NCJ Number
235956
Journal
Maryland Law Review Volume: 70 Issue: 4 Dated: 2011 Pages: 871-938
Date Published
2011
Length
67 pages
Annotation
This article presents a unified theory of detention that encompasses the various rationales for long-term detention, including the detention of prisoners of war and suspected terrorists.
Abstract
The underlying principle for what the author calls the Autonomy Respecting Model of Detention is as follows: "Those who can be adequately policed and held accountable for their choices as normal autonomous agents and who can control whether their interaction with others will be impermissibly harmful can be subjected to long-term detention only if they have committed a crime for which long-term punitive detention or loss of the right not to be subjected to long-term detention is a fitting punishment." The proposed model justifies the long-term preventive detention of prisoners of war on the ground that were such prisoners to escape or be released from confinement, they would not be policed so as to prevent or hold them accountable for their use of force in the future. Under similar reasoning, the model justifies the long-term preventive detention of suspected terrorists only in those cases in which their non-detention autonomy would not be under a regimen that would either prevent or hold them accountable for future terrorism-related acts. Significantly, the model does not allow the long-term preventive detention of suspected terrorists only because their captors believe they pose a risk to public safety greater than that of most other persons arrested and charged with similar crimes. The author argues that this model reflects the thinking of many just-war theorists who view war as involving human behaviors that should be governed by standard moral and legal concepts designed to protect the autonomy of individuals except under circumstances that indicate their freedom poses a significant danger to others living under the protection of the law. 287 notes