Responsibility and Control

Abstract

In the sex predator cases, Hendricks and Crane, the Supreme Court resurrected a standard that has been unpopular with politicians and theoreticians and has been on its way out of the law for the past thirty or forty years. The Supreme Court ruled, over strong objection, that the sex predator could be indefinitely detained only if he could not control his unlawful behavior. That idea - that someone might not be able to control his behavior - had been ridiculed as meaningless and was all but abandoned when Hendricks was decided. In this paper I argue that control or volitional disabilities do make sense and should be recognized. I show that the arguments against such disabilities, although they appear to have carried the day, are not convincing and certainly should not be the basis for policy decisions. I provide a coherent definition of control disabilities, a definition I believe can help us begin a rational discussion aimed at circumscribing the use of indefinite detention of, among others, unlawful combatants.

An understanding of the notion of control is a critical part of understanding responsibility, which in turn is central to our understanding of the limits of the state's ability to detain. Recent work has eviscerated that notion and has, consequently, allowed conclusions that do not accord with our more considered opinion of what the state ought to be doing. Stephen Morse argues we are all in control of our intentional behavior, and that includes sex predators (with the exception of those entitled to the insanity defense). Sex predators should therefore be punished but not detained; those who are insane, on the other hand, should be detained but not punished. Christopher Slobogin, though he agrees with Morse that the class of persons who cannot control their behavior is empty, argues that indefinite detention is appropriate for some sex offenders who are not insane. Indefinite detention, in Slobogin's view, is appropriate for anyone whose criminal activity is not deterrable, including the insane on one hand and the terrorist on the other. The persistent sex offender who either cannot understand the consequences of his actions or who simply will not control his behavior falls into that camp. Morse's approach would support the imprisonment of addicts and those suffering from compulsive disorders. Slobogin's approach would support the indefinite detention of recidivists, on grounds of future dangerousness. Neither approach allows us to draw the distinctions that we will need to draw if we are to rationally and conservatively limit the state's power to indefinitely detain.

My hope is that the Supreme Court's resurrection of the notion of volitional disability coupled with the definition of that disability proposed in this paper will enable that discussion to begin.

Keywords: criminal responsibility, detention