Tuesday, July 8, 2014
David Cole (Georgetown University Law Center) has posted The Difference Prevention Makes: Regulating Preventive Justice (Criminal Law & Philosophy, March 2014) on SSRN. Here is the abstract:
Since the terrorist attacks of September 11, 2001, the United States and many other countries have adopted a paradigm of prevention, employing a range of measures in an attempt to prevent future terrorist attacks. This includes the use of pre-textual charges for preventive detention, the expansion of criminal liability to prohibit conduct that precedes terrorism, and expansion of surveillance at home and abroad. Politicians and government officials often speak of prevention as if it is an unqualified good. Everyone wants to prevent the next terrorist attack, after all. And many preventive initiatives, especially where they are not coercive and do not intrude on liberty, are welcome. But the move to a preventive justice model also creates potential for significant abuse. These risks suggest that we should be cautious about adopting preventive approaches, especially where they involve coercion. In part I of this essay, I articulate why preventive coercion is a problem. I respond, in particular, to a recent essay by Fred Schauer, The Ubiquity of Prevention, which argued that 'it is a mistake to assume that preventive justice is a problem in itself [because] preventive justice is all around us, and it is hard to imagine a functioning society that could avoid it.' In part II, I outline the formal constitutional and other constraints that are implicated by preventive measures in the United States, and I demonstrate that these constraints play a relatively small role in the actual operation of preventive measures. In part III, I maintain that informal constraints may actually play a more significant operational role in checking the abuses of prevention.