Regulating Preventive Justice

Principle, Policy and Paradox

Tamara Tulich, Rebecca Ananian-Welsh, Simon Bronitt, Sarah Murray

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317218555
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Like medicine, law is replete with axioms of prevention. 'Prevention is better than cure' has a long pedigree in both fields. 17th century jurist Sir Edward Coke observed that 'preventing justice excelleth punishing justice'. A century later, Sir William Blackstone similarly stated that 'preventive justice is...preferable in all respects to punishing justice'. This book evaluates the feasibility and legitimacy of state attempts to regulate prevention. Though prevention may be desirable as a matter of policy, questions are inevitably raised as to its limits and legitimacy, specifically, how society reconciles the desirability of averting risks of future harm with respect for the rule of law, procedural fairness and human rights.

While these are not new questions for legal scholars, they have been brought into sharper relief in policy and academic circles in the wake of the September 11 terrorist attacks. Over the past 15 years, a body of legal scholarship has tracked the intensified preventive focus of anti-terrorism law and policy, observing how this focus has impacted negatively upon traditional legal frameworks. However, preventive law and policy in other contexts, such as environmental protection, mental health, immigration and corruption has not received sustained focus. This book extends that body of scholarship, through use of case studies from these diverse regulatory settings, in order to examine and critique the principles, policies and paradoxes of preventive justice.

" Whereas earlier scholars looked upon preventive justice as a source and means of regulation, the powerfully argued contributions to this volume provide forceful reasons to consider whether we would do better talk about regulating preventive justice."

Professor Lucia Zedner, Oxford University

Part I

The preventive justice concept

1 Critical reflections on preventive justice

Tamara Tulich

Introduction

‘Preventive Justice’ was coined by Blackstone, in the late eighteenth century, to describe an area of law devoted to preventing future crime by intervening where there exists ‘a probable suspicion, that some crime is intended or likely to happen’.¹ Governments have long employed ‘preventive justice’ measures that restrain an individual’s liberty on the basis of an estimation of future harm, rather than past acts (even if past acts form part of the prediction of future harm). In England, preventive measures have been traced to the twelfth century, with the power granted to Justices of the Peace to bind over subjects to keep the peace.² This preventive jurisdiction was well established by the time Australian colonies enacted ‘Bushranger’ legislation in the 1830s, which permitted the apprehension and detention without charge of a person suspected of being a felon until the suspected felon established, to the reasonable satisfaction of a Justice of the Peace, that he or she was not a felon.³

The events of September 11, 2001, and the ensuing ‘war on terror’, magnified the role that law and policy can play in preventing harm. The breadth and intensity of the preventive response to terrorism embarked upon by many nations, in line with United Nations Security Council Resolutions, brought to the fore questions of preventive governance.⁴ Post-September 11 anti-terrorism lawmaking has also highlighted the paradoxical nature of ‘preventive justice’ measures: preventing the occurrence of anticipated harm through law has consequences – including for accepted legal principles and protections – that can weaken the fabric of the society that the measures seek to protect.⁵ Preventive anti-terror measures risk creating a template for the expansion of preventive incursions on liberty more generally and for the creation of an alternative system of justice that is devoid of, or contains an attenuated version of, the normal civil liberty protections afforded.⁶

Preventive justice scholarship suggests a way to address this paradox. Collectively, this scholarship conducts a wide-ranging and multi-jurisdictional study of preventive policies and practices. Its aim is to develop principles and values – a preventive jurisprudence – to guide and limit action by governments to prevent future harm. This academic focus on the preventive role of the state is deliberate and normative: to illuminate the problematic treatment of preventive measures as unrelated and discrete, and the need for the articulation of legal limitations on preventive governmental action. Importantly, this scholarship acknowledges the significance of the duty to protect the public, but contests its prioritisation above all else.⁷ Rather, preventive justice scholarship stresses that preventive measures in furtherance of this duty ought to be justified and subject to principled limits.⁸

This chapter critically engages with the emerging body of preventive justice literature, tracing its history and examining its utility as a framework for conceptualising and normatively limiting preventive governmental action. It argues that preventive justice scholarship has much to offer: it promotes critical engagement with the multifarious forms of prevention employed by governments, and exposes common issues in the operation of preventive measures. However, questions remain about the utility and coherency of preventive justice, instrumentally and conceptually. This chapter argues that this is emblematic of a developing literature that has, in line with international events, focused predominantly on prevention in the anti-terror and sex offender contexts. It argues that the core project of preventive justice scholarship – to examine the various contexts in which preventive measures are used so that guiding principles and justifications may be developed – can make an important contribution to identifying and abating the costs of prevention in terms of burdens on state budgets and civil liberties.

The emergence of preventive justice scholarship

There are various and competing conceptions of ‘prevention’ in contemporary lawmaking. Many accounts that explain or analyse the current prevalence of preventive measures are couched in terms of a ‘marked shift in political emphasis’⁹ (albeit that the extent and newness of this shift is often contested).¹⁰ For some, this shift is articulated in terms of the ‘emergent phenomenon’ of the ‘new penology’ or ‘actuarial justice’;¹¹ for others, the emergence of ‘the risk society’ and ‘world risk society’;¹² others yet identify that risk has now been surpassed by uncertainty, giving rise to questions of precautionary justice.¹³ Jocelyn Stacey, in Chapter 2 of this collection, critically examines the treatment of precaution in these accounts. Preventive justice scholarship is another way in which this apparent shifting emphasis in law and policy has been articulated and conceptualised.

Preventive justice scholarship builds on the work of Carol Steiker who, in the late 1990s, invoked the idea of the ‘preventive state’ to describe a host of measures introduced in various jurisdictions in the United States which sought to prevent crime by incapacitating or treating those deemed dangerous.¹⁴ Steiker was referring to a disparate collection of new or expanded ‘preventive’ laws and policing initiatives, ranging from pre-trial preventive detention of juveniles and adults to post-sentence indefinite detention of serious violent sex offenders, and the expansion of police powers to conduct suspicionless searches.¹⁵ Steiker traced the genesis of the preventive state to the nineteenth century, and its growth to favourable conditions in the twentieth century: the creation of the modern police force and institutions such as prisons and psychiatric hospitals in the former was bolstered by the growth of the regulatory state in the latter. These developments enabled and promulgated diverse preventive practices by governments.¹⁶

For Steiker, the emergence of the preventive state demanded further and different scrutiny. Preventive policies and practices were being treated as discrete and unrelated, rather than, as Steiker argued they should be, as part of a ‘unified problem’ – ‘a facet of a larger question in need of a more general conceptual framework’.¹⁷ Without a holistic approach, jurisprudence relating to preventive measures would remain undernourished; ‘salient similarities’ between preventive measures and the concerns they raise would evade discovery.¹⁸ Importantly, focusing attention on the collection of preventive practices employed by governments would enable the articulation and policing of the limits of the preventive state.

Steiker highlighted that unlike ‘the punitive state’, in respect of which the constitutional and due process limitations on state action were well established and maintained, the limits of state action to prevent harm remained largely unchecked.¹⁹ This was, Steiker noted, in part a function of the timing of the drafting of the American Constitution. The dangers of the punitive state were well known to the Founders and thus constraints on the state as punisher were included in the American Constitution.²⁰ The emergence of the preventive state, however, came later, as a function of the coalescing of events in the nineteenth and twentieth centuries. As a result, preventive state practices and institutions were ‘cabined’ within the existing constitutional framework, making it ‘harder to see the preventive state as a category than it is to so view the punitive state’.²¹

Steiker, and many after her, have distinguished between the preventive state and the punitive or reactive state to illustrate both the growing collection of preventive measures and the lack of consideration given to the question of the limits of governmental action to prevent harm.²² The distinct temporal viewpoints of state action to prevent and punish are also often compared. The focus of the preventive state is prospective: state intervention occurs prior to harm by, for instance, incapacitating those deemed dangerous. The focus of the punitive state is retrospective: the state conducts after-the-fact investigation and punishes criminal acts. This contradistinction, while useful, should not be understood as suggesting that these two objectives, prevention and punishment, are easily distinguishable or mutually exclusive. Nor should it be inferred that the preventive state is displacing the punitive state. Rather, it has been argued that preventive measures are rising in prominence and being used to extend as opposed to supplant the criminal justice system.²³

In invoking the preventive state concept, Steiker presented a normative model. Steiker argued that the limits of the preventive state ought to be articulated and policed, as are those of the punitive state (such as the principle of finality of sentence).²⁴ There are a number of guises through which the limits of state action to prevent harm may be articulated, including the principles of criminalisation, public law or human rights law.²⁵ Steiker focused on the constitutional and due process limits of the preventive state. She identified that the question of the limits of preventive action had been sidelined because, among other reasons, the courts were preoccupied with whether a measure amounted to punishment, and therefore whether the enhanced protections of the criminal justice system ought to apply.²⁶ This leaves what Steiker argued is the ‘mistaken impression that if the state is not punishing, it is not doing anything objectionable at all, constitutionally speaking or otherwise’.²⁷ The general conceptual framework of the preventive state provided one way to begin the project of identifying and establishing limits on preventive state action.

Steiker deliberately pitched the preventive state at a high ‘level of conceptual generalization’ in order that it may capture the diverse set of preventive measures employed by governments.²⁸ This may, Steiker suggested, facilitate the drawing of fresh insights about particular preventive practices. By moving beyond the ‘exceptionally particularized way in which the law has been developed on these issues up to this point’, it may also produce greater predictability for those generating policy and subject to it.²⁹ Steiker further identified benefits of drawing attention to, and recognising connections between, the practices of the preventive state: it may engender a constructive dialogue about the proper limits of preventive state action,³⁰ and also that the concerns raised in respect of ‘certain preventive practices may shed light on what may (or may not) be cause for concern about other preventive practices’.³¹ Identifying similarities between the diverse set of preventive measures may avoid dangers discovered in one measure being blindly reproduced in another.³²

The September 11 terrorist attacks and the so-called ‘war on terror’ have been pivotal in shaping the development and focus of preventive justice scholarship. Prevention of terrorism has been a defining feature of post-September 11 lawmaking, with Australia, the United Kingdom, Canada and the United States introducing anti-terror measures targeting individuals deemed ‘dangerous’ – namely, but not limited to, suspected terrorists – and restraining their liberty before they cause harm.³³ This anti-terror lawmaking has, more than ever before, brought to the forefront the question of preventive governmental action, raising, Steiker writes, ‘profound questions about how we should delineate the substantive and procedural limits of the state’s power to prevent harm...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Acknowledgements
• Taking the preventive justice project forward
• PART I: The preventive justice concept
• PART II: Preventive (in)justice: case studies in mental health, security and migration
• PART III: Evaluating preventive justice: Assessing legitimacy and effectiveness
• Index