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Title

Replacement as a Problem for Justification of Preventative Detention

Creator

Davis, Michael

Date

2011, 2011-04

Publisher

John Jay College of Criminal Justice of The City University of New Yor

Description

What makes Don E. Scheid’s article on indefinite detention interesting is that he thinks through many of the moral issues inherent in...
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.
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