Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice

Abstract:     
This paper argues that the criminal justice system is increasingly shifting its focus away from desert - moral blameworthiness - as its principle for distributing criminal liability and punishment, and toward incapacitation of dangerous persons. Despite the shift, however, the system has continued to advertise itself as being one of doing justice. There are good reasons why the system should want to cloak what is essentially preventive detention as deserved punishment. The paper argues, however, that such cloaking is bad both for the system's ability to do justice and for its ability to provide community protection. The present mixed criminal justice system is sufficiently flawed, it argues, that both community and detainees would be better off with a separate civil system that openly provides preventive detention, leaving the criminal justice system to be guided by an offender's desert, not dangerousness.

Keywords: punishment, preventive detention

JEL Classifications: k14

Accepted Paper Series