43 U. Cin. L. Rev. 781 (1974)
The Origins of Preventive Confinement in Anglo-American Law - Part II: The American Experience

handle is hein.journals/ucinlr43 and id is 793 raw text is: THE ORIGINS OF PREVENTIVE CONFINEMENT
Alan Dershowitz*
The American history of crime prevention and more particularly of pre-
ventive confinement, began with mechanisms outside the formal processes
of the criminal law. Practices in the colonies were similar, in many respects,
to those in the mother country. There were differences, of course, some of
which played significant roles in the development of early American
responses to crime, especially anticipated crime.    First, a new, trans-
planted, and mobile society would naturally have fewer public buildings
in which to confine potential harm-doers (and even convicted criminals).
Accordingly, the early colonies placed greater reliance on noncustodial
techniques of crime control than did the mother country during the same
period. The second important difference was that the early colonies were
composed primarily of scattered new settlements, each of which could
be relatively selective about whom it agreed to admit to membership.
This selectivity was reflected in the early settlement laws and the
mechanisms for enforcing them known as warning out.1 These laws,
which have been described as standing midway between poor relief and
* @ 1974 by Alan Dershowitz. This is the second of a two-part article based on
the Robert Marx lectures delivered by Professor Dershowitz at the University of
Cincinnati College of Law on November 7, 8 & 9, 1973. Part I, which appears in
43 U. CIN. L. REV. 1 (1974), introduced and defined the general issue and covered
the English origin of preventive confinement through the turn of the nineteenth
century. Part II considers the American approach to preventive confinement through
the end of the nineteenth century.
The material covered in this part focuses on several significant, and in the author's
view representative, episodes in the American legal history of confinement; it does not
purport to be a systematic overview of the role of preventive confinement in Ameri-
can history. For a further caveat, see the initial footnote in Part I, 43 U. GON. L.
BEv. 1 (1974).
00 Professor of Law, Harvard University. B.A., 1959, Brooklyn College; LL.B.,
1962, Yale University.
1. As Frederick Jackson Turner would insist, throughout most of American history
the frontier operated as a safety valve to relieve social tensions. F. TURNER, THE
FRONTIER IN AMERICAN HISTORY (1920). Until the end of the nineteenth century,
in fact, communities found it practical to control crime by exclusion: it was cost-
less to the community, and could be used preventively as well as punitively. Fur-
thermore, this was considered humane treatment of wrongdoers or suspected wrong-
doers, for the frontier offered vast stretches of productive land and few opportunities to
annoy others. See generally M. CUTI, MAKING OF AN AMERICAN COMMUNITY (1959).

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