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Punishment and Freedom$
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Alan Brudner

Print publication date: 2009

Print ISBN-13: 9780199207251

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780199207251.001.0001

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Detention after Acquittal

Detention after Acquittal

(p.273) 8 Detention after Acquittal
Punishment and Freedom

Alan Brudner

Oxford University Press

This chapter criticizes the law of automatism, whose inflated concept of mental disorder based on dangerousness channels autonomous agents into the process by which the innocent insane are detained for threat-control and paternalistic reasons. It considers and criticizes various justifications for detaining the innocent insane, including the constructive consent and self-defence theories. It then proposes a criterion of detainability under which only those whose capability for autonomous action is seriously impaired receive the diminished respect reflected in detention after acquittal.

Keywords:   mental disorder, M'Naghten rules, automatism, insane automatism, therapeutic detention, detainability

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