In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification must be partly backward-looking. Reflecting on the broader aims of the criminal law suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain retributive and instrumental criteria are met. We conclude that while it is possible in principle to justify pretrial detention, there is reason to think (...) that much of the pretrial detention in the United States is not, in fact, justified. We argue that current pretrial detention practices in the United States unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. (shrink)

In this chapter we explore the ethical justifications for criminal detentions prior to adjudication. Because defending pretrial detentions cannot be justified on purely forward-looking grounds, any plausible justification for pre-conviction detention must be partly backward-looking. Reflecting on the aims of the criminal law more broadly suggests that pretrial detentions, like post-conviction detentions, may be justified on “hybrid” grounds—but only if certain backward-looking retributive criteria and forward-looking instrumental criteria are met. We conclude that while it is possible in principle to (...) justify pretrial detention, there is reason to think that much of the pretrial detention in the U.S. is not, in fact, justified. We then argue that as a result, current pretrial detention practices in the U.S. unjustifiably diminish a special sort of moral agency that is necessary for holding persons responsible in the first place. (shrink)

Over the past 25 years, migrant detention and criminalisation has steadily increased in the United States. This state of affairs has triggered social workers to advocate through policy and service on behalf of migrants. In order to evaluate contemporary practice, a critical position is generated through a genealogy of social work practice with migrants where the colonial archeology of contemporary social work practice is found in the history of the settlement movement. Here, an irony becomes apparent within social work. (...) Social work practice is a settler colonialism paralleled by Gayatri Spivak's reading of colonial discourses resulting in the subaltern condition. Following Spivak's analysis, social work advocacies affirm migrant subalternity by re-presenting the migrant as an image of nonagentive victimhood while simultaneously representing migrants through political advocacies on their behalf. As a liberation ethics counter to the colonial discourses, Spivak's exit of subalternity as the road to hegemony is drawn for social work practice. In this effort, Indigenous Action Media's distinction between allies and accomplices is central to develop a social work practice as an ethics of liberation. Social workers thus become accomplices with criminalised and detained migrants on the road to hegemony. (shrink)

A policy of “preventive detention” has recently been debated in the British Parliament. Alarmed by the high-profile criminal activities of people suspected of having dangerous severe personality disorder , the government have made clear their intention to “indeterminately but reviewably detain” people with DSPD, after diagnosis by forensic psychiatrists, even if the individuals are yet to commit an offence. Such a policy may improve the safety of the public, but has obvious implications for civil liberties. This essay criticises the (...) morality of the government's intention and rejects the notion that the medical profession could ethically collude with such a policy. (shrink)

The issue of detention as a public health control measure has attracted attention recently. This is because the threat of strains of tuberculosis that are resistant to a wider range of drugs has been identified, and there is renewed concern that public health is threatened. This paper considers whether involuntary detention is justified where voluntary measures have failed or where a patient poses a danger, albeit uncertain, to the public. We discuss the need for strengthening evidence-based assessments of (...) public health risk and suggest that we should refect more profoundly on the philosophical foundations upon which our policies and practices are grounded. (shrink)

The issue of detention as a tuberculosis control measure has resurfaced following the prolonged detention of a patient with an extensively drug-resistant strain of tuberculosis in a prison cell in Arizona, and the attempted detention in Italy and subsequent detention in Atlanta, Georgia of an American sufferer thought to have XDR-TB in May 2007. These cases have reignited the debate over the evidence that supports detention policy in the control of tuberculosis, and its associated legal (...) and ethical ramifications. This paper considers whether involuntary detention is justified where voluntary measures have failed or where a patient poses a danger, albeit uncertain, to the public, and discusses the need for strengthening evidencebased assessments of public health risk. (shrink)

In some jurisdictions, the institutions of criminal justice may subject individuals who have committed crimes to preventive detention. By this, I mean detention of criminal offenders (i) who have already been punished to (or beyond) the point that no further punishment can be justified on general deterrent, retributive, restitutory, communicative or other backwardlooking grounds, (ii) for preventive purposes—that is, for the purposes of preventing the detained individual from engaging in further criminal or otherwise socially costly conduct. Preventive (...) class='Hi'>detention, thus understood, shares many features with the quarantine measures sometimes employed in the context of infectious disease control. Both interventions involve imposing (usually severe) constraints on freedom of movement and association. Both interventions are standardly undeserved: in quarantine, the detained individual deserves no detention (or so I will, for the moment, assume), and in preventive detention, the individual has already endured any detention that can be justified by reference to desert. Both interventions are, in contrast to civil commitment under mental health legislation, normally imposed on more-or-less fully autonomous individuals. And both interventions are intended to reduce the risk that the constrained individual poses to the public. Yet despite these similarities, preventive detention and quarantine have received rather different moral report cards. (shrink)

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as (...) after adopting the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

Brown, Pauline I recently came across an article by Meg Keneally in The Guardian. I can think of no better description of our policies and practices on immigration detention than the following extract: It's a well-worn solution to an intractable human problem involving a large group of inconvenient people - ship them off somewhere, put a wall around them, and try to forget about the whole thing. You could argue that our country was founded as a result of this (...) approach. You could also argue that we learned our lesson too well, because it's an approach we are still using when it comes to vulnerable people who have undertaken hazardous ocean journeys - and the outcomes are no more humane than they were in the 18th and 19th centuries. (shrink)

In the war on terrorism, the imprisonment of suspected terrorists by the United States has raised a host of issues,1 among them that of indefinite detention. Over the years, there has been a great...

The core of Australia’s response to asylum seekers who arrive in an unauthorised manner has been to detain them in immigration detention centres until they are judged to engage Australia’s protection obligations or, if they do not, until they are returned to their country of origin. For a number of asylum seekers this has resulted in very prolonged detention. This policy has aroused a storm of controversy with very polarised positions being taken by participants in the debate. In (...) particular, the claim has frequently been made (including by this author) that the circumstances and duration of immigration detention cause substantial harm to the mental health of a significant number of detained asylum seekers. A rational debate on the effects of detention has been hampered by the fact that the Australian government has not allowed researchers access to the detention centres in spite of persistent requests for access by professional bodies. This paper is written in response to the following questions posed by the Journal: Is there a case to be made for individuals agreeing to participate in research studies and for the wider population of current and future detainees to be involved in research without informing either the detention provider or the host nation? Is it legitimate for a researcher to engage in potentially deceptive actions in order to obtain access to such detention facilities to undertake research? What ethical framework should underpin such research? Although there is very little guidance in the literature on the ethical conduct of research in settings such as immigration detention centres, a consideration of the ethical implications of carrying out research in the manner raised by these questions leads this author to conclude that such research cannot be ethically justified. Governments must be persuaded to allow, and to provide substantial support for, ethically conducted research on all aspects of detention. There is also a need for the development of an explicit ethical framework for the conduct of research in settings characterised by a very problematic human rights context. (shrink)

Almost a year after the enactment of the law regulating euthanasia in Spain, public opinion was shocked to learn that a defendant in criminal proceedings obtained medical assistance in dying following injuries sustained in an exchange of gunfire with the police after having committed a series of severe crimes. Although there are very few cases in the world where prisoners have received euthanasia, the one we will discuss in this article is the only known case where both the public prosecutor's (...) office and the private prosecutors judicially opposed the defendant's euthanasia. This article aims to offer a new perspective on the ethical legitimacy of detainees' access to euthanasia: the ethics of caring solidarity. To do this, we will first place the case in its legal context. Subsequently, we will address the two main arguments proposed in the literature to justify euthanasia in detention: respect for the autonomy of the detainee and the principle of equivalence of care. Finally, after having identified serious shortcomings in both arguments, we will argue that the perspective of caring solidarity offers a better ethical basis for people in detention's access to euthanasia. (shrink)

In 2018, at least 12 adults and 3 children died in U.S. detention facilities. In 2017, 12 people died in U.S. detention facilities and at least 10 women filed complaints against ICE for mistreatment that led them to miscarry. At the time of this writing, 26 people have died in US Custody during the Trump Administration and 74 people have died in U.S. detention facilities between 2010 and 2018, including Raul Ernesto Morales-Ramos, Augustina Ramirez-Arreola, Moises Tino-Lopez, Jose (...) Azurdia, and Roxana Hernandez. I am not going to argue that these deaths are wrong – I take that as obvious. Instead, I will suggest that nonideal theory shows why bioethicists have special obligations for condemning these deaths and getting involved to make them stop. When we heed nonideal theory’s demand to consider empirical realities, we will see that the role of the bioethicist extends wherever health care does. Moreover, when bioethicists expressly embrace nonideal rather than ideal theories to ground our work, we will see that there are plenty such theories available to us. Shelly Wilcox’s nonideal theory of immigration justice is especially well suited for bioethicists to use in relation to detainee health care and enter the conversation where they are so desperately needed. (shrink)

Self-harm within immigration detention centres has been a widely documented phenomenon, occurring at far higher rates than the wider community. Evidence suggests that factors such as the conditions of detention and uncertainty about refugee status are among the most prominent precipitators of self-harm. While important in explaining self-harm, this is not the entire story. In this paper, we argue for a more overtly political interpretation of detainee self-harm as resistance and assess the ethical implications of this view, drawing (...) on interviews with detainees from Australia’s offshore system. Self-harm by detainees is not only a medical ‘condition’ arising in response to oppression but a form of political action to lessen or contest it. We first establish how self-harm could be conceptualised as resistance. We then discuss its political purpose, noting it serves at least three functions: intrinsic, instrumental and disruptive or coercive. Viewing detainee self-harm as political resistance is a supplement to (rather than a substitute for) a medical approach. However, conceptualising self-harm this way has several advantages, namely, moving away from the idea that such behaviour is ‘maladaptive’, recognising detainees as political agents, combatting government claims of ‘manipulation’ and ‘blackmail’ and clarifying the duties of healthcare workers who work in detention. (shrink)

Australia’s punitive policy towards people seeking asylum deliberately causes severe psychological harm and meets recognised definitions of torture. Consequently, there is a tension between doctors’ obligation not to be complicit in torture and doctors’ obligation to provide best possible care to their patients, including those seeking asylum. In this paper, we explore the nature of complicity and discuss the arguments for and against a proposed call for doctors to boycott working in immigration detention. We conclude that a degree of (...) complicity is unavoidable when working in immigration detention, but that it may be ethically justifiable. We identify ways to minimise the harms associated with complicity and argue that it is ethical to continue working in immigration detention as long as due care and attention is paid to minimising the harms of complicity. (shrink)

The pre-trial detention of individuals charged with crimes is viewed by many legal scholars as problematic. Standard arguments against it are that it constitutes legal punishment of individuals not yet convicted of crimes, violates the presumption of innocence, and rests on dubious predictions of future crime. I defend modified and restrained forms of pre-trial detention. I argue that pre-trial detention could be made very different than imprisonment, should be governed by strict criteria, and is warranted, when the (...) evidence of danger is convincing. I contend that the presumption of innocence does not preclude us from doing many other things to criminal suspects and defendants that imply their guilt. Finally, I dispute arguments designed to show that pre-trial detention can be justified to prevent absconding or interferences with the course of justice, but not to prevent other, and sometimes much more serious, offenses. (shrink)

In his thought-provoking, carefully crafted, and impressively researched article, Don Scheid makes a compelling argument for an indefinite detention paradigm for “mega-terrorists.” Scheid's proposa...

I disagree, albeit with great respect, with Don Scheid's basic proposition that preventive detention for “mega-terrorism” suspects is warranted.1 In a sense, we disagree about what constitutes prev...

In lieu of an abstract, here is a brief excerpt of the content:476 Feminist Studies 41, no. 2. © 2015 by Feminist Studies, Inc. Wang Zheng Detention of the Feminist Five in China On March 6 this year, just before International Women’s Day, the Chinese police in Beijing arrested five young women who had engaged in activism to protest sexual harassment on public transportation. The month-long detention of these five young feminists has changed the landscape of Chinese feminism. (...) The global feminist mobilization that emerged to appeal for their release also presents a fascinating example of a successful feminist response to authoritarianism. In this short piece, I open with a few personal snapshots to briefly illustrate the history of Chinese feminist engagement with sexist sexual norms. Next, I will situate the five young feminists’ actions within this historical context in order to illustrate significant changes in Chinese feminist practices as well as in Chinese society. Finally, I will discuss the political implications of the detention of the so-called Feminist Five as well as the global mobilization for their release. In 1985 I came from Shanghai to study US history at the University of California, Davis. I made quite a few American friends in the graduate program. They were very curious about my life in China, and I was very proud of being a liberated woman from socialist China. I acted like an ambassador, talking to different groups about the great accomplishments of women’s liberation under socialism in China. As a young, urban woman I enjoyed equal education, equal employment, equal pay, and equal opportunity for promotion. I had never experienced gender News and Views 477 inequality, I thought. One day I was telling my friends about how I once confronted a thief who had just snatched my wallet on a crowded bus in Shanghai and how I forced him to drop my wallet. My friends were very impressed: “Wow! You were so brave,” they said. A few days later, I happened to mention that on the same crowded Shanghai buses, men would frequently grope women, and my friend asked instantly, “How did you respond to them?” I replied without thinking, “What could I do? I just tried my best to move to another spot to avoid such rascals.” My friend then raised a question that shattered my self-perception as a brave and liberated woman: “Why did you dare to confront a thief but not a sexual harasser?” I answered, “Oh, I would be so ashamed if people around me noticed.” Immediately, I realized that my reply was highly problematic. That conversation set in motion a process of soul searching. Why would a liberated woman still continue to observe the patriarchal value of chastity? Why would women of my generation—the liberated Chinese women in socialist China—have no consciousness of the serious problems contained within these sexual norms? It was not only a personal reflection. From this point, I embarked on a long review and contemplation of women’s liberation in socialist China. I realized that in the realm of sexuality, while state feminists were able to transform the sexual double standard to a single standard for the general public (although some top male leaders continue double standards and engage in extramarital sexual relationships without being punished), puritanical sexual morality did not shake deeply entrenched masculinist cultural values of women’s chastity and virginity. As a result, a liberated woman such as myself could internalize such sexist values with no consciousness, let alone action, focused on changing such sexist culture. In 1992, I attended a conference by the Shanghai Women’s Federation. When a US feminist scholar asked if there were any cases of sexual harassment in China, the Chinese women participants all replied, “No, no, we don’t have sexual harassment.” I stood up and named things that happened to women every day on Shanghai buses as sexual harassment. By then I had long been empowered by my study of feminist history and theories. In 1995, at the NGO forum at the Fourth UN Conference on Women held in Beijing, feminists from inside and outside China openly challenged pervasive sexist sexual norms. Sexual violence and sexual harassment were clearly defined as violations of women’s human rights... (shrink)

Persons who are dangerous and legally responsible, but who have not yet committed any currently recognised criminal offence, fall within the gap left between the domains of criminal justice and civil commitment. Many jurisdictions operate legal regimes that permit the detention of such persons in order to prevent the occurrence of anticipated criminal harms. These regimes often either fail to respect the principle of proportionality or contradictorily treat a dangerous offender as both legally responsible and not responsible at the (...) same time. In response to these problems, a number of preventive detention models have been proposed. Retributivist models seek to prevent the occurrence of anticipated criminal harms by requiring blame on the dangerous person’s part in order to warrant detention. However, these models are ill-equipped to deal with the problem of coextensiveness; i.e., they struggle to comprehensively reconcile proportionality in punitive sentencing with the period over which dangerous persons remain dangerous and during which one might therefore want them to be incapacitated. In order to achieve comprehensive incapacitation of dangerous persons for the duration of their dangerousness, retributivist models are forced to abandon their fidelity to proportionality in punitive sentencing, thereby losing themselves in the process. Accordingly, if the practice of preventive detention can be justified at all, such justification will not be of a retributivist character. (shrink)

Coercion, the act of compelling someone to do something by the use of power, intimidation, or threats, has been deemed a necessary weapon in the public health armamentarium since before public health fell under the remit of physicians and out of the grip of “sanitarians” and civil engineers. This article examines the ethics of detention in the pursuit of public health and uses a contemporary example, detention of poorly compliant individuals with tuberculosis, to highlight the moral dilemmas posed, (...) and examine whether recently proposed approaches are just. In particular I focus upon the public health response to non-infectious individuals who fail to comply with treatment . Our response to them helps clarify contemporary attitudes to recalcitrant, often marginalised, individuals who pose an uncertain threat.Globally tuberculosis control is failing. The World Health Organisation recently called this public health threat a global emergency.1 Transmission occurs through often casual contact from individuals who have pulmonary disease. Although there is much that is uncertain regarding the infectiousness of this ancient disease, we do know that those who are smear-positive, that is who have organisms of Mycobacterium tuberculosis visible in stained respiratory secretions, are considerably more infectious than those who do not.2, 3 Compliance with effective treatment rapidly makes previously infectious patients non-infectious. Standard treatment for fully drug-sensitive tuberculosis usually lasts for six months. Erratic adherence to chemotherapy, however, may result in relapse and the development of drug-resistant disease which is considerably more difficult to treat.In the 1980s and early 1990s New York City witnessed an epidemic of tuberculosis and, of particular concern, a marked increase in drug-resistant and multidrug-resistant strains. In the early 1990s the threat of a virtually untreatable, casually communicable, …. (shrink)

The US has built the most extensive immigration detention system globally. Over the last three administrations, several organizations have noted a systemic failure in the provision of health care in detention centers, leading to the torture and death of immigrants. This essay develops the principle of the preferential option for the poor to examine the causes of deficient access to health care and solutions to overcome them. It analyzes the substandard health care in detention centers from the (...) notion of structural violence and systematizes solutions of grassroots immigrant organizations from the idea of solidarity, understood here as a form of friendship with the poor that moves toward relational justice. Its goal is to build bridges between people so that the political will is generated to create policies to improve and enforce health care standards in detention centers and address the unjust foundations of immigration detention. (shrink)

For individuals whose mental illness impair their ability to accept appropriate care—the depressed, acutely suicidal mother, or the psychotic lawyer too paranoid to eat any food—statutes exist to permit involuntary hospitalization, a temporary override of paternalistic benefice over personal autonomy. This exception to the primacy of personal autonomy at the core of bioethics has the aim of restoring the mental health of the temporarily incapacitated individual, and with it, their autonomy.

Abstract This paper explores brutality and torture in the history of British counter-insurgency campaigns. Taking as a pretext the British government's announcement in January 2012 to scrap a judicial review into the rendition and torture of UK citizens at Guantanamo Bay by American intelligence operatives with the complicity of British intelligence agencies, the paper posits that the actions this review was supposed to evaluate are not restricted to counter-terrorism. By examining the historical usage of interrogation methods by the British in (...) counter-insurgency campaigns against suspected IRA members in the first decade of the ?Troubles? in Northern Ireland, this article builds a wider frame of reference for the recent controversies surrounding the treatment of detainees during the British occupation of southern Iraq. Although the detention and interrogation of suspects in counter-insurgency campaigns is a necessary security measure, the oft-heralded British adherence to ?minimum force? is heavily mythologised given the prevalence of the brutal treatment of detainees. Considering the detrimental impact (in an ethical, legal and security context) that the existence of torture during detention and interrogation had in these cases, the article upholds an absolutist position on the prohibition of torture. (shrink)

Australian immigration detention has been called state sanctioned abuse and a crime against humanity. The Australian healthcare community has been closely involved with these policies, calling for their reform and working within detention centres to provide healthcare. As well as having a devastating impact on health, immigration detention changes the scope and nature of healthcare, with its delivery described as a Sisyphean task. In this article I will explore the guidance that is available to clinicians who work (...) within detention centres and argue that codes, guidelines and positions statements provide little help in relation to ethical decision making. First I will outline guidance that can be found in codes of ethics and position statements, focusing on particularly relevant principles, such as advocacy, clinical independence and the clinicians’ relationship to human rights. I will then highlight the disparity between this guidance and the delivery of healthcare within detention by drawing on the testimony of clinicians who formerly worked in these environments. While this disparity should be cause for alarm and at a minimum call into question how codes and positions statements are being used, there are more fundamental reasons why codes and position statements fail to provide guidance in these circumstances. I will outline a more general criticism of codes of ethics and use this to suggest a way forward, including looking beyond codes and position statements to guide action within Australian immigration detention. (shrink)

Australian immigration detention has been called state sanctioned abuse, cruel and degrading and likened to torture. Clinicians have long worked both within the system providing healthcare and outside of it advocating for broader social and political change. It has now been over 25 years and little, if anything, has changed. The government has continued to consolidate power to enforce these policies and has continued to attempt to silence dissent. It was in this context that a boycott was raised as (...) a possible course of action. Despite discussions among the healthcare community about the merits of such action, a number of questions have been overlooked. In this article, I will examine whether a boycott is both ethical and feasible. Taking into account the costs and benefits of current engagement and the potential impact of a boycott, more specifically the potential it has to further harm those detained, I conclude that under current circumstance a boycott cannot be justified. This however does not mean that a boycott should be dismissed completely or that the status quo should be accepted. I discuss potential ways forward for those seeking change. (shrink)

Recent decades have witnessed a growing number of states around the world relying on border control measures, such as immigration detention, to govern human mobility and control the movements of those classified as “unauthorised non-citizens.” In response to this, an increasing number of scholars from several disciplines, including psychologists, have begun to examine this phenomenon. In spite of the widespread concerns raised, few studies have been conducted inside immigration detention sites, primarily due to difficulties in gaining access. This (...) body of research becomes even scanter when it comes to the experiences of detained women. This study is the first of its kind to have surveyed 93 women confined in an Italian immigration detention facility. A partial mediation model with latent variables was tested through partial least structural equation modelling (PLS-SEM). The findings revealed the negative impact that unfair immigration procedures have on detained women’s human dignity, which in turn negatively affects their self-rated physical and mental health. Overall, our study sheds light on the dehumanisation and damage to human dignity that immigration detention entails, as well as its negative impact on the health of those affected. This evidence reinforces the image of these institutions as sites of persistent injustice, while stressing the need to envision alternative justice-oriented forms to address human mobility. (shrink)

In the first work of investigative journalism in decades to give a comprehensive view into contemporary psychiatric incarceration and forced interventions, Your Consent Is Not Required exposes how rising numbers of people from many walks of life are being subjected against their will to surveillance, indefinite detention, and powerful tranquilizing drugs, restraints, seclusion, and electroshock.

Although Australia has comparatively few individuals seeking asylum, it has had a mandatory detention policy in place since 1992. This policy has been maintained by successive governments despite the overwhelmingly negative impact mandatory detention has on mental health. For mental health professionals working in this environment, a number of moral, ethical, and human rights issues are raised. These issues are discussed here, with a focus on dual loyalty conflicts and drawing on personal experience, the bioethics and human rights (...) literature, and recent parliamentary inquiries. For those who continue to work in this environment, future directions are also discussed. (shrink)

Dual loyalty issues confront health and welfare professionals in immigration detention centres in Australia. There are four apparent ways they deal with the ethical tensions. One group provides services as required by their employing body with little questioning of moral dilemmas. A second group is more overtly aware of the conflicts and works in a mildly subversive manner to provide the best possible care available within a harsh environment. A third group retreats by relinquishing employment in the detention (...) setting. A fourth group is activist in intent and actions. Derived from research and ethnography conducted in Australia, the article explores the moral dilemmas confronting those who are duty-bound by professional codes of ethics while also bound by loyalty to their employers and silenced by confidentiality statements. It provides particular focus on psychiatry, nursing and social work. We conclude by speculating whether a politics of compassion and acts of solidarity can forge a pathway through the ethical terrain. In doing so we draw upon human rights considerations as well as on the works of Joan Tronto and Elisabeth Porter. (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

This paper explores ethical questions arising from the work of health practitioners in immigration detention centres in Australia. It raises questions about the roles of professional disciplines and the ways in which they confront dual loyalty issues. The exploration is guided by interviews conducted with health professionals who have worked in asylum seeker detention and an examination of the outsider advocacy role undertaken by the social work profession. The paper discusses the stance taken by individuals and professional associations (...) on participation in controlled settings, including as participant, bystander and advocate, and asks when the provision of care becomes collusion with oppression. (shrink)

This article is based on interviews with former Australian immigration detainees conducted by the author. The interviews explored the experience and understanding of resistance while in detention. The article calls into question Agamben’s twin conclusions that nothing short of a complete re-founding of ontology is required to liberate humanity from biopower and that this refoundation will spring from bare life. Contrary to Agamben’s depiction, the camp proves to be a place of determined and often successful defence of a relation (...) of politics and life based not on the camp and biopower, but on solidarity and freedom. Detainees in Australian immigration detention, like prisoners in the Nazi concentration camps, refused to abandon their politics. Rather than seeking to transform bare life, they rejected it and made their own decision on life and politics. (shrink)

Puisque le changement social contribue à modifier et influencer le droit, l’objet de cette contribution est de comprendre de quelles manières ce dernier a des incidences sur le processus de formation du droit en prenant pour exemple la règle coutumière prohibitive de la détention arbitraire en droit international des migrations. Le but de cet article est de tenter de percevoir les effets des changements sociaux sur la coutume en prenant un exemple précis, tout en essayant d’émettre l’hypothèse que ce dernier (...) est révélateur de l’impact des changements sociaux sur la formation de la coutume internationale. En apportant dans un premier temps des éclairages utiles concernant le droit international des migrations, il s’agira dans un second temps d’apporter au lecteur des bases de compréhension essentielles sur la coutume internationale. Enfin, la troisième partie sera consacrée à expliciter des hypothèses qui pourraient expliquer d’une part de quelles manières des changements sociaux successifs ont influencé la formation de la règle coutumière de l’interdiction de la détention arbitraire et d’autre part, comprendre les raisons pour lesquelles les États acceptent d’être liés à cette règle. (shrink)

_Détente or Destruction, 1955-57_ continues publication of Routledge's multi-volume critical edition of Bertrand Russell's shorter writings. Between September 1955 and November 1957 Russell published some sixty-one articles, reviews, statements, contributions to books and letters to editors, over fifty of which are contained in this volume. The texts, several of them hitherto unpublished, reveal the deepening of Russell's commitment to the anti-nuclear struggle, upon which he embarked in the previous volume of _Collected Papers_. Continuing with the theme of nuclear peril, this (...) volume contains discussion of nuclear weapons, world peace, prospects for disarmament and British-Soviet friendship against the backdrop of the Cold War. One of the key papers in this volume is Russell's message to the inaugural conference of the Pugwash movement, which Russell was instrumental in launching and which became an influential, independent forum of East-West scientific cooperation and counsel on issues as an internationally agreed nuclear test-ban. In addition to the issues of war and peace, Russell, now in his eighties, continued to take an interest in a wide variety of themes. Russell not only addresses older controversies over nationalism and empire, religious belief and American civil liberties, he also confronts head-on the new and pressing matters of armed intervention in Hungary and Suez, and of the manufacture and testing of the British hydrogen bomb. This volume includes seven interviews ranging from East-West Relations after the Geneva conference to a Meeting with Russell. (shrink)

_Détente or Destruction, 1955-57_ continues publication of Routledge's multi-volume critical edition of Bertrand Russell's shorter writings. Between September 1955 and November 1957 Russell published some sixty-one articles, reviews, statements, contributions to books and letters to editors, over fifty of which are contained in this volume. The texts, several of them hitherto unpublished, reveal the deepening of Russell's commitment to the anti-nuclear struggle, upon which he embarked in the previous volume of _Collected Papers_. Continuing with the theme of nuclear peril, this (...) volume contains discussion of nuclear weapons, world peace, prospects for disarmament and British-Soviet friendship against the backdrop of the Cold War. One of the key papers in this volume is Russell's message to the inaugural conference of the Pugwash movement, which Russell was instrumental in launching and which became an influential, independent forum of East-West scientific cooperation and counsel on issues as an internationally agreed nuclear test-ban. In addition to the issues of war and peace, Russell, now in his eighties, continued to take an interest in a wide variety of themes. Russell not only addresses older controversies over nationalism and empire, religious belief and American civil liberties, he also confronts head-on the new and pressing matters of armed intervention in Hungary and Suez, and of the manufacture and testing of the British hydrogen bomb. This volume includes seven interviews ranging from East-West Relations after the Geneva conference to a Meeting with Russell. (shrink)

Detention, a pillar of the contemporary US immigration system, has detrimental effects on those who are incarcerated, their families, and their communities. Following a discussion of immigration detention and the ways in which faith-connected groups are responding, this essay draws on twenty in-depth interviews to explore the links between these ethical practices and the Christian mystical tradition. In particular, it brings the voices of activists responding to immigration detention into conversation with the three stages of the mystical (...) journey articulated by Dorothee Soelle—being amazed, letting go, and resisting. The essay argues that mysticism and action for social justice are intimately interwoven, and it suggests that recognition of this could enrich Christian discussion and praxis surrounding immigration. (shrink)