Persons who are dangerous and legally responsible, but who have not yet committed any currently recognised criminal offence, fall within the gap left between thedomains of criminal justice and civil commitment. Many jurisdictions operate legalregimes that permit the detention of such persons in order to prevent the occurrence ofanticipated criminal harms. These regimes often either fail to respect the principle ofproportionality or contradictorily treat a dangerous offender as both legally responsible andnot responsible at the same time. In response to these problems, a number of preventivedetention models have been proposed. Retributivist models seek to prevent the occurrenceof anticipated criminal harms by requiring blame on the dangerous person’s part in order towarrant detention. However, these models are ill-equipped to deal with the problem ofcoextensiveness; i.e., they struggle to comprehensively reconcile proportionality in puni-tive sentencing with the period over which dangerous persons remain dangerous and duringwhich one might therefore want them to be incapacitated. In order to achieve compre-hensive incapacitation of dangerous persons for the duration of their dangerousness, ret-ributivist models are forced to abandon their fidelity to proportionality in punitivesentencing, thereby losing themselves in the process. Accordingly, if the practice of pre-ventive detention can be justified at all, such justification will not be of a retributivist character.

EB00000003742K

Available

• If the Cloak Doesn’t Fit, You Must Acquit’: RetributivistModels of Preventive Detention and the Problemof Coextensiveness