Most of the scholarly reaction to systems of preventive detention has been hostile. Negative judgments are especially prevalent among penal theorists who hold nonconsequentialist, retributivist rationales for criminal law and punishment. Surely their criticisms are warranted as long as we confine our focus to the existing systems of preventive detention that flagrantly disregard fundamental principles of legality and desert. Nonetheless, I believe that many of their more sweeping objections tend to rest too uncritically on doctrines of criminal theory that are not always supported by sound arguments even though they are widely accepted. I will contend that we cannot fully evaluate the morality of preventive deprivations of liberty as a general practice unless we are prepared to reexamine some of these doctrines. Any such reexamination would probe into deep and divisive questions about the nature and justification of state punishment and the substantive criminal law. I will hazard positions about several of these difficult questions, but I am aware that many of my claims are highly controversial. I will not go to great lengths to support them here; a sustained defense of these positions would require a separate treatise. I reach two conclusions. First, we have little choice but to adopt views on these questions if we hope to fully assess the morality of preventive deprivations of liberty. Second, if we challenge conventional wisdom and adopt the positions I favor on these topics, we will have a hard time citing serious principled objections to preventive detention unless we share similar objections to state punishment. When suitably modified, given modes of preventive detention can be made to be defensible.
Lifting the Cloak: Preventive Detention as Punishment,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol48/iss4/5