The Preventive State, Terrorists and Sexual Predators: Countering the Threat of a New Outsider Jurisprudence

William Mitchell Legal Studies Research Paper No. 11; Eric Janus; March 16, 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 antiterrorism 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.

Read the entire article by clicking the link below and downloading the paper.


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