Are “Pre-Crime” Measures Absolutely Unethical?


I guess that would be a too-short essay on an important topic with special contemporary relevance, so I am bound to say more. Nonetheless, I would be more comfortable with my fellow society members and more confident of the future of the the nation if the answer to the title query was universally accepted in absolute terms. For the acceptance of the principle of pre-crime is dangerous. It places less than a spiked mountain-climber’s boot on a slippery slope to totalitarianism, which is the real-life equivalent of the Devil in the scene above from “A Man For All Seasons,” both the play and the movie, based on the writings of Sir Thomas More, in which  More emotionally refuses to arrest a man because of the evil  he might do, before he has actually broken any laws:

More’s Wife: Arrest him!

Sir Thomas More: For what?

Wife: He’s dangerous!

William Roper (More’s Son in Law): He’s a spy.

Margaret (More’s daughter): Father, that man’s bad.

More: There’s no law against that.

Roper: There is – God’s law.

More: Then God can arrest him.

Wife: While you talk, he’s gone.

More: And go he should, were he the Devil himself, until he broke the law.

Roper: So, now you’d give the Devil the benefit of law?

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s. And if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Few more profound and important thoughts have been so eloquently and powerfully  presented in a motion picture as this scene from “A Man For All Seasons,” to which I will note (again) in passing, “Rotten Tomatoes” gives a lower score than “Birdman,”a fact that provides a disturbing snapshot of the state of our education, culture and priorities in 2019.

Both political parties have placed their feet on this slippery slope in the past. The essence of pre-crime is punishing a citizen for what he or she is, rather than for what he or she has done, on the theory that what an individual is makes that person “dangerous,” in the words of Mrs. More, for what they might do. President Franklin D. Roosevelt (and the Supreme Court that backed him) was responsible for probably the worst example of pre-crime in our history, when the United States, in full panic mode after the bombing of Pearl Harbor, imprisoned loyal Japanese-American citizens as a precautionary measure. Another panic, also not entirely groundless, led to a pre-crime mentality during the Red Scare and McCarthy episodes, seeking to punish Americans who belonged to the dreaded Communist Party, a nonetheless legal organization.

To be abundantly clear, I will define pre-crime as when the government removes a civil right, a Constitutional right, from a citizen, not as punishment for breaking a law, but based on what that individual believes, says, is or is understood to be. The fate of registered sex offenders comes perilously close to pre-crime. Civil libertarians persuaded the courts in the Seventies that open-ended civil commitment to asylums based on diagnoses of insanity was pre-crime: they were being institutionalized to prevent incidents that had not occurred yet. (I had a great uncle who was institutionalized in his teens and spent his entire life in an asylum. When he was about 50, the staff determined that he had been misdiagnosed.) Provisions of the Patriot Act, which have led to the prosecution of Americans for “terroristic threats,” are forms of pre-crime .

Tragically, the Democratic Party, since FDR’s abuse of Japanese-Americans  the nation’s traditional watch-dog against encroaching pre-crime, has of late embraced the concept in its mania to strip Americans of their Second Amendment rights. Memorably, Democratic House members even staged a sit-in to demand that Americans placed on a terrorism watch list absent due process be prohibited from owning guns. Many of the gun regulations  proposals regarding Americans with mental or emotional illnesses are pre-crime, some going so far as to declare citizens who are under the treatment of a psychiatrist must forfeit the right to bear arms. Such proposals punish people for what they are, rather than for what they have done, or are even likely to do.

Once the pre-crime barrier is decisively breached, totalitarianism becomes an existential threat to democracy. Such regimes maintain control by intimidating and  punishing dissidents and members of opposition groups on the theory that such measures protect the public, meaning, of course, that they protect the entrenched power of the a nation’s rulers. This is why any hint of pre-crime in our laws and justice system must be viewed with extreme skepticism, and subjected to the most stringent civil rights analysis, and with extreme prejudice.

Here is a cautionary tale from Vermont….

On the same day as the Parkland school massacre, Feb. 14, 2018,  18-year-old Jack Sawyer took his new pump-action shotgun gun out for target practice. Shortly thereafter, Vermont State Police  brought Sawyer in for questioning. Jennifer Mortenson had tipped them off that day, because news of the Parkland shooting reminded her that her daughter, who was a few years ahead of Sawyer at Fair Haven Union High School, had told her that Sawyer had once threatened to shoot up the school. When Mortenson heard from a friend of her daughter’s that Sawyer now had  a gun, she decided  decided to alert the police.

Under custody,  Sawyer said he had been reading books about the 1999 Columbine shooting and identified with the student shooters.He admitted that he had planned to emulate them at Fair Haven Union . Sawyer let police search his car, where they found the shotgun and ammunition he had legally purchased the day before, and a diary titled “The Journal of an Active Shooter.”

Police decided, correctly, that despite all this they could not arrest Sawyer and charge him with anything. Then  Angela McDevitt, a friend of Sawyer’s, contacted them. She said that a few days before Parkland and before he had purchased his gun, Sawyer made some ominous statements to her in two  Facebook Messenger chats. Earlier,  he had written to  McDevitt, “Just a few days ago, I was still plotting on shooting up my old high school.” When she heard about Parkland, she messaged him to talk about it.

“That’s fantastic,” he wrote. “100% support it.”

On  Feb. 15, McDevitt showed the messages to authorities near her home in upstate New York. They contacted  the Vermont State Police, which  arrested Sawyer.

Over several hours, Sawyer revealed in a videotaped interrogation  that he had been thinking about attacking his old school, with the goal of setting a new record: highest death count for a school shooter. He would kill himself afterwards, at the scene, he said. He also said that hisarrest just delayed the inevitable execution of his plan.

Sawyer had been diagnosed with depression and anxiety, and had received treatment in the past.  His former classmates at Fair Haven Union described him as progressively isolated and strange. He wrote a term paper on Columbine and brought a book about the shooting to school. Alarmed, the  school staff, counselors and law enforcement alerted Sawyer’s family to craft a plan to keep him and the school safe, but Sawyer abruptly quit school. A friend said that Sawyer was having thoughts of suicide. Interviewed about her son, Sawyer’s mother said that he had always been troubled.

In February of 2018, the state’s attorney for Rutland County  charged Sawyer with four felonies: two counts of attempted aggravated murder, and one count each of attempted first-degree murder and aggravated assault with a deadly weapon. Attempted aggravated murder carries the same sentence as a murder charge: life in prison, with no possibility of parole. Prosecutors  asked that Sawyer be held without bail, and a lower court agreed.

Sawyer’s public defender, Kelly Green, however, maintained that her client was being punished for pre-crime. She was right.

In contrast, the State argued that Sawyer’s plans and preparations merited the charge, and constituted attempted murder. Really? Is  thinking or saying “I want to set a new mass murder record at my old school” illegal?  No. How about writing down a murder plan? No. After doing these things, is buying a gun legally suddenly a crime? No. Jack Sawyer had not broken any law.

Eventually the Vermont  Supreme Court were called upon to decide whether someone who hadn’t broken any laws could be held without bail.  The court  sided with Sawyer, and the felony charges against him were dropped. He was released on bail, and voluntarily agreed to commit himself to a psychiatric facility.

The state prosecutor, Rose Kennedy, doesn’t like the decision, telling NPR,

“There’s still a chasm in the case law in Vermont. There’s got to be a place where law enforcement should be able to act to stop a horrific crime from occurring that’s a lot sooner on this continuum than when someone actually shows up to commit the act.”

Does there? I encountered this issue when I manned the complaint desk for the D.C. prosecutor’s office for a a week during law school. The assistant D.A.  instructed me that I had to tell people terrified of a spouse, a co-worker or a neighbor who had made threats of physical harm and seemed likely to carry them out what their options were, but that the police could not make arrests before an actual crime had been committed.

I was told, “We have a club—more of a support group, really—of people here who have given that speech to a caller and discovered that he or she had been murdered the next day. It’s tough.”

The Vermont legislature passed a new “domestic terrorism” law in response to the Sawyer opinion. H.25 (Act 135) criminalizes taking “substantial steps” toward carrying out a mass attack, or threatening “any civilian population with destruction, death, or kidnapping.” A “substantial step” is defined as conduct that is “strongly corroborative of the actor’s intent to complete” the offense. A person convicted of domestic terrorism could face 20 years in prison and a fine of $50,000, or both.

OK, NOW there’s a law. And the offense is based on actions, not thoughts, suppositions, fear, or the kind of person the accused is.


Pointer and facts: NPR

14 thoughts on “Are “Pre-Crime” Measures Absolutely Unethical?

  1. Pre-crime policing is disturbing enough when just human intelligence is involved.

    When algorithms and artificial intelligence are used to determine who is pre-criminal based on the biases of programmers matched to IP address behavior of users, not real behavior, (just as being banned from social media does now) the prejudice power being wielded by a nearly omniscient internet and the masters of the universe running it will be staggering.

    So, instead of being banned from linking EA to social media networks, we might be arrested as pre-criminal “right wing” terrorists. (Not really who we are or what we do, but you can see their thinking, biases, and programming driving this type of decision and action.)

    Something needs to be done before the rapidly approaching AI tidal wave is wholly controlled by the deranged resistance crowd pre-judging anyone who disagrees.

    • Sounds like the plot to ‘The Winter Soldier.’ Potential (future) threats were being targeted by computer algorithm with the goal of punishing them NOW (with death).

      This movie was not possible from a computational standpoint when it came out, just 5 years ago. Today it is very possible to do, as social media has shown.

  2. God, I love that scene. It is such an invaluable lesson, I get a thrill every time you post it.

    The tragedy is that it is necessary to your point altogether too often. Now to the substance of your remarks:

    The fate of registered sex offenders comes perilously close to pre-crime.

    It’s worse, it’s post-crime. Punishing a person beyond the provisions of criminal law is intolerable. It is partially before the Supreme Court this term. I hope it is pitched in the dustbin of history where it belongs, but it probably won’t be. But enough about that.

    Pre-crime is being manifested a several of ways by the current Left:

    1. Hate speech — the Left wants to equate certain words with violent crime in order to prevent the actual crime. According to them, it is okay with the First Amendment to do that.

    2. Gun regulations — the Left wants to deny Second Amendment rights to as many people as possible under the rubric of “mental health” and “terrorist watchlist.” When you get to define what “mental health” means (and to be sure, it always means that wrongthink is unhealthy) and which people get to go on the list of bad guys, the Second Amendment becomes a dead letter.

    3. The “guilty until proven innocent” standard applied to Bret Kavanaugh and Donald Trump. The mere allegation by a “credible” witness is sufficient for guilt unless innocence can be proven. This is necessary to remove bad actors from the public square, according to its proponents.

  3. Any power given to government will eventually be expanded and abused. That’s why there need to be sunset provisions on many more laws to force legislatures to re-implement them if the people really want them to continue and they really serve a valid purpose. The timed-out assault weapons ban comes to mind. Pre-crime laws should be just as scary to us as ex post facto laws were to our founders. Very useful to tyrants.

  4. An irresponsible or potentially dangerous citizen wields their vote far more hazardously than they will ever wield a firearm.

    If the left wishes to use “mentally disturbed” as a reason to take away guns, then they should eagerly take away votes for the same reason. Something tells me, however, that Leftists, seemingly always in some therapy or psychiatric assistance, would not go for such a scheme.

  5. Power comes out of the barrel of a gun. People on the left know that fact too well.
    So, we must imprison everybody on the left, to keep that power away from them.
    (Not to mention keep away from them all that other power they want.)

    • Part of me really wants to take this seriously and agree.

      The “Do unto others before others do unto you” part.

      • Our problem is that so many on the left ARE serious about doing unto others before others have any chance to prove they would never do to the left what the left are serious about doing unto others.

        • Probably it’s too late to post this but does the Vermont law that prohibits people getting psychiatric care for any reason (i.e. anxiety disorders, phobias, etc) from owning a firearm. If it does, the law is far too overreaching and should be appealed to higher Federal courts.

  6. States with Red Flag laws: California, Washington, Oregon, Colorado, Illinois, Indiana, New York, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, and Florida.

    Under these laws, a person can claim that someone poses a threat. A judge then issues an order to raid their house, seize all firearms they find there, and strips the subject of their 2nd Amendment rights. The subject is not informed of the proceedings, there first indication there is a problem is when the SWAT team busts down their door at 5 AM. Sometimes, they will show up at the homes of relatives as well, just so you can’t borrow any of their guns. Only after their property is seized by the government can the subject get an attorney and try to prove their innocence of pre-crime to get the order lifted.
    In 2018, 1700 Red Flag seizures were performed in the US. Under Florida’s law, you can be brought in for questioning and denied an attorney (since you haven’t committed a crime yet, you don’t get an attorney).

    Over 1700 Red Flag orders were issued in 2018, more will be issued this year. I am waiting for an elementary school teacher to ask her class if their parents own guns. She will then report all of the gun-owning parents to police for Red Flag orders. Very little is needed to get an order. One was granted because the subject was open carrying a firearm in a restaurant (completely legally in that state) and some people didn’t like it.

  7. I never liked the tactics of law enforcement pretending to be a minor and toying with a pedophile to see if they will attempt setup a in person meeting as it also reeks of pre-crime punishment. It’s one few want to attack, because who wants to defend pedophiles? It works at reducing molestation of children, but since the luring is a demonstration of mens rea without the actual crime, and without an actual intended victim.

    Because it will never, ever be criticised because of the inevitable social shunning that a critic will receive, it will never be challenged.

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