Through a series of posts this past week I have argued that a speech on what the American government may do to foreigners should be listened to as a speech on what the speaker thinks a government is morally permitted to do to its own citizens.
In this light, we need to take a look at President Obama’s proposal that people currently being held in Guantanamo Bay prison may he held without a trial indefinitely because there is reason to believe the person may perform a future crime. Which means that Obama believes that the government would not be acting unjustly (perhaps illegally, but laws can be changed) if it were to capture citizens and imprison them indefinitely because of a belief that they might perform a future crime.
Some people are outraged at what they describe as an entirely unwarranted and absurd expansion of power.
Not only do we already imprison people, we even kill people, for the purpose of preventing them from committing a future crimes.
One of the arguments given in favor of capital punishment is that the executed prisoner will not be able to commit another murder in the future.
Three-strikes laws (where the third felony results in a life sentence) are justified on the basis that repeat offenders are more likely to continue to be repeat offenders. Life imprisonment prevents them from committing future crimes.
People argue for longer jail sentences for sex offenders on the grounds that this will prevent them from committing future crimes.
Now, these people are convicted on the basis of past crimes – something that Obama’s proposal rules out. However, this does not change the fact that the reason for punishment - the reason for execution or extended jail time – is to prevent future crimes. The fact that a person has committed a past crime (or a series of past crimes) is simply taken as evidence that the agent is somebody who is likely to commit a future crime. Yet, it is on the basis that the agent is deemed likely to commit a future crime that he is killed or held in prison for life.
But what if we have another form of evidence that an agent is likely to commit a future crime – a form of evidence that is even more reliable than the inference from the fact that the agent committed a past crime? What is it about "having committed a past crime" that this evidence makes it permissible to kill or imprison a person to prevent future crimes, where all other forms of evidence is illegitimate?
At this point, I need to distinguish two issues. One issue is the claim that people would be imprisoned for life to prevent future crimes without a trial. If we have reliable evidence that a person may commit a future crime that is as reliable or more reliable than “having committed a past crime," we may still say that the accused has a right to a trial. We may still say it is the case that the government must present this evidence and demonstrate beyond a reasonable doubt that the accused is likely to commit a future crime. So, we have to separate the "without a trial" issue with the "detention/execution to prevent a future crime" issue.
So, let us assume that we have evidence that an accused individual will likely commit a future crime that is as reliable or more reliable than "having committed a past crime."
Now, it seems we have a dilemma. In order to be consistent, it seems that we either must admit that this type of evidence is good enough to justify imprisoning or even killing the accused.
Or we must hold that our current practice of killing or imprisoning people for the sake of preventing future crimes based on the “having committed a crime” indicator is not, in fact, legitimate and admit that we have treated these people unjustly.
As long as we hold that executing or imprisoning people (e.g., sex offenders) for the purpose of preventing a future crime is, in fact, legitimate, we are not being entirely consistent to hold that imprisoning (or executing) Guantanamo Bay detainees for the sake of committing a future crime, when the evidence is at least as reliable as ‘having committed past crimes,” is a legitimate object of moral outrage.
Actually, though I do not have time to argue for it in this blog, my position would be that such evidence justifies confinement without punishment. Confinement would be for the purpose of preventing the accused from committing the future crime. However, since we have no reason to punish the individual, we have no justification for harming him or her other than to the degree necessary to prevent the future crime. In other words, the accused would still have a right to as much freedom to do what he pleases consistent with preventing a future crime.