33 Pages Posted: 27 Jun 2011 Last revised: 2 Apr 2012
Date Written: 2011
It is a core principle of liberal societies that an individual may not be deprived of his liberty unless the reasons for doing so respect his status as an autonomous person. This principle puts stringent limits on the use of preventive detention. I argue here that one use of preventive detention that is consistent with those limits is the long-term preventive detention (LTPD) of people who have been convicted either of a very serious crime or a string of serious crimes. These people can justifiably be subjected to LTPD because a justifiable part of their punishment is loss, for some period of time, of the normal immunity to LTPD. If this period of time extends beyond whatever period of time in which they have lost their liberty as a matter of punitive detention, then they may be subject to LTPD for the remainder of that period.
What makes stripping certain criminals of their immunity to LTPD for a period of time morally acceptable is that such a punishment fits their crimes. If they show sufficient disrespect for the law, then they no longer deserve to receive one of the benefits that normally flows from being an autonomous and accountable person. In particular, they no longer deserve to have the status of a person who must be presumed to be law abiding. A state must normally accord its autonomous and accountable citizens this presumption as a matter of basic respect for their autonomous moral agency. Rather than treat them as potentially dangerous animals, the state must treat them as free agents who can be trusted enough to do what is right to have the liberty to move freely in the society, and who can and should be held accountable if they choose instead to commit criminal acts. If, however, a particular actor demonstrates by his criminal acts that he does not deserve the presumption that he will be law abiding, then he has, at least for a while, lost the moral basis for claiming the right to benefit from the respect that grounds the immunity to LTPD. He remains an autonomous moral agent who can be held accountable for his future criminal choices, but he loses his status as a person who must be given the freedoms that come with the presumption that he will obey the law. For brevity, I will refer to this lost status account of the lost immunity to LTPD as the, “lost status view.”
Keywords: Preventive detention, punishment, autonomous person, retributivism
Suggested Citation: Suggested Citation
Walen, Alec D., A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity (2011). San Diego Law Review, Vol. 48, pp. 1229-1272, 2011. Available at SSRN: https://ssrn.com/abstract=1872984