No easy way out: Dangerous offenders and preventive detention

Law and Philosophy

Volumn 27, Issue 4, 2008, Pages 383-414

  Lippke, Richard L ^a  

^a INDIANA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 44749087718     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-008-9022-1     Document Type: Article

References (62)

1. R. A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), pp. 165-166.
2. Though he does not confine his criticisms of preventive detention to the problems with prediction, Andrew von Hirsch is an especially forceful critic of attempts to predict which individuals will reoffend. See, for instance, his Past or Future Crimes: Deservedness and Dangerousness in the Sentencing of Criminals (New Brunswick, N. J.: Rutgers University Press, 1987), pp. 104-146.
3. See John Monahan et al, Rethinking Risk Assessment: The Mac Arthur Study of Mental Disorder and Violence (New York: Oxford University Press, 2001), and Grant T. Harris and Marnie E. Rice, 'Actuarial Assessment of Risk among Sex Offenders', Annals of the New York Academy of Sciences 989 (2003): 198-210.
4. For instance, we rely on less than fully accurate predictions concerning which pretrial detainees should be held on remand because they are believed to be a threat to the community, or which prisoners should be denied early release because they are believed by parole boards to still be dangerous. See R. A. Duff, 'Dangerousness and Citizenship', in Andrew Ashworth and Martin Wasik (eds.), Fundamentals of Sentencing Theory: Essays in Honor of Andrew von Hirsch (Oxford: Clarendon Press, 1998), pp. 141-163, at pp. 147-148;
5. Stephen J. Morse, 'Blame and Danger: An Essay on Preventive Detention', Boston University Law Review 76 (1996): 112-155, at 118-119. It should be noted, however, that pretrial detention is not indefinite in the way preventive detention might be. The indefiniteness of preventive detention might reasonably be thought to strengthen the burden of proof on the state, requiring it to meet more exacting standards of prediction.
6. Duff, 'Dangerousness and Citizenship', pp. 145-146. See also von Hirsch, Past or Future Crimes, pp. 128-129.
7. Most obviously, retributivists require this, but so might those advocating mixed theories of punishment.
8. For the debate about pre-punishment, see Christopher New, 'Time and Punishment', Analysis 52 (1992): 35-40, and 'Punishing Times: A Response to Smilansky', Analysis 55 (1995): 60-62;
9. Saul Smilansky, 'A Time to Punish', Analysis 54 (1994): 50-53;
10. and Daniel Statman, 'The Time to Punish and the Problem of Moral Luck', Journal of Applied Ethics 14 (1997): 129-135.
11. See Duff, 'Dangerousness and Citizenship', especially pp. 151-163, and Punishment, Communication, and Community, pp. 170-174.
12. See Morse, 'Blame and Danger', pp. 152-154, though he offers the argument as a 'heuristic proposal' (p. 152).
13. See also Michael Davis, 'Preventive Detention, Corrado, and Me', Criminal Justice Ethics 15 (1996): 13-24, though Davis has serious doubts about the practice of preventive detention.
14. See Morse, 'Blame and Danger', p. 150, though he sketches such confinement as an outcome of what he terms "pure preventive detention of responsible yet blameless agents," meaning agents who are deemed dangerous and responsible but who have not yet committed or been convicted of any crime.
15. See also David Wood, 'Dangerous Offenders and the Morality of Protective Sentencing', The Criminal Law Review (July 1998): 424-433, and 'Reductivism, Retributivism, and the Civil Detention of Dangerous Offenders', Utilitas 9 (1997): 131-146
16. and Katherine P. Blakey, 'The Indefinite Civil Commitment of Dangerous Sex Offenders is an Appropriate Legal Compromise Between 'Mad' and 'Bad' - A Study of Minnesota's Sexual Psychopathic Personality Statute', Notre Dame Journal of Law, Ethics, and Public Policy 10 (1996): 226-299, at 254-255.
17. A fourth strategy is suggested and rejected by Antony Duff. It involves claiming that the kinds of proportionality constraints on legal punishment supported by retributivists are not rigorous enough to rule out the indefinite detention of serious offenders. Yet as Duff argues, considerations of ordinal proportionality seem sufficient to defeat this strategy. If some offenders are preventively detained because of concerns about their violent proclivities, and thus wind up serving much longer sentences than others convicted of the same or similarly serious offenses, then ordinal proportionality is violated. In effect, the former will be treated as if they committed much more serious offenses than the latter, when, in fact, they did not. See Duffs 'Dangerousness and Citizenship', p. 146.
18. New, 'Time and Punishment', pp. 35-40 and Statman, 'The Time to Punish and the Problem of Moral Luck', pp. 129-134.
19. Smilansky, 'The Time to Punish', p. 51.
20. New, 'Punishing Times: A Reply to Smilansky', pp. 61-62.
21. For further discussion of the retributive conception of liability to criminal punishment, see my 'Mixed Theories of Punishment and Mixed Offenders: Some Unresolved Tensions', Southern Journal of Philosophy 44 (2006): 273-295, at 274.
22. I take it to be fairly well established that psychopaths are not appropriate subjects of retributive legal punishment. See Jeffrie Murphy, 'Moral Death: A Kantian Essay on Psychopathy', in his Retribution, Justice, and Therapy (Dordrecht, Netherlands: D. Reidel, 1979), p. 128, and R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986), p. 181.
23. Duff, 'Dangerousness and Citizenship', especially pp. 151-163, and Punishment, Communication, and Community, pp. 164-174.
24. Duff makes clear, however, that his account of dangerousness is based squarely on the past criminal actions of the offender, not on actuarial predictions of future criminal behavior derived from personal or sociological characteristics that are only contingently correlated with criminal conduct. See 'Dangerousness and Citizenship', p. 154.
25. Duff, 'Dangerousness and Citizenship', p. 161.
26. Duff, 'Dangerousness and Citizenship', p. 142. For the claim that the offenders in question should not be viewed or treated as irredeemable, see p. 162.
27. For description and analysis of supermax confinement, see Leena Kurki and Norval Morris, 'The Purposes, Practices, and Problems of Supermax Prisons', Crime and Justice: A Review of Research 28 (2001): 385-424.
28. See Duff, 'Dangerousness and Citizenship', pp. 152-153.
29. Duff, 'Dangerousness and Citizenship', p. 141.
30. Duff, 'Dangerousness and Citizenship', p. 155.
31. Again, see Duff's Trials and Punishments, p. 181. However, it is worth noting that those capable of moral self-restraint need not be understood as exercising it on every occasion in which they refrain from immoral conduct. Individuals capable of moral self-restraint may simply act from habit or self-interest on many occasions. AU that matters is that they are capable of morally restraining themselves if other motivations for doing so are not sufficient.
32. Duff, Punishment, Communication, and Community, p. 165. For the view that people generally have relatively little ability to will character changes, see Joel Kupperman, Character (New York: Oxford University Press, 1991), pp. 54-58.
33. For the worry that psychopathy may be little more than a shorthand way of referring to individuals with impulsively violent tendencies, rather than a genuine personality disorder, see John Deigh, 'Empathy and Universalizability', Ethics 105 (1995): 743-763, at 744-746.
34. See also Stephen J. Morse, 'Psychopathy', in The Encyclopedia of Crime and Justice, 2nd Edition (J. Dressier, editor in chief), (New York: Macmillan, 2001), pp. 1264-1269, at p. 1265.
35. See Morse, 'Psychopathy', p. 1266.
36. See also Grant T. Harris, Tracey A. Skilling, and Mamie E. Rice, 'The Construct of Psychopathy', Crime and Justice: A Review of Research 28 (1997): 196-264.
37. For an analysis of the various methods used to treat sex offenders, see Mamie E. Rice and Grant T. Harris, 'What We Know and Don't Know About Treating Adult Sex Offenders', in Bruce J. Winick and John Q. La Fond (eds.), Protecting Society from Sexually Dangerous Offenders (Washington, D. C.: American Psychological Association, 2003), pp. 101-117. Rice and Harris argue that, at present, we do not know much about how to successfully treat such offenders.
38. On the other hand, if such offenders are chronically unmotivated by moral considerations, then their punitive confinement is problematic for reasons we have already detailed.
39. Duff, Punishment, Community, and Communication, p. 170.
40. Morse, 'Blame and Danger', p. 152. See also Michael Davis's version of the argument in 'Preventive Detention, Corrado, and Me', pp. 17-18. It should again be noted that neither author expresses unqualified support for the reckless endangerment argument, especially when it comes to translating it into a practice of preventively detaining offenders.
41. Morse, 'Blame and Danger', p. 152.
42. Morse, 'Blame and Danger', p. 152.
43. Morse, 'Blame and Danger', p. 153.
44. Sex offenders might be offered a further unattractive option-real or chemical castration. For doubts about the effectiveness of these in preventing sexual violence, see Rice and Harris, 'What We Do and Don't Know About Treating Adult Sex Offenders', pp. 104-107.
45. Psychopaths are notoriously impulsive. See Morse, 'Psychopathy', p. 1264, and Harris, Skilling, and Rice, 'The Construct of Psychopathy', p. 197.
46. Cf. Michael Corrado, 'Punishment, Quarantine, and Preventive Detention', Criminal Justice Ethics 15 (1996): 3-13, at 11.
47. See his 'Excusing and the New Excuse Defenses: A Legal and Conceptual Review', Crime and Justice: A. Review of Research 23 (1998): 329-406, at 410, where Morse argues that the moral reasons against certain kinds of crimes are so strong that anyone who is even minimally responsive to moral considerations should be able to restrain himself from committing them.
48. Indeed, in fairness to Morse, this is the view that he more often seems to take in 'Blame and Danger', in spite of his tentative defense of expanding the crime of reckless endangerment. See also his 'Preventive Confinement of Dangerous Offenders', Journal of Law, Medicine, and Ethics 32 (2004): 56-70.
49. Cf. Ferdinand Schoeman's argument for preventive detention as morally indistinguishable from quarantine for infectious disease, in 'On Incapacitating the Dangerous', reprinted in Hyman Gross and Andrew von Hirsch (eds.), Sentencing (New York: Oxford University Press, 1981), pp. 175-185. Shoeman defends the principle that 'the least restrictive means of accomplishing social protection is the maximum allowable under the practice', at p. 176.
50. Morse, 'Blame and Danger', p. 150, though Morse in this context is discussing the possibility of what he terms "pure preventive detention," where the individual in question is being confined though he has not been convicted of any crime.
51. Wood, 'Reductivism, Retributivism, and Civil Detention', p. 137.
52. See, for instance, Michael Tonry, 'Has the Prison a Future?' in Michael Tonry (ed.), The Future of Imprisonment (New York: Oxford University Press, 2004), pp. 3-24, at p. 20.
53. I develop such an account in my Rethinking Imprisonment (Oxford: Oxford University Press, 2007).
54. Gresham Sykes, The Society of Captives: A Study of a Maximum Security Prison (Princeton, N. J.: Princeton University Press, 1958), p. 76.
55. See my Rethinking Imprisonment, pp. 150-175.
56. See also Tonry, 'Has the Prison a Future?' pp. 3-24.
57. See, in particular, the discussion of the German prison system in Liora Lazarus, Contrasting Prisoners" Rights: A Comparative Examination of Germany and England (Oxford: Oxford University Press, 2004), pp. 23-124.
58. The communicative aspect of imprisonment is emphasized by Duff in Punishment, Communication, and Community, p. 149.
59. See, for instance, Wood, 'Reductivism, Retributivism, and Civil Detention', p. 137, though Wood admits that this symbolic difference must be given "material representation" (p. 137).
60. See the survey of international prison labor practices in Dirk van Zyl Smit and Frieder Dünkel, Prison Labour: Salvation or Slavery? International Perspectives (Aldershot, UK: Ashgate, 1999).
61. Shoeman, 'On Incapacitating the Dangerous', p. 181, and Corrado, 'Punishment, Quarantine, and Preventive Detention', p. 11.
62. Shoeman, 'On Incapacitating the Dangerous', p. 181, and Corrado, 'Punishment, Quarantine, and Preventive Detention', p. 11.