Michael Louis Corrado

Punishment, Quarantine, and Preventive Detention

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. …

Addiction and the Theory of Action

Some scientific research in rational choice theory and behavioral economics - call it choice-theoretic research - seems to point to the conclusion that addicts are fully responsible for what they do. I argue in this paper, however, that the choice-theoretic approach to human behavior presupposes a theory of action that is inconsistent with the assumptions about moral responsibility that are imbedded in the notion of criminal liability. While the economic view of behavior may be perfectly adequate to certain other policy concerns of the law, a theory of action adequate to the understanding of criminal responsibility must take into account factors that are not countenanced in the economic view. I examine three different philosophical approaches that are consistent with the economic view, and show that they are inadequate to distinctions made in the criminal law. I then argue what is missing is a factor that is once more being taken seriously in the philosophy of action, the notion of will. Whether the required sense of will can be made consistent with a naturalistic view of human beings is a separate question.

Moral Responsibility and Intentional Action: Sehon on Freedom and Purpose

Scott Sehon is someone who takes the philosophy of criminal justice seriously, who believes that if we are going to condemn people to prison (let alone to death!) we should have pretty good grounds for holding them morally responsible for crimes. He refuses to let the libertarian and the traditional compatibilist off the hook: the libertarian insists that human beings are sometimes responsible for what they do, but only if there are gaps in just the right places; the compatibilist agrees that human beings are sometimes responsible for what they do, but only if certain arcane requirements are fulfilled. And so, if the libertarian is right, a prosecutor must be able to convince a jury that, beyond a reasonable doubt, there are causal gaps in just the right places. If the compatibilist is right a prosecutor must be able to convince a jury that, beyond a reasonable doubt, the requirements called for by her theory are fulfilled. Either way, Sehon argues, it would be impossible for a prosecutor to make the required case. I agree. The question is whether Sehon’s own theory of teleological compatibilism succeeds in avoiding this trap and in giving us a theory of responsibility that will support the claims of retribution and desert when punishment is on the line. I have come to the conclusion that it does not.

Consequences, Dispositions, and the Burden of Proof

Kadri Vihvelin is one of the more important writers in the area of free will studies, and in this book she proposes to vindicate full-fledged compatibilism in the face of the apparent failure of the Conditional Analysis and in opposition to the semi-compatibilism promoted by the Frankfurt examples. The recent dialectic in this area has gone something like this: the intuitive clash of determinism with responsibility, taken together with the plausibility of determinism, is an ancient cause of concern. One persistent sort of response has been to claim that all that responsibility requires is freedom in the sense that there are no obstacles to action. Indeed, what freewill philosophers call the Conditional Analysis seems to encapsulate this compatibilist approach: “She could have done otherwise (and so is responsible for her action); just in case had she tried (chosen, undertaken, desired) to do otherwise, she would have succeeded.” On the other hand, if something would have blocked every effort to do otherwise, she cannot be held responsible for what she did, all of this true even under the assumption of determinism. This proposal seemed to satisfy those who worked in other fields, in particular those who worked in the philosophy of law; no need to worry about determinism, no need to worry about the presuppositions of retribution. But for those who actually worked with the philosophical questions of freedom and responsibility, the situation was not so tranquil. There was, by what came to be something of a consensus, a glitch in the analysis, provoking J. L. Austin’s simile of frogs and beer mugs: what if the actor couldn’t try (choose, undertake, desire) to do otherwise? It might be, *Michael Louis Corrado is Allen Professor of Law at the Law School, University of North Carolina at Chapel Hill, Chapel Hill, NC, USA. Email: corrado@unc.edu Criminal Justice Ethics, 2014 Vol. 33, No. 3, 236–245, http://dx.doi.org/10.1080/0731129X.2014.984454

How to do things on purpose: R. A. Duff'sIntention, Agency, and Criminal Liability

ConclusionThere is a lot of material in this book, and Duff handles most of it very well. It is unfortunate that he felt the need to tie his discussion of serious philosophical questions in the criminal law to larger overarching questions of philosophy. It is possible that current conceptions of intentional action implicate dualism (or Dualism), I suppose, but that would be a book-length discussion all of its own. It would begin with a careful discussion of just what dualism is, and would track down the various ways in which particular substantive positions on intentional action rule out alternatives to dualism. Such a work might be interesting indeed. It would be interesting, for example, to see a discussion of a type of conceptual dualism that I suspect Duff would find congenial: a dualism that insisted upon the autonomy of purposive notions and rejected the causal analysis of intentional action. Would that sort of dualism make any difference at all for the criminal law? It might, and it might not. But in any event that is not what we find in this book, which, for all of its healthy enthusiasm for the place of philosophy in the law shows an excessive tolerance for makeweight arguments about the great questions.