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Danger: The Ethics of Preemptive Action

44 Pages Posted: 9 Sep 2011  

Larry Alexander

University of San Diego School of Law

Kimberly Kessler Ferzan

University of Virginia, School of Law

Date Written: September 9, 2011

Abstract

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.

Keywords: inchoate crimes, incomplete attempts, responsible actors, prevention culpability

JEL Classification: K10

Suggested Citation

Alexander, Larry and Ferzan, Kimberly Kessler, Danger: The Ethics of Preemptive Action (September 9, 2011). Ohio State Journal of Criminal Law, Forthcoming; San Diego Legal Studies Paper No. 11-074. Available at SSRN: https://ssrn.com/abstract=1924934

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

Kimberly Kessler Ferzan

University of Virginia, School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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