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A Consequentialist Framework for Prevention

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Abstract

Douglas Husak contends that both criminalization and punishment can serve preventive goals, so long as they respect retributive culpability constraints. This Essay draws on Husak’s work to argue that, while Husak is right to defend the legitimacy of criminal law as a (partly) preventive endeavor, preventive coercion is also permissible on consequentialist grounds alone, outside the culpability constraints of the criminal law. The Essay presents a unified consequentialist theory of preventive coercion, addresses deontological objections to ‘pure’ preventive detention, and argues that a consequentialist approach to prevention might ultimately be more protective of liberty and equality interests than the deontological ‘mad or bad’ approach that currently dominates Anglo-American jurisprudence and legal theory.

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Notes

  1. Minority Report (2002); Philip K. Dick, The Minority Report and Other Classic Stories by Philip K. Dick (San Francisco: Underwood-Miller, 1987). In the story, future criminals are exiled to detention camps. In the film, they are kept in eerie iridescent tubes in a state of ‘halo sleep’.

  2. Including when we detain an accused person pending trial or a non-citizen pending removal to protect public safety, when we civilly commit those who pose a threat, when we consign juveniles-adjudicated-delinquent to detention facilities, and when we detain terrorist suspects we fear to be contemplating harm. See generally, e.g., Lucia Zedner and Andrew Ashworth, ‘The Rise and Restraint of the Preventive State’, Annual Review of Criminology 2 (2019): pp. 429–450; Adam Klein and Benjamin Wittes, ‘Preventive Detention in American Theory and Practice’, Harvard Law School National Security Journal 2 (2011): pp. 85–191. Criminal sentences designed to incapacitate are also a form of preventive detention, although they may be justified on the basis of desert. Beyond these forms of preventive detention is a vast landscape of preventive restraints that fall short of full custody. Jennifer C. Daskal, ‘Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention’, Cornell Law Review 99(2) (2014): pp. 327–386.

  3. See Carol S. Steiker, ‘Foreword: The Limits of the Preventive State’, Journal of Criminal Law & Criminology 88(3) (1998): 771–808.

  4. E.g., David Cole, ‘Out of the Shadows: Preventive Detention, Suspected Terrorists, and War’, California Law Review 97(3) (2009): pp. 693–750, 696 (‘To lock up a human being on the prediction that he will undertake dangerous and illegal action if left free is, in an important sense, to deny his autonomy’.); R.A. Duff, ‘Pre-Trial Detention and the Presumption of Innocence’, in Andrew Ashworth et al. (eds.), Prevention and the Limits of the Criminal Law (New York: OUP, 2013), pp. 115–132, 129 (‘Responsible agents ought to be left free to determine their own conduct, including their conduct in relation to the criminal law, and are properly liable to coercion only if and when they embark on a criminal enterprise’.); Frederick Schauer, ‘The Ubiquity of Prevention’, in Andrew Ashworth et al. (eds.), Prevention and the Limits of the Criminal Law (New York: OUP, 2013), pp. 10–22, 10 (‘Preventive detention, it is [] said, strikes at the very heart of the idea of justice…’.).

  5. E.g., Michael Louis Corrado, ‘Terrorists and Outlaws’, in Michele Caianiello and Michael Louis Corrado (eds.), Preventing Danger: New Paradigms in Criminal Justice (Durham: Carolina Academic Press, 2013), pp. 3–32, 3–4 (2013). Stephen Morse calls it ‘desert/disease jurisprudence’. Stephen J. Morse, ‘Protecting Liberty and Autonomy: Desert/Disease Jurisprudence’, San Diego Law Review 48(4) (2011): pp. 1077–1125, 1078. Not all theorists adhere to this doctrine. Alec Walen, for instance, has argued that liberal principles can permit the preventive detention of responsible agents in some circumstances. Alec Walen, ‘A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists’, Maryland Law Review 70(4) (2011): pp. 871–938.

  6. Douglas Husak, ‘Do We Need a “Third Way”? Ferzan on Preventive Detention’, Philosophy & Law 13(2) (2014): pp. 10–13, 11.

  7. Morse, supra note 5, at 1078 (concluding that ‘frankly consequentialist approaches to preventive detention . . . are conceptually coherent but politically and practically unacceptable’).

  8. See Paul H. Robinson, ‘Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice’, Harvard Law Review 114(5) (2001): pp. 1429–1456, 1432 (arguing for ‘segregation’ of punitive and preventive functions because ‘[p]unishment and prevention are fundamentally different; they rely on different criteria and call for different procedures’).

  9. E.g., Douglas Husak, Preventive Detention as Punishment? Some Possible Obstacles, in Andrew Ashworth et al. (eds.), Prevention and the Limits of the Criminal Law (New York: OUP, 2013), pp. 178–193,184–185 (noting that we punish ‘in virtue’ of culpability, but at least partly in order to deter future crimes and incapacitate or rehabilitate the offender).

  10. See, e.g., Douglas Husak, ‘A Framework for Punishment: What Is the Insight of Hart’s ‘Prolegomenon’?’, in C. G. Pulman (ed.), Hart on Responsibility (London: Palgrave Macmillan, 2014), pp. 91–108 (arguing that prevention and retribution play a joint role in justifying punishment); Douglas Husak, ‘Retributive Desert and Deterrence: How Both Cohere in a Single Justification of Punishment’, in Jonathan A. Jacobs and Jonathan Jackson (eds.), The Routledge Handbook of Criminal Justice Ethics (New York: Routledge, 2016), pp. 113–125; Husak, supra note 9, at 185 (‘My general idea is that consequences provide the justification for actually giving offenders the punishments they deserve’.); Douglas Husak, ‘Why Legal Philosophers (Including Retributivists) Should Be Less Resistant to Risk-Based Sentencing’, in Jan W. de Keijser et al. (eds.) Predictive Sentencing: Normative and Empirical Perspectives (New York: Hart Publishing, 2019), pp. 33–50.

  11. Morse, supra note 5, at 1080–1081.

  12. Douglas Husak, ‘Lifting the Cloak: Preventive Detention as Punishment’, San Diego Law Review 48(4) (2011): pp. 1173–1204, 1180.

  13. Husak, supra note 9, at 179.

  14. Id.

  15. E.g., In re Winship, 397 U.S. 358, 367 (1970) (holding that due process prohibits the government from subjecting a person ‘to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him’). Cf. Kimberly Kessler Ferzan, ‘Preventive Justice and the Presumption of Innocence’, Criminal Law & Philosophy 8(2) (2014): pp. 505–525, 515, 523 (defending the right of states to restrain ‘culpable aggressors’ who threaten future harm but concluding that states should be required to prove the predicate criteria for culpability beyond a reasonable doubt).

  16. Accord Sandra G. Mayson, ‘Dangerous Defendants’, Yale Law Journal 127(3) (2018): pp. 490–787, 534–541. The U.S. jurisdictions that permit pretrial detention for dangerousness authorize it on the basis of consequentialist criteria alone. United States v. Salerno, 481 U.S. 739 (1987).

  17. Husak, supra note 9, at 191–193.

  18. Id. at 180.

  19. Id.

  20. Id. at 192–193.

  21. Megan T. Stevenson and Christopher Slobogin, ‘Algorithmic Risk Assessments and the Double-Edged Sword of Youth’, Washington University Law Review 96(3) (2018): pp. 681–706.

  22. See generally Darin Clearwater, ‘‘If the Cloak Doesn’t Fit, You Must Acquit’: Retributivist Models of Preventive Detention and the Problem of Coextensiveness’, Criminal Law & Philosophy 11(1) (2017): pp. 49–70.

  23. Cf. Mariel Alper, Matthew R. Durose, and Joshua Markman, 2018 Update on Prisoner Recidivism (Washington DC: Bureau of Justice Statistics, 2018), p. 1 (reporting that ‘[a]n estimated 68% of released prisoners were arrested within 3 years [of release], 79% within 6 years, and 83% within 9 years’).

  24. Accord Morse, supra note 5, at 1094 (concluding ‘that expanding desert jurisprudence to achieve enhanced preventive detention cannot succeed consistent with reasonably uncontroversial desert principles’).

  25. Morse, supra note 5 (arguing for this approach).

  26. On proportionality, see Carol S. Steiker, ‘Proportionality as a Limit on Preventive Justice: Promises and Pitfalls’, in Andrew Ashworth et al. (eds.), Prevention and the Limits of the Criminal Law (New York: OUP, 2013), pp.194–214, 194; see also Victor Tadros, ‘Controlling Risk’,’ in Andrew Ashworth et al. (eds.), Prevention and the Limits of the Criminal Law (New York: OUP, 2013), pp. 136–137.

  27. See Philip J. Cook and Jens Ludwig, More Prisoners Versus More Crime Is the Wrong Question (Brookings Institution, Policy Brief No. 185, Washington DC: Brookings Institution, Dec. 2011).

  28. Douglas Husak, Overcriminalization (New York: OUP, 2007), p. 82.

  29. Id. at 132. He also endorses ‘risk prevention offenses’ that proscribe behaviors creating a substantial risk of harm, so long as the harm is one the state would be justified in proscribing directly and the criminal proscription does reduce the likelihood of it occurring. Id. at 176.

  30. Id. at 77.

  31. This, at any rate, is Husak’s view. See id. at 82–88; accord Sandra G. Mayson, ‘The Concept of Criminal Law’, Criminal Law & Philosophy 14(3) (2020): pp. 447–464.

  32. For recent work questioning the continued value of criminal law, see, e.g., Dorothy Roberts, ‘Foreword: Abolition Constitutionalism’, Harvard Law Review 133(1) (2019): pp. 1–122; Amna Akbar, ‘Toward a Radical Imagination of Law’, N.Y.U. Law Review 93(3) (2018): pp. 405–479; Alice Ristroph, ‘Proportionality as a Principle of Limited Government’, Duke Law Journal 55(2) (2005): pp. 263–331, 317–319. But see Douglas Husak, ‘The Price of Criminal Law Skepticism: Ten Functions of the Criminal Law’, New Criminal Law Review 23(1) (2020): pp. 27–59.

  33. See, e.g., Christopher Slobogin, ‘The Civilization of the Criminal Law’, Vanderbilt Law Review 58(1) (2005): pp. 121–170, 128 (proposing an entirely consequentialist approach to harm prevention); Robinson, supra note 8 (arguing for ‘segregation’ of punitive and preventive practices); Ronald J. Allen and Larry Laudan, ‘Deadly Dilemmas III: Some Kind Words for Preventive Detention’, Journal of Criminal Law and Criminology 101(3) (2011): pp. 781–802; see also Morse, supra note 5, at 1120–1124 (discussing proposals for ‘pure’ preventive restraint); Walen, supra note 5, at 872 n.5 (identifying scholars who take ‘a fundamentally utilitarian approach’ to preventive detention); Alec Walen, ‘A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity’, San Diego Law Review 48(4) (2011): pp. 1229–1272, 1238 (endorsing consequentialism for short-term detention).

  34. Andrew Ashworth and Lucia Zedner, Preventive Justice (New York: Oxford University Press, 2014) (endorsing consequentialist criteria for preventive detention only when a person has forfeited her ‘right to be presumed harmless’ by committing a serious violent crime); Ferzan, supra note 15, at 515, 523 (endorsing preventive restraint for ‘culpable aggressors’); Walen, supra note 5, at 1240 (endorsing long-term preventive detention for those who have forfeited their right against it through culpable conduct). Some scholars, including Husak, are willing to relax the culpability constraint ‘if the stakes are sufficiently high’. Husak, supra note 9, at 178.

  35. E.g., Morse, supra note 5, at 1122 (‘[P]ure preventive detention treats the agent as a wild beast who is not governed by reason and who must be objectified and controlled’.).

  36. Christopher Slobogin, ‘A Jurisprudence of Dangerousness’, Northwestern University Law Review 98(1) (2003): pp. 1–62, 27; see also, e.g., Ashworth and Zedner, supra note 34, at 151 (‘The judgment that an individual poses a significant risk of serious harm rests on the claim that he does not have the capacity to choose to do right . . . . [or that] he will not in fact exercise that capacity to restrain himself’.); Kimberly Kessler Ferzan, ‘Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible’, Minnesota Law Review 96(1) (2011): pp. 141–193, 153 (‘[W]hen we detain someone because he might harm us . . . we deny that he will choose wisely and just predict that he will cause harm’.); Morse, supra note 5, at 1122 (‘If an agent is responsible . . . then pure preventive detention fails to treat the person as an autonomous moral agent who can be guided by reason’.).

  37. See, e.g., Shima Baradaran Baughman, ‘Restoring the Presumption of Innocence’, Ohio State Law Journal 72(4) (2011): pp. 723–776; Duff, supra note 4, at 125–128; Laurence H. Tribe, ‘An Ounce of Detention: Preventive Justice in the World of John Mitchell’, Virginia Law Review 56(3) (1970): pp. 371–407, 378.

  38. Accord Tadros, supra note 26, at 146.

  39. Duff, supra note 4.

  40. Stephen J. Schulhofer, ‘Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws’, Journal of Contemporary Legal Issues 7 (1996): pp. 69–96.

  41. Stephen J. Morse, ‘Blame and Danger: An Essay on Preventive Detention’, Boston University Law Review 76(1&2) (1996): pp. 113–155, 117 (‘Our liberal society prefers to avoid such blunderbuss interventions and to prevent harmdoing as unintrusively as possible, by deterrents aimed precisely at the specific dangerous behavior to be avoided, or by other less intrusive alternatives’.).

  42. E.g., Walen, supra note 5, at 901 (arguing that long-term preventive detention ‘is not just a limit on liberty; it is its essential negation’).

  43. Alice Ristroph, personal correspondence (Oct. 16, 2020).

  44. A last objection to my argument here is that preventive detention is different in kind from these lesser forms of restraint because, whereas the specific restraints only preclude morally prohibited conduct, preventive detention precludes all kinds of legitimate activity. As Frederick Schauer has explained, this is a false binary; even restrictions that aim to target only morally impermissible behavior have a broader preventive effect. Schauer, supra note 4. Furthermore, if the objection to preventive detention is really that it precludes all kinds of legitimate activity, the objection is not to the deprivation of moral autonomy but simply to the deprivation of liberty.

  45. A related argument to the same conclusion is that we permit punishment for past offenses knowing that our fallible systems will produce some erroneous deprivations of liberty, and ‘it is hard to see why the wrong is greater in the case of not giving people a chance to act against the probabilities’. Schauer, supra note 4, at 16.

  46. Accord Frederick Schauer, Profiles, Probabilities and Stereotypes (Cambridge: HUP, 2003), p. 128, 189–190.

  47. Id. at 108–130, 155–174.

  48. Duff, supra note 4, at 122.

  49. I am taking as a premise that future events are unknowable and unprovable, whereas past events are knowable and provable, at least in principle.

  50. Duff, supra note 4, at 119–120; Zedner and Ashworth, supra note 2; Jean E. Floud & Warren Young, Dangerousness and Criminal Justice (London: Heinemann, 1981), p. 44.

  51. Cf. Michael Louis Corrado, ‘Punishment and the Wild Beast of Prey: The Problem of Preventive Detention’, Journal of Criminal Law and Criminology 86(3) (1996): pp. 778–814, 805 (criticizing Floud & Young’s notion of a presumption of harmlessness).

  52. Husak, supra note 28, at 93.

  53. Id. at 93; accord Sandra G. Mayson, ‘Collateral Consequences and the Preventive State’, Notre Dame Law Journal 91(1) (2015): pp. 301–362, 317–335.

  54. Andrew Von Hirsch argues a last categorical objection to preventive restraint: the ‘individual justice’ objection. As he puts it, ‘if a system of preventive incarceration is known systematically to generate mistaken confinements, then it is unacceptable in absolute terms because it violates the obligation of society to individual justice’. Andrew von Hirsch, ‘Prediction of Criminal Conduct and Preventive Confinement of Convicted Persons’, Buffalo Law Review 21(3) (1972): pp. 717–758, 740. But any system of restraint will systematically generate error in this sense, including one that strives only to adjudicate guilt for past acts. See Schauer, supra note 4, at 14, 21 (‘[T]he notion that there is even a possibility of a non-probabilistic assessment of individuals is a mistake’.).

  55. Jeremy Waldron, ‘Security and Liberty: The Image of Balance’, Journal of Political Philosophy 11(2) (2003): pp. 191–210.

  56. The consequentialist framework thus allows the forms of culpability-authorized preventive restraint that Husak, Ferzan, and Walen have endorsed. See note 34.

  57. See, e.g., R.A. Duff, The Realm of Criminal Law (New York: OUP, 2019); C.S. Lewis, ‘The Humanitarian Theory of Punishment’, The Twentieth Century: An Australian Quarterly Review 13(1) (1949): pp. 147–153 (‘[T]he concept of Desert is the only connecting link between punishment and justice’.); Mayson, supra note 31.

  58. Mad-or-bad doctrine also has somewhat more nuance than I have suggested. For instance, mad-or-bad doctrine is sometimes understood to authorize non-carceral preventive restraints (like mandatory outpatient treatment) on people who have diminished capacity for moral responsibility, but who are not so compromised as to be eligible for preventive detention.

  59. Walen, supra note 5.

  60. Id.

  61. Cf. Megan T. Stevenson and Sandra G. Mayson, ‘Pretrial Detention and the Value of Liberty’, Virginia Law Review (forthcoming 2022); see also David S. Abrams, ‘The Imprisoner’s Dilemma: A Cost-Benefit Approach to Incarceration’, Iowa Law Review 98 (2013): pp. 905–969; Sonja B. Starr, ‘On the Role of Cost-Benefit Analysis in Criminal Justice Policy: A Response to the Imprisoner’s Dilemma’, Iowa Law Review Bulletin 98 (2013): pp. 97–111.

  62. Thanks to Kiel Brennan-Marquez for this point.

  63. Kansas v. Hendricks, 521 U.S. 346, 355 (1997) (reporting Hendricks’ statement that ‘the only sure way he could keep from sexually abusing children in the future was “to die”.’); cf. Zedner and Ashworth, 2019 (noting that the U.S. Supreme Court’s definition of ‘mental abnormality’ as ‘serious difficulty in controlling behavior’ is a most unsatisfactory designation because it . . . could apply widely to persons convicted of sexual and violent offenses’).

  64. See United States v. Salerno, 481 U.S. 739 (1987); Anthony Salerno, en.wikipedia.org/wiki/Anthony_Salerno.

  65. Walen, for instance, deems ‘short-term’ detention of under six months to be subject to pure consequentialist balancing, but not detention that exceeds six months. Walen, supra note 5.

  66. Robinson, supra note 8.

  67. Schall v. Martin, 467 U.S. 253 (1984); Demore v. Kim, 538 U.S. 510 (2003); United States v. Salerno, 481 U.S. 739 (1987); Kansas v. Hendricks, 521 U.S. 346 (1997); Kansas v. Crane, 534 U.S. 407 (2002).

  68. This is arguably what the U.S. Supreme Court is already doing in its regulatory detention jurisprudence, an argument I hope to make in future work.

  69. Cf. Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 300 (1990) (Scalia, J., concurring) (noting that the Equal Protection Clause offers powerful protection against oppressive laws by ‘requir[ing] the democratic majority to accept for themselves and their loved ones what they impose on you and me’); Cole, supra note 4, at 748 (advocating for the creation of ‘carefully circumscribed preventive-detention authority outside the criminal justice system’ on the ground that it ‘would force us to confront when preventive detention is truly justified, rather than tolerating it as an informal practice as long as it does not apply to the majority’).

  70. Schulhofer, supra note 40.

Acknowledgements

First and foremost, I am permanently indebted to Doug Husak, whose support and kindness I can never repay. I am grateful to Antony Duff and Alec Walen for organizing this issue in his honor and for including me. Many thanks as well to Kiel Brennan-Marquez, Maron Deering, Antony Duff, Kim Ferzan, Stephen Morse, Alice Ristroph, Alec Walen, an anonymous reviewer, and the UVA Law School faculty (especially Anne Coughlin and John Duffy) for extremely helpful input that improved the piece. Lastly, thanks to Ben Meltzer of the Biddle Law Library for invaluable assistance with citation formatting. All mistakes are my own.

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Mayson, S.G. A Consequentialist Framework for Prevention. Law and Philos 41, 219–241 (2022). https://doi.org/10.1007/s10982-021-09427-5

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