Morse on Desert/Disease Jurisprudence
New on SSRN: Stephen Morse, Protecting Liberty and Autonomy: Desert/Disease Jurisprudence, 48 San Diego L. Rev. 1077 (2011). The abstract:
This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use of post-insanity acquittal involuntary commitment. This Part also considers whether disease jurisprudence might justifiably be extended to problematic classes of agents such as psychopaths. I argue that sexual predator commitments are blatantly punishment by other means despite the Supreme Court's approval of them as forms of civil commitment and that other attempts to expand disease jurisprudence are artificial or unworkable. Next, I consider frankly consequentialist approaches to preventive detention. I suggest that they are conceptually coherent but politically and practically unacceptable. A brief conclusion suggests that the respect for liberty and autonomy is best guaranteed by genuine desert and disease limitations on detention, although there will be a cost to public safety.