asking the Fundamental
Questions (edited by Patrick Keyzer) questions the foundations for and implications of these types of
detention. It notes that increases in preventive detention create a risk that historic divisions between
criminal and civil law will become blurred and that guarantees for the protection of citizens and
rehabilitation opportunities of perpetrators will be harmed. The book discusses preventive detention
in its varying forms in countries across the globe, examines the theoretical underpinnings of the
approach, and considers its consistency with international human rights. In doing so, it brings
together contributions of respected international experts with the aim of guiding lawmakers, policy-
makers, and academics in the area of penal and public policy.
The book contains 12 chapters from 15 authors. The editor starts by outlining the four types of
preventive detention that can be identified, which include the following: preventive detention in prison
ordered as part of a prison sentence; preventive detention in secure facilities that are not prisons; pre-
ventive detention that is said to be nonpunitive and for therapeutic objectives, but nevertheless takes
place in a prison; and control orders and supervision orders that incorporate detention and that have a
preventive objective (e.g., restrict the movements of suspected terrorists). The remainder of the book
covers a wide variety of examples of the types of preventive detention that have emerged over the last
decade.
In the second chapter, Vivien Stern describes the more recent worldwide expansion of the preven-
tive detention approach. For example, the United States has set the pace with the “three strikes and
you’re out” policy, and the approach of dealing with fellow citizens involved in crime as enemies
needing harsh punishment was further established after the terrorist attacks of 2001. The chapter
further deals with indeterminate sentences and how this leads to a growth of the prison population.
By 2010, England and Wales led Europe in locking up people on an indeterminate basis with nearly
24 people per 100,000 of the general population serving an indeterminate sentence, compared with
0.81 in France, 2.51 in the Netherlands, and 1.69 in Sweden (p. 21). “Control orders” are the second
area Stern considers, which as they were applied in the United Kingdom may include an 18-hr cur-
few, electronic tagging, restrictions on movements and phone/Internet access, and allowing the
police to enter the house at any time. She further illustrates the impact of control orders with the
example of Cerie Bullivant, whose “life had been wrecked” as a consequence of the application of a
control order.
Christopher Slobogin, in his chapter, develops a theory that attempts to account for new forms of
preventive detention. The concept of “undeterrability” is introduced to refer to situations in which
preventive detention would be justifiable. In some situations, a potential perpetrator cannot be
deterred, for example, because he suffers from serious mental disorders, is under orders to kill, or is
otherwise unaffected by the prospect of criminal penalties. In that case, the state’s interest in

CRIMINAL JUSTICE AND BEHAVIOR, 2015, Vol. 42, No. 2, February 2015, 237­–239.
DOI: 10.1177/0093854814553621
© 2014 International Association for Correctional and Forensic Psychology

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238  Criminal Justice and Behavior

protecting its citizens would outweigh the individual’s liberty, and this would permit noncriminal
confinement such as preventive detention. Yet, there are many situations in which “undeterrability”
is not relevant but preventive detention has been made available nevertheless.
The human rights framework is dealt with extensively by Kris Gledhill in his chapter. The author
pays specific attention to detention orders of criminal courts in England and Wales, as well as to
hospital orders and ancillary orders that restrict freedoms of those subject to them. Applicable provi-
sions and the case law of both the European Convention on Human Rights and the International
Covenant on Civil and Political Rights are discussed in the chapter.
In his chapter on preventive detention in New Zealand, Warren Brookbanks focuses on public
protection orders. Since 2004, New Zealand has had extended supervision orders, a form of execu-
tive control designed for pedophiles who, while having completed sentences of imprisonment, are
considered to present a high risk of further sexual offending against juveniles. Brookbanks concludes
that preventive detention is sparingly used in New Zealand. However, a new proposal, the Public
Safety (Public Protection Orders) Bill, goes significantly further in impugning fundamental rights
and freedoms. It permits the indefinite detention of offenders released at the end of a finite prison
sentence.
Indefinite preventive detention practices in Australia and Germany are dealt with by Brendan
Gogarty, Benedict Bartl, and Patrick Keyzer. Their chapter first reviews the historical use of indefi-
nite detention provisions in Germany, which were first introduced in 1933. The chapter also dis-
cusses the use of Australian preventive detention provisions. It then discusses the judgments of the
Human Rights bodies like the European Court of Human Rights (ECHR) and the United Nations
Human Rights Committee (UNHRC), and the trend they reveal in their decisions toward rehabilita-
tion and to oppose initiatives toward locking people up without giving them opportunities for
treatment.
Control orders as they are structured and being used in Australia are considered more in-depth by
Rebecca Welsh in her chapter. These orders are designed to restrict the movement and freedom of
association of people suspected of participating in planning to commit terror attacks. The author
concludes that the preventive detention paradigm is expanding from terrorism-related situations into
the broader criminal justice system, despite a lack of evidence for their effectiveness.
Ian Freckelton goes into a variety of decisions regarding Habeas Corpus, the common law prin-
ciple that no one shall be deprived of his liberty without a judgment by his peers or by the law of the
land. He concludes that habeas corpus actions remain the most effective form of assertion of rights
in case of unlawful detention. The author expresses his hopes that such jurisprudence will continue
to evolve internationally.
The next two chapters (by Ian Coyle and Robert Halon, and by Astrid Birgden) review the issue
of risk assessment that forms a constitutive element for the application of preventive detention.
Without a prediction of future danger, interventions such as preventive detention would not be justi-
fiable. Yet the question remains of how correct these risk assessments are. Numerous studies have
shown that statistical predictions of dangerousness (assessments of unacceptable risks) are more
often correct than clinical predictions are, and Birgden (p. 228) makes clear that purely clinical judg-
ments are accurate in only one third of all predictions. She concludes that despite issues with ethics
and psychological and psychiatric assessments of risk, prevention schemes are likely to remain in
Australia. Punishment through incapacitation is not against human rights, as long as it is reasonable
and for a finite period. Preventive schemes however break this rule, the author concludes.
Coyle and Halon in their contribution note a tendency to overestimate risks; false positives are
more easily accepted now than in earlier times. The consequences of incorrect assessments (not only
by experts but also by courts) may be that people who would not commit a wrong when they would
retain their freedom will increasingly be preventively detained or undergo other invasive interven-
tions. These findings should lead to concern, but such a concern seems largely absent at present as

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 BOOK REVIEW  239

appears from the chapters mentioned. The authors warn for conflating the risk of recidivism with the
consequences or gravity of harm that might flow from such recidivism.
Andrew Coyle discusses prisons, the aims they serve and the restriction of freedoms they cause.
What is the justification for the use of imprisonment? What is it intended to achieve and of what
should it consist? This chapter attempts to answer and to provide a theoretical basis for these ques-
tions. The author does so out of his own experience as a governor of various prisons, including the
infamous the Peterhead Prison in Scotland. Important purposes of imprisonment are discussed, such
as to punish the offender, deterrence, reform, and public protection. Prison terms lead to the loss of a
number of other rights in the domain of family life, so the author argues. The author concludes that
the deprivation of liberty that is at the core of imprisonment is per se a punishment.
Loughnan and Selchow in their contribution discuss the wide proliferation of preventive detention
regimes. Their chapter intends to make the reader aware of the sociopolitical complexity of preven-
tive detention. They identify several relevant aspects of the rationality of prevention, the technology
of “risk,” and the essential dimensions of the practice of security. They emphasize the nature of
expansion that seems inherent to this type of prevention; it is not tamed or limited. Their conclusion
is that a discussion on preventive detention must be embedded in a public debate about the future of
society.
The most worrying message that emerges from the book is that there seems to be no end to the
ways that can be developed to restrict people in their movements, to lock them up, or to control them.
Over the recent decades, countries across the world have witnessed a marked expansion of the ratio-
nality of prevention. This book provides a fascinating perspective on the past, present, and future of
such preventive detention schemes—a topic that should not be neglected—and provides a basis for
a more informed discussion of this important topic.

—MARIJKE MALSCH
Netherlands Institute for the Study of Crime and
Law Enforcement (NSCR), The Netherlands.

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