How can the state protect us from harms that haven’t happened yet? It may be clear that a terrorist or sex offender, for instance, intends to cause harm long before he has actually committed acts of violence. We could try to convict him in criminal court, but by definition, he hasn’t yet caused the harm we’re worried about. So how can we blame and punishment him? We could also try civil law, but civil suits come with a lower burden of proof that doesn’t seem quite right when we consider taking away a person’s liberty.
Our guest today, Kim Ferzan, thinks the answer is to create a third category, preventive justice, that can be used to legally impose restrictions on people who intend to cause harm.
Kimberly Ferzan is a professor at the Rutgers University School of Law in Camden, N.J. Her recent paper is “Preventive Justice and the Presumption of Innocence.”
Ferzan mentions the legal theorist Bill Stuntz. His paper on “The Pathological Politics of Criminal Law” is here.
“Inchoate crimes,” as Ferzan mentions, are those that relate to the planning of a crime. A classic example is the possession of buglar’s tools: Merely possesing the tools isn’t problematic per se, but having them is thought to show intent to use them to commit burglary. Double inchoate crimes, then, are one step further removed from the actual problematic act; Ferzan’s example is enticing a minor (inchoate) over the internet (double). For more on her views, see “Inchoate Crimes at the Prevention/Punishment Divide.”
The seminal sex offender case Ferzan describes is that of Earl Shriner.
Ferzan cites the work of Bill Stuntz and Richard McAdams on the reality of checks on the criminal law; for more, see this paper by McAdams.
And finally, Carol Hargis was the woman who tried to kill her husband with a tarantula baked in a pie. The gory details are here.