Preventive Confinement of Dangerous Offenders

How to respond justly to the dangers persistent violent offenders present is a vexing moral and legal issue. On the one hand, we wish to reduce predation; on the other, we want to treat predators fairly. The central theme of this paper is that it is difficult to achieve both goals without compromising one 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