No Easy Way Out: Dangerous Offenders and Preventive Detention

Abstract

Preventive detention is normally objected to by retributivists because it appears to punish individuals for their anticipated crimes. I examine three strategies for reconciling preventive detention with retributivism. The first holds that retributivists, in theory at least, can accept the prepunishment of individuals -- that is, punishing them for crimes that we know they will commit. The second strategy claims that dangerous offenders might be presumptively excluded from civil society if they can be shown to possess a specific dispositional property or because they are guilty of reckless endangerment if they do not take steps to counter their violent tendencies. The third strategy suggests that there may be nonpunitive forms of preventive detention the employment of which do not amount to punishment proper. I contend that none of these strategies succeeds in reconciling preventive detention with the deeper logic of retributivism, according to which those properly liable to punishment must be capable of moral self-governance. Hence, I argue that there is no easy way out of the problems posed by individuals whom we have good reason to believe will commit further violent offenses.

Keywords: preventive detention, prepunishment, retributivism