EVEN if we could make it impossible for people to commit crimes, should we? Or would doing so improperly deprive people of their freedom?
This may sound like a fanciful concern, but it is an increasingly real one. 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.
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.
Such technologies force us to reconcile two important interests. On one hand is society’s desire for safety and security. On the other hand is the individual’s right to act freely. Conventional crime prevention balances these interests by allowing individuals the freedom to commit crime, but punishing them if they do.
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. We need a clear method of distinguishing such cases.
One way is to keep in mind the distinction between thoughts and actions. A traditional rule in criminal law holds that there can be no crime unless the defendant committed some act: mere thoughts, no matter how horrific, are not sufficient. Thoughts cannot be regulated; everyone has a right to think what they wish without government intrusion.
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.
In such cases, using technology to prevent the crime entirely would not unduly burden individual freedom; it would simply be effective enforcement of the statute. Because there is no mental state required to be guilty of the offense, the government could require, for instance, that drug manufacturers apply a special tamper-proof coating to all pills, thus making the sale of tainted drugs practically impossible, without intruding on the thoughts of any future seller. By this logic, the Dadss program, too, would be permissible.
But because the government must not intrude on people’s thoughts, perfect prevention is a bad fit for most offenses. 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.
Perfect prevention is a politically attractive approach to crime prevention, and for strict-liability crimes it is permissible and may be good policy if implemented properly. But for most offenses, the threat to individual freedom is too great to justify this approach. This is not because people have a right to commit crimes; they do not. Rather, perfect prevention threatens our right to be free in our thoughts, even when those thoughts turn to crime.
Written by Michael L. Rich (associate professor at Elon University School of Law).
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