...compromising of them, and that both are being seriously undermined. I begin by explaining the legal theory, doctrine and practice governing dangerous offenders (DO) and demonstrate that the law leaves a gap in the ability to confine them. Next I explore the means by which the law" has overtly or covertly sought to fill the gap. Many of these measures, especially the new form of civil commitment for sexual predators, dangerously conflate moral and medical categories. I conclude that pure preventive detention is more common than we usually assume, but that this practice violates fundamental assumptions concerning liberty under the American constitutional regime. Nevertheless, I predict that such practice will continue and be considered constitutionally acceptable. I then provide the affirmative case for pure preventive confinement. The last section of the paper briefly addresses practical, criminal justice solutions to the problem of dangerous predation.

Before turning to the substance of the paper, however, it is first necessary to expose some assumptions that will inform the analysis. These will simply be asserted rather than defended because they are dominant, although not uncontroversial. First, the question of how to respond to DOs is primarily moral, political, and legal, rather than medical or psychological, but the latter should inform decision making. Second, most adults are fully morally and legally responsible agents. Causal accounts of their behavior--from any level of causation--do not necessarily diminish responsibility even in a fully causal, material world because causation is not per se an excusing condition. Third, the United States is a sufficiently morally and legally just nation to justify censure and the hard treatment of some people who violate its laws and the preventive confinement of some people who threaten violations. I also assume that no society--and certainly not ours--will fully and effectively socialize its members. Dangerous people will always be with us.

MORAL, POLITICAL & LEGAL FOUNDATIONS: DESERT/DISEASE JURISPRUDENCE

This section first presents the basic logic of prevention and the jurisprudence this logic has produced. Then it explains why the current legal regime leaves a "gap" that permits some DOs to remain at large. I then turn to the means by which pure preventive detention is achieved.

The Logic of Prevention

The basic logic of prevention is quite straightforward. Human beings must live in cooperative societies to survive. Such societies are viable only if, to some unknown degree, members forebear from putting each other at unreasonable risk. Within the limits of viability, how much risk is unreasonable is a normative, moral and political question, but all societies that survive surely place limits on risk and will act to prevent danger from those for whom socialization has apparently failed. Now, I have just told the story in the crudest terms of evolutionary biology, but in more politically and philosophically sophisticated societies, these necessary preventive practices are the subject of rich theoretical analysis, usually from a consequential or a rights perspective. Broadly speaking, two types of stories, each rooted in a theory of the person, inform these perspectives: "Good bacteria, bad bacteria;" and "Taking people seriously."

Let us begin with the short form of the former, abbreviated here because it is rejected by all but the most extravagantly hard-nosed consequentialists. According to this account, we could treat each other like bacteria. Some bacteria that inhabit our gastrointestinal system are crucial to the smooth operation of the system. They are the good bacteria. We try to enhance their survival and do nothing to inhibit their growth. On occasion, alas, our guts are invaded by bacteria that interfere with the proper operation of the system, causing various unseemly ailments, and in extreme cases, death. These are the bad bacteria. We spend a fair amount of effort trying to prevent these critters from entering our gut in sufficient numbers to overwhelm the body's natural defenses, and if the natural defenses fail, we try with various techniques, such as antibiotics, to kill the offensive, bad bacteria. Now, despite the potential of various bacteria to confer benefits and harms, and despite our consequential, substantial efforts to deal rationally with these bacteria, no one holds either kind of bacteria responsible for smooth or rocky gastrointestinal functioning and we wouldn't dream of praising or blaming bacteria. Similarly, we wouldn't dream of considering antibiotic treatment a means of punishing the bad bacteria. We treat bacteria purely as objects, and never as potentially responsible subjects, as potential moral agents.

We could, by analogy, simply treat each other like bacteria, as potentially beneficial or harmful objects, and act accordingly. This conception of people would support a purely predictive and preventive scheme of social organization, in which the emotional and societal response to the organism could be entirely independent of the moral goodness or badness of the person's conduct. Indeed, any other regime may appear founded on irrational dreams about our privileged place in the natural order. It would be a regime of utterly strict liability, in which concepts like culpability and responsibility would play no part. We do not at present have the emotional repertoire or the predictive and therapeutic technology to institute this vision very precisely or effectively, but this is a technoquibble. In principle, I suppose, it is a possible form of social organization. Indeed, in some senses we might all be "safer" and, to some, social life might appear more rational if this type of arrangement obtained.

The alternative, dominant story, "Taking People Seriously," is familiar. It admits that, like bacteria, human beings are part of the physical universe and subject to the laws of that universe, but it also insists that, as far as we know, we are the only creatures on earth that are capable of acting fully for reasons and self-consciously. Only human beings are genuinely reason-responsive and live in societies that are in part governed by behavior-guiding norms. We are the only creatures to whom the questions, "Why did you do that'" and "How should we behave" are properly addressed, and to the best of our knowledge, only human beings hurt and kill each other in response to the answers to such questions. As a consequence of this view of ourselves, human beings typically have developed rich sets of interpersonal, social attitudes, practices and institutions, including those that deal with the risk we present to each other. Among these are the practice of holding others morally responsible, which includes moral expectations, attitudes of praise and blame, and practices and institutions that express those attitudes, such as reward and punishment. Our concern with justifying and protecting liberty is deeply rooted in the conception of personhood that insists on the importance of our rational agency.

Some would attempt to collapse the two accounts, claiming that many of our seemingly retrospective, non-consequential practices, such as holding responsible, can in fact be justified by a fully prospective, consequential theory. (1) This attempt recognizes that evolution has designed us to be intentional, self-conscious creatures, but practices like holding people responsible are, allegedly, simply stimuli that increase the probability of safe (good) behavior and decrease the probability of dangerous (bad) behavior. No one, in other words, is "really" responsible. In the words of H.L.A. Hart, it is an "economy of threats." (2) The economy of threats approach does not successfully explain our practices, however, and suffers from defects of its own. Nothing in this approach would prohibit blaming and punishing innocent people if doing so would maximize the good. This is a familiar criticism, but one that has no answer if it is unjust to punish the innocent, as virtually all theories of justice, except the most unflinchingly consequentialist, hold. Second, as Jay Wallace points out, the economy of threats approach fails to explain our practices, because it omits the central attitudinal aspect of blaming. (3) To hold an agent responsible and to blame that agent is not simply a behavioral disposition, whose purpose is the maximization of some future good. Blaming fundamentally expresses retrospective disapproval. Even if it has the good consequence of decreasing future harm doing, our current practice is undeniably focused in large measure on past events. In sum, many of our most important moral and political concepts depend on taking people seriously as people, as practical reasoners and potentially moral agents.

The desire to be safe ultimately conflicts with and complements the desire to be free. People who live in constant terror of dangerous neighbors do not feel free or cannot enjoy their freedom, even if their society is politically liberal. But achieving the safety that makes freedom possible inevitably requires substantial infringement on the liberty of dangerous agents. Because we take people seriously as people, however, we believe that it is crucial to cabin the potentially broad power of the state to provide protection by depriving people of liberty. Thus our polity has imposed two fundamental legal limits on the state's power to intervene: the agent must be not responsible for his dangerousness because he is suffering from a disease (especially a mental disorder) or because he has culpably committed a crime and deserves punishment. I term these constraints, "desert/disease." As the United States Supreme Court has said repeatedly, in our legal system we do not lock up people for dangerousness alone. (4) They must also be non-responsible or culpable. There is no "pure" prevention--the confinement of dangerous people without desert or disease. There are a few exceptions, such as denial of bail in some cases, but in theory these are strictly limited.

For people who are dangerous because they are disordered, the usual presumption in favor of maximum liberty yields because the agent is not rational and thus not morally responsible for her dangerousness. Non-responsible dangerousness potential justifies involuntary civil intervention. The person can therefore be treated in some respects like the rest of the earth's dangerous but non-responsible instrumentalities, ranging from hurricanes to microbes to wild beasts. In brief, non-responsible people do not actually have to cause harm to justify non-punitive intervention. We can take pre-emptive precautions, including broad preventive detention, with non-responsible agents based on an estimate of the risk they present. Justified on consequential grounds, such deprivation will be acceptable if the conditions of deprivation are both humane and no more stringent than is necessary to reduce the risk. Such deprivations are font's of greater or lesser quarantine and may include "treatment," but in theory they are not punishment.

Virtually all criminals are rational, responsible agents, however, and according to the dominant stow, the deprivation imposed on them, punishment, is premised on considerations of desert. No agent should be punished without desert for wrongdoing, which exists only if the agent culpably caused prohibited harm. The threat of punishment for a culpable violation of the criminal law is itself arguably a form of preventive infringement on liberty, but it is an ordinary, "base-rate" infringement that requires no special justification. In our society the punishment for visually all serious crimes, and thus for dangerous criminals, is incapacitation, which is preventive during the term of imprisonment. But criminals must actually have culpably caused harm to warrant the intervention of punishment. We cannot detain them unless they deserve it and desert requires wrongdoing. In the interest of liberty, we leave potentially dangerous people free to pursue their projects until they actually offend, even if their future wrongdoing is quite certain. Indeed, we are willing to take great risks in the name of liberty.

In sum, both the criminal and the medical/psycho logical systems of behavior control require a justification in addition to public safety--desert for wrongdoing or non-responsibility--to justify the extraordinary liberty infringements that these systems impose.

The "Gap"

Imagine that a three-time convicted armed robber is about to be released at the end of a prison term for the third conviction. To strengthen the example, let us assume that the robber exhibits the strongest risk factor for violent crime, a static, genetic marker--the robber is XY, a male--and that the robber is still in his twenties, a high risk age. Just before he is released, he tells anyone who will listen that he will immediately return to the only "work" he is willing to do, armed robbery, and that he will kill any victim he fears will identify him. Accurately predicting that the robber will rob and perhaps kill does not require expert predictive skill. Common sense is confirmed by our statistical knowledge and we are right to fear him because we think future violent behavior is certain. Nonetheless, the robber must be released and no further preventive confinement would be justified. Law enforcement could try to monitor this DO, but monitoring an ex-convict closely is not likely to be a priority for resource allocation. The State would have to wait until he came close enough to committing the next crime to qualify for attempt liability before it could arrest him, before it could clutch him in advance of completing his next crime.

The robber falls in the gap between confinement for desert and for disease even though he is undeniably a grave danger...

NOTE: All illustrations and photos have been removed from this article.



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