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May 25, 2011

"Beyond Crime and Commitment: Justifying Liberty Deprivations of the Dangerous and Responsible"

The title of this post is the title of this notable new forthcoming piece from Kimberly Kessler Ferzan, which is now available via SSRN. Here is the abstract:

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 to draw a principled distinction between the ordinary criminal and the mentally ill.

This Article argues that rather than contorting the criminal or commitment models, there is a theoretical justification for substantial liberty deprivations of responsible, but dangerous, actors.  Drawing on the concept of “liability to defensive force” from the self-defense literature, this Article argues that just as a culpable attacker’s own conduct grounds a defender’s right to response, a dangerous actor who begins a course of criminal conduct grounds the state’s right to stop him.  This Article articulates what conduct is sufficient for “liability to preventive interference” as well as what the forms of preventive interference could be. In addition, this new form of liability is assessed in terms of constitutional implications, the civil-criminal divide, and practical considerations.

May 25, 2011 at 09:42 AM | Permalink


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It must be frustrating to be unable to lock someone up until they've actually committed a crime. But why limit "preventive interference" to "early inchoate conduct"? I'm sure that technology will develop that will enable the authorities to make educated guesses about an individual's prospective criminality before they've engaged in any "conduct." Turn on the telescreens. Not to worry; at least there might be room for a "Minority Report."

Posted by: Andrew Fine | May 25, 2011 3:35:58 PM

works for me. AS long as it also applies to politicians!

Posted by: rodsmith | May 26, 2011 3:50:09 AM

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