Incapacitation of the Dangerous

Document Type

Book Chapter

Publication Date



This chapter examines incapacitation as a distributive principle. It discusses how and why the current system's preventive detention measures are cloaked as criminal justice, and shows the justice problems that arise from this. These justice problems cause unfairness to the individual defendant, but the intentional and regular injustice also undermines the system's moral credibility with the community and thereby undermine its crime-control effectiveness. Such cloaking also produces preventive detention problems. The chapter explores the advantages that might be available if the preventive detention and criminal justice functions were segregated. This would mean barring incapacitation as a distributive principle for the criminal justice system in favor of establishing an open and explicit civil preventive detention system.


Distributive Principle, criminal law, criminal justice, preventive detention

Publication Title

Distributive Principles of Criminal Law: Who Should be Punished How Much