Preventive detention of dangerous inmates: a dialogue between human rights and penal regimes

Abstract

As the terrain of this article, the term ‘preventive detention’ refers to the indefinite detention of serious criminal offenders for explicitly expressed preventive purposes after the expiration of a definite sentence. In order to fill the gap between human rights and penal regimes over preventive detention, this article believes that the scope of ‘punishment’ or ‘penalty’ should be emancipated from its conceptual definitions and moderately expanded in consideration of the liberty or rights at stake. It is also by taking such a step that the four legitimate penological grounds for detention could be incorporated into a sound discourse of human rights. Moreover, as the Kantian ‘moral agency’ being the normative basis of human rights, this article sets a limit for States to inflict both ‘indefinite sentences’ and ‘post-sentence preventive detention’ upon convicted inmates who are reasonably considered dangerous. However, even this proposal can be morally justified in accordance with current international human rights jurisprudence, its intrinsic discrimination against dangerous inmates and persons with mental disabilities from ‘normal’ offenders and human beings should not be ignored.