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David Cole - One of the best experts on this subject based on the ideXlab platform.

  • Out of the Shadows: Preventive Detention, Suspected Terrorists, and War
    2009
    Co-Authors: David Cole
    Abstract:

    This article examines the appropriate and inappropriate role of "Preventive Detention" in responding to terrorist threats. It offers a constitutional jurisprudence of Preventive Detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, Preventive Detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, Preventive Detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted Preventive Detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and Detention of enemy soldiers in a traditional war, whose hostile activities cannot be criminalized so long as they respect the laws of war.The article argues that the contemporary debate over Preventive Detention often disregards the fact that US law already authorizes Preventive Detention in a variety of circumstances - as indeed do the laws of virtually every other nation. Thus, the proper question is not whether we should have Preventive Detention at all, but under what circumstances and pursuant to what protections. Unlike torture, Preventive Detention is not susceptible to an absolute prohibition.I address the use and abuse of Preventive Detention since 9/11, and suggest a variety of reforms to forestall abuses in the future, particularly in the aftermath of another terrorist attack. I advocate reform of immigration law, the material witness law, and the "enemy combatant" Detention authority. With respect to the latter, I find unsatisfactory the proposals of both those who call for a new Preventive Detention statute addressed to "suspected terrorists," such as Profs. Neal Katyal and Jack Goldsmith, and those who insist that the United States must either "try or release" everyone at Guantanamo (and presumably Bagram Air Force Base), as have several human rights organizations.Instead, I suggest that a Detention regime carefully restricted to persons engaged against us in the armed conflict with al Qaeda and the Taliban in Afghanistan would be consistent with the Constitution and international law, provided it included meticulous procedures designed to afford detainees a meaningful opportunity to defend themselves, and regular review of their status to ensure that they are detained no longer than necessary. The parameters of such a regime should be set forth by Congress, not improvised by the Executive. And the predicate for Detention should be involvement in an ongoing armed conflict, not terrorism. Involvement in an armed conflict has long been a recognized justification for Preventive Detention, here and around the world. Terrorism, by contrast, is a crime, not different in kind from many other serious crimes, and can and should be addressed through the criminal justice system. However, where an act of terrorism leads to an armed conflict - as has happened only once in the 200-year history of the United States - the laws of war and the Constitution should permit carefully circumscribed Preventive Detention for the duration of the conflict.

  • Out of the Shadows: Preventive Detention, Suspected Terrorists, and War
    California Law Review, 2009
    Co-Authors: David Cole
    Abstract:

    The United States does not have a statute authorizing Preventive Detention of suspected terrorists without charge. Some consider that irresponsible, as it is not difficult to imagine circumstances in which the government might want to detain a suspected al Qaeda operative, but not be prepared to file charges in open court as required for a criminal prosecution. The government may have learned of the individual from a confidential or foreign-government source that it cannot publicly disclose, or from an ongoing investigation. It may lack sufficient evidence to convict beyond a reasonable doubt, but have substantial grounds to believe that the individual was actively engaged in armed conflict for al Qaeda. The disclosures necessary for a public trial might seriously compromise the military struggle against the Taliban and al Qaeda. U.S. law has no formal statutory mechanism by which the government could detain such a person. Some have suggested that this is a potentially profound defect in our national security armature.

Bernadette Mcsherry - One of the best experts on this subject based on the ideXlab platform.

  • The Preventive Detention of Sex Offenders: Law and Practice
    2015
    Co-Authors: Patrick Keyzer, Bernadette Mcsherry
    Abstract:

    In Australia, as in many other countries, there have long existed various legislative schemes governing ‘dangerous’ offenders, persons considered to be incapable of controlling their sexual instincts and ‘habitual’ criminals. These legislative schemes have been cyclical, falling in and out of favour in response to community concerns and governmental ‘law and order’ policies.As well as indefinite Detention laws for high risk offenders in general, Queensland and South Australia have specific schemes for the indefinite Detention of sex offenders. In addition, over the past decade, post-sentence Preventive Detention and supervision schemes for sex offenders have been enacted in four Australian states as well as in the Northern Territory.Hundreds of police and corrections officers, social workers, lawyers, psychologists and psychiatrists now work within the Preventive Detention and community supervision systems that have developed to manage these prisoners and supervisees. As the Queensland regime enters its 11th year of operation, there is considerable interest in how these regimes actually operate in practice, and what each jurisdiction can learn from the experience of others.This article examines both the law and practice of Preventive Detention of those considered to be at high risk of re-offending in Australia. It draws on the results of empirical research on the views of those involved in implementing post-sentence Preventive Detention regimes for sex offenders. The first half of the article provides an overview of current Australian laws on indefinite and Preventive Detention, outlining three regimes: indefinite Detention for ‘dangerous offenders’, special indefinite Detention for sex offenders, and post-sentence Preventive Detention and supervision. It also examines the constitutionality of, and judicial responses to, these schemes.The second half of the article focuses on the practice of post-sentence Preventive Detention of sex offenders, presenting the views of professionals who work in the area on what they think are the strengths and weaknesses of these schemes. These views reflect 86 in-depth interviews with police officers, corrective services officials, social workers, lawyers, psychologists and psychiatrists experienced in the operation of the schemes in Queensland, Western Australia and New South Wales. The interviews were conducted as part of an Australian Research Council Discovery Project (DP0877171) entitled Preventive Detention of High Risk Offenders: The Search for Effective and Legitimate Parameters. The objective of the interviews was to determine how post-sentence prevention and supervision sex offender schemes are working in practice in the states of Queensland, Western Australia and New South Wales. In particular, this article analyses interviewees’ perspectives concerning treatment, resources, accommodation, monitoring of offenders, and breaches of supervision orders.It is argued that while the legal parameters of Preventive Detention schemes may be settled, members of the judiciary have cautioned that they must be used sparingly and there is evident judicial reluctance to impose indefinite sentences. Most importantly, the views expressed by those implementing post-sentence Preventive Detention and supervision schemes reveal that there are serious concerns about their operation.

  • Throwing Away the Key: The Ethics of Risk Assessment for Preventive Detention Schemes: R.G. Myers Memorial Lecture 2013.
    Psychiatry psychology and law : an interdisciplinary journal of the Australian and New Zealand Association of Psychiatry Psychology and Law, 2014
    Co-Authors: Bernadette Mcsherry
    Abstract:

    Preventive Detention schemes that aim to protect the community from certain ‘dangerous’ individuals have long existed. While risk assessment is now pervasive in the management and treatment of many individuals, it raises particular issues when a person's liberty is at stake on the basis of what that person might do. This R.G. Myers Memorial Lecture addresses the ethical issues raised by mental health practitioners providing risk assessments for legislative schemes that involve the deprivation of liberty. It will focus in particular on Australian post-sentence Preventive Detention schemes for sex offenders that have been held by the United Nations Human Rights Committee to breach fundamental human rights. However, the ethical issues discussed also have repercussions for civil commitment laws that enable the Detention of those with severe mental or intellectual impairments.

  • managing fear the law and ethics of Preventive Detention and risk assessment
    2013
    Co-Authors: Bernadette Mcsherry
    Abstract:

    Part I: Introduction and Theories of Risk and Precaution. Introduction. Theories of Risk and Precaution. Risk Assessment Instruments and Techniques. Part II: The Laws of Preventive Detention and Supervision Laws of Preventive Detention. Supervision, Control, and Community Treatment Orders. Proving Risk in Preventive Detention and Supervision Proceedings. Part III: Human Rights and Ethical Issues Human Rights Issues. The Ethics of Forensic Risk Assessment. Part IV: Conclusion Conclusion. Appendix A: Table of Cases. Appendix B: Table of Statutes.

  • Sex, Drugs and Evil Souls: The Growing Reliance on Preventive Detention Regimes
    2009
    Co-Authors: Bernadette Mcsherry
    Abstract:

    Since the terrorist attacks of 11 September 2001, legislatures around the world have increasingly invoked Preventive Detention measures to address perceived security risks to the community. Australia has been no exception to this trend. Whilst not a new phenomena, the growing use by States of such exceptional powers raises important policy questions. This article traces the rise of current Preventive Detention regimes in Australia as they have been applied to various categories of 'dangerous persons', in particular as they relate to sex offenders, the involuntary Detention of those with infectious diseases or mental illness, those with alcohol and drug problems, 'unlawful non-citizens' and in relation to terrorism. Policy issues that arise from these regimes are considered, including the conflict between Preventive Detention regimes and the international human right to freedom from arbitrary Detention.

  • The Preventive Detention of 'Dangerous' Sex Offenders in Australia: Perspectives at the Coalface
    2006
    Co-Authors: Patrick Keyzer, Bernadette Mcsherry
    Abstract:

    Four Australian states, Queensland, New South Wales, Western Australia and Victoria as well as the Northern Territory have enacted laws that enable the continued Detention in prison of “dangerous” sex offenders beyond the completion of their sentence. This has proved to be a popular response from a political and social policy perspective, with the New South Wales government recently extending its scheme to include serious violent offenders. While the Queensland scheme has been upheld by the High Court of Australia as constitutional, Preventive Detention laws raise human rights issues and problems with implementation. This paper outlines the results of 86 interviews carried out with psychiatrists, psychologists, social workers, former corrective services officials, lawyers and police officers who have first-hand experience with the operation of the Australian schemes. The results indicate that those at the “coalface” in relation to post-sentence Preventive Detention schemes are critical of a number of matters such as the general reliance on Preventive Detention rather than rehabilitation, the reliance on and use of risk assessment tools as well as media reporting of sex offenders.

Stella J. Burch - One of the best experts on this subject based on the ideXlab platform.

  • Rethinking ‘Preventive Detention’ from a Comparative Perspective: Three Frameworks for Detaining Terrorist Suspects
    Columbia Human Rights Law Review, 2009
    Co-Authors: Stella J. Burch
    Abstract:

    President Barack Obama has convened a multi-agency taskforce whose remit includes considering whether the United States should continue to hold terrorist suspects in extra-territorial “Preventive Detention,” should develop a new system of “Preventive Detention” to hold terrorist suspects on domestic soil, or should eschew any use of “Preventive Detention.” American scholars and advocates who favor the use of “Preventive Detention” in the United States frequently point to the examples of other countries in support of their argument. At the same time, advocates and scholars opposed to the introduction of such a system also turn to comparative law to bolster their arguments against “Preventive Detention.” Thus far, however, the scholarship produced by both sides of the debate has been limited in two key respects. Firstly, there have been definitional inconsistencies in the literature—the term “Preventive Detention” has been used overbroadly to describe a number of different kinds of Detention with very little acknowledgment of the fundamental differences between these alternative regimes. Secondly, the debate has been narrow in scope— focusing almost exclusively on “Preventive Detention” in three or four other (overwhelmingly Anglophone) countries. This Article seeks to * Law Clerk to the Honorable Stephen Reinhardt. Yale Law School, J.D. 2009. I am very grateful to Harold Hongju Koh, Hope Metcalf, Judith Resnik, Reva Siegel, Muneer Ahmad, Sarah Cleveland, and John Ip for their generous advice and thoughtful comments on earlier versions of this article, to Allison Tait, Megan Barnett, and the Yale Law Teaching Series workshop participants for their helpful feedback, and to Meera Shah, Megan Crowley, and the Columbia Human Rights Law Review for their terrific editing. Above all, I owe a tremendous debt to Bram Elias for his countless contributions to this piece. 100 COLUMBIA HUMAN RIGHTS LAW REVIEW [41:99 advance the debate about “Preventive Detention” by moving beyond each of these limitations. First, the Article defines, analyzes, and differentiates between the different kinds of “Preventive Detention.” Second, the Article broadens the scope of the debate by comparing the systems of terrorism-related “Preventive Detention” in use in thirty-two different countries. The Article constructs a taxonomy of “Preventive Detention” based on core principles of international law to distill the key attributes of the “Preventive Detention” regimes in each of the countries surveyed. Using the taxonomy, the Article proposes that there are three overarching frameworks used to detain terrorist suspect detainees: (1) the pre-trial Detention framework; (2) the immigration Detention framework; and (3) the national security Detention framework. This Article proposes that U.S. policymakers contemplating possible future approaches to the Detention of suspected terrorists should move beyond the inapposite and misleading question of whether or not to engage in “Preventive Detention,” and should instead determine which of these three frameworks offers the most appropriate approach to the Detention of terrorist suspects. The Article concludes with the argument that a version of the pre-trial Detention framework approach would be most suited for use in the United

Alec D. Walen - One of the best experts on this subject based on the ideXlab platform.

  • A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity
    2011
    Co-Authors: Alec D. Walen
    Abstract:

    It is a core principle of liberal societies that an individual may not be deprived of his liberty unless the reasons for doing so respect his status as an autonomous person. This principle puts stringent limits on the use of Preventive Detention. I argue here that one use of Preventive Detention that is consistent with those limits is the long-term Preventive Detention (LTPD) of people who have been convicted either of a very serious crime or a string of serious crimes. These people can justifiably be subjected to LTPD because a justifiable part of their punishment is loss, for some period of time, of the normal immunity to LTPD. If this period of time extends beyond whatever period of time in which they have lost their liberty as a matter of punitive Detention, then they may be subject to LTPD for the remainder of that period. What makes stripping certain criminals of their immunity to LTPD for a period of time morally acceptable is that such a punishment fits their crimes. If they show sufficient disrespect for the law, then they no longer deserve to receive one of the benefits that normally flows from being an autonomous and accountable person. In particular, they no longer deserve to have the status of a person who must be presumed to be law abiding. A state must normally accord its autonomous and accountable citizens this presumption as a matter of basic respect for their autonomous moral agency. Rather than treat them as potentially dangerous animals, the state must treat them as free agents who can be trusted enough to do what is right to have the liberty to move freely in the society, and who can and should be held accountable if they choose instead to commit criminal acts. If, however, a particular actor demonstrates by his criminal acts that he does not deserve the presumption that he will be law abiding, then he has, at least for a while, lost the moral basis for claiming the right to benefit from the respect that grounds the immunity to LTPD. He remains an autonomous moral agent who can be held accountable for his future criminal choices, but he loses his status as a person who must be given the freedoms that come with the presumption that he will obey the law. For brevity, I will refer to this lost status account of the lost immunity to LTPD as the, “lost status view.”

  • A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists
    Maryland Law Review, 2011
    Co-Authors: Alec D. Walen
    Abstract:

    In this Article, I argue for a unified theory of Detention that explains how the wide range of defensible modes of Detention, including the Detention of prisoners of war and of some suspected terrorists, can be justified within a liberal tradition that respects the liberty of autonomous individuals. The overarching principle for what I call the Autonomy Respecting Model of Detention is this: Those who can be adequately policed and held accountable for their choices as normal autonomous agents and who can control whether their interactions with others will be impermissibly harmful can be subjected to long-term Detention only if they have committed a crime for which long-term punitive Detention or loss of the right not to be subjected to long-term Preventive Detention is a fitting punishment. The Autonomy Respecting Model justifies the long-term Preventive Detention of prisoners of war on the ground that were such prisoners to escape or be released, they would not be policed in a way that would hold them accountable for their use of force in the future. The model justifies the long-term Preventive Detention of suspected terrorists only in those cases in which they too would be effectively unaccountable for their future actions. Importantly, the autonomy respecting model does not allow the long-term Preventive Detention of suspected terrorists simply Copyright  2011 by Alec Walen. * Associate Professor of Law, Rutgers School of Law, Camden; Associate Professor of Philosophy, Rutgers University, New Brunswick.

  • A Unified Theory of Detention, with Application to Preventive Detention for Suspected Terrorists
    2009
    Co-Authors: Alec D. Walen
    Abstract:

    In this Article, I argue for a unified theory of Detention that explains how the wide range of defensible modes of Detention, including the Detention of prisoners of war and of some suspected terrorists, can be justified within a liberal tradition that respects the liberty of autonomous individuals. The overarching principle for what I call the Autonomy Respecting Model of Detention is this: Those who can be adequately policed and held accountable for their choices as normal autonomous agents and who can control whether their interactions with others will be impermissibly harmful can be subjected to long-term Detention only if they have committed a crime for which long-term punitive Detention or loss of the right not to be subjected to long-term Preventive Detention is a fitting punishment. The Autonomy Respecting Model justifies the long-term Preventive Detention of prisoners of war on the ground that were such prisoners to escape or be released, they would not be policed in a way that would hold them accountable for their use of force in the future. The model justifies the long-term Preventive Detention of suspected terrorists only in those cases in which they too would be effectively unaccountable for their future actions. Importantly, the autonomy respecting model does not allow the long-term Preventive Detention of suspected terrorists simply because they are predicted to pose a threat larger than that of almost all other criminals.

  • Crossing a Moral Line: Long-Term Preventive Detention in the War on Terror
    2008
    Co-Authors: Alec D. Walen
    Abstract:

    The long-term Preventive Detention (LTPD) of suspected terrorists cannot be assimilated to LTPD of prisoners of war (POWs). The difference turns on the fact that they are on different sides of an important moral line, distinguishing those forms of Detention that respect the claim to liberty of autonomous people from those that do not. In brief, punitive Detention for crimes autonomously committed is the paradigm of a Detention procedure that respects autonomy; short-term Preventive Detention (e.g. pre-trial Detention) and Preventive Detention of those whose capacity for autonomy is compromised and who are a danger to themselves or others can also be justified as respectful of individuals’ rights to liberty. POWs can be respectfully detained because they cannot be held criminally liable for the use of force; they are privileged to engage in combat. But suspected terrorists can be held criminally responsible, and therefore their Detention without trial disrespects them as autonomous agents.

Michael Louis Corrado - One of the best experts on this subject based on the ideXlab platform.

  • Some Notes on Preventive Detention and Psychopathy
    SSRN Electronic Journal, 2009
    Co-Authors: Michael Louis Corrado
    Abstract:

    Assuming that the term “psychopath” refers only to those violent offenders who are incapable of responding to moral concerns, how to treat the psychopath is a wonderful test for any theory of responsibility, punishment, and Preventive Detention. In this paper I distinguish two (somewhat overlapping) approaches to the problem, the responsibility approach and the rights approach. According to the first, the psychopath should be punished for his behavior and not Preventively detained if, and only if, he is responsible for what he does. The larger question of punishment versus Preventive Detention then depends upon the answer to the question, whether the someone who cannot respond to moral concerns is responsible for what he does. I find this approach in the work of Morse and Litton. According to the second theory, we have a right to be punished if, but only if, we respect the rights of others. I find this approach in the work of Murphy and Slobogin. This approach takes no notice of the question whether the offender is capable of respecting rights of others. I argue that the “responsibility” approach is the correct approach, but I also argue for a conclusion different from that of Morse and Litton, namely that the psychopath should in fact be “punished” and not detained. (I put the words “responsibility” and “punished” in scare-quotes to indicate that my position as an incompatibilist requires me to reject both punishment and responsibility as they are currently understood. As I argue in the paper, distinguishing between control over actions and the ability to originate actions requires us to distinguish cases in which Preventive Detention is appropriate – that is, cases in which the actor is not in control of his behavior – from cases involving actors in control of their behavior. These are cases for which some functional equivalent of the currently unjustified practice of punishment must be found, an equivalent that respects the offender’s ability to control his behavior and that does not result in indefinite confinement.)

  • Sex Offenders, Unlawful Combatants, and Preventive Detention
    2005
    Co-Authors: Michael Louis Corrado
    Abstract:

    The paper is about Preventive Detention - detaining people on grounds of dangerousness alone. I want to argue in this paper that unless the detainee is insane or unable to control her behavior, the threat of punishment should not be abandoned as a device for controlling behavior in favor of indefinite Preventive Detention. In particular I argue that this is even true in the case of terrorists and enemy combatants. I then argue that in spite of a series of recent cases expanding the right of legislatures to authorize Preventive Detention, it is still consistent with our jurisprudence to draw the line where I am suggesting.The recent Hamdi case really didn't address this point. Hamdi said (1) that Congress had authorized Detention of enemy combatants for the duration of the war in Afghanistan, but not for the duration of the war on terror; and (2) that Hamdi was entitled to a (very minimal) hearing to allow him to rebut the charge that he was in fact an enemy combatant. If he failed to rebut it, then the military could continue to detain him for the remainder of the war. The administration, of course, was arguing that it should be left entirely in their hands to determine whether someone was an enemy combatant, and when would be a propitious time to release or try them, if ever. In other words, indefinite Detention. The first rationale for the Detention, one accepted by all courts, was to keep them from returning to enemy lines (on the administration's account, that would be any terrorist group anywhere in the world). The second, treated with more suspicion, was for interrogation. In the administration's view, whether someone should be given a trial (like Lindh) or detained (like Hamdi and Padilla) depended on how useful their information was to the government.So the Court's ruling limited them in two ways: an immediate minimal hearing; Detention without trial for the remainder of the actual fighting in Afghanistan only.What the Court did not address, because it did not have to, was the constitutional question whether Congress COULD authorize indefinite Detention if it had wanted to. That's the question I focus on here.In the introduction to the paper I say pretty much what I've just said in these paragraphs.In Part I, I review the series of cases starting with Salerno that begin to expand the legislature's right to detain for the purpose of Preventive future crimes. My question is, has the Supreme Court really said that legislatures have the right to authorize indefinite Detention? Salerno was about pretrial Detention. Traditionally, and still in some states, bail was denied only to insure the integrity of the criminal process; the Federal Bail Reform Act permitted denial of bail to prevent future crimes. It was controversial for that reason, and several district courts and one circuit court struck it down. It was upheld in the Supreme Court largely on the ground that it was not punishment and therefore not punishment without conviction. It was only regulation - regulation of dangerous activity.The other cases, more briefly: Foucha seemed a step back; it said that someone who was NGRI, but had recovered his sanity, had to be released from commitment; this would have been no big surprise except that after Salerno the Court could have called it regulation and approved the continued Detention (which would have been indefinite Detention). Hendricks went the other way again, approving indefinite Detention for sex predators, after they have served their penal sentences. Zadvydas went back in the direction of Foucha, declaring that an undesirable and deportable alien could not be held indefinitely just because the INS could not find a country to deport him to; no indefinite Detention. However the Court did note that it was an open question whether indefinite Detention might be OK for terrorists. Crane revisited the sex predator question and said that although indefinite Detention was OK there, it was only OK if the detainee was unable to control his behavior. Finally Hamdi, which I have already discussed. (The district court in the related Padilla case was the only court to discuss the question I am interested in, and relying on the line of cases I have just laid out determined that there was no per se ban on indefinite Detention of enemy combatants.)I then in Part II try to come to some conclusion about what the right thing to do would be, independently of constitutional considerations. I begin with a theory of Preventive Detention which argues that inability to control is an incoherent notion, and that sex predators can respond to punishment and should be punished only and not detained. I try to show that these arguments don't work. I then turn to an alternative theory, which is that mere undeterrability is the criterion, and that not only should sex predators be detained, but those who are sane and in control but so committed to a cause that they do not fear death should also be detained. Terrorists are the obvious cases; the suicide bomber is the paradigm. I try to show that these arguments also don't work, and that this theory has unpleasant consequences. In the end I propose drawing the line at those who cannot conform to the law, including those not in control of their behavior.In Part III I argue that that thesis - which would block the indefinite Detention of terrorists and enemy combatants, should Congress in a mood of fervent patriotism decide to go that way - is consistent with Supreme Court jurisprudence. I go back through the cases and show that given what the Court has said so far, it is still open to the Court to find that that authority is just not in the Constitution. (Congress can suspend the writ of habeas corpus, but for what I consider a well-defined period, not at the discretion of the administration. The more important point is that the existence of that clause in the Constitution supports the view that Congress cannot otherwise deny someone the right to a criminal trial.)

  • Punishment, quarantine, and Preventive Detention
    Criminal Justice Ethics, 1996
    Co-Authors: Michael Louis Corrado
    Abstract:

    Impositions on others need justification. Punishment we generally justify as a just or deserved response to wrongdoing or crime. What about quarantine and Preventive Detention, where, it would seem, there has been no wrongdoing to justify the imposition? It is tempting to argue that both are justified by reference to the social dangerousness of their occasioning conditions - in the case of quarantine, an easily communicable disease; in the case of Preventive Detention, the likelihood that a person will engage in culpably dangerous conduct. Yet neither of these responses is trouble free. Predictions of dangerousness are notoriously unreliable and, in the absence of some actual harm, impositions based on mere dangerousness might be thought violative of autonomy. In this exchange, Michael Corrado and Michael Davis address these problematic questions. The exchange was prompted originally by a symposium sponsored by the American Philosophical Association, in which both Davis and Corrado participated. The debate here focuses on an argument which goes as follows: If a person knows that he will harm others (either intentionally or because of a contagious disease), he has an obligation to have himself detained/quarantined. If he fails to act on this obligation, he can be charged with reckless endangerment and punished. If, at the end of the period of punishment, he remains dangerous but is still unwiring to detain himself, he can be charged and punished again - and so on, indefinitely. Preventive Detention is Detention of dangerous persons to prevent future crimes. The persons to be detained may or may not have committed crimes in the past; the crimes to be prevented may or may not be presently intended. Under the law of most western countries, Preventive Detention is limited to those who have demonstrated their dangerousness by committing crimes in the past; but in theory it need not be so, and in fact it is now possible in the United States to Preventively detain someone before trial,(1) which means before he has been convicted of any crime. In addition, some sexual predator laws apparently provide for Preventive Detention without a prior conviction.(2) Those so detained may have no present intention of committing any crimes and indeed may have every intention of remaining within the law. If, in spite of that, it is more or less reliably predicted that they will commit violent crimes, then they are candidates for Preventive Detention. A single instance of incarceration may be an example of both punishment and Preventive Detention. If Jones has committed a crime, we may imprison him as much to keep him off the streets as to punish him. Pure Preventive Detention is incarceration that does not also purport to be punishment. Someone who has been convicted of no prior crime, for example, if he is detained to prevent future crimes, has been subjected to pure Preventive Detention. But so has the person who has been convicted of a crime, if he is detained beyond the completion of his penal sentence. Preventive Detention is not commitment, and it is not quarantine. Those who are involuntarily committed must be both insane and dangerous; in general they are not culpable for their dangerous acts. Preventive Detention is aimed precisely at those who are competent and whose future violent acts will be intentional and voluntary, and therefore culpable. Quarantine, or isolation of the contagiously ill, is Detention designed to prevent the spread of diseases. Such diseases must be easy to communicate, and it must be difficult for the diseased person even with the greatest care to avoid spreading them. One way in which Preventive Detention is different from quarantine is this: the communication of the disease that quarantine aims at preventing will not be due to any culpable act of the diseased person. Indeed, if someone with a contagious disease were to intend maliciously to spread the disease, Preventive Detention would be more appropriate for him than quarantine. …