Is the Preventive Detention of Dangerous Offenders Justifiable?

Abstract

The preventive detention of dangerous offenders involves detaining individuals to keep them from committing crimes in the future. In terms of logic, this idea sounds good; after all, prevention is better than dealing with the aftermath of crimes committed. This especially holds true for serious crimes such as rape, murder, and other offenses that endanger life and limb, which preventive detention primarily aims to impede. Predicting who will commit particular crimes in the future is, unfortunately, no easy task; there is no way of foreseeing future acts as was possible in the short story Minority Report written by Philip Dick. In reality, predictions tend to sway on the side of caution. Various studies have found that risk assessments of convicted sex offenders significantly overpredict the number of people who will reoffend. This article explores the rationale for the practice of preventive detention and attempts to cast light on whether and on what basis it is justifiable to detain people for preventive purposes. The author argues that preventive detention is not justifiable but that it is defensible if it is applied in a limited manner. The label of a dangerous offender must be carefully considered. Furthermore, the conditions in which offenders are detained and the lengths of time should reflect the preventive purpose of detention. Both in terms of the substance of preventive detention legislation and also in terms of how it is procedurally applied, the rule of law requirements must be complied with. It is arguable that preventive detention is only defensible if all of these elements are adequately satisfied.