Effect of the National Security Paradigm on Criminal Law

Abstract:     
The common-law era differed from the twentieth century in several obvious respects: federalization of criminal law encroached on traditional state-based regimes, codification supplanted judge-made criminal law and procedure, and modern professional police forces and forensic science altered both investigations and prosecutions. At the same time, basic policy goals shifted from traditional retribution and punishment to modern approaches of deterrence and paternalism.

This Article argues that our legal system is currently transitioning into a new phase, in which a national security emphasis permeates our entire criminal law framework. Legal responses to terrorism involve spillover effects in two directions. Anti-terrorism efforts increasingly fit within the structure of the criminal justice system rather than foreign policy or the military. In turn, anti-terrorism efforts make an imprint on criminal law and criminal procedure, even in areas unrelated to terrorism itself. National security concepts are changing underlying assumptions about the nature of culpability and the goals of law enforcement, the way in which we draft and interpret penal code sections or criminal statutes, and the strategies or techniques most favored by enforcement officers and prosecutors. Prevention and incapacitation is replacing deterrence and paternalism; statutes increasingly address crime indirectly, making crimes less feasible rather than making punishments more dreadful; and enforcement has become more prediction-based and anticipatory than responsive. Modest normative suggestions accompany these observations.

Number of Pages in PDF File: 48

Keywords: National security, Fourth Amendment, Fifth Amendment, criminal procedure, criminal law, terrorism, statutory interpretation, deterrence, incapacitation, common law, punishment, retribution, Supreme Court, policing, police

JEL Classification: K14, K42, N41, N42, H56

Accepted Paper Series