Liberty, Prudence, Imperfection, and Law

“The Preventive State,” By Jonathan Jacobs

It might be best to set forth some of the core issues concerning legal punishment before discussing the most important elements of Michael Louis Corrado’s Presumed Dangerous: Punishment, Responsibility, and Preventive Detention in American Jurisprudence.

Criminal justice in the United States is problematic in so many significant respects today that reform can seem almost beyond reach. Given the complexity and the interconnectedness of many of the issues, it is even difficult to know how to set priorities. The issues include overcriminalization and the piling on of multiple charges, an issue related to dubious plea bargains arising and dubious exercises of prosecutorial discretion. There are concerns, too, regarding the wisdom of mandatory sentences and the diminution of scope for judgment in sentencing.

Some of these criminal justice matters are connected with broad social issues. The “warehousing” in prison of very large numbers of minority and poor men, and increasing numbers of women, reflects and exacerbates problems at the intersection of poverty, unemployment, substandard and incomplete education, the affordability of legal defense, the crumbling of entire neighborhoods and communities, and widely shared alienation and bitterness on the part of people who feel that they are excluded from decent prospects in civil society or from civil society altogether. Recent events—the events in Ferguson, Missouri, are highly visible examples—highlight how tense and precarious is the nexus of socioeconomic issues, race, law enforcement, and questions of trust in criminal justice.

Preventive detention is among the contested issues. When, if ever, in a liberal democracy, is preventive detention justified? Are there fundamental rights and principles with which it conflicts? How are we to resolve any such conflicts? There are diverse forms of liberal democracy, but as a form of political/legal order, it has certain fundamental features with significant implications for criminal sanction and the grounds upon which the state can constrain individuals’ liberties.

There is, moreover, considerable diversity in liberal democracies’ approaches to criminal justice. The United States is notable for a much higher percentage of persons in prison and on probation or parole than is the case in other liberal democracies. Sentencing here tends to be considerably harsher than in other liberal democracies. Also, the prison population is not only very large but badly overcrowded, and on occasion, courts have ordered states to release prisoners in order to relieve intolerable conditions of overcrowding.

In addition, in the United States there are several ways in which a person who has completed his or her sentence can continue to encounter impediments—some official, some unofficial—to full participation in civil society. Many former prisoners suffer life-long disenfranchisement; many are excluded from receiving public benefits and obtaining loans for education. Employment can be very difficult to find, both because of one’s criminal record but also because many ex-offenders have little education and few marketable skills.

In this country (if not also in other liberal democracies) there is not a stable consensus—amongst theoreticians, politicians, or the public—on the aims and justification of punishment. Indeed, what prevails today could probably best be described as a not-very-coherent jumble.

For example, deterrence and rehabilitation can both be said to be consequentialist considerations. Each is concerned with bringing about certain types of results. However, they are importantly different consequentialist considerations, even though it is true that, if prisoners have been rehabilitated it is less likely that they will commit additional crimes when released (or while still in prison). If we are primarily concerned with deterrence without also a strong interest in rehabilitation, our policies of criminal sanction might be quite different than if we are concerned to rehabilitate offenders. The policies and practices for achieving rehabilitation could be very different from those aimed at maximizing deterrence, even supposing that the latter address the long-term, general welfare in humane and decent ways. Thus, even if we look at the issues from the perspective of just one type of theoretical approach we might find the issues complicated in ways that create real practical difficulties and difficulties of evaluation.

In the early and mid-twentieth century, there was considerable support among academic theorists and among practitioners involved in prisoner support and advocacy programs for various rehabilitation and reform-oriented approaches. These approaches may not have had strong public appeal, but there was some optimism that they could succeed. That optimism faded for a number of reasons, among which lack of large-scale success must be counted. Without doubt, a shortage of resources and of appropriately skilled and trained practitioners was part of the explanation for the successes being only very modest. In any case, recent decades have seen a turn toward more retributivist approaches. Influential theorists have developed arguments in favor of a significant role for retributivist considerations in the justification of punishment.

Retributivism is sometimes confused with the notion of severity despite the fact that not only is there no necessary connection between retributivism and harshness, but in emphasizing just deserts, retributivists insist that punishment should not exceed the severity deserved. Justifying punishment on a retributivist basis is not the same thing as claiming that punitively hurting or injuring people is morally unproblematic. Nor does it provide some sort of moral license for severity of punishment.

Many theorists who do not regard themselves as retributivists do recognize a retributivist constraint on punishment, namely, that only persons who are guilty of crime should be punished. That constraint, even if one’s approach involves other elements, raises important questions concerning the justification of preventive detention.

As background to his analysis of developments relevant to preventive detention, we should note that Michael Corrado takes retribution to be “the very heart or the meaning of punishment” and he regards nonretributive punishment as contrary to “common sense and of deeply rooted intuitions about justice.” If we abandon a retributivist conception of punishment, “there is no reason why retroactivity and double jeopardy are not possible,” Corrado writes. He believes that it is not “open to us to abandon the idea that punishment is limited to the retributive.”

On retributivist grounds, detention without having committed a crime is obviously problematic, for how could the detention be a just desert? If a person’s detention continues after completion of the punishment deserved, that, too, is problematic. It exceeds what can be justified on the basis of desert and proportionality. How, in other words, could deprivation of liberty continue after punishment is completed?

Corrado’s discussion of preventive detention is shaped by two principles that he says have, until recently, been at the heart of the American criminal justice system. The recent history of American criminal jurisprudence has been a struggle between these two principles in the face of the drive toward increased security.

Here are the principles—the first being punitive, and the second nonpunitive:

  • Punishment and the threat of punishment are the only permissible means of using force for controlling crime [committed] by those who are generally responsible for what they do, regardless of how dangerous they may be. [M1]
  • Preventive detention and treatment are the only permissible means of using force for controlling crime [committed] by those who are dangerous because of a lack of general responsibility. [M2]

The author says at the outset that, in illustrating these two principles, he “will not take up the question of the political morality of preventive detention.” By the end of the book, however, he is prepared to conclude that the use of preventive detention has been expanded considerably, even to the extent that the distinctions between M1 and M2 have become blurred. Corrado worries that the more accustomed to the use of preventive detention the courts and the public become, the more at risk we will be of finding ourselves “adrift without an anchor, without any mooring in sight.”

In that sense, his conclusions do, despite his protestations, make an important moral/political point. The expansion of preventive detention, he concludes, constitutes a grave weakening of the principles of a liberal polity. Rationalizing the expansion of preventive detention erodes the guarantees at the heart of a liberal polity—one of which is that persons are to be deprived of their liberty only on the grounds of just desert. Adducing other grounds for depriving persons of liberty can amount to coercive and systematic encroachments on the obligation to treat persons as voluntary, responsible agents.

Detaining individuals on the grounds that they are dangerous to themselves or others because they are not voluntary, accountable agents is not nearly as problematic; such persons, on account of mental illness or disorder, are less than voluntary, responsible agents. Desert is not the primary consideration in those cases. It is much more problematic to detain persons whose agency is judged to be intact, even though they are persons who have shown a perverse disregard of the rights and welfare of other persons.

Among the several different kinds of preventive detention with which Corrado is concerned, we find 1) preventive detention of those judged to be insane; 2) postsentence preventive detention of those regarded as being dangers to the community (sexual predators constitute an especially visible category of such persons); 3) preventive detention of those who are suspected of terrorism and preventive detention of unlawful combatants; and 4) preventive detention of immigrants who are to be deported but no country has agreed to accept them.

The book is a study of the direction of developments regarding these classes of cases, and of course, the questions concerning terrorists and unlawful combatants are pronounced in current US legal thought in ways that simply were not the case prior to the attacks of September 11, 2001.

“The very notion of post-sentence preventive detention,” he writes, “presents a puzzle for both European and American approaches to the problem of violent crime, and particularly sexual crime.” He offers on this three propositions that “have a certain amount of intuitive appeal; and yet all three cannot be true.” And one’s position on postsentence preventive detention will likely depend upon which of the three one rejects.

  1. Principles of justice limit punishment to retribution, that is, to what is deserved.
  2. Detention postsentence is permissible.
  3. Detention postsentence is punishment.

He notes that in jurisdictions where there is an insanity defense, if a defendant is found guilty but mentally ill, he will receive the usual sentence for the crime, but if treatment is available he will be given treatment. Upon completion of his sentence, he will then be committed for treatment for as long as he remains mentally ill. This certainly seems like a continuation of punishment, at least in the sense that it is involuntary commitment, a loss of one’s liberty.

Corrado asks, “If the reason for punishing people is that they are held responsible for what they do, and the reason for committing the insane is that they are not responsible for what they do, how can we both punish and commit one and the same person for the same acts?”

Additional bases have been offered as rationales for preventive detention. These include the notion that the defendant, even if not judged to be mentally ill, is too dangerous to release. Corrado writes,

This application to the defendant of both punishment—implying that he is responsible for the crime—and preventive detention—implying that he is too dangerous to release—forces us to rethink our justification for commitment of the insane. If the defendant is responsible for his behavior, and thus may be punished, we cannot base our justification of his subsequent detention on the fact that he is dangerous and non-responsible. But if he is responsible and yet may be detained on grounds of dangerousness, how can we insist that the insane may be committed indefinitely only if they are both dangerous and insane?

In the course of his analyses, Corrado frequently refers to a handful of cases that made their way to the Supreme Court and are important to the trajectory of preventive detention in recent decades. What follow are summaries of some of their main features.

United States v. Salerno (1987). The Supreme Court ruled that federal courts could detain an arrestee prior to trial. Doing so does not violate due process if the government can prove the person to be potentially dangerous to other persons. The detention is lawful only for the time before trial.

Foucha v. Louisiana (1992). In this case, the defendant was found not guilty by reason of insanity and was judged to be too dangerous to himself and to others to be released. After a period of having been involuntarily committed, he was judged to no longer suffer from the mental illness from which he suffered at the time of his trial. However, the psychiatric hospital committee deciding upon his release judged that Foucha remained a danger to himself and others. He sought release, but the Supreme Court of Louisiana refused his petition for a writ of certiorari. However, the US Supreme Court ruled that the defendant could not continue to be involuntarily committed if he no longer suffered from the mental illness that was the basis of his original commitment, even if there were reasons to believe that he could be a danger to others.

Kansas v. Hendricks (1997). Hendricks had been convicted of a sex offense. The state of Kansas judged him to suffer from mental illness and to be dangerous on account of it. Kansas sought to have Hendricks civilly committed once he was released from prison. Hendricks fought this application of the state’s Sexually Violent Predator Act, arguing that it makes indefinite commitment possible if a person is judged to have a personality disorder of a sort that could cause him to engage in sexually violent, predatory acts, and that its application to his case amounted to double jeopardy. The US Supreme Court ruled against Hendricks, in part, on the ground that, because his commitment was civil, he was not a victim of criminal law double jeopardy.

The ruling means that if a person is judged to be incapable of controlling his behavior, he can be detained indefinitely, as a way of preventing future crimes. One concern here is that the ruling could be seen as making large numbers of criminals with personality disorders vulnerable to involuntary commitment if it is thought that the disorders increase the likelihood of offending.

Zadvydas v. Davis (2001). The Supreme Court held in this case that immigrants who are under an order of deportation, but for whom no country can be found willing to accept them, cannot be held in detention indefinitely without trial. Corrado notes that this ruling “left open the question of the indefinite detention of terrorists.”

Studying these rulings, Corrado concludes that M1 “still survives within our criminal justice systems . . . though barely.” As for M2, it “has been cut back considerably, and there is a question about the extent to which it survives in our criminal justice systems. In many jurisdictions the insanity defense does not recognize the disability of those who cannot control their behavior, and in others there is no insanity defense at all.”

He laments that “under our Constitution as presently understood by the courts,” the two principles eke out an existence “like stunted and severely pruned trees.”

The criminal law is not the only sphere in which the issue of how to address threats and harmful conduct arises. Likewise with regard to terrorism and the deportation of immigrants, Corrado sees serious potential for the erosion of rights and the expansion of government power, especially that of the executive branch. The basis of concern: the Authorization for the Use of Military Force Against Terrorism Act of 2001, in which the government “asserted the right to detain enemy combatants indefinitely without either a civil or military trial.”

The National Defense Authorization Act of 2012 provides for detention without trial “until the end of hostilities” of anyone “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States.” Moreover, even American citizens may be subject to indefinite detention without trial on those grounds. There have been numerous legal challenges to the clause permitting what appears to be indefinite detention, and several states, counties, and municipalities have passed resolutions against the relevant sections of the 2012 act, often on the grounds that they are in violation of due process.

Because the 2001 and 2012 laws say that the indefinite detention is to extend only so long as hostilities are ongoing, the government has claimed that they do not authorize altogether indefinite detention.

Detaining terrorists and suspected terrorists has implications for the use of detention more widely. Writes Corrado: “If we seize this opportunity to extend the power to detain, and if that extension is interpreted by the courts to be constitutional, there is no reason of principle that can seriously be raised against the use of preventive detention in the criminal law generally.” Thus far, overall, the courts have interpreted the power to detain expansively, in ways that chip away at M1 and M2. This is especially problematic if one regards punishment in retributivist terms, with the notion of just deserts being the core of the conception of legal punishment.

It might be possible to justify—or at least to try to justify—preventive detention on consequentialist grounds. If it could be shown that there are reasons to believe that preventive detention, in at least some kinds of cases, results in substantial benefits to the public (and perhaps even to those who are detained), then whether preventive detention is justified would be an empirical matter.

Regarding the merits of preventive detention as an empirical matter or primarily an empirical matter will create an opening for it that can be easily enlarged to cover more and more kinds of cases. Corrado’s M1 and M2 are principle-based safeguards against such enlargement, checks on the exercise of the state’s coercive power.

If we blur the lines between punitive detention and nonpunitive detention, we shrink the scope for the enjoyment of liberty. There may be risks in restoring strict respect for the distinction between M1 and M2. One is that individuals with personality disorders or who are otherwise potentially dangerous to themselves or others may be given unimpeded liberty. But collapsing M1 and M2 in order to deal with certain classes of persons, and thereby enlarging the scope of preventive detention, endangers the structure of liberal democracy. Any detention that is not on the basis of either a responsible agent committing a crime, or a nonresponsible agent being dangerous, aggravates the risk inherent in expanding preventive detention.

Corrado’s analysis can be read as bringing into bold relief the potentially illiberal tendencies of interpreting preventive detention in such terms. The more we treat people on the basis of what might result from their conduct, the more we come to regard desert as “merely” a constraint, the more we will be willing to override it with other kinds of considerations. This is not to suggest that retributivist considerations necessarily have priority over all nonretributivist considerations; to see things otherwise is of course a serious mistake. Certainly there are situations where preventive detention is justified.

But at the least, the author’s analysis and the basis he offers for it make clear the significance of retributivist considerations in the justification of punishment in a liberal polity.

This study of the issues raised by preventive detention should motivate a reconsideration of the role and significance of a retributivist conception of punishment. The notion of just desert merits a central place in the conception of punishment, a place from which it should not be moved if we are serious about preserving liberty.


Jonathan Jacobs is the Presidential Scholar of Philosophy at the John Jay College of Criminal Justice and is the director of the college’s Institute of Criminal Justice Ethics and editor of the journal Criminal Justice Ethics. He has held the Richard J. and Joan Head Professor of Philosophy at Colgate University. He is the author of Law, Reason, and Morality in Medieval Jewish Philosophy and is currently working on a book entitled Criminal Justice and the Liberal Polity. This essay was originally published in November 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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