The first criticism of Hendricks is against his endorsement of the notion of inability to control as an appropriate psychological criterion for preventive detention. The principle of consistency requires that the standard of prediction applied in the pretrial detention context be consistent with analogous manifestations of governmental police power, particularly the administration of criminal justice. The objection to concealed punishment is that a preventive detention regime will allow the government to avoid the strict procedural protections of the criminal law and perhaps eventually replace criminal justice altogether.
First, imposing the reasonable doubt standard is too strict when the state's goal is to. discuss the ability of the Violence Risk Appraisal Guide (VRAG) to identify groups of offenders with a 55 percent, 75 percent, and 95 percent probability of recidivism); Grant T. So far, Justice Stevens' prediction that the government will routinely use preventive detention laws to evade the strictures of the criminal code has not come true.
The strongest argument in favor of the Court's position can be expressed through a simple syllogism. First, the duration of the obligation must be proportionate to the prevention of the predicted harm. The other essential feature of preventive detention - or what might more appropriately be called preventive intervention - is that the nature of the detention must be proportionate to the harm feared.
The dehumanization objection to preventive detention is that, even if all other objections are met, a regime that deprives people of their liberty on the basis of what they will do rather than what they have done shows insufficient respect for the individual. Within this concept of the right to be punished lies what I consider the most convincing version of the dehumanization objection to preventive detention. Virtue ethics, a third perspective on state police power, may also be hostile to a separate system of preventive detention.
THE PSYCHOLOGICAL CRITERION FOR PREVENTIVE DETENTION The majority opinion in Kansas v. Hendricks indicated, more than
151 For a sample of the comments in this vein, see Stephen Morse, Uncontrollable Urges and Irrational People, 88 VA. While one can understand the obsession in the abstract, it seems to sweep too widely in practice. The breadth of the concept of inability to control has been recognized by both researchers and clinicians.
For example, an instrument used in insanity cases measures voluntary impairment by asking the evaluator to use a template with six criteria ranging from whether the individual "was in complete control of his behavior and chose to commit the crime" to whether the person "was completely out of control of his/her behavior throughout the criminal act." Slobogin, supra note 22, at 947 n. Some insanity tests have also included volitional impairment language.7 ° If this prong were a necessary component of the insanity defense, then equating the psychological criterion of preventive detention with insanity could rejuvenate all the conceptual and practical difficulties just discussed. 168 Most jurisdictions today have adopted either the M'Naghten test or a truncated version of the Model Penal Code test; about twenty still retain a "voluntary" tip.
The Model Penal Code test focuses on the question of whether a person's mental illness or defect rendered him substantially incapable of appreciating the wrongfulness of his act or substantially incapable of conforming his conduct to the requirements of the law . The "truncated" version of the Model Penal Code test, which applies in federal courts and various state jurisdictions, eliminates the latter, willpower of the defense. But Morse's specific suggestion - that claims of volitional impairment should be reanalyzed in terms of the "rationality" of the motivating desires and beliefs76 - may not get us very far.
But unlike an irrationality test, this language focuses precisely on the actor's desires and beliefs that make the person unperturbed. In the typical political protest case, however, even the most enthusiastic protester will not commit the kind of crime that could lead to serious deprivation of liberty, which is the focus of the recklessness component of imperturbability. In such cases, preventive detention can be a viable option while relieving some of the pressure to increase penalties on the grounds of general incapacity.
199 Also, we cannot be sure that a person lacks rationality or any of the other placeholders for this concept. It identifies those individuals who are characteristically unaware of the prospect of punishment for a contemplated antisocial act because they misperceive its antisocial nature. 34;right" to punishment, this right can reasonably be denied to the subset of wrongdoers who lack autonomy or who will choose evil regardless of the consequences.
204 This is the language used by the student authors of the Harvard Law Review note, which remains one of the best treatments of the state's authority to bind its citizens. As noted earlier, this inseparability formulation of the psychological criterion for preventive detention is narrower than the Court's inability-to-control criterion and broader than the insanity formulation.
THE PREDICTION CRITERION
The second is the principle of consistency, which states that the degree of dangerousness required for preventive detention should correspond to the degree of dangerousness sufficient to permit such deprivations of liberty associated with other manifestations of the state's police power, especially criminal dispositions. 216 For example, individuals in the Illinois sex offender program are housed in a maximum security wing of the prison complex. The first has to do with the interaction between the standard of proof and the definition of dangerousness.
The principle of proportionality provides a method of grading the predictive criterion through assessment of the nature and length of the preventive detention. The consistency principle provides a baseline for the predictive criterion through assessment of the evidence required to sanction. Applying the principle of consistency would thus require that the predictive criterion for preventive deprivation of liberty is consistent with the predictive criterion in criminal law provisions that contemplate deprivation of liberty.
If attempt and conspiracy were the only offenses that would be based on an assessment of dangerousness, upholding the principle of consistency might require a very high likelihood of harm before preventive detention could occur. Nevertheless, a retrospective retributive judgment cannot be made without an assessment of the harm or risk caused by the decision, either from an objective perspective or as perceived by the actor. Thus, the application of the principle of consistency may allow preventive detention in similar low-risk situations.
According to the principle of consistency, this suggests that, at least initially, the preventive ban can be based on the occurrence of moderate or even minimal risk, regardless of the nature of the threatened harm. When defining crime, the retributivist may claim that the central point of inquiry is culpability, not the degree of dangerousness inherent in particular acts.256 As a result, the fact that some predicate crimes may not require a high level of dangerousness is not a relevant one in -. The problem with the retributivist argument is that, in any of the predicate crimes just discussed, subjective awareness of the degree of danger is virtually or entirely irrelevant.
A person is convicted of gun or drug possession, drunk driving, or vagrancy if he meets the law's requirement, regardless of whether he was aware of the risk he was creating (or lack thereof). The logic of the consistency principle does not dictate that the level of risk required for preventive detention correlates with the currently low levels associated with many anticipatory crimes. While Stuntz doesn't believe the Legislature can be persuaded to change their practice of expanding and broadening the scope of criminal law, Dubber is more optimistic.
The actus reus requirement also quietly went out, as the concept of the act proved flexible enough to provide at least a semblance of legitimacy to the paradigmatic crime of the war on crime, possession. While Addington rejected the reasonable doubt standard as unduly strict when it comes to noncriminal incarceration,2 75 he also rejected the lesser preponderance of the evidence standard of proof in this setting.76 If the principle of consistency is applied proactively, this conclusion should have important implications for criminal law. right.
