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Preventive detention

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Full-Text Articles in Law

Compensation For The Damage Resulting From Preventive Detention When There Is Evidence Of The Suspect's Innocence: A Comparative Study, Tail Mahmoud Aref Feb 2021

Compensation For The Damage Resulting From Preventive Detention When There Is Evidence Of The Suspect's Innocence: A Comparative Study, Tail Mahmoud Aref

UAEU Law Journal

This study sheds light on the idea of Compensation for the damage resulting from preventive detention of a suspect against whom a decision has been issued to bring a criminal lawsuit or issue acquittal. The researcher has examined and reviewed the relevant legal texts of the French, Jordanian and Emirati legislations to clarify the concept of 'preventive detention along with its legitimacy, and introduce the general rules of torts and the conditions of compensation. This study, also, examines the extent to which a suspect may claim compensation against preventive detention, along with the legal reasoning behind it. The research findings …


Excavating The Forgotten Suspension Clause, Helen Norton Jan 2018

Excavating The Forgotten Suspension Clause, Helen Norton

Publications

No abstract provided.


Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi Dec 2015

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi

Today in the United States, mandatory immigration detention imposes extraordinary deprivations of liberty following ordinary crimes—if the person convicted is not a U.S. citizen. Here, I explore that disparate treatment, in the first detailed examination of mandatory detention during deportation proceedings for U.S. crimes. I argue that mandatory immigration detention functionally operates on a “noncitizen presumption” of dangerousness. Mandatory detention incarcerates noncitizens despite technological advances that nearly negate the risk of flight, with that risk increasingly seen as little different regarding noncitizens, at least those treated with dignity. Moreover, this “noncitizen presumption” of danger contravenes empirical evidence, and diverges from …


The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf Feb 2015

The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf

Michael C. Dorf

No abstract provided.


The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton Jul 2014

The Structure And Limits Of Criminal Law, Paul H. Robinson, Joshua Samuel Barton

All Faculty Scholarship

The book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving …


The Difference Prevention Makes: Regulating Preventive Justice, David Cole Mar 2014

The Difference Prevention Makes: Regulating Preventive Justice, David Cole

Georgetown Law Faculty Publications and Other Works

Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a ‘‘paradigm of prevention,’’ employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and …


Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy May 2013

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Ken Levy

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …


Punitive Preventive Justice: A Critique, Bernard E. Harcourt Jan 2013

Punitive Preventive Justice: A Critique, Bernard E. Harcourt

Faculty Scholarship

This chapter identifies the origins of contemporary preventive endeavour in the work of the RAND Corporation in America, which developed highly technical studies of crime prevention based upon systems analysis. It suggests that RAND promoted a decidedly punitive style of prevention based upon policing and punishment that is replicated in modern ‘punitive preventive measures’. It criticizes these measures, emphasizing the perils they pose and the weakness of their empirical foundations. Most worryingly, these measures typically claim an apolitical, neutral emphasis on efficiency that fails to engage with the political values underlying them. In so doing, it tends to displace much …


Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel Jan 2013

Victory Without Success? – The Guantanamo Litigation, Permanent Preventive Detention, And Resisting Injustice, Jules Lobel

Articles

When the Center for Constitutional Rights (CCR) brought the first habeas cases challenging the Executive’s right to detain prisoners in a law free zone at Guantanamo in 2002, almost no legal commentator gave the plaintiffs much chance of succeeding. Yet, two years later in 2004, after losing in both the District Court and Court of Appeals, the Supreme Court in Rasul v. Bush handed CCR a resounding victory. Four years later, the Supreme Court again ruled in CCR’s favor in 2008 in Boumediene v. Bush, holding that the detainees had a constitutional right to habeas and declaring the Congressional …


The Past, Present And Future Of The Internal Security Act, Jack Tsen-Ta Lee Jun 2012

The Past, Present And Future Of The Internal Security Act, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Assistant Professor Jack Tsen-Ta Lee, who teaches and researches constitutional and administrative law at the School of Law of the Singapore Management University, introduces the Internal Security Act (ISA) and assesses its continued relevance today.


Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi Jan 2012

Cascading Constitutional Deprivation: The Right To Appointed Counsel For Mandatorily Detained Immigrants Pending Removal Proceedings, Mark Noferi

Mark L Noferi

When a Department of Homeland Security officer mandatorily detains a green card holder without bail pending his removal proceedings, for a minor crime committed perhaps long ago, the immigrant’s life takes a drastic turn. If he contests his case, he likely will remain incarcerated in substandard conditions for months or years, often longer than for his original crime, and be unable to acquire a lawyer, access family whom might assist, or access key evidence or witnesses. In these circumstances, it is all but certain he will lose his deportation case, sometimes wrongfully, and be banished abroad from work, family, and …


Preventive Detention In The Law Of Armed Conflict: Throwing Away The Key?, Diane Webber Jan 2012

Preventive Detention In The Law Of Armed Conflict: Throwing Away The Key?, Diane Webber

Diane Webber

More than ten years after 9/11, the “clear legal framework for handling alleged terrorists” promised by President Obama in 2009 is still undeveloped and “the country continues to hold suspects indefinitely, with no congressionally approved mechanism for regular judicial review.” Should terrorists be treated as criminals, involving traditional criminal law methods of detection, interrogation, arrest and trial? Or should they be treated as though they were involved in an armed conflict, which would involve detention and trial in accordance with a completely different set of rules and procedures? Neither model is a perfect fit to deal with twenty-first century terrorism. …


The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein Jan 2012

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …


A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen Dec 2011

A Punitive Precondition For Preventive Detention: Lost Status As A Foundation For A Lost Immunity, Alec Walen

San Diego Law Review

This Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it …


Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes Jan 2011

Preventive Detention In American Theory And Practice, Adam Klein, Benjamin Wittes

National Security Law Program

It is something of an article of faith in public and academic discourse that preventive detention runs counter to American values and law. This meme has become standard fare among human rights groups and in a great deal of legal scholarship. It treats the past nine years of extra-criminal detention of terrorism suspects as an extraordinary aberration from a strong American constitutional norm, under which government locks up citizens pursuant only to criminal punishment, not because of mere fear of their future acts. This argument further asserts that any statutory counterterrorism administrative detention regime would be a radical departure from …


Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy Jan 2011

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken M. Levy

Journal Articles

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …


Beyond Crime And Commitment: Justifying Liberty Deprivations Of The Dangerous And Responsible, Kimberly Kessler Ferzan Jan 2011

Beyond Crime And Commitment: Justifying Liberty Deprivations Of The Dangerous And Responsible, Kimberly Kessler Ferzan

All Faculty Scholarship

The traditional approaches to dangerous persons have been crime and commitment. The criminal law punishes responsible actors, and the civil law confines the mentally ill. These approaches leave a gap: The state cannot substantially restrict the liberty of responsible actors until they have committed a crime. In response to this gap, the criminal law’s boundaries have expanded to include preparatory offenses and early inchoate conduct that are deserving of only minimal, if any, punishment in attempt to incarcerate the dangerous. Meanwhile, the Supreme Court’s effort to articulate a test of mental disease warranting involuntary confinement of sexual predators has failed …


Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin Jan 2011

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …


Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy Dec 2010

Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject To Criminal Punishment And To Preventive Detention, Ken Levy

Ken Levy

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are generally not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or …


Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber Nov 2010

Extreme Measures: Does The United States Need Preventive Detention To Combat Domestic Terrorism?, Diane Webber

Diane Webber

The paper examines current methods of preventive detention in the United States, that is the detaining of a suspect on home soil to prevent a terrorist attack. This paper looks at two recent events: the Fort Hood shootings and a preventive arrest in France, to consider problems in combating terrorist crimes on U.S. soil. I demonstrate that U.S. law as it now stands, with some limited exceptions, does not permit detention to forestall an anticipated domestic terrorist crime. After reviewing and evaluating the way in which France, Israel and the United Kingdom use forms of preventive detention to thwart possible …


Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones Jan 2010

Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones

Faculty Scholarship

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …


Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal Of Legal Philosophy 120, Dennis J. Baker Oct 2009

Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal Of Legal Philosophy 120, Dennis J. Baker

Dr. Dennis J Baker

In this paper, I argue that civil preventive detention is tolerable because it is the lesser of two evils. I argue that the serious sex offender is partially to blame for his preventive detention, because he offends, re-offends and refuses treatment whilst in prison with a full awareness of the potential preventive detention consequences. However, I question the fairness of extending an offender's penal sentence beyond what his or her past wrongdoing warrants. I argue that laws allowing dangerous offenders to be imprisoned beyond the length of their original sentences cannot be reconciled with the cardinal requirements of justice and …


"Militant Judgement?: Judicial Ontology, Constitutional Poetics, And 'The Long War'", Penelope Pether Dec 2007

"Militant Judgement?: Judicial Ontology, Constitutional Poetics, And 'The Long War'", Penelope Pether

Penelope J Pether

This Article, a contribution to the Cardozo Law Review symposium in honor of Alain Badiou's Being and Event, uses Badiou's theorizing of the event and of the militant in Being and Event as a basis for an exploration of problems of judicial ontology and constitutional hermeneutics raised in recent decisions by common law courts dealing with the legislative and executive confinement of Islamic asylum seekers, enemy combatants and terrorism suspects, and certain classes of criminal offenders in spaces beyond the doctrines, paradigms and institutions of the criminal law. The Article proposes an ontology and a poetics of judging equal to …


The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf Apr 2007

The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


Preventive Detention In Comparative Perspective, Andrew A. Hammel May 2006

Preventive Detention In Comparative Perspective, Andrew A. Hammel

Andrew A Hammel

Both Germany and several states in the USA have passed laws permitting the confinement of certain convicted offenders after they have completely served out the prison sentence they received for their crimes. The additional confinement in prison-like conditions is usually called civil detention in English and Sicherungsverwahrung in German. This article compares of these analogous legal institutions and analyzes landmark cases of the U.S. Supreme Court and the German Federal Constitutional Court upholding post-sentence detention against constitutional challenges. The article also discusses how American and German criminal justice handle mentally disturbed offenders and how the legal system and the psychiatric …


Responsibility And Control, Michael Louis Corrado Jan 2005

Responsibility And Control, Michael Louis Corrado

Hofstra Law Review

No abstract provided.


The Anti-Emergency Constitution, Laurence H. Tribe, Patrick O. Gudridge Jan 2004

The Anti-Emergency Constitution, Laurence H. Tribe, Patrick O. Gudridge

Articles

No abstract provided.


The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole Jan 2004

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …


Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel Jan 2003

Preventive Detention: Prisoners, Suspected Terrorists And Permanent Emergency, Jules Lobel

Articles

Central to the United States government’s strategy after the September 11th attacks has been a shift from punishing unlawful conduct to pre-empting possible or potential dangers. This strategy threatens to undermine fundamental principles of both constitutional law and international law which prohibit certain government action based on mere suspicion or perceived threat. The law normally requires that the government wait until a person or nation has committed or is attempting to commit a criminal act before it may employ force in response. The dangers of a policy of preventive detention have been analyzed from a number of perspectives. Historians have …


The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks Jan 2001

The Anatomy Of An Institutionalized Emergency: Preventive Detention And Personal Liberty In India, Derek P. Jinks

Michigan Journal of International Law

Despite many indications of an emerging transnational consensus on the scope of human rights law, fundamental disagreements persist. These disagreements are, in many respects, structured around important cleavages in the international community such as: North/South, East/West, and capitalist/socialist. Whether these cleavages are understood as cultural, economic, or political, international lawyers must develop a better understanding of the specific practices that generate divergent interpretations of human rights standards. Without such an understanding, these factions seem to underscore an irreducibly political conception of human rights. Indeed, the prospects of a global "community of law" turn on the degree to which fundamental differences …