Preventive Confinement of Dangerous Offenders

See Dennett D. , Elbow Room: The Varieties of Free Will Worth Wanting (Cambridge: MIT Press,1984): At 153–172.

Hart H.L.A. , Punishment and Responsibility (Oxford: Oxford University Press, 1968): At 43–44.

Wallace R. J. , Responsibility and the Moral Sentiments (Cambridge: Harvard University Press, 1994): At 55–58.

See Kansas v. Hendricks, 521 U.S. 346, 358 (1997).

See Schulhofer Stephen J. , “Two Systems of Social Protection: Comments on the Civil-Criminal Distinction, with Particular Reference to Sexually Violent Predator Laws,” Journal of Contemporary Legal Issues 7 (1996): 69–96, at 90–94.

See Monahan J. , Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence (New York: Oxford University Press, 2001).

See Washington v. Harper, 494 U.S. 211 (1990)

Sell v. U.S., 123 S. Ct. 2174 (2003).

Morse S.J. , “Neither Desert Nor Disease,” Legal Theory 5 (1999): 265–309.

518 U.S. 37 (1996).

Aristotle thought that a person who did harm when drunk was undoubtedly culpable. Nicomachean Ethics, Book III (1947): 27–29.

American Law Institute, Model Penal Code and Commentaries, at Sec. 2.08(2) (Philadelphia: Author, 1985).

The Montana statute goes even further toward strict liability than the Model Penal Code, of course, by providing that a defendant can not use evidence of voluntary intoxication to negate purpose or knowledge.

432 U.S. 197 (1977)(permitting New York to place on the defendant the burden of persuasion on the issue of “extreme emotional disturbance,” New York's analog to the provocation/passion doctrine, which traditionally reduces murder to manslaughter, and permitting the state largely to define as it wishes the elements of crime that the state must prove beyond a reasonable doubt).

Montana could, if it wished, have defined the mens rea for murder as negligence without constitutional hindrance. But such a definition would have been a similar abandonment of culpability and objectionable for precisely the same reasons I criticize the Egelhoff opinion. Once again, my quarry is society's response, not constitutional doctrine.

See Husak Douglas , “The Sequential Principle of Relative Culpability,” Legal Theory 1 (1995): 493–518 (defending a qualified version of the claim that culpability is hierarchically arrayed depending on the relative blameworthiness of particular mental states).

521 U.S. 346 (1997).

534 U.S. 407(2002).

Kansas Stat. Ann. Sec. 59–29a02 (a) (1994).

Kansas Stat. Ann. Sec. 59–29a02 (b) (1994).

Hendricks, supra notes 4 & 16, at 358.

See Moore M. S. , Act and Crime (Oxford: The Clarendon Press,1993): At 113–165.

Other terms might be substituted for “desire,” such as “urge” or “impulse” or “want,” but for all practical purposes they are synonymous in this context.

The specific example was first suggested by an anonymous participant at a conference. One can endlessly proliferate such examples. See, Morse S. J. , “Hooked on Hype: Addiction and Responsibility,” Law and Philosophy 19 (2000): 3–49, at 28–29.

What reasons would have motivational salience in an individual case is of course an open question and individual agents will respond to different reasons. The point is simply that the actions of sexual offenders are actions and not mechanisms and thus they are potentially reason responsive. The example might also suggest that if it takes a gun to one's head to motivate a person not to engage in certain actions, then it must be very hard not to perform those actions. Again, this is true in a colloquial sense best explained in terms of a rationality defect, but it does not mean that there is anything wrong with the agent's will.

Model Penal Code, supra note 11, at Sec. 2.09(1).

Most self-control mechanisms we use to control the untoward effects of our desires are techniques that facilitate the use of reason, prevent us from acting when we act “unthinkingly,” or prevent us from being in situations in which we recognize that we act “unthinkingly.”.

See Morse S. J. , “Hooked on Hype,” supra note 23, at 8 (no consensus definition of “addiction”)

Parker J. D.A. Bagby R. M. , “Impulsivity in Adults: A Critical Review of Measurement Approaches,” in Webster C. D. Jackson M. , eds., Impulsivity: Theory, Assessment, Measurement (New York: Guilford, 1997): 142–157, at 142 (no consensus definition of impulse; low correlation between various research measures of impulsivity).

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition-Text Revision (Washington, D.C.: American Psychiatric Association, 2000): At 663. Examples of such disorders include pyromania, kleptomania, and pathological gambling. The primary mental disorders sexual predators have—paraphilias and Antisocial Personality Disorder—are not specifically categorized as disorders of impulse control, but like substance dependence and abuse, they share many features with disorders of impulse control.

Id.

See Donovan D. M. , “Assessment of Addictive Behaviors: Implications of an Emerging Biopsychosocial Model,” in Donovan D. M. Marlatt G. A. , eds., Assessment of Addictive Behaviors (New York: The Guilford Press,1988): 3–48, at 6.

There have been attempts to measure loss of control directly, but these efforts have been question-begging failures because they circularly include loss of control as one of the criteria for the inability to control oneself. Morse S. J. , “From Sikora to Hendricks. Mental Disorder and Criminal Responsibility,” in Frost L. E. Bonnie R. J. , eds., The Evolution of Mental Health Law (Washington, D.C.: American Psychological Association, 2001): 129–166, at 161–62.

Schelling T. C. , Choice and Consequence: Perspectives of an Errant Economist(Cambridge: Harvard University Press, 1984): At 57.

See generally, Ainslie G. , Breakdown of Will (New York: Cambridge University Press, 2001)(application of hyperbolic discounting theories to problems of willpower and loss of control)

Bandura A. , Self-Efficacy. The Exercise of Control(New York: W.H. Freeman and Co., 1997)(overview of field and presentation of “self-efficacy” theory)

Rachlin H. , The Science of Self-Control(Cambridge: Harvard University Press, 2000)(review of research and theoretical account of self-control based on “teleological behaviorism”).

See Hart H. L. A. , supra note 2, at 32–33 (1968)(explaining that the criminal law is much more cautious about granting excusing or mitigating conditions based on “defects of the will” than on “defects of knowledge” because the former are vaguer and more subjective).

American Psychiatric Association Insanity Defense Work Group, Statement on the Insanity Defense, reprinted in American journal of Psychiatry 140 (1983): 681–88

American Bar Association, ABA Criminal Justice Mental Health Standards(Washington D.C.: American Bar Association, 1984): At 330, 339–42.

Morse S.J. , “Uncontrollable Urges and Irrational People,” Virginia Law Review 88 (2002): 1025–1078, at 1062–63.

For example, the Supreme Court has previously been untroubled by the use of the threat of relatively minor property crime as the predicate for a finding of dangerousness to support continued involuntary commitment of a person acquitted by reason of insanity. See, Jones v. United States, 463 U.S. 354, 365 n. 14 (1983).

Lykken D. T. , The Antisocial Personalities (Hillsdale, NJ: Lawrence Erlbaum Associates, 1995): At 4–6

Quinsey V. L. Harris G. T. Rice M. E. Cormier C. A. , Violent Offenders: Appraising and Managing Risk (Washington, D.C.: American Psychological Association, 1998): At 75–76 (also noting that almost all prisoners have some diagnosable mental disorder)

Robins L. N. Tipp J. Przybeck T. , “Antisocial Personality,” in Robins L. N. Regier D. A. , Psychiatric Disorders in America: The Epidemiologic Catchment Area Study(New York: The Free Press, 1991): 258–290, at 260–61. The Court recognized this problem in Crane, supra note 17, but incorrectly believed that the independent control criterion would solve the problem.

Ewing v. California, 358 U.S. 11 (2003).

Id. at 23 (quoting Justice Kennedy's concurrence in Solem v. Helm, 463 U.S., 277, 288 [1983]).

See, U.S. v. Jackson, 835 F. 2d 1195, 1200. (7th Cir. 1987)(Posner J., concurring, concluding that a similar sentence in a similar case, although permissible, was consequentially unjustified; suggesting that it was “uncivilized”).

See Vitiello M. , “Three Strikes: Can We Return to Rationality?,” Journal of Criminal Law & Criminology87 (1997): 394–481, at 398 (“Even if Three Strikes has led to a reduction in crime, we are paying too much for those benefits.”).

See Davis M. , To Make the Punishment Fit the Crime: Essays in the Theory of Criminal Justice (Boulder, CO: Westview Press, 1992): At 129–145 (noting the scarcity of retributive justifications and offering an account of the “special advantage” recidivists receive by re-offending).

See, Zimring F. E. Hawkins G. Kamin S. , Three Strikes and You're Out in California: Punishment and Democracy (New York: Oxford University Press, 2001): At 85–105 (finding only modest decline in crime attributable to Three Strikes law)

see generally, Vitiello , supra note 41 (criticizing Three Strikes as not cost effective).

123 S. Ct. 2174 (2003).

See generally, Morse S. J. , “Involuntary Competence,” Behavioral Sciences & the Law 21 (2003): 311–328 (addressing the relevant issues).

Sell, supra notes 7 and 44, at 2184.

Id. [emphasis added].

Jones, supra note 36, at 365 n.14.

536 U.S 304 (2002).

Id. at 318–19.

530 U.S. 466 (2000).

In Ring v. Arizona, the Supreme Court extended the reasoning and holding of Apprendi, supra note 51, to capital cases. 536 U.S. 584 (2002)(holding that the 6th Amendment right to a jury trial requires that the aggravating factors that support imposition of capital punishment—which the Court treated as the functional equivalents of an element of a greater offense—must be found by a jury and cannot be found by a judge sitting alone).

Robinson P. H. , “Punishing Dangerousness: Cloaking Preventive Detention as Criminal Justice,” Harvard Law Review 114(2001): 1429–1456.

Morse S.J. , “Blame and Danger: An Essay on Preventive Detention,” Boston University Law Review 76 (1996): 113–155, at 115–16.

See generally, Schauer F. , Profiles, Probabilities and Stereotypes (Cambridge, MA: Harvard University Press, 2003) (considering the arguments for profiling and cautioning against the potentially pernicious effects of the practice).

Brooks A. D. , “The Constitutionality and Morality of Civilly Committing Violent Sexual Predators,” University of Puget Sound Law Review 15 (1992): 709–754.

E.g., American Psychiatric Association, supra note 28, at 701–706 (description of and diagnostic criteria for Antisocial Personality Disorder).

See Burns S.L. Peyrot M. , “Tough Love: Nurturing and Coercing Responsibility and Recovery in California Drug Courts,” Social Problems 50 (2003): 416–438 (describing the operation of mandated drug treatment programs and their limits).

536 U.S. 24 (2002).