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Volume48
MonthNovember
Year2011
TitleA Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity
Author(s)Alec Walen
First Page1,229
AbstractThis Article argues that the presumption that an actor will be law-abiding, like the right to liberty itself, can be forfeited by criminal actions. In other words, the point is to argue that a just punishment could involve loss of the status of being a beneficiary of this presumption just as much as it could involve the loss of liberty.

In Part II, I introduce a basic framework for detention consistent with respect for autonomy and locate the lost status view within that framework. In Part III, I spell out the lost status view in more detail and contrast it with other similar practices or positions, including the indefinite sentencing scheme defended by Christopher Slobogin in this issue. In Part IV, I illustrate it by applying it to some familiar cases in which the lost status view would make a difference. And in Part V, I defend the justice of the proposal by defending its retributive bona fides, arguing in particular that retributivism can be mixed with a concern for preventing future harms, and discussing how a notion of proportionality could limit this dimension of punishment.