Replacement as a Problem for Justification of Preventative Detention
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What makes Don E. Scheid’s article on indefinite detention interesting is that he thinks through many of the moral... Show moreWhat makes Don E. Scheid’s article on indefinite detention interesting is that he thinks through many of the moral
issues inherent in attempting to prevent (or, rather, keep to a minimum) certain kinds of violent crime, an attempt
we have come to call (however unwisely) ‘‘the war on terror.’’ Scheid takes ‘‘war’’ as literally as possible, while
making the reasonable assumption that this war, unlike wars generally, is not a temporary expedient responding to a
moral emergency but an institution that must operate at full power for a long time, decades at least. Scheid’s
argument yields a long list of preconditions for justified indefinite preventive detention: a high standard of
dangerousness (‘‘mega-terrorism’’), a reasonable standard of proof of dangerousness, as good an investigation as
conditions will allow, adequate resources for the defense, a hearing before a fair and independent tribunal,
detention under the most comfortable conditions practical, and periodic review of the detainee’s supposed
dangerousness. To these preconditions one more should be added: that detaining the persons in question will reduce
the danger posed. I take this additional precondition to follow from Scheid’s own defense of indefinite detention,
not from an independent argument. Scheid limits his argument to megaterrorists because the scale of destruction they
have already achieved (for example, destruction of the World Trade Center) shows them to be dangerous on a scale
ordinary crime is not and so to invite measures of prevention beyond what seems necessary (or proper) for ordinary
criminals. Scheid explicitly declines to consider the non-consequentialist argument that preventive detention is
what a mega-terrorist deserves for his character or for what he has already done. Scheid’s argument for preventive
detention is consequentialist throughout: we may, and should, detain to prevent (or at least substantially reduce
the probability of) the large-scale destruction of life that mega-terrorists aim at. We may justifiably deny a few,
including some innocent persons, their freedom because, and only because, it makes the rest of us, the great
majority, considerably safer. My additional precondition can be defended in the same way: where there is no danger
posed, any detention is (all else equal) a net loss in happiness, well being, or whatever reasonable measure of
consequences we adopt. A precondition of preventative detention must be a net reduction in danger posed. Where what
is proposed is an institution of preventative detention, the institution must have that effect overall. What I shall
argue here is that preventive detention generally fails to satisfy this condition and Scheid’s indefinite preventive
detention of mega-terrorists always does. An institution to prevent terrorism by detaining terrorists cannot, in
practice, significantly reduce the danger terrorism poses.
Criminal Justice Ethics. Vol. 30, No. 1, April 2011, 90-97. Show less
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