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→Excursus on Priciples for Preventive Detention
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=== Excursus on Priciples for Preventive Detention === | === Excursus on Priciples for Preventive Detention === | ||
Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state. | Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state. Here is a good start: | ||
*"1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances".... | *"1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances".... | ||
* 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous. | * 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous. | ||
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* 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal.... | * 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal.... | ||
* 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014, 167/168). | * 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014, 167/168). | ||
The authors add an important caveat: | |||
"The question remains, however, whether it is possible to articulate principles taht cover all cases of preventive detention in such a way as to mitigate possible abuses of power on ground of public protection. It imposes deprivation of liberty ahead of wrongdoings; grants considerable discretion to criminal justice professionals and to the courts; it is based upon predictions of dubious reliability; and it risks creating arbitrariness in its varied forms and practices (Ibid, 170). Some day, when serving prisons are abolished, we may have to abolish preventive detention. | |||
== Punishment without Prisons == | == Punishment without Prisons == | ||