Deadly Dilemmas III: Some Kind Words for Preventive Detention
25 Pages Posted: 5 Feb 2011 Last revised: 5 Oct 2012
Date Written: February 4, 2011
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.
Keywords: preventive detention, inchoate crimes, possession crimes, dangerousness, criminal law
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