Adolfo Fortier Díaz
Slobogin (2003a: 4) further suggests expanding the application of “pure preventive detention” beyond the usual severely mentally ill individuals: …[W]ith respect to the psychological criterion, I argue that the core trait that normatively distinguishes the dangerous person who may be preventively detained from the dangerous person who may not be is imperviousness to criminal punishment, or what I shall call undeterrability. This condition clearly describes the severely mentally ill person who is oblivious to societal mores or who is irrationally convinced that his criminal actions do not violate them. But it might also describe the extremely impulsive individual who, like Hendricks or David, is willing to commit crime despite a very high likelihood of apprehension. It may even apply to someone… who suffers from neither a major mental disorder nor a volitional dysfunction, but who wants to commit crime so badly he is willing to die for it. When the dangerous person is undeterrable in this sense, society is presumptively entitled to impose "preventive detention" rather than or in addition to punishment, because then the commands of the criminal justice system not only do not work (a state of affairs presumably descriptive of almost every criminal act), they cannot work.
Morse (1999: 266), however, alerts about the potentially disastrous consequences of such a scheme for liberalism, particularly without any exact predictive technology to determine “dangerousness”: [S]ociety does have the right to intervene, to impose pure preventive detention or equivalent deprivations, when the risk of serious harm is grave… [As a matter of fact]… our society already implicitly accepts substantial preventive action and that many of the doctrines and practices contain substantial, purely preemptive components, often unconvincingly justified by allegedly traditional desert or disease rationales. The presence of covert pure prevention demonstrates that the implicit need for it is powerful and that pure prevention has an expandable salient in the law’s battle with potential danger… [I believe that] principles akin to those that underwrite individual selfdefense would justify limited pure preemption, but that applying it justly faces perhaps insurmountable problems… [U]ntil predictive technology improves, explicit, pure preventive detention is a defective blunderbuss that will cause greater harm than good.
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