Danger: The Ethics of Preemptive Action
University of San Diego School of Law
Kimberly Kessler Ferzan
University of Virginia, School of Law
September 9, 2011
Ohio State Journal of Criminal Law, Forthcoming
San Diego Legal Studies Paper No. 11-074
The law has developed principles for dealing with morally and legally responsible actors who act in ways that endanger others, the principles governing crime and punishment. And it has developed principles for dealing with the morally and legally nonresponsible but dangerous actors, the principles governing civil commitments. It has failed, however, to develop a cogent and justifiable set of principles for dealing with responsible actors who have not yet acted in ways that endanger others but who are likely to do so in the future, those whom we label “responsible but dangerous” actors, or RBDs. Indeed, as we argue, the criminal law has sought to punish RBDs through its expansive use of inchoate criminality; however, current criminalization and punishment practices punish those who have yet to perform a culpable act. In this article, we attempt to establish defensible grounds for preventive restrictions of liberty (PRLs) of RBDs in lieu of contorting the criminal law. Specifically, we argue that just as a culpable aggressor becomes liable to defensive force, an RBD can become liable to PRLs more generally. Although there are many examples of PRLs of RBDs currently in operation, the principles, if any, that justify and limit such PRLs have yet to be satisfactorily established.
Number of Pages in PDF File: 44
Keywords: inchoate crimes, incomplete attempts, responsible actors, prevention culpability
JEL Classification: K10
Date posted: September 9, 2011
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