Preventive detention, corrado, and me

Criminal Justice Ethics

Volumn 15, Issue 2, 1996, Pages 13-24

  Davis, Michael ^a  

^a ILLINOIS INSTITUTE OF TECHNOLOGY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 44749087347     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1996.9992014     Document Type: Article

References (56)

1. Davis, Arresting the White Death: Preventive Detention, Confinement for Treatment, and Medical Ethics, 94 APA NEWSLETTERS 92-98 (1995).
2. Actually, rationality is irrelevant to quarantine. Children, even animals, can be quarantined. Indeed, what makes quarantine puzzling is precisely its seeming indifference to whether the quarantined is rational.
3. Schoeman, On Incapacitating the Dangerous, 16 AM. PHIL. Q. 27-35 (1979).
4. Corrado, Punishment, Quarantine, and Preventive Detention, CRIM. JUST. ETHICS [this issue], at 4-5.
5. We are, of course, assuming away various complexities arising from requests for bail pending post-conviction appeal. For our purposes, such a request would raise issues of preconviction preventive detention (even though, strictly speaking, they arrive after conviction). The same would be true for preventive detention beyond the maximum term of imprisonment. Once the criminal has been punished for the crime, his conviction can no longer provide a basis for post-conviction preventive detention. It may, I admit, be an element of another crime yet to be proved (for example, recidivism). But that admission is just another way of saying that, until conviction for that new crime, any preventive detention will count as pre-conviction, not post-conviction.
6. Corrado, supra note 4, at 4.
7. Of course, if she offers you probation, you may refuse-or, at least, you may refuse to sign the probation contract (and, by doing that, make probation legally impossible). So, the judge can give you a post-conviction choice (probation or prison), but it is not the choice necessary for our purposes, since she need not give you the choice.
8. For those worried that I am overlooking an even harder case, the purest form of preventive detention, in which we detain someone whom we know both to be innocent of any wrongdoing so far and to be certain to harm someone soon, I should point out that the argument for pre-conviction preventive detention that I offer covers that case as well (with just one minor refinement). The first arrest must itself be for reckless endangerment. From then on, the argument would be the same as for other pre-conviction preventive detention.
9. Note that this point presupposes guilt. If the detainee is not guilty of the first crime, he can, of course, still plead guilty, forcing the judge to decide whether he is, and, if found guilty, be punished. The punishment would nonetheless not be just and the detainee would have no right to it. I ignore such puzzling cases in what follows, though one effect of preventive detention might well be to force the innocent to plead guilty rather than await their trial in jail for months or years.
10. Corrado, supra, note 4, at 5.
11. Though Corrado does not say, the O seems to stand for obligation, though 3a would have fitted his format better (and not suggested that the only options must be premises of obligation).
12. Indeed, the justification will have the form common to justification of bad Samaritan statutes. So, the traditional version of O might better read: If S knowingly creates a great risk of unjustified physical harm to T, then S recklessly endangers T. Of course, this version of O is more or less immune to the criticism Corrado makes of the version he does offer.
13. Corrado, supra note 4, at 9.
14. Indeed, the justification would resemble that appropriate to a bad Samaritan statute (a statute requiring bystanders to render aid in an emergency). For the moral difficulties of this subject (which echo through much of Corrado's paper),
15. Singer, Famine, Affluence, and Morality, 1 PHIL. & PUB. AFF. 229-243 (1972)
16. A. GEWIRTH, REASON AND MORALITY 217-230 (1978)
17. The Duty to Rescue and the Slippery Slope Problem, 16 Soc. THEORY & PRAC. 19-41 (1990)
18. Whelan, Charity and the Duty to Rescue, 17 Soc. THEORY & PRACT. 441-456 (1991)
19. Copp, Responsibility for Collective Inaction, 22 J. Soc. PHIL. 71-80 (1991). For discussion of civil liability for bad samaritanism,
20. Denton, The Case Against a Duty to Rescue, 4 CAN. J. OF L. & JURISPRUDENCE 101-132 (1991). For discussions focused on the criminal law,
21. especially, Mack, Bad Samaritanism and the Causation of Harm, 9 PHIL. & PUB. AFF. 230-259 (1980)
22. Feinberg, Failures to Prevent Harm, HARM TO OTHERS 126-186 (1986)
23. Conter, Feinberg on Rescue, Victims, and Rights, 4 CAN. J.L. & JURISPRUDENCE 133-144 (1991)
24. McIntyre, Guilty Bystanders? On the Legitimacy of Duty to Rescue Statutes, 23 PHIL. & PUB. AFF. 157-191 (1994).
25. Corrado confusingly refers to successive restatements of Q by the letters R, S, and so on, as if each stood in the same relation to its predecessor as Q stands to O. Referring to them as Q', Q, and so on would have been better. P (Everyone has an obligation. not to harm people without justification) has a slightly different status (Corrado, supra note 4, at 6). While Corrado seems to accept P, he cannot use it because reckless conduct (as such) does no harm. He therefore substitutes prevent harm for not to harm, yielding Q. This move assumes that what is wrong with reckless conduct is that it consists in failing to prevent harm, the fatal move to reckless-endangerment-as-mere-omission. Corrado seems to have overlooked a more plausible alternative, substituting risk harm to for harm (which would be consistent with understanding reckless endangerment as a crime of commission, as I do).
26. Exceptions might include infecting someone for some good purpose (research) when she voluntarily consents after full disclosure of risks (and benefits).
27. In other words, I am assuming without argument that obligations are not the only moral considerations capable of justifying legislation (that is, that principles, ideals, legitimate interests, and so on may also justify legislation).
28. There should, of course, be some principle of distributive justice in any complete list of constraints on the police power. I did not include one in my list because, it seemed to me, that any version I chose would probably be controversial and that no plausible version would make a difference in what follows.
29. New York City Health Code (3-31-93), ch. 11.47 (RCNY: 10309-10312). For the history of this chapter.
30. Jacobs, Legal Advocacy in a Time of Plague, 21 J. L., MED., & ETHICS 383-389 (1993).
31. Schoeman, supra note 3, at 31.
32. For comparison, consider military conscription, where the government takes the liberty of young men in order to protect the country, or jury duty, where the government takes the liberty of citizens in order to guarantee others a fair trial. In both these cases, does not paying compensation seem appropriate?
33. Compare the risk posed by the typical drunken driver (that is, a driver who would fail a breathalyzer test). The risk posed by someone with active tuberculosis sitting in a restaurant, taking an elevator, or even just coughing on a crowded street is probably substantially greater. Husak, Is Drunk Driving A Serious Offense?, 23 PHIL. & PUB. AFF. 52-73 (1994).
34. Ill. Crim. Code ch. 38, §§ 4-6 and 12-5 (Reckless Conduct).The corresponding statute for New York City seems to be NY Penal Law 120.25: A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person. This crime, a class D felony, may set a standard higher than I have in mind (depending on how much gets read into depraved indifference). Please note that my argument does not depend on the exact wording of reckless endangerment statutes but rather on the propriety of such statutes in general.
35. While this argument does not require us to say anything about obligation, I might avoid confusion by noting that, of course, the argument provides (as well) the basis for a moral obligation to submit to civil confinement for treatment. That moral obligation is, however, only a lemma, not a necessary step, in the argument so far given: Suppose that there is a general practice of taking reasonable precautions to prevent the spread of serious diseases. For example, people with contagious tuberculosis generally enter medical treatment voluntarily, take their medicine regularly once they leave the hospital, and otherwise do all they can to avoid infecting others. Those who do not take such precautions, though they could, benefit from the precautions others take while destroying some of the very benefits that make taking the precautions attractive to others. They violate (what has been called) the principle of fairness (in its non-voluntary form). For those with (post-Nozickian) doubts about that principle,
36. Nozick's Argument FOR the Legitimacy of the Welfare State, 97 ETHICS 576-594 (1987)
37. Arneson, The Principle of Fairness and Free-Rider Problems, 92 ETHICS 616-633 (1982).
38. This assumes we have the appropriate statute or common law rule. In Illinois, for example, reckless conduct is a class A misdemeanor punishable by up to one year in jail. Ill. Crim. Code 38, § 12-5(b) and § 1005-8-3(1).
39. Davis, supra note 1, at 94, included in this conclusion the throw-away line and perhaps even deny [him] bail (since [he] cannot leave jail without again breaking the law). I have omitted that phrase here because we now have an argument in its place.
40. It is perhaps worth noting that our answer here might well be different had the question concerned commitment for mental illness; we now commit the mentally ill for treatment even if they would prefer punishment. But, even where the person in question is mentally ill, there may be reason to work within criminal rather than civil law. For more on this,
41. Guilty but Insane?, 10 Soc. THEORY & PRACTICE 1-23 (1984)
42. JUSTICE IN THE SHADOW OF DEATH, ch. 8 (1996).
43. A rational person might even prefer criminal punishment if, as Schoeman assumes for preventive detention, the government had to bear the same burden of proof as in a criminal case. Hospitals can be more confining than prisons (and are not necessarily healthier).
44. This, I am afraid, is not quite accurate. What he would be punished for in most jurisdictions would be (indirect) criminal contempt-for disobeying the court's order (out of the court's sight). This is, however, sufficient for my purposes, since the procedures for contempt would, in this case, differ little from ordinary criminal procedures and the maximum penalty would fall only somewhat below the typical penalty for reckless endangerment. For a general discussion of contempt,
45. W. LAFAVE & A. SCOTT, CRIMINAL LAW 39-44 (1972).
46. Governments keep this option open by providing criminal punishment for disobeying the relevant court (or health department) order.
47. This argument is decisive against compensation only as a property right or tort right. When I presented the White Death in Boston, December 28, 1994, during a meeting of the American Philosophical Association, Alan Wertheimer argued in favor of compensation as a matter of distributive justice, a way of compensating for a natural defect (whether lack of immunity to tuberculosis as such or economic or social disabilities leading to a life increasing the likelihood of infection). My argument does not address this argument. I should, however, like to say two things about it: First, it seems to me that the idea of compensation is going to present conceptual problems where the burden, being cured of tuberculosis, already returns a primary good (health). Second, it seems to me that most of what Wertheimer would do in compensation might be easier to justify as necessary to maintain medical standards, to prevent unnecessary harm, or to treat people decently. I nonetheless agree that such questions of compensation do deserve more thought, especially where (as in preventive detention) the direct benefits to the confined are, at best, small.
48. Schoeman, supra note 3, at 28-29.
49. Id. at 30.
50. Id. at 33-34.
51. We are, of course, at this point assuming (a) that the person to be detained is mentally competent, (b) that the government has a compelling interest supporting its exercise of police power, (c) that confinement (whether civil or criminal)is the least restrictive means likely to protect that interest,and (d) that there are no practical problems about placing the contagious or dangerous person in criminal rather than civil confinement. What, then, if the prisons cannot handle the contagious or dangerous person properly, and there is no legal procedure for transfer (under penal supervision) to an appropriate facility? The answer, I think, is that involuntary civil confinement or civil detention might be excused as a temporary expedient until the facilities or law can be changed- much as seizure of property can sometimes be excused in an emergency. The argument from necessity cannot be resisted. But such a temporary expedient would not be justified and those who suffered in consequence, even if only in their right to punishment, would be due apology and compensation not for loss of freedom or for the harm that such loss causes, not necessarily even for the stigma, but just for breach of the right to be treated with the respect due a rational agent.
52. Compare Schoeman, supra note 3, at 31.
53. von Hirsch, Prediction of Criminal Conduct and Preventative Confinement of Convicted Persons, 21 BUFFALO L. REV. 717-758 (1972).
54. For a good recent example of this down-to-earth approach,
55. Morse, Responsibility, Blame, and Danger: An Essay on Preventive Detention, 76 B.U L. REV. 113-154 (1996).
56. Corrado, supra note 4, at 9.