"Whenever I go into a restaurant, I order both a chicken and an egg to see which comes first"

Tuesday, August 7, 2012

Pre-Crime–Coming Soon To Your Neighborhood

Most people are familiar with the concept of pre-crime – preventing crimes by arresting perpetrators for intent -  from the movie Minority Report.  It was far-fetched, especially because it required soaking prescient twins in a special psychic-enabling broth.  It was an amalgamation with the psychedelic pop quality of Altered States, the futuristic Blade Runner, and the sci-fi hi-tech adventures of Robocop. It was fun to watch Tom Cruise move pre-crime clues and visionary fragments from the brains of the twins on a display screen a la Microsoft (Beyond Touch: A Futuristic Vision from Microsoft) and get the pre-criminal before he committed the crime; but the concept itself was interesting.  Capturing malefactors before they committed anti-social behavior seemed to be a good thing.  Of course this idea flew against Anglo-Saxon jurisprudence and habeas corpus, but it appealed because such law enforcement would both punish the pre-criminal and save the pre-victim.  How could habeas corpus withstand such a compelling argument?

A few months ago (5.22.12), I noticed an article in the Manchester Guardian which reported on a new British law which was designed to prevent crime before it occurred – not the usual frequent and common preventive measures (better street lighting, police patrols, neighborhood watches, etc.), nor the more invasive profiling of smugglers and terrorists at airports, but something more insidious and closer to the pre-crime ideas of Minority Report:

The new criminal behavior order will be used to ban individuals from particular activities or places and crime prevention injunctions (CPIs) will give agencies an immediate power to "stop bad behavior before it escalates" – the lower standard of proof for civil orders, meaning CPIs, can be put in place in hours. This means that the authority would have to demonstrate only "on the balance of probabilities" and not "beyond reasonable doubt" that the individual was engaging, had engaged or was likely to engage in antisocial behavior.

As bad as this is as a whole, the final injunction – that you can be locked up if you are deemed ‘likely to engage in antisocial behavior’ – is absurd, although a great movie, The Minority Report was made about ‘pre-crime’.  Tom Cruise using psychic mediums as his foresight, caught criminals before they committed a crime. 

I wrote in this blog about that article:

We all have probably thought about pre-crime sometime or other.  Why not corral suspicious-looking people, shake them down to see if they really were up to no good; and if not, let them go, no harm done.  What about that middle-aged white guy in a raincoat leaning over the playground fence at the neighborhood school? Haul him in, pervert for sure, probably wearing nothing under the Burberry.  Or the black teenager walking in a white neighborhood at night?  Pre-crime activities, while still under intense scrutiny in the real world, are de rigeur in Customs halls.  Before a suspicious foreigner can enter America, he can be interrogated, frisked, body-searched, and harassed as long as the Border Patrol cares to.  We are tempted to apply that to civil society in the name of stopping (preventing) crime.

In an interesting article in today’s New York Times http://www.nytimes.com/2012/08/07/opinion/the-perfect-non-crime.html?_r=1&ref=opinion  Michael Rich describes new programs that take pre-crime to another level.  Rather than let people construct intent and initiate behavior that suggests they are about to do a crime, these programs short-circuit the deliberation-intent-crime process entirely.  They are designed to make it impossible to commit crimes:

The new federal transportation bill, for example, authorized funding for a program that seeks to prevent the crime of drunken driving not by raising public consciousness or issuing stiffer punishments — but by making the crime practically impossible to commit. The program, the Driver Alcohol Detection System for Safety (Dadss), is developing in-vehicle technology that automatically checks a driver’s blood-alcohol level and, if that level is above the legal limit, prevents the car from starting.

The Dadss program is part of a trend toward what I call the “perfect prevention” of crime: depriving people of the choice to commit an offense in the first place. The federal government’s Intelligent Transportation Systems program, which is creating technology to share data among vehicles and road infrastructure like traffic lights, could make it impossible for a driver to speed or run a red light. And the Digital Millennium Copyright Act of 1998 has already criminalized the development of technologies that can be used to avoid copyright restrictions, making it effectively impossible for most people to illegally share certain copyrighted materials, including video games.

This, of course, raises an interesting and important legal and philosophical question – can government deny an individual the freedom and the right to commit a crime? And if so, where does one draw the line between true invasion of privacy and protection of the public interest?

Or consider a more speculative scenario: some pharmaceuticals show the promise of blunting the “high” of cocaine use or reducing antisocial thoughts of the sort that often lead to crime. Widespread dissemination of such drugs — say, putting them in the public water supply — could make some crimes impossible by eliminating a potential offender’s desire to commit them.

This is a scary scenario and one which is easily possible.  Government would justify a compelling interest to stop crime before it starts, thus saving lives and money for law enforcement, incarceration, and parole; and citizens would rationalize an acceptance of this intrusiveness on the grounds that their lives would be made safer, less stressful, and happier.  “What freedoms are we giving up, exactly?”, would we reply, convinced that even if we all drank the water, only the potential criminals would be affected.  We already have willingly given up much of our personal privacy to cell phone companies, online retailers, Gmail and Yahoo, and of course federal and municipal authorities.

If we would allow a government to put a drug in the water which would depress the urge to use cocaine, would we permit a drug which would discourage all anti-social behavior?

The perfect prevention of crime asks us to consider exactly how far individual freedom extends. Does freedom include a “right” to drive drunk, for instance? It is hard to imagine that it does. But what if the government were to add a drug to the water supply that suppressed antisocial urges and thereby reduced the murder rate? This would seem like an obvious violation of our freedom.

Rich, a lawyer describes a little-known but important legal twist which bears on government’s right to engage in pre-crime:

For most familiar crimes (murder, robbery, rape, arson), the law requires that the actor have some guilty state of mind, whether it is intent, recklessness or negligence. But there is a category of crimes that are forbidden regardless of the actor’s state of mind: so-called strict-liability offenses. One example is the sale of tainted drugs. Another is drunken driving.

Perfect prevention of a crime like murder would require the ability to know what a person was thinking in order to determine whether he possessed the relevant culpable mental state. Even if this could be known, perhaps with the help of some sort of neurological scan, collecting such knowledge would violate an individual’s freedom of thought. Likewise, adding chemicals to the water supply in order to dampen antisocial urges would violate that freedom.

I am not as sanguine as Michael Rich.  I see the ease with which government has eroded or taken away individual liberties with barely a whimper from the American public.  Who would have thought 50 years ago that government would be reading our personal correspondence, tracking our movements, and cataloguing our movie, book, and entertainment preferences?  But it now is a reality.  Ignition-linked breathalyzers are the next step, routine brain scans (done remotely and non-invasively) the next; drugs in the water supply in high-crime areas to follow; and drugs in everyone’s water supply inevitable.

Rich’s idealistic vision and commitment to the law is admirable; but given the complaisance of the American public and, despite the hollering about ‘freedom’ on the hustings, an indifference to principle in favor of satisfaction, the future is clear.

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