Professor Jennifer Daskal - The Evolving Law and Policy of the New Preventive Paradigm

Faculty Scholarship Highlight, December 2013

As Professor Jennifer Daskal explains in a forthcoming Cornell Law Review article, an array of non-custodial “pre-crime” restraints—coercive actions taken by the government against individuals short of arrest, incarceration, and criminal prosecution—have proliferated over the past decade. Whether in the context of terrorism-related financial sanctions, the No Fly List, or the myriad residential, employment, and related restrictions imposed on sex offenders, U.S. law and policy have increasingly embraced policies designed to prevent criminal activity, rather than punish it after the fact.

Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, none of the criminal procedure protections required by statute or the U.S. Constitution apply. As a result, these restraints have become ever more popular, albeit without any effort to provide a cross-cutting, coherent justification for their imposition, or a normatively defensible limiting principle to circumscribe their scope. Enter, Professor Daskal. Building on her experience as a public defender, human rights advocate, and U.S. government lawyer, Daskal’s scholarship, among other things, aims to both document and re-conceptualize such preventive restraints, with an eye toward demarcating the right balance between the government’s unquestioned interest in preventing future bad acts, and the rights of individuals to live free of targeted, government-imposed restraints. To that end, Daskal describes the ways in which the near-impossibility of accurately predicting the future, coupled with the risk-aversion of most policy-makers and the public, yields extreme over-inclusiveness in both the breadth and scope of such restraints, as well as pressures for even further expansions.  Daskal identifies the ways in which such over-inclusiveness actually undercuts national and community security goals, and argues for much more close tailoring of restraint to need, along with stronger and more coherently theorized procedural safeguards. Inasmuch as prevention becomes an increasingly popular model for the next decade of law enforcement, Daskal’s careful deconstruction and reconstruction of theories of preventive restraints is sure to become required reading.