Academic journal article Journal of Criminal Law and Criminology

Deadly Dilemmas III: Some Kind Words for Preventive Detention

Academic journal article Journal of Criminal Law and Criminology

Deadly Dilemmas III: Some Kind Words for Preventive Detention

Article excerpt

I. INTRODUCTION

"Preventive detention" is a phrase guaranteed to provoke moral indignation on the part of many citizens and legal experts alike, leading to charges that it is un-American and caustic to our traditional legal and moral values. (1) Preventive detention appears to its critics to involve, among other things, an egregious short-circuiting of the traditional legal doctrine that the state is justified in apprehending and incarcerating its citizens only when there is probable cause to believe that such persons have either harmed others, or come very close to doing so, with only a small space for restraining someone preventively. By contrast, preventive detention envisages the arrest, conviction, and punishment of persons, not because of grievous harms they have actually committed or risks of grievous harm they have already imposed on others but because of suspicions that--left to their own devices--they are disposed to commit acts likely to cause grave harm in the future. As the phrase itself suggests, preventive detention involves the incarceration of persons not as punishment for harms already wrought but as a device for preventing future harms that the state surmises they are likely to inflict if not incarcerated.

In the view of many, such policies perversely turn traditional legal (and moral) thinking topsy-turvy by legitimizing the incarceration of potential wrongdoers not for harms they have committed but for harms that they might do in future should we fail to incapacitate them. Moreover, at least in the view of its critics, preventive detention's tendency to favor detention for future dangerousness ignores the retributionist theory of just deserts as the only acceptable rationale for punishment and holds, instead, that a fully legitimate and entirely free-standing aim of incarceration is crime prevention.

In this Article, we intend to explore whether preventive detention is the unwelcome and subversive innovation it is widely depicted as being. While we have no intention of defending all or even most forms of preventive detention in their concrete instantiations, we think that preventive detention is, under many circumstances, a legitimate and principled part of the criminal law. More than that, we shall show that preventive detention--though not explicitly by that name--has long been, and continues to be, a core part of Anglo-Saxon legal practice. And at the deepest level, the animating principle of preventive detention--that the government may intervene in order to prevent future harms--rather than being an anomaly of a scandalous backwater of criminal law in fact is a general organizing principle of government. Its detractors have neglected this because of their inaccurate characterization of law generally, criminal law specifically, and the peculiar focus on one small part of legal regulation--serious felonies in particular--that neglects how that aspect of legal regulation is embedded in law generally. In addition to its overly reductive nature, the standard commentary on the criminal law involves another equally debilitating flaw of being excessively prescriptive and ignoring the law as it is. Whether because of the moralistic tone or not, the standard commentary neglects that how and whether to engage in preventive detention is another example of the unavoidable deadly dilemmas of governing. (2) As we shall show, eliminating preventive detention from the law would not just eliminate the "wrong" of incarceration prior to a conviction for a specific act but in addition would add innumerable "wrongs" of criminal acts against people that would have not occurred had the perpetrator been under state control.

Before we turn to explore how pervasive preventive detention has become in American criminal (and parts of civil) law and precisely what the real trade-offs are that it poses, it is crucial to formulate as clearly as we can precisely what preventive detention means. …

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