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2010 Utah Law Review 723 (2010)


A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and fairly rapid. There is no indication that the law will reverse course. Indeed, the law's response to the threat of terrorism has only accelerated the move toward the new criminal law. In coming years, the Supreme Court will be forced to address a variety of difficult constitutional questions that the new criminal law presents. Ironically, the safest solution may be to embrace preventive detention as an accepted function of the criminal law. Doing so would alter the Supreme Court doctrines which distinguish the civil from the criminal-doctrines that limit the reach of the Bill of Rights. The procedural protections guaranteed by the Bill of Rights should be extended to more citizens faced with incarceration regardless of whether the purpose of incarceration is incapacitation rather than punishment or deterrence. As the new criminal law remakes the American justice system, the Court must recognize that preventive detention is now a core function of the criminal law. That recognition will have the counterintuitive effect of expanding the constitutional protections given to citizens facing imprisonment.