Punishment, quarantine, and preventive detention

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. …