Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal of Legal Philosophy 120

Dennis J. Baker, University of London - King's College

Abstract

In this paper, I argue that civil preventive detention is tolerable because it is the lesser of two evils. I argue that the serious sex offender is partially to blame for his preventive detention, because he offends, re-offends and refuses treatment whilst in prison with a full awareness of the potential preventive detention consequences. However, I question the fairness of extending an offender's penal sentence beyond what his or her past wrongdoing warrants. I argue that laws allowing dangerous offenders to be imprisoned beyond the length of their original sentences cannot be reconciled with the cardinal requirements of justice and fairness and therefore should be abrogated. The proportional punishment constraint means that punishment has to be proportionate with the culpableness and harmfulness of the offenders' past wrongdoing. Because dangerous offenders do not deserve further penal sanction, civil confinement should be used instead of imprisonment in those exceptional circumstances where it is absolutely necessary to prevent further harm doing. Furthermore, if a detailed supervision order provides a reasonable solution, then it should be used instead of civil confinement. I argue that civil confinement and supervision orders can be reconciled with justice. In the final section of this paper, I argue that a person's right to justice and fairness can be overridden in exceptional circumstances to prevent aggregate harm of an extraordinary grave kind. However, the harm posed by serious sex offenders is not sufficient to override the proportional punishment justice constraint, because it is not sufficiently grave in aggregate terms and civil confinement is also available as a less draconian alternative.