By Ahilan Arulanantham

When can the government imprison people without trial?  That question lurks beneath many important civil rights issues of our time, from the federal government’s plans to jail and deport millions of non-citizens under the immigration laws, to the indefinite detention of people convicted of sex offenses, to the confinement of unhoused people in major American cities, and, most recently, the plan to summarily jail and deport “alien enemies” on national security grounds.  All of these involve forms of preventive detention—that is, imprisonment without trial to protect the public.

Under current doctrine, the legality of preventive detention schemes is governed by a substantive due process framework that requires courts to balance society’s interest in safety against the detained individual’s interest in liberty.  Although litigators, judges, and scholars often disagree about how to apply that framework, they have all generally assumed that it does apply.

But that framework is a modern invention.  Prior to World War II, the law took a very different approach to evaluating imprisonment without trial: the state could not preventively detain to stop conduct that could be punished under criminal law.  That framework reflected a basic normative constraint—that preventive detention should not be used to circumvent the criminal legal system.  If the conduct the state wanted to stop could be punished, the state was required to use the criminal law, rather than displacing it with a bespoke regime lacking the criminal law’s procedural and substantive protections.

That bedrock constraint began to erode during the Japanese American mass incarceration of World War II, and then disappeared over the next several decades as the Supreme Court upheld the preventive detention of non-citizen Communist Party members and then the pretrial preventive detention of people charged with federal crimes.  Since then, state power to imprison people outside the criminal legal system has grown rapidly in new ways, as the due process balancing framework has proven malleable enough to legitimate nearly every preventive detention scheme that governments have created.  As the federal government’s recent invocation of the “Alien Enemies” Act illustrates, more may soon be on the way.

In this Article, I uncover the origins of the common law doctrinal framework governing preventive detention, and then tell the story of its downfall, describing how today’s due process balancing framework took its place.  I then draw lessons from that doctrinal history for our present moment, as scholars, policymakers, litigators, and courts seek to chart the limits of preventive detention authority in the face of new demands for expanded state power.

73 UCLA L. Rev. ___ (forthcoming), UCLA School of Law, Public Law Research Paper No. 26-07

New South Wales. Legislative Assembly Committee on Law and Safety

An interim report for the inquiry into measures to combat right-wing extremism in New South Wales. The report considers the Crimes and Summary Offences Amendment Bill 2025 and puts forward some considerations for Parliament when debating the Bill. The Bill was introduced on 19 November 2025, following a neo-Nazi protest outside Parliament House on 8 November 2025. The event was widely condemned.

The protest shows the current laws have been failing to prevent right-wing extremists from mobilising and recruiting. Legislative change is required to address the worrying rise of right-wing extremism.

The Crimes and Summary Offences Amendment Bill 2025 is an important step in combatting right-wing extremism. The Committee has considered the Bill in the context of a broader inquiry into measures to combat right-wing extremism in New South Wales. 

The Committee strongly supports the Bill as a key measure to combat right-wing extremism in New South Wales. At the same time, the Committee acknowledges the risk of constitutional challenge to any law that may restrict the implied freedom of political communication.

Parliament of New South Wales, 2026. 21p.

By John D. Bessler

The modern international human rights movement began with the U.N. Charter and the U.N. General Assembly’s adoption of the Universal Declaration of Human Rights. Although the movement to abolish the death penalty is rooted in the Enlightenment, global advocacy to halt executions and to abolish capital punishment has accelerated exponentially in recent decades. This Article discusses the origins of global networks to advance human rights and highlights the growing international advocacy, including by nation-states and nongovernmental organizations (“NGOs”), for a worldwide moratorium on executions and to abolish capital punishment altogether. The total number of countries conducting executions in the past few decades has declined dramatically, putting retentionist states, such as China, Iran, Saudi Arabia, Iraq, North Korea, and the United States, in an increasingly isolated position in the international community. Many nations now even refuse to extradite criminal suspects without assurances that the death penalty will not be sought. With more than 90 countries having already ratified or  Covenant on Civil and Political Rights (“ICCPR”), aiming at theabolition of the death penalty, and with scores of domestic and international NGOs now actively promoting abolition, the global movement to abolish capital punishment has made significant strides and holds tremendous promise, though much more work remains to be done. This Article highlights the path forward for advocates seeking the death penalty’s abolition in law—and de facto—across the globe, with a focus on international law and classifying the use of capital prosecutions, death sentences, and executions as acts of torture and clear violations of fundamental human rights. In particular, the Article discusses advocacy efforts before the United Nations, highlights the role of NGOs in leading that effort, and advocates for the recognition of a peremptory.

 34 MINN. J. INT'L L. 1 (2025).