The Preventive State, Terrorists and Sexual Predators: Countering the Threat of a New Outsider Jurisprudence
37 Pages Posted: 16 Mar 2005
In this Article, I argue that two powerful streams of contemporary American public policy are converging on a single idea. Using a phrase coined by Professor Carol Steiker, we are at risk of becoming a "preventive state," in which the paradigm of governmental social control has shifted from solving and punishing crimes that have been committed, to identifying "dangerous" people and depriving them of their liberty before they can do harm.
The impulse for prevention has taken its strongest form in two disparate areas: the anti-terrorism efforts since 9/11, and ongoing legislative innovations in the campaign against sexual violence. In both areas, the government has erected what Professor Oren Gross has called an "alternate system of justice" in which the normal protections of our civil liberties are substantially degraded in order to make room for an aggressive preventive agenda.
The prevention of harm is, of course, a positive. Our law books are full of statutes intended to regulate risky behavior in order to prevent harm. Here, however, I am concerned with a different type of prevention - what might be called radical prevention - that differs from routine prevention in two ways. First, radical prevention seeks to intervene where there is some sort of "propensity" or risk of future harm, whereas routine prevention responds to actual or attempted harm. Second, radical prevention operates by substantially curtailing people's liberty before harm results, whereas in routine prevention individuals suffer deprivations of liberty only after actual harm is done or attempted.
The government's efforts at radical prevention have, in the last half century, met with diminishing success, as the courts have erected some important constitutional bulwarks against excessive erosions of our liberty in the name of prevention. Historically, a central feature of our radically preventive laws has been their focus on "outsider" groups. This has allowed their attendant constraints on liberty to be viewed as exceptional, thus preserving the legitimacy of the "normal" constitutional order. But the civil rights revolution of the past all but eliminated the legitimate targeting of outsider groups. At the same time, the Supreme Court has recognized the fundamental nature of key aspects of liberty, and insisted that criminal sanctions be limited in a variety of ways, including that they be applied only to behavior that has a relatively close connection to harm. These developments have helped to keep radical prevention in check, even in the face of the terrorist threat.
The central thesis of this Article is that the sexual predator laws provide a model for undercutting these constitutional protections for liberty. The laws undercut these key bulwarks, and allow the establishment of an expansive alternate and degraded system of justice, in which radical prevention prevails at the expense of liberty. Sexual predator laws do this by re-introducing and re-legitimizing the concept of the degraded "other." Membership in this outsider group is then used to rationalize a degraded system of justice, in which the normal protections of the Constitution do not apply.
The Article proceeds as follows. First, I summarize the push for radical prevention that has followed the 9/11 terrorist attacks, noting that many of the proposals have been controversial because they are seen as curtailing civil liberties too broadly. Second, I sketch the push for prevention in the sexual predator legislation and note the nearly unanimous political support for these initiatives. Third, I survey the history of preventive legislation in the U.S. I suggest that prevention is not a new impulse in the law. To the contrary, it has been widespread, yet has been tempered by the application of constitutional principles that have curtailed the most radical forms of prevention. I then briefly examine the recent legislative initiative to update public health laws in response to the threat of bio-terrorism, which despite the understandable fear of communicable contagion, has been constrained by constitutional principles. Finally, I show that the sexual predator legislation affords a template for radical prevention that undercuts these limiting principles, thus containing the toxic seeds of a degraded system of justice that strongly weights prevention over liberty.
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