Deadly Dilemmas III: Some Kind Words for Preventive Detention
University of Texas School of Law
Ronald J. Allen
Northwestern University Law School
February 4, 2011
101 Journal of Criminal Law and Criminology 781 (2011)
Northwestern Public Law Research Paper No. 11-24
U of Texas Law, Public Law Research Paper No. 187
This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not. While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied. More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.
Number of Pages in PDF File: 25
Keywords: preventive detention, inchoate crimes, possession crimes, dangerousness, criminal law
Date posted: February 5, 2011 ; Last revised: October 5, 2012
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