Indefinite Detention

2012-07-16 13:55:09

Although the general presumption in the United States is against indefinite detention, there are a number of ways in which persons not convicted of crimes can nevertheless be detained involuntarily for potentially indefinite periods. States have long had the power to commit to mental hospitals any persons with mental illnesses that cause them to pose dangers to themselves or to society. In recent years, a number of states have extended that approach to laws allowing the government to seek civil commitment of certain convicted sex offenders who suffer from mental abnormalities or personality defects that make them likely to engage in future sex crimes and who have completed their term of imprisonment.

In Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court sustained one such sex offender detention law from a constitutional challenge. Because persons detained under either approach remain confined until they recover their mental health or no longer pose a danger to themselves or society, their detention may be indefinite. In addition to civil commitment as outlined here, there are other forms of potentially indefinite detention worth studying, especially in light of the War on Terrorism.

Pretrial Detention and Material Witness Detention

In appropriate circumstances, a person who has not yet been convicted of a crime, but who is due to stand trial on criminal charges, can be detained involuntarily until the conclusion of the trial. In United States v. Salerno, 489 U.S. 731 (1987), the Supreme Court ruled that pretrial detention was not automatically unconstitutional, provided there were appropriate procedural safeguards in place, such as availability of defense counsel and findings of dangerousness by the trial court.

Strictly speaking, pretrial detention is of perhaps uncertain duration, but it is not indefinite because there is a clear endpoint: if the detainee is acquitted, detention ceases, and if the detainee is convicted, then further detention is justified as imprisonment pursuant to a criminal sentence. Moreover, the period of pretrial detention is theoretically limited by the constitutional right to a speedy trial. In practice, however, the speedy trial requirements often contain loopholes; in the federal system; for example, the trial judge can effectively suspend the requirement by making findings on the record that delaying the trial would be in the ‘‘interests of justice.’’ Consider, for example, that O. J. Simpson spent about fifteen months in jail while awaiting and during his double homicide trial.

A related form of detention is that as a material witness, under which a person can be detained involuntarily when his or her testimony would be important and when there is reason to believe that the court would not be able to subpoena the person to testify at trial. Following the 9/11 attacks, the federal government detained a number of persons as material witnesses, drawing criticism that it was misusing the material witness statute as a general counterterrorism detention power. Still, material witness detention has a theoretical limit, in that detention is justified to ensure that the witness will be present to provide his or her testimony; thus, the federal statute provides that no one should be held as a material witness if his or her testimony can be adequately preserved through a deposition. While some delay is permissible for the deposition to be taken, this at least represents an end point of detention.

Guantanamo Bay and the War on Terrorism

After the devastating September 11, 2001, terrorist attacks, the United States began a ‘‘war on terrorism’’ that included the capture of thousands of persons in Afghanistan and Pakistan. About one thousand were sent to a U.S. naval base on Guantanamo Bay, Cuba; as of 2005, about five hundred remained there in detention. A small number were designated for war crimes prosecutions in military tribunals, but a federal judge blocked those military prosecutions on the ground that the composition of the military tribunals violated the Constitution. The vast majority of the Guantanamo detainees were not charged with crimes.

The government’s rationale for detaining them has been that they are ‘‘enemy combatants’’ and that as long as the War on Terrorism continues, they are subject to continued detention. This argument relies on the right of nations during war to detain enemy soldiers as prisoners of war for the duration of the war. There is, however, an important difference between the war on terrorism and traditional nationstate wars; with the latter, there is a sovereign nation with which to negotiate and thereby bring a definitive end to the conflict. In the War on Terrorism, detention as an enemy combatant may truly be indefinite.

In Rasul v. Bush, 124 S. Ct. 2686 (2004), the Supreme Court, while not addressing the underlying legality of potentially indefinite detention, concluded that the Guantanamo detainees were entitled to file petitions for writs of habeas corpus to test the lawfulness of their detention. Rasul spurred the government to implement military hearings known as ‘‘combatant status review hearings’’ to reassess the classification of Guantanamo detainees as enemy combatants; this resulted in the release of a small number of detainees. The upshot appears to be acceptance of the continuing detention of persons correctly classified as enemy combatants, with ongoing litigation over the procedures underlying such classifications.

The USA PATRIOT Act endowed the government with additional power to detain suspected terrorists. Under Section 412 of that act (codified at Title 8, Section 1226a), the attorney general may detain a noncitizen that he has reasonable grounds to believe is a terrorist. If the alien is unlikely to be deported in the next six months and if the alien’s release would ‘‘threaten the national security of the United States or the safety of the community or any person,’’ the attorney general can continue to detain the alien for up to six months, with the power to renew detention for additional six-month periods.


Indefinite detention (apart from that imposed as a sentence pursuant to a conviction) is among the gravest civil liberties infringement, but at least in most instances, it is tempered by procedural protections aimed at reducing the likelihood of improper detention.


References and Further Reading

  • Robinson, Paul, Punishing Dangerousness: Cloaking Preventative Detention as Criminal Justice, Harvard Law Review 114 (2001): 1429–1456.

Cases and Statutes Cited

  • Kansas v. Hendricks, 521 U.S. 346 (1997)
  • Rasul v. United States, 124 S. Ct. 2686 (2004)
  • United States v. Salerno, 489 U.S. 731 (1987)
  • Zadvydas v. Davis, 533 U.S. 678 (2001)
  • Uniting and Strengthening America by Providing Appropriate Tools Requiring to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, act of Oct. 26, 2001, 115 Stat. 272

See also Due Process of Law; Gerstein v. Pugh, 420 U.S. 103 (1975), Material Witnesses; 9/11 and the War on Terrorism; Speedy Trial; Suspended Right of Habeas Corpus