Columbia Center for Contemporary Critical Thought
This book chapter critically examines punitive preventive measures, such as preventive detention for dangerous individuals, stop-and-frisks on the street, and order-maintenance policing. After reviewing the traditional concern expressed about punitive preventive practices, the chapter investigates the empirical evidence in support of such measures, concluding that the purported need for these measures is, on balance, factually overstated and generally unproven. But the empirical problems foreground a deeper theoretical difficulty with punitive preventive justice, namely that the modern approach to punitive prevention relies predominantly on economic cost-benefit analytic methods that effectively displace political debate and contestation. Like earlier punitive preventive interventions — such as eugenics or phrenology — the modern approach is grounded on technical, scientific knowledge that privileges efficiency over most other political values and, in the process, tends to displace politics. The modern approach claims to be objective, apolitical, and neutral; it claims to be merely pursuing the most efficient policy option given an agreed-upon narrow objective. But it inevitably reintroduces political values and choices in its outputs. The approach also obfuscates criticism by making it harder for the layman to identify the political values embedded in the technical models. In the end, it insidiously degrades the public sphere and masks political redistribution. For these reasons, the chapter argues against punitive preventive justice.
Bernard E. Harcourt,
Punitive Preventive Justice: A Critique,
Forthcoming in Andrew Ashworth and Lucia Zedner, eds., PREVENTIVE JUSTICE, Oxford University Press; University of Chicago Institute for Law & Economics Olin Research Paper No. 599; U of Chicago, Public Law Working Paper No. 386
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1747