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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 …