When, if ever, is it permissible to deprive an agent of her liberty in order to reduce the risk that the agent will harm others? The orthodox view of preventive harm is that it is permissible to deprive an agent of her liberty when such deprivation is a necessary and proportionate means of averting an imminent threat that the agent unjustly poses. I argue that this orthodox position is implausibly restrictive, and that it can be permissible to affront an agent’s liberty even if the risk of harm posed by the agent is not imminent and even if the agent has not yet formed an intention to impose the harm. My contention is that dangerous criminal offenders—offenders whose criminal wrongdoing gives us evidence to believe they are likely to reoffend in the future—forfeit their rights against treatment that would otherwise wrong them, treatment aimed at reducing the risks they pose to others. Surveillance, incarceration, and other presumptively wrongful activities can be justified against these individuals simply by appealing simply to the sheer fact that they pose a risk of harm to others.
The aim of the Paper is to justify this position. I aim to accomplish three tasks. First, I will argue that this past wrongdoing triggers duties in agent to take measures that reduce the relevant risk that one continues to pose to others. Second, I will argue that the state is justified in restricting the agent’s liberty as a means of enforcing her duties to take the relevant measures. Third, I will explore what ought to happen in two important classes of cases: first, in which the agent refuses to take the relevant rehabilitative measures, thereby culpably continuing to pose an unacceptable risk of harm to others; and second, in which the agent takes the relevant measures but, tragically, the measures are ineffective, and so the agent despite her best efforts continues to pose a risk to others. I argue that continued liberty deprivation continues to be justified in both cases if the risk posed by the agent is sufficiently grave, but that the agent is pro tanto wronged, and so entitled to compensation, in the second case, since in that case the agent is not fully responsible for the risk she continues to pose to others.
