Law and Philosophy (2008) 27:383–414
DOI 10.1007/s10982-008-9022-1
Springer 2008
RICHARD L. LIPPKE
NO EASY WAY OUT: DANGEROUS OFFENDERS
AND PREVENTIVE DETENTION*
(Accepted 23 October 2007)
One of the more vexing problems faced by authorities in the
criminal justice system is the existence of individuals who have
served their sentences for their previous crimes but seem very
likely to commit further, quite serious offenses involving violence against their fellow citizens if they are released from
prison. Such offenders are especially troubling if we assume
that the sentences for their previous crimes were proportional, they are not eligible for standard forms of involuntary
civil commitment, and if, pace R. A. Duff, we imagine
what we would say to the future victims (or surviving family
members) of their crimes if they ask why some form of preventive detention of these dangerous individuals was not
undertaken.1
For many, it suffices to respond to the prospect of preventive
detention by saying that we currently do not have the means
available to identify accurately dangerous offenders in advance
of their crimes.2 Even if this is true, we might not be convinced
that it fully disposes of the problems posed by such offenders.
First, we might get better at identifying the individuals who are
*I am grateful to Antony Duff for his comments on an earlier draft of this
paper.
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.
384
RICHARD L. LIPPKE
at high risk for further serious offending, and indeed there is
evidence that we are doing so with regard to certain types of
offenders.3 Since we do not demand one hundred per cent
accuracy with other predictions of serious offending within the
criminal justice system, it is not clear why we should insist on it
in identifying candidates for preventive detention.4 Second, we
could supplement improved predictive techniques with independent criteria for determining the individuals who are to be
subjected to preventive detention. For instance, we could insist
that they have some minimum number of previous convictions
for serious offenses involving violence against other persons.
We could also require evidence from prison officials concerning
a preventive detention candidateÕs lack of progress in meeting
rehabilitation goals (assuming adequately funded and staffed
rehabilitation programs have been made available to prison
inmates). Third, we could require the authorities to meet high
standards in assigning and keeping individuals in preventive
detention. Not only would there have to be a demonstration to
some type of independent body that there was strong evidence
that an individual should be held in preventive detention, such
detention would be subject to rigorous, periodic review. We
could also stipulate that candidates for preventive detention
3
See John Monahan et al, Rethinking Risk Assessment: The MacArthur
Study of Mental Disorder and Violence (New York: Oxford University Press,
2001), and Grant T. Harris and Marnie E. Rice, ÔActuarial Assessment of
Risk among Sex OffendersÕ, 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, ÔDangerousness and CitizenshipÕ, 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; Stephen J. Morse, ÔBlame and Danger: An Essay on Preventive
DetentionÕ, 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.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
385
must be represented by attorneys who would be permitted to
question officials, challenge evidence, and introduce evidence at
the initial commitment stage and during all subsequent reviews.
Granted, we may not be able in these ways to eliminate all of
the false positives, but it is not unreasonable to think we could
come tolerably close to doing so.
The more worrisome feature of preventive detention, in my
view, is that it punishes individuals for crimes they will commit
rather than for ones they have committed.5 This is the kind of
objection to preventive detention apt to be raised by those who
insist that legal punishment must fall only on the deserving.6
But not everyone who thinks that considerations of desert
should play at least a limiting role in a comprehensive theory of
punishment is convinced by this objection. In what follows, I
distinguish three lines of argument that attempt to show how
dangerous offenders of certain kinds might be deserving of
preventive detention. The first involves arguing that there is
nothing objectionable about punishing individuals for crimes
that they will commit—more specifically, that doing so is not
contrary to a retributive approach to the justification of legal
punishment. ‘‘Pre-punishment’’ of individuals is permissible if
we know or at least believe beyond a reasonable doubt that
they will commit crimes.7 Though defenders of pre-punishment
are cautious about the practical implications of their view, it is
worth considering their arguments for it in this context since
they appear to chip away at one of the powerful moral objections to preventive detention. I do not reject the theoretical
justifiability of pre-punishment, but I do argue that it would
require us to have considerably more knowledge about the
5
Duff, ÔDangerousness and CitizenshipÕ, pp. 145–146. See also von
Hirsch, Past or Future Crimes, pp. 128–129.
6
Most obviously, retributivists require this, but so might those advocating mixed theories of punishment.
7
For the debate about pre-punishment, see Christopher New, ÔTime and
PunishmentÕ, Analysis 52 (1992): 35–40, and ÔPunishing Times: A Response
to SmilanskyÕ, Analysis 55 (1995): 60–62; Saul Smilansky, ÔA Time to
PunishÕ, Analysis 54 (1994): 50–53; and Daniel Statman, ÔThe Time to
Punish and the Problem of Moral LuckÕ, Journal of Applied Ethics 14 (1997):
129–135.
386
RICHARD L. LIPPKE
individuals liable to it than its proponents sometimes
acknowledge—knowledge that it is unlikely we will ever have in
most cases. Indeed, once we see what we must know (or at least
reasonably believe) about the individuals whom we might be
tempted to pre-punish, we will better understand why the
increasingly accurate actuarial predictions about future violent
conduct that we appear to have at our disposal do not enable us
to address a deeper retributive concern about punitive forms of
preventive detention.
Antony Duff develops a second line of argument, according
to which offenders previously found guilty on numerous
occasions of violent crimes might appropriately be permanently
excluded from civil society, at least presumptively.8 The violent
dispositions of such offenders properly mark them out as
dangerous, and so deserving of indefinite preventive detention.
A third line of argument, somewhat similar to DuffÕs, holds that
dangerous offenders might usefully be viewed as guilty of the
crime of reckless endangerment, and so deserving of further
punishment.9 This will especially be true if they are aware of
their own violent propensities and fail to take steps to counter
them effectively by having themselves civilly committed. I
contend that neither of these approaches entirely succeeds in
showing that preventive detention—especially punitive forms of
it—are justified. Both come close to suggesting that the dangerous individuals in question lack the requisite type of moral
control over their actions that is the basis for condemning them
through punitive confinement.
Yet if the arguments for punitive forms of preventive
detention do not succeed, where does that leave us? There have
been hints in the literature that there might be a form of non-
8
See Duff, ÔDangerousness and CitizenshipÕ, especially pp. 151–163, and
Punishment, Communication, and Community, pp. 170–174.
9
See Morse, ÔBlame and DangerÕ, pp. 152–154, though he offers the
argument as a Ôheuristic proposalÕ (p. 152). See also Michael Davis, ÔPreventive Detention, Corrado, and MeÕ, Criminal Justice Ethics 15 (1996): 13–
24, though Davis has serious doubts about the practice of preventive
detention.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
387
punitive confinement available for dangerous offenders.10 If we
confine but do not punish dangerous offenders, then we might
be able to sidestep the worry that we are punishing these
individuals for what they will do rather than for what they have
done. However, this notion of non-punitive confinement has
been sketched rather hastily by its proponents, and it is far from
clear whether it can be elaborated in ways that distinguish it
from its punitive counterpart. I contend that in some ways nonpunitive confinement might be made materially and symbolically different from justified punitive confinement. But in most
ways it will be indistinguishable from punitive confinement and,
importantly, might actually be worse than it in certain respects.
Thus, the possibility of some form of non-punitive confinement
may not enable us to answer successfully the charge that we are
doing something illicit by confining individuals for their future
crimes.
We could, of course, simply refuse to preventively detain
dangerous offenders. The problems with accurately identifying
candidates for preventive detention may, in the short term,
allow us to opt for this way out of the dilemma. But in the
longer term, my sense is that there may be no easy way out: We
cannot quite properly punitively confine all such dangerous
offenders. Non-punitively confining them may be only marginally different from punitively confining them. But we can
hardly be sanguine about letting such individuals loose on civil
10
See Morse, ÔBlame and DangerÕ, 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. See also David Wood, ÔDangerous Offenders and the Morality
of Protective SentencingÕ, The Criminal Law Review (July 1998): 424–433,
and ÔReductivism, Retributivism, and the Civil Detention of Dangerous
OffendersÕ, Utilitas 9 (1997): 131–146, and Katherine P. Blakey, ÔThe
Indefinite Civil Commitment of Dangerous Sex Offenders is an Appropriate
Legal Compromise Between ÔMadÕ and ÔBadÕ—A Study of MinnesotaÕs
Sexual Psychopathic Personality StatuteÕ, Notre Dame Journal of Law,
Ethics, and Public Policy 10 (1996): 226–299, at 254–255.
388
RICHARD L. LIPPKE
society once they have served their sentences for their previous
offenses.11
I. PREVENTIVE DETENTION AND PRE-PUNISHMENT
Christopher New and Daniel Statman have both argued that, in
theory at least, punishing offenders for crimes that we know
they will commit, but have not yet committed, is justified.12
More specifically, they argue that if the appropriate epistemic
conditions are satisfied, retributivists should not object to
punishing offenders before they commit their crimes because
the individuals in question are deserving of punishment. New
and Statman admit that it is extremely unlikely that the epistemic conditions will ever actually be satisfied—perhaps only
beings with something close to omniscience could satisfy them
and so justifiably pre-punish individuals. Hence, their arguments cannot practically be used to justify preventive detention.
Nevertheless, one of the things that emerges from the prepunishment debate is a clearer account of what we would need
to know for pre-punishment to be justified.
In response NewÕs defense of pre-punishment, Saul Smilansky objected to it on the grounds that it deprives individuals of
the chance to have a change of heart after they have formed the
intention to commit a crime.13 This seems plausible, since retributivists typically see punishment as an institutionalized form
of moral blame for wrongful conduct. Though individuals
11
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 DuffÕs ÔDangerousness and CitizenshipÕ, p. 146.
12
New, ÔTime and PunishmentÕ, pp. 35–40 and Statman, ÔThe Time to
Punish and the Problem of Moral LuckÕ, pp. 129–134.
13
Smilansky, ÔThe Time to PunishÕ, p. 51.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
389
might fully intend wrongful conduct, in accordance with NewÕs
account, they might also change their minds at the last minute
and not actually go ahead with it. If they do not execute their
intentions, then pre-punishing them would wrongly censure
them for moral failings that they did not exhibit. For this
reason, pre-punishment would be unacceptable to retributivists.
Yet New insists that we are to know (or believe beyond a
reasonable doubt) that such a last minute change of heart will
not occur.14 And if we know that, then there is no point in
waiting to punish the individual until after the criminal act is
performed. Statman takes this a step further, imagining that we
might know that certain kinds of individuals will (invariably)
form intentions to act in wrongful ways in certain kinds of
circumstances and act on them. Hence, in his view, we might
pre-punish individuals even before they form their criminal
intentions if we know that they have certain kinds of character,
will find themselves in the relevant circumstances, and will thus
form such intentions.
I am inclined to concede that if we knew all of the things that
New and Statman require us to know, then pre-punishment
might be justified. But we would need to know more than what
New and Statman explicitly acknowledge for retributivists to
accept pre-punishment. Again, New admits that we would have
to know that the individual in question would not have a last
minute change of heart after she had formed the intention to
commit a criminal act. More than this, however, we would have
to know that the agent in question failed to exhibit the kind of
moral self-governance that retributivists hold is a precondition
of liability to legal punishment.15 This means that we would
have to know that she was generally capable of recognizing and
acting on moral considerations up to some perhaps difficult-tospecify level of competence. Without such moral competence,
she would not properly be subject to retributive punishment,
14
New, ÔPunishing Times: A Reply to SmilanskyÕ, pp. 61–62.
For further discussion of the retributive conception of liability to
criminal punishment, see my ÔMixed Theories of Punishment and Mixed
Offenders: Some Unresolved TensionsÕ, Southern Journal of Philosophy 44
(2006): 273–295, at 274.
15
390
RICHARD L. LIPPKE
with its distinctive censuring dimension. Moreover, we would
also have to know that her competence in this regard was
operative in her nonetheless going forward with her criminal
intention in the case at hand. Thus, we would have to know
both that she was morally competent and that she was not
acting under duress or out of necessity, temporarily in the grip
of powerful delusions brought on by a brain tumor, and the
like. In other words, we would have to know that she either
considered the moral reasons against acting on her intention or
at least realistically could have done so but elected not to. Then
and only then would we be in a position to say that she deserved the censure pre-punishment bestows on her. To make
StatmanÕs more ambitious version of pre-punishment plausible,
we would have to know many more things—for instance, that
individuals with certain kinds of character but who were
nonetheless morally competent would inevitably form criminal
intentions if they found themselves in certain kinds of circumstances. And we would have to know, once again, that once
they formed those intentions, even though they could exert the
kind of moral control over their conduct retributivism presupposes they are capable of, they would not do so. If we were
gods, we might know (or believe beyond a reasonable doubt) all
of these things. But of course we are not, and so the advocates
of pre-punishment cannot be understood to have supplied us
with a convincing argument for punitive forms of preventive
detention. In fairness, it is apparent that they never intended to
do so.
Still, one thing that the preceding discussion helps to make
clear is why the availability of increasingly powerful actuarial
methods to predict violent offending is insufficient to justify
preventive detention on retributive grounds. Such methods
focus entirely on historical or sociological characteristics of
offenders in making predictions of future violent offending. As
such, they do not inquire directly or deeply enough into
offendersÕ moral capacities and their operation in specific
choice situations. Thus, these methods do not attempt to
determine whether offenders satisfy the liability requirements
for retributive punishment. We might, for instance, be able to
predict with a high degree of accuracy that psychopaths with
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
391
the requisite criminal histories will commit future violent
crimes.16 But predictive methods that do not enable us to distinguish such individuals from ones who are morally competent
up to some appropriate level and who nonetheless continue to
commit violent crimes will remain problematic for anyone who
believes that one of the primary aims of legal punishment is to
censure individuals for their wrongful conduct.
II. DUFFÕS DANGEROUS OFFENDERS AND PREVENTIVE
DETENTION
Antony Duff constructs an argument for continued punitive
confinement of what he thinks is likely to be small class of
offenders, ones who are ‘‘persistent’’ in the sense that they exhibit a pattern of violent offending despite previous and regular
convictions and punishments.17 Though he grants that individuals normally have a right to be presumed harmless, even
after they have been convicted and punished for previous
serious offenses, he argues that such a right is rebuttable. A
violent criminal past of a sufficiently pervasive and enduring
kind might be sufficient to do so. On DuffÕs account, those who
are ‘‘dangerous’’ possess a dispositional property. They have
certain attitudes and patterns of motivation which manifest
themselves in serious criminal conduct in the kinds of situations
in which they are likely to find themselves.18 This is not to say
that the dangerous will inevitably commit serious offenses. Duff
allows that they might reform their characters or never find
16
I take it to be fairly well established that psychopaths are not appropriate subjects of retributive legal punishment. See Jeffrie Murphy, ÔMoral
Death: A Kantian Essay on PsychopathyÕ, 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.
17
Duff, ÔDangerousness and CitizenshipÕ, especially pp. 151–163, and
Punishment, Communication, and Community, pp. 164–174.
18
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 ÔDangerousness and CitizenshipÕ, p. 154.
392
RICHARD L. LIPPKE
themselves in the circumstances that activate the relevant attitudes, motivations, or patterns of behavior. But given a sufficiently grave criminal past, Duff argues that we might
reasonably opt for presumptively permanent exclusion of such
dangerous offenders from civil society on the grounds that they
deserve it.19 He compares their exclusion to the disqualification
of individuals from other types of communities—persistent
plagiarizers from academic communities, or persistently malpracticing doctors from the medical profession. At some point,
communities or their representative authorities are entitled to
say ‘‘enough is enough’’ with regard to certain offenders.
Punishment for previous offenses has not induced the kind of
repentance for past wrongs at which, on DuffÕs account, it
centrally aims, and communities are thus justified in imposing
on such offenders the categorically more severe sanction of
permanent exclusion. Still, Duff insists that the exclusion be
presumptive. Those subjected to what he terms ‘‘special selective detention’’ (SSD, for short) should not be viewed or treated
as irredeemable.20 They might undergo radical moral reform
and at some point be readmitted to civil society. Indeed, we
should continue to encourage them to repent.
Duff is exceedingly cautious in his defense of SSD, admitting
many qualms about it and noting the problems that would have
to be confronted were it to be put it into practice. He also stops
short of arguing that those serious offenders appropriately
subject to it should be wholly excluded from participation in
civil society, allowing that they might be permitted to vote and
participate in political debates as well as maintain contact with
and participation in other communities (e.g., their families).
This seems a bit puzzling at first. If dangerous offenders are
deemed wholly unfit to return to civil society, why permit them
any form of participation in it? Why not opt for the kind of
extremely restrictive punitive confinement found in many
19
Duff, ÔDangerousness and CitizenshipÕ, p. 161.
Duff, ÔDangerousness and CitizenshipÕ, p. 142. For the claim that the
offenders in question should not be viewed or treated as irredeemable, see
p. 162.
20
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
393
so-called supermax prisons in the United States?21 Supermax
imprisonment seems designed to wholly attenuate the agency of
serious offenders by depriving them of all avenues along which
they might misbehave, even while incarcerated. If DuffÕs dangerous offenders are as volatile as he in some places makes them
out to be (in explaining ‘‘dangerousness’’ as a dispositional
property, Duff repeatedly employs the analogy of an unexploded bomb), why would we not look for ways to keep them
from ever harming anyone in prison or participating in any way
in civil society?22 DuffÕs likely response would be that such
extremely restrictive forms of imprisonment constitute giving
up on dangerous offenders or depriving them of opportunities
to repent of their past wrongs, neither of which he is willing to
have us do. Perhaps so, but this suggests that SSD may not be
as categorical in its exclusion as the analogous exclusions from
other kinds of communities with which Duff compares it.
A more serious problem with DuffÕs account of dangerous
offenders is that he appears to come perilously close to denying
that such offenders have the requisite level of moral control
over their violent criminal acts necessary to make them liable to
the moral censure legal punishment conveys (though it is clear
that he does not want to deny this, since he characterizes such
offenders as ‘‘fully responsible’’ for their crimes).23 Again, he
says that the dangerous dispositions of such offenders may not
eventuate in violent acts in cases where the offenders undergo
radical moral reform or never encounter the circumstances apt
to activate their tendencies. But the latter seems mostly a matter
of good or bad luck, and so not something directly under the
control of the offenders in question. If they are unlucky enough
to encounter the circumstances that excite their wayward dispositions, are we to believe that they will just ‘‘go off?’’ And if
so, in what sense is the ‘‘public actualization’’ of their underlying disposition any more morally blameworthy than the
21
For description and analysis of supermax confinement, see Leena
Kurki and Norval Morris, ÔThe Purposes, Practices, and Problems of
Supermax PrisonsÕ, Crime and Justice: A Review of Research 28 (2001):
385–424.
22
See Duff, ÔDangerousness and CitizenshipÕ, pp. 152–153.
23
Duff, ÔDangerousness and CitizenshipÕ, p. 141.
394
RICHARD L. LIPPKE
explosion of a bomb suddenly exposed to just the right (or
wrong?) conditions?24
Duff could argue that other things might prevent the public
actualization of an individualÕs dangerousness even if he
encounters the circumstances apt to set him off, such as the
threat of arrest presented by ubiquitous law enforcement officials. If dangerous offenders who encounter circumstances that
would normally set them off refrain from violent crimes out of
fear of arrest, would that not be enough to show that they are,
after all, responsible for their acts and thus appropriately
subject to the moral censure that punitive confinement conveys?
Not necessarily, since it might show only that such offenders
are capable of narrowly self-interested conduct, not selfrestraint based on moral considerations. Granted, the criminal
law does not set very high liability requirements with regard to
legal punishment. In particular, it does not require that those
liable to punishment be capable in any very substantial way of
regulating their conduct by reference to moral considerations.
It is enough for the criminal law if individuals are capable of
restraining their violent proclivities based merely on considerations of self-interest. But retributivists like Duff typically
presuppose that those properly liable to punishment are capable of self-restraint based on moral considerations, or else it is
difficult to make sense of the moral rebuke of their actions
punishment is supposed to represent.25
Duff does hold out the possibility of radical character
reform, so he might argue that it alone is sufficient to make
dangerous offenders morally responsible for their crimes. If
dangerous individuals can repent of their pasts and modify
their violent dispositions, then that may be enough to regard
24
Duff, ÔDangerousness and CitizenshipÕ, p. 155.
Again, see DuffÕs 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 selfinterest on many occasions. All that matters is that they are capable of
morally restraining themselves if other motivations for doing so are not
sufficient.
25
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
395
them as blameworthy should they fail to do so and commit
crimes when the circumstances present themselves. He could
also argue that it is not a matter of luck alone whether dangerous individuals encounter the kinds of circumstances apt to
‘‘set off’’ their violent dispositions. Perhaps such agents are
capable of foreseeing the kinds of circumstances that render
them susceptible to violent outbursts and taking the steps
necessary to avoid them. If so, then DuffÕs dangerous offenders
might be morally accountable for their violent acts even if they
cannot morally control their violent outbursts once they find
themselves in certain kinds of circumstances. Of course, if they
are also capable of morally controlling their violent outbursts
once they find themselves in such circumstances, one wonders
why Duff does not have us wait for them to commit crimes to
punish them rather than employ SSD.
It will be useful here to distinguish between primary and
secondary moral control over conduct. Agents have primary
moral control over their conduct if they are usually able to
discern and properly weigh moral considerations in the myriad
choice situations they confront and guide their conduct
according to their judgments of what such considerations require of them. Agents have secondary moral control over their
actions if they are capable of understanding the importance and
taking the steps necessary to acquire or maintain primary moral
control over their actions. Undertaking substantial character
reform or making efforts to avoid circumstances where oneÕs
violent proclivities will ‘‘erupt’’ seem to both be species of
secondary moral control. And there do appear to be situations
where secondary moral control alone is sufficient for holding
agents blameworthy for their criminal acts. For instance,
intoxicated drivers may lack primary moral control over their
dangerous driving, but their secondary moral control over
whether they put themselves in the position of driving while
intoxicated seems enough to hold them criminally liable for any
laws that they violate (or injuries they cause) while drunkenly
operating motor vehicles. The question is whether DuffÕs dangerous offenders have either form of secondary moral control
over their conduct.
396
RICHARD L. LIPPKE
We should, it seems to me, be somewhat skeptical about the
prospects for radical character reform for persons in general,
but especially for some of the kinds of dangerous individuals
Duff has in mind—terrorists, hardened professional criminals,
sexual predators, and pedophiles.26 To this group we might add
those with psychopathic personality disorder, at least assuming
that this condition refers to something other than a disposition
to violent and predatory behavior.27 The evidence suggests that
those in the lattermost group, many of whom appear to comprise some of the most serious and intractable criminal
offenders, are nearly insusceptible to character change. There is
no known effective treatment of psychopathy and psychopaths
engage in criminal conduct well past the point at which other
offenders tend to desist.28 Thus, the notion that they have this
type of secondary moral control over their conduct seems a
dubious one. Expert opinion appears to vary about whether
sexual predators or pedophiles can be successfully treated, but
no one seems to believe reforming them is anything short of an
arduous process.29 One suspects that the same is likely to be
true of hardened professional criminals. We might hold out
26
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.
27
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, ÔEmpathy and
UniversalizabilityÕ, Ethics 105 (1995): 743–763, at 744–746. See also Stephen
J. Morse, ÔPsychopathyÕ, in The Encyclopedia of Crime and Justice, 2nd
Edition (J. Dressler, editor in chief), (New York: Macmillan, 2001),
pp. 1264–1269, at p. 1265.
28
See Morse, ÔPsychopathyÕ, p. 1266. See also Grant T. Harris, Tracey A.
Skilling, and Marnie E. Rice, ÔThe Construct of PsychopathyÕ, Crime and
Justice: A Review of Research 28 (1997): 196–264.
29
For an analysis of the various methods used to treat sex offenders, see
Marnie E. Rice and Grant T. Harris, ÔWhat We Know and DonÕt Know
About Treating Adult Sex OffendersÕ, 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.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
397
more hope for terrorists. They may have highly developed
moral sensitivities of narrow or distorted kinds that the right
combination of maturation, education, and reflection will be
able to draw upon to generate sincere repentance and efforts at
moral rebirth. But it seems equally if not more likely that SSD
will simply confirm to such offenders the mendacious or
oppressive character of the state and thus deepen their commitment to their cause. Hence, those dangerous offenders most
susceptible to radical character change may, ironically, turn out
to ones who are least likely to appreciate its desirability.
Moreover, there is something a bit worrisome about supporting the punitive confinement of individuals for their
unwillingness or inability to undergo radical character change.
Legal punishment is typically a response to illegal conduct that
unjustifiably harms others or takes unfair advantage of rules
and procedures necessary for the coordination of social interaction. Punishing people for their character or their failure to
change it would seem to be something that anyone with liberal
political instincts will want to avoid.
These doubts about the feasibility of radical character reform or the appropriateness of a punitive response to failures to
undertake or accomplish it may not matter if the other type of
secondary moral control is available to most of DuffÕs dangerous offenders. Yet most of them appear quite dissimilar to
drunken drivers, who must simply avoid a discrete type of
activity or the combination of two discrete types. If some
dangerous offenders have more generalized dispositions toward
violence, it is hard to see how they can avoid circumstances
where that disposition will become active short of sequestering
themselves from most social relations. This type of secondary
moral control might be more feasible for pedophiles, who could
try in various ways to avoid all contact with children, but,
unfortunately, less feasible for those individuals whose sexually
predatory behavior targets a wider array of victims. It is difficult to conceive of the steps terrorists might take to avoid
activation of their violent dispositions, especially if they are
at war with political states or more diffuse social, economic, or
environmental trends. And terrorists would appear to be
particularly poor candidates for such secondary moral control,
398
RICHARD L. LIPPKE
since they are apt to be resistant if not scornful of the desirability of avoiding circumstances where their dispositions toward violence will erupt.
But perhaps Duff will argue that most (though presumably
not all) dangerous offenders retain primary moral control over
their conduct. Their persistent offending shows only that they
will not exercise such control, not that they cannot do so. Since
we can reasonably conclude that they will not exercise such
control, their right to be presumed harmless is rebutted. In this
way such offenders differ from mere repeat offenders, who retain the right in question because, though they have not, on one
or more occasions, exercised primary moral control over their
conduct, we are not yet warranted in concluding that they will
not do so in the future.
In response to this, we should ask what it is that distinguishes dangerous offenders from repeat ones, especially since
we might reasonably predict that both will reoffend in certain
circumstances in the future. One plausible answer is that their
persistent patterns of serious offending show dangerous
offenders to be chronically under-motivated by moral considerations, whereas all that we can conclude about repeat
offenders is that they are episodically under-motivated by such
considerations.30 Yet if this is correct, whether punitive confinement of the former is appropriate remains somewhat in
doubt. After all, it seems likely that chronic under-motivation
will only be addressed by the kinds of assiduous efforts at
character change regarding which we have seen there is reason
to doubt the likely success. Still, Duff might argue that at least
some dangerous offenders are deserving of punitive confinement because they are ultimately responsible for the fact that
they have become chronically under-motivated by moral considerations. Perhaps they cannot easily change their motivational structure now that moral considerations no longer
sufficiently move them, but they could have done things to
avoid becoming chronically under-motivated in the first place.
30
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.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
399
Though this may be true of some such offenders, it seems
doubtful that it is true of many of them. Maybe a few of them
were robustly motivated by such considerations at one point in
their lives, only to gradually inure themselves to them as they
sunk into violent or predatory conduct of a persistent sort. But
it seems more plausible to believe that most dangerous
offenders were never very accomplished moral beings to begin
with, such that their responsibility for their subsequent chronic
under-motivation by moral considerations is rather attenuated.
If DuffÕs dangerous offenders lack both primary and secondary moral control over their conduct, as it appears many of
them might, then it is not clear how he can argue for their
punitive confinement. Indeed, the deeper logic of DuffÕs position seems in some respects more consistent with his advocating
some kind of non-punitive confinement of such individuals. He
notes, at one point, that prior attempts to induce repentance in
such offenders for their past crimes have utterly failed, and that
the prospects for inducing it in the future are decidedly grim.31
In a way, such offenders are beyond punishment, if punishment
is understood, pace Duff, as an attempt to morally communicate with offenders about their past wrongful conduct and their
need for repentance and change. The whole point of preventively confining them is to stop them from committing future
crimes the punishment of which will be futile. In light of this,
perhaps what Duff should conclude is that some type of nonpunitive confinement of such offenders is in order.
III. RECKLESS ENDANGERMENT AND PREVENTIVE
DETENTION
Another argument for the punitive confinement of dangerous
offenders depends on the notion that individuals can appropriately be punished for the crime of recklessly endangering
their fellow citizens. Stephen MorseÕs version of this argument
requires that candidates for preventive confinement satisfy the
following conditions:
31
Duff, Punishment, Community, and Communication, p. 170.
400
RICHARD L. LIPPKE
(1) prior conviction of at least one serious crime of violence, or at least one
prior occurrence of involuntary civil commitment for actual serious violent
conduct; (2) conscious awareness of an extremely high risk that the agent
will in the immediate future cause substantial unjustified harm; and (3)
failure to commit oneself voluntarily or to take other reasonably effective
steps to avoid causing future harm.32
Morse suggests that the crime would be complete ‘‘when the
agent recklessly fails to take the steps necessary to avoid
wrongdoing.’’33 Although the term of imprisonment for the
offense would be relatively brief, Morse notes that at the end of
each term, still dangerous agents would be exposed to criminal
liability again in the absence of other appropriate preventive
steps. The conduct in question is justifiably criminalized
because no one has a right to harm others unjustifiably and
those who are consciously aware of an extremely high risk that
they will do so have a moral duty to take preventive action. If
they fail to do so they are culpable—‘‘Like Odysseus, they must
tie themselves to the mast.’’34 Morse admits that violations of
such an expanded crime of reckless endangerment would be
difficult to detect and prove beyond a reasonable doubt, but
that where they were, ‘‘incarceration for a short period would
be deserved.’’35
Though Morse insists that his focus is on responsible
offenders, ones who are not eligible for involuntary civil commitment, his characterization of such dangerous offenders, like
DuffÕs, suggests that they may have only secondary moral
control over their conduct. Just as Odysseus could only avoid
disaster by taking steps ahead of time to prevent himself from
succumbing to the SirensÕ seductive singing, so MorseÕs dangerous offenders appear to have the option only of taking steps
to avoid circumstances where their violent dispositions will
32
Morse, ÔBlame and DangerÕ, p. 152. See also Michael DavisÕs version of
the argument in ÔPreventive Detention, Corrado, and MeÕ, 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.
33
Morse, ÔBlame and DangerÕ, p. 152.
34
Morse, ÔBlame and DangerÕ, p. 152.
35
Morse, ÔBlame and DangerÕ, p. 153.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
401
manifest themselves. Yet terrorists, for instance, will sincerely
dispute the characterization of their violence as ‘‘unjustified,’’
and though we might reject their rationalizations of the terrible
things they do, their confidence in their cause might suffice to
raise doubts about whether they satisfy the second of MorseÕs
conditions. Terrorists do not simply want to hear the Sirens;
they sincerely believe that they have a duty to do so and if
crashing the ship and killing all on it is the price they must pay,
then so be it. They therefore seem rather unlike individuals who
recognize that they are dangerous, concede that their violence is
indefensible, but who neglect to take steps to avert its eruption.
Psychopaths, sexual predators, or hardened criminals might
likewise be prone to rationalization of their violent conduct,
blaming others for it or attempting to pass it off as not all that
reprehensible. Even if we are inclined to summarily reject such
putative defenses of their crimes and insist that they are or
should be consciously aware of the danger they pose to others
(thus satisfying MorseÕs second condition), the other preventive
options available to them are limited and unattractive. Again,
they are not like drunk drivers who must avoid the specific
combination of activities involving drinking and driving. These
are individuals who must avoid all activities that may activate
their violent proclivities. And this probably means that they
must avoid an enormous range of activities that free citizens are
permitted. Indeed, the options other than punitive confinement
available to the dangerous are decidedly bleak—‘‘voluntary’’
civil confinement, becoming recluses, or committing suicide.36
It is one thing to ask those susceptible to drunk driving to give
up drinking and driving. That seems a sacrifice we can reasonably ask them to make in the interests of others given their
obvious inability to control their dangerous conduct once they
are intoxicated. But it may be quite another to ask those believed dangerous to give up everything remotely resembling a
free life.
36
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, ÔWhat We Do and DonÕt Know
About Treating Adult Sex OffendersÕ, pp. 104–107.
402
RICHARD L. LIPPKE
Let us set to one side terrorists, who may not satisfy the
second of MorseÕs conditions, and divide the remaining dangerous individuals into two groups. Some, such as psychopaths,
will not be responsive at all to moral considerations. Most, we
might hope, will be at least somewhat responsive to them. With
the former group of dangerous offenders, it is not clear how the
reckless endangerment argument justifies their punitive confinement. Granted, if one knows one has violent tendencies that
are likely to manifest themselves in seriously harmful and
unjustifiable conduct in the immediate future, understands and
is responsive to the moral reasons that condemn such conduct,
and nonetheless neglects to take steps to prevent it, one is
blameworthy and might legitimately be subject to the censure
legal punishment conveys were the crime of reckless endangerment expanded along the lines Morse suggests. But the morally
unresponsive are not like this. They may be capable of
acknowledging their violent tendencies, but they are presumably
incapable of understanding and accepting the moral reasons
against the conduct that results from those tendencies. Also, it
would be odd to think that such individuals lack primary moral
control over their conduct but retain some type of secondary
moral control over it. They will see the expansion of reckless
endangerment envisioned by Morse as simply threatening them
with adverse consequences if they do not submit to some other
form of restraint. Yet given the unattractiveness of the options
other than preventive detention available to them, the nonmoral reasons to which such individuals are responsive will
likely counsel them to take their chances on remaining free,
submit to their violent tendencies, and attempt to avoid arrest
and prosecution.
It might be suggested that those who altogether lack primary
moral control over their conduct will still be blameworthy for
their violence under certain conditions. Suppose that psychopaths are not only aware of their predilections, but are also
aware that the law and morality condemn the conduct to which
they are prone. Suppose further that they can come to see the
relevant moral prohibitions on violence as justified in the sense
that if one is committed to morality at all, one must accept limits
of these kinds on conduct. Finally, suppose also that psycho-
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
403
paths could come to the realization that they rationally ought to
be committed to morality—they ought to be moved by it even
though they remain unmoved. Why would this not be enough to
show that they have secondary moral control over their conduct
and thus are appropriately subject to punitive confinement if
they are not prepared to take other steps to prevent their violent
outbursts? We might suspect that this argument can only get off
the ground by imagining psychopaths to be much more reflective and rational than they are in reality.37 But setting that worry
aside, the weak link in the argument is the claim that rationality
compels the acceptance of morality. If it did, then we might have
to admit that even psychopaths could be appropriately morally
blamed for their reckless endangerment of others. Yet the history of failed attempts to establish a necessary link between
rationality and the acceptance of moral standards suggests that
the argument fails. Or at least that history suggests that the
argument does not obviously succeed.
What of those dangerous offenders who are somewhat
responsive to moral considerations? Does MorseÕs argument
show that they are appropriately subject to preventive punitive
confinement for recklessly endangering their fellow citizens?
With this group of offenders, the problem is that they have
another option that it seems we should permit them given the
limited and unattractive character of the alternatives—namely,
going free and attempting to morally control their violent
proclivities.38 We might strongly suspect that they will not
control them, but it does not seem unreasonable for them to
insist that they be allowed to try if we cannot offer them anything besides civil confinement, reclusion, or suicide. If we
refuse to let them go free, then it seems we are saying that such
offenders lack primary moral control over their conduct. Of
course, they still might have secondary control over it and that
might be sufficient to render them blameworthy for recklessly
endangering others if they refuse voluntary civil commitment.
Perhaps such offenders can plausibly be viewed as capable of
37
Psychopaths are notoriously impulsive. See Morse, ÔPsychopathyÕ,
p. 1264, and Harris, Skilling, and Rice, ÔThe Construct of PsychopathyÕ, p. 197.
38
Cf. Michael Corrado, ÔPunishment, Quarantine, and Preventive
DetentionÕ, Criminal Justice Ethics 15 (1996): 3–13, at 11.
404
RICHARD L. LIPPKE
understanding their seriously violent tendencies and embracing the moral necessity of taking steps to prevent their manifestation. There is, however, something a bit odd about this
possibility. Such offenders are apparently unresponsive or
insufficiently responsive to moral considerations that directly
prohibit serious harms to their fellow citizens. Are we supposed
to believe that they are nonetheless moved by moral considerations counseling them to take steps to avoid putting themselves in circumstances where their violence is likely to manifest
itself? One would think that the former are the more salient
considerations and thus more likely to move anyone responsive
to moral considerations at all.
The deeper worry I have, though, is that MorseÕs reckless
endangerment argument makes sense only if the offenders in
question are prepared to take a fatalistic view of themselves. If
they recognize and repudiate their violent tendencies, yet insist
on being released so that they can strive to control them, is
Morse prepared to say that they have failed to take ‘‘reasonably
effective’’ steps to avoid unjustifiably harming others? These
are, after all, the same steps that other citizens take and are
expected to take. Is it that these offenders should know that selfrestraint is futile in their cases? If so, it is hard to see how we can
avoid the conclusion that the law invites them to see themselves
as helplessly in the grips of their proclivities. Perhaps they are so
in the grips, but it is demeaning to suggest it and there appear to
be few meaningful options short of confinement that we can
offer them. I cannot help but think that they should be given
their freedom. Such offenders are not quite like the intoxicated
who steadfastly insist that they can drive safely home. With
drunk drivers, we have more to go on than the sorry history of
drinking and driving. We have independent evidence of the effects of alcohol consumption on human perception, reaction
times, and hand-to-eye coordination. We can appeal to that
evidence to rebut the assurances of the intoxicated that they are
no threat to anyone. But comparable, independent evidence
seems unavailable for many dangerous offenders, especially
ones who are not psychopaths. With them, we can only point to
their past misdeeds. Yet that alone cannot suffice to demonstrate their lack of primary moral control, or else all recidivists
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
405
will have to be deemed dangerous and thus subject to punitive
confinement.
In fairness to Morse, he might argue that most dangerous
offenders do have primary moral control over their conduct, his
reference to Odysseus to the contrary.39 But if they do, then it
seems that we should wait for them to commit further offenses,
at which point we could arrest and prosecute them.40 Again, it
will not do for Morse to argue that most dangerous offenders
have control over their conduct in the sense that they are able
to refrain from violence where the risk of arrest and prosecution is especially high. As we have seen, such nonmoral control
does not suffice for the retributive punishment of crimes with its
distinctive blaming function. Morse might also argue that the
option of civil confinement is not all that bad, such that there is
a reasonable alternative available to them to avoid punitive
confinement. Whether that is a plausible contention is something I examine in the next section.
My hunch is that some of the offenders Morse and Duff are
concerned with, though they may have primary moral control
over their conduct, have it in only extremely attenuated ways.
These do not seem to be individuals who merely have habits of
violent behavior, or a strong attraction to it on the order of an
addiction. Neither of these conditions would convince us that
the agents in question lacked primary moral control over their
conduct. Rather, there may be some individuals who have
exceedingly strong, if not irresistible, predilections toward
violence in certain kinds of circumstances. They may be dimly
aware of the moral considerations weighing against their acting
on these predilections but largely unable to make their conduct
39
See his ÔExcusing and the New Excuse Defenses: A Legal and Conceptual ReviewÕ, 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.
40
Indeed, in fairness to Morse, this is the view that he more often seems to
take in ÔBlame and DangerÕ, in spite of his tentative defense of expanding the
crime of reckless endangerment. See also his ÔPreventive Confinement of
Dangerous OffendersÕ, Journal of Law, Medicine, and Ethics 32 (2004): 56–70.
406
RICHARD L. LIPPKE
conform to them. It may be that we are unsure how to conceptualize such weakly morally responsible agents for the
purposes of punishment theory. They do not seem as blameworthy (and so subject to punitive confinement) as those with
more normal or even robust moral personalities. Yet it is hard
to convince ourselves that such individuals are so out of touch
with reality that the alternative of involuntarily civilly confining
and treating them is in order.
This brings us to a final strategy for addressing dangerous
offenders—the possibility of some type of non-punitive confinement. Here, the idea is that we should be prepared to preventively confine properly identified dangerous offenders, but
to do so in ways that are not tantamount to punitively confining them. We could employ this strategy in relation to dangerous individuals who we are convinced lack both primary and
secondary moral control over their conduct or in relation to
those who are so weakly capable of either so as to not warrant
punitive confinement.
IV. THIRD STRATEGY: NONPUNITIVE CONFINEMENT
The first thing to be said about this third strategy is that it is more
often hinted at by some advocates of preventive detention than
developed by them in any detail. The idea behind it is this:
whereas ordinary imprisonment is supposed to be punitive in
character, and thus to some degree onerous or unpleasant, it
might be possible to contrive a type of confinement that lacks this
punitive element. The closest analogue seems to be quarantine for
infectious diseases, where the persons detained are subjected to
no more restrictions than necessary to prevent their spread.41
Morse at one point describes something along these lines (though
he stops short of endorsing it) when he asks us to imagine that
41
Cf. Ferdinand SchoemanÕs argument for preventive detention as
morally indistinguishable from quarantine for infectious disease, in ÔOn
Incapacitating the DangerousÕ, reprinted in Hyman Gross and Andrew von
Hirsch (eds.), Sentencing (New York: Oxford University Press, 1981),
pp. 175–185. Shoeman defends the principle that Ôthe least restrictive means
of accomplishing social protection is the maximum allowable under the
practiceÕ, at p. 176.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
407
‘‘the detainee is confined in a decent, cheap, hotel-like place, with
reasonable food, exercise, medical care, conjugal visits, and the
like.’’42 And David Wood claims that ‘‘with civil detention
institutions there is no reason in principle why…they cannot be
made pleasant and agreeable places, so that inmates suffer little
or no material harm or loss beyond the denial of liberty.’’43 Thus,
while prisons are dreary and sometimes squalid places that impose numerous restrictions on inmates, non-punitive confinement facilities ostensibly would not be like this.
The initial difficulty with the contrast drawn between prisons
and non-punitive confinement facilities is that there is some
tendency for proponents of non-punitive preventive detention to
take prisons as they currently are in many countries, not as they
might be under more ideal conditions. Even the claim that
prisons, in contrast with non-punitive facilities, are supposed to
inflict hard treatment on their inhabitants is disputed by those
who contend that offenders are sent to prison as their punishment, not for punishment.44 This suggests that there is no
uncontested account of what imprisonment should be like.
Some see it as the place where offenders are sent to suffer
additional losses and deprivations. Others see confinement in
prison as itself the justified loss or deprivation, such that the
imposition of any additional losses or deprivations stands in
need of justification. What we need, then, is some account of
justified imprisonment or prison conditions with which we could
then compare non-punitive confinement facilities. Such an account would tell us what imprisonment aims to accomplish and
how the various conditions within prison would both individually and collectively enable us to realize the relevant aims.45
42
Morse, ÔBlame and DangerÕ, 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.
43
Wood, ÔReductivism, Retributivism, and Civil DetentionÕ, p. 137.
44
See, for instance, Michael Tonry, ÔHas the Prison a Future?Õ in Michael
Tonry (ed.), The Future of Imprisonment (New York: Oxford University
Press, 2004), pp. 3–24, at p. 20.
45
I develop such an account in my Rethinking Imprisonment (Oxford:
Oxford University Press, 2007).
408
RICHARD L. LIPPKE
It should be apparent that providing such a normative account of the prison is a major undertaking, one that cannot be
accomplished in a few pages. What we can do is consider some
of the main dimensions along which imprisonment affects the
lives of offenders and consider whether and in what ways nonpunitive confinement might be made different. We might begin
by roughly distinguishing material and symbolic dimensions of
imprisonment. The former, comprised of the restrictions imposed on inmates and the living conditions to which they are
subjected, determine in important ways the lived experience of
inmatesÕ lives. The latter, comprised of the messages imprisonment communicates about inmates to the public and to inmates themselves, also affects the lived experience of
imprisonment, but tends to do so more indirectly. Even inmates
who are largely insensitive or unresponsive to the censure
conveyed by imprisonment will have their abilities to live decent
lives on their own terms drastically curtailed by the material
conditions of prison confinement.
The main material deprivations imposed by imprisonment
include the following: (1) extreme restrictions on freedom of
movement; (2) low levels of comfort and amenity; (3) idleness,
especially a paucity of opportunities for paid labor; (4) relative
isolation from family members, friends, and the larger community; (5) significant diminution of autonomy, especially
insofar as prisons subject their inhabitants to a degree of
bureaucratic control resulting in what Gresham Sykes termed
the ‘‘subservience of youth;’’46 and (6) substantial diminishment of privacy. Prisons can and, unfortunately, often do inflict
much worse deprivations on their inhabitants, but let us suppose that the degrading and inhumane conditions found in
many contemporary prisons are not justifiable. We might also
question whether all of the above material conditions are
defensible. A strong case can be made for providing prisoners
access to paid labor, reducing their isolation from family
46
Gresham Sykes, The Society of Captives: A Study of a Maximum
Security Prison (Princeton, N. J.: Princeton University Press, 1958), p. 76.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
409
members, friends, and the larger community, and guaranteeing
them some modicum of privacy.47 Indeed, in some countries all
of these measures to improve prison conditions are taken quite
seriously and given constitutional and statutory impetus.48
Symbolically, imprisonment invariably communicates a
strong message of censure for past conduct.49 Those sentenced
to imprisonment are forcibly taken from their communities and
physically isolated from their fellow citizens. It can be argued
that the degree of censure imprisonment communicates
depends, to some extent, on the kinds of deprivations it inflicts.
Supermax confinement, with its extreme diminishment of the
agency of inmates, arguably conveys the message that its
inhabitants are little better than wild beasts of prey who must
be tightly controlled and watched over. It is no coincidence that
such extreme types of prison confinement are often characterized by their defenders as appropriate for ‘‘the worst of the
worst.’’ Whether public authorities should ever promote such a
degrading image of criminal offenders is certainly open to debate, but let us assume that doing so is not something they
should do regularly or often. More humane and less degrading
forms of imprisonment will nevertheless, by their very natures,
communicate that the individuals subjected to them have engaged in serious wrongs, ones sufficient to merit their being
excluded from civil society for some period of time.
Could preventive detention be made significantly different
along either material or symbolic dimensions? The fact that
those preventively detained have not yet committed the future
crimes for which they are being confined has led some to suggest that preventive detention is symbolically different than
47
See my Rethinking Imprisonment, pp. 150–175. See also Tonry, ÔHas the
Prison a Future?Õ pp. 3–24.
48
See, in particular, the discussion of the German prison system in Liora
Lazarus, Contrasting PrisonersÕ Rights: A Comparative Examination of
Germany and England (Oxford: Oxford University Press, 2004), pp. 23–124.
49
The communicative aspect of imprisonment is emphasized by Duff in
Punishment, Communication, and Community, p. 149.
410
RICHARD L. LIPPKE
imprisonment, since it does not convey public rebuke for past
crimes.50 But such an assertion seems dubious, especially if we
limit preventive detention to those past offenders who are
appropriately deemed too dangerous to release from prison. It
is hardly apparent that the public, or the offenders themselves,
will regard continued preventive detention as saying something
different about the individuals in question, given that they have
already been convicted of serious offenses. Indeed, their preventive detention after they have served the appropriate sentences for the earlier crimes might be intensely stigmatizing,
since it suggests that the offenders in question are little more
than predators. Their preventive detention ‘‘says’’ that they
cannot be trusted to morally restrain themselves and that the
authorities cannot hope to keep them in line with less restrictive
forms of monitoring or threats of additional criminal sanctions.
No matter how strenuously the public authorities insist that
preventive detention is not imprisonment, the lingering suspicion that it is simply extended imprisonment seems likely to
prevail.
Moreover, the indefinite character of preventive detention
alters its symbolic qualities in ways that will likely make it
much more difficult for detainees to endure. Most prisoners are
made aware of an endpoint to their confinement. They have
been excluded from civil society for a finite period of time. Even
those with life sentences know that they will never get out and
can try to fashion somewhat meaningful lives for themselves in
light of that knowledge. They have been permanently excluded
from civil society and must come to grips with that. But those
in preventive detention are kept in a kind of legal limbo.
Though their detention might be periodically reviewed and
subject to appeal, the presumption is that they will not be
released. Civilized society has given up on them, though perhaps not conclusively so. In this respect, preventive detention is
arguably worse than imprisonment.
50
See, for instance, Wood, ÔReductivism, Retributivism, and Civil
DetentionÕ, p. 137, though Wood admits that this symbolic difference must
be given ‘‘material representation’’ (p. 137).
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
411
Still, it might be argued that preventive detention could be
made symbolically different than imprisonment if the material
conditions of the former were made wholly unlike those of the
latter. I see little reason for optimism on this score. There is the
suggestion that we could make preventive detention considerably more comfortable than standard forms of imprisonment—sort of like confinement in a luxury hotel. The public, of
course, would not long tolerate or support this, but that is
beside the point. The problem with this suggestion is that the
denizens of luxury hotels are not closely monitored, nor their
behavior tightly controlled, in the ways that the movements and
activities of those in preventive detention would presumably
have to be. We could, I suppose, imagine those in preventive
detention frolicking together at poolside, relaxing in the spa,
sipping cocktails, and enjoying gourmet meals while being
treated to Las Vegas-style entertainment. But these are supposed to be such dangerous individuals that they cannot possibly be allowed back into civil society. Are we supposed to
believe that they will not try to kill or do violence to each other
or those charged with their care? The more likely scenario, if it
is likely at all, is to conceive of preventive detention along the
lines of luxury supermax confinement, where the detainees
would be kept under tight control and relatively isolated from
their fellow detainees and keepers. Yet it is hard to see how the
restrictions and constant surveillance of such confinement
would not overwhelm the improved amenities, rendering preventive detention little better than standard imprisonment.
Similar problems attend suggestions that those in preventive
detention might be provided access to paid labor or more liberal visitation privileges. Terrorists, psychopaths, and hardened, repeat offenders will hardly make ideal employees. Few
countries which take seriously the importance of providing
ordinary prisoners with paid labor are able to achieve
employment rates of fifty percent.51 I doubt that they will have
more success in this regard with those in preventive detention.
51
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).
412
RICHARD L. LIPPKE
And though there are powerful arguments for opening up
prisons to outside visitors, or for permitting most prisoners
occasional furloughs, these arguments will have considerably
less force in relation to those in preventive detention. We will
understandably resist having terrorists visited by their fellow
terrorists, or hardened, repeat criminals by their former confederates in crime. And we might reasonably wonder whether
psychopaths will have many visitors at all, given the sorts of
violent, predatory lives most of them have led. When all is said
and done, it seems unlikely that those in preventive detention
will have substantially less isolated lives than prisoners. In fact,
their lives are likely to be more isolated, since leaves will not be
an option for them and visitors are apt to be fewer and farther
between.
There is, it must be admitted, a distinction between imprisonment and the involuntary civil commitment of dangerous but
not responsible individuals. Though the latter are subject to
indefinite detention, they are also afforded treatment for their
mental illness and, presumably, housed in reasonably comfortable facilities. Why could we not model preventive detention facilities along similar lines? We could, though the
suggestion that the dangerous are suitable candidates for
therapeutic intervention meets with numerous difficulties.
Again, we may know relatively little about how to successfully
treat psychopaths. And the offer of treatment to terrorists or
hardened criminals is likely to be met by them with contempt,
for they are not obviously disturbed or disoriented in the ways
that the insane are. Most terrorists or hardened criminals are
apt to resent their continued confinement, not see it as an
opportunity for them to get better. Thus, for many dangerous
offenders, preventive detention is likely to be indistinguishable
from continued punishment.
Some have suggested that we could make preventive detention different than imprisonment by compensating detainees.52
There are two distinguishable reasons for contemplating this.
First, symbolically, such compensation would arguably make a
52
Shoeman, ÔOn Incapacitating the DangerousÕ, p. 181, and Corrado,
ÔPunishment, Quarantine, and Preventive DetentionÕ, p. 11.
DANGEROUS OFFENDERS AND PREVENTIVE DETENTION
413
real difference. It would ‘‘say’’ that preventive detention is
something other than imprisonment. Second, compensation
could be seen as in some sense deserved by preventive detainees,
as something the community provides them in exchange for
their lost freedom. Instead of setting them free and waiting to
see whether they will behave themselves, the community
declines to take a chance on them. It thus owes them something
in return. Setting aside the political infeasibility of such a
proposal, it should be noted that such compensation is unlikely
to alter significantly the material conditions of preventive
detention. For what will detainees be allowed to do with
such compensation? Purchase more and better amenities for
themselves? Perhaps, though the security concerns expressed
previously must be borne in mind. They could use their compensation to support their families or their favorite charities or
political causes. Of course, we would have to be careful to
monitor the uses to which such funds might be put given the
nefarious projects some of those most likely to be kept in
preventive detention have undertaken in the past. Suffice it to
say that even if paying compensation to those in preventive
detention is the most promising means of distinguishing their
confinement from that of ordinary imprisonment, the uses to
which such compensation might be put will be quite limited.
Receiving income while being detained is arguably better than
not receiving it. But it will not be anything like receiving it as a
free person living in civil society.
I conclude that the prospects for making preventive detention symbolically or materially different from imprisonment are
dim. In certain respects, preventive detention might be made
slightly better than imprisonment. In other respects, it is likely
to be worse. At the end of the day, it will still be confinement,
with all of the restrictions and surveillance that involves. Thus,
like prisoners, civil detainees will have stigmatized, cramped,
and truncated lives.
V. NO EASY WAY OUT
If the arguments in the previous sections are sound, they show
that preventive detention of proportionally punished but still
414
RICHARD L. LIPPKE
dangerous individuals presents us with an unresolved dilemma.
It does not seem correct to say that merely being able to predict
with confidence that some such individuals will commit further
violent offenses is sufficient to show that they deserve punitive
preventive detention. It also does not seem likely that we can
structure preventive detention so as to make it much different
than defensible imprisonment. We could simply refuse to employ preventive detention of dangerous offenders, but at some
point their crimes may be too horrific to accept if they are
reasonably predictable.
Those who eschew a retributive or desert component in a
comprehensive theory of legal punishment may be able to evade
this dilemma. For such theorists, the fact that preventive
detention punishes people for their future crimes may not
matter much if we thereby prevent grave wrongs. But the costs
of doing without desert constraints in a theory of legal punishment are considerable. For those unwilling to accept such
costs, the only thing to do might be to reluctantly accept the
preventive detention of some dangerous offenders under reasonably humane conditions while admitting that they do not
deserve it and therefore that they should be compensated for it.
As others who have discussed such compensation note, insisting
on it may, if nothing else, operate to strongly discourage spread
of the practice.53
Department of Criminal Justice
Indiana University,
Bloomington, IN, USA
E-mail: [email protected]
53
Shoeman, ÔOn Incapacitating the DangerousÕ, p. 181, and Corrado,
ÔPunishment, Quarantine, and Preventive DetentionÕ, p. 11.