Criminal Trials for Preventive Deprivations of Liberty

This chapter explores the question of whether the application of liberty-restricting preventive measures outside prison or jail—which I term preventive ‘exprisonment’—ought to require a criminal trial. Among the functions of the criminal trial in a rule of law society is to achieve appropriate state enforcement by seeking to determine whether a criminal defendant has in fact culpably committed the act of which she is accused. This exercise in arriving at justified beliefs about the facts of a case enables states to engage in the application of liberty-implicating measures while still treating individuals as autonomous persons. However, in most jurisdictions, many preventive measures that restrict individual liberty outside prison or jail are not governed by this procedure, even though such measures can have a significant impact on targeted individuals' daily lives. I argue that comprehensive forms of targeted preventive measures ought to entail a criminal trial.