Preventive detention is in conflict with the standard account because it appears to justify the imprisonment of persons who have committed no crime, and who are therefore blameless, on the strength of a prediction that they will commit a crime in the future, thus undermining the legitimating conditions of the criminal law. The same objection can be made against imprisoning an offender longer than he "deserves" to be imprisoned on the basis of his "culpability" for the offense, solely on the ground that he may commit another offense in the future.
Randy E. Barnett, Getting Even: Restitution, Preventive Detention, and the Crime-Tort Distinction, in “Symposium on the Crime-Tort Distinction,” 76 B.U. L. Rev. 157 (1996).
Scholarly Commons Citation
Barnett, Randy E., "Getting Even: Restitution, Preventive Detention, and the Tort/Crime Distinction" (1996). Georgetown Law Faculty Publications and Other Works. Paper 1539.