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Abstract
One way to seek to reduce the risk of potential offenders engaging in certain types of crime in a public or semi-public area is to make it much more difficult, or even impossible, for them to gain access to the area in question and subject them to a sanction if they do enter the area. This paper considers whether preventive exclusion of this kind should be considered a pro tanto morally impermissible means of crime prevention because it violates the agency of those excluded. Several variants of this agency objection to preventive exclusion are identified and critically assessed. It is argued that none persuasively show preventive exclusion to be pro tanto morally wrong.
Acknowledgments
[The author wishes to thank Jesper Ryberg, Thomas Søbirk Petersen, Emma Dore-Horgan, Cecilia Vollmer, an anonymous reviewer, and the editors of Criminal Justice Ethics for helpful comments and suggestions, all of which helped me improve the paper.]
Disclosure Statement
[No potential conflict of interest was reported by the author(s).]
Notes
1 See Freilich and Newman, “Situational Crime Prevention.”
2 See Felson and Boba, Crime and Everyday Life, chap. 10; Clarke, “Introduction.”
3 See Clarke, “Situational Crime Prevention,” 269.
4 See Midtveit, “Crime Prevention and Exclusion”; Peters, Criminal Records, chap. 4.
5 Many of the arguments that I shall discuss, and my responses to them, also seem to apply to weaker types of access control. However, I focus on strong access control because this is usually the type proponents of the agency objection are explicitly arguing against.
6 See Duff and Marshall, “Benefits, Burdens and Responsibilities”; Hirsch and Shearing, “Exclusion from Public Space.”
7 Scottish Executive, Antisocial Behaviour Orders, 6, 3.
8 See Campbell, Ashworth, and Redmayne, Criminal Process, 428.
9 Campbell, Ashworth, and Redmayne, Criminal Process, 430–33.
10 See Hirsch and Shearing, “Exclusion from Public Space.”
11 See Felson and Clarke, “Ethics of Situational Crime Prevention”; Clarke and Bowers, “Seven Misconceptions.”
12 See Freilich and Newman, “Situational Crime Prevention”; Wortley, “Critiques of Situational Crime Prevention.”
13 See, e.g. Michael Tonry, “Predictions of Dangerousness.”
14 Hirsch and Shearing, “Exclusion from Public Space,” 89–90.
15 Hirsch and Shearing, “Exclusion from Public Space,” 91.
16 See Pugh, Autonomy, Rationality, and Contemporary Bioethics.
17 See Beauchamp and Childress, Principles of Biomedical Ethics; Holmen, “Neurointerventions and Informed Consent.”
18 It may be objected that at least some of the traits considered here may be acquired without any choice having been made by the potential offender. For example, someone who has committed a crime due to a considerable lack of impulse-control could plausibly claim that he did not choose to commit the crime. I think there are cases in which this is correct: if the person is completely blinded by a rage for which he himself cannot be held liable when assaulting another person, it seems fair to say that he did not make a meaningful choice to commit the assault. In a case like this, plausibly, it would be wrong to consider being a criminal offender an acquired characteristic. In general, however, most of us believe that many offenders choose to commit their wrongdoing. Or, at least, this seems to be implied by the general willingness to hold offenders responsible for their actions and subject them to criminal sanctions. At any rate, for the argument I am about for offer to go through, it merely needs to be the case that at least some offenders choose to commit their crimes or can be held accountable for at least some of the other listed characteristics, and it seems difficult to deny that this is the case. I thank Emma Dore-Horgan for pressing me to consider my view on this point.
19 Should the traits just be mutable in principle, or should something more restrictive apply? While I cannot develop a full account here, it seems to me that it must be the latter, since if we take the former view, we seem committed to the notion that even such things as race or place of residence are things it is reasonable to expect someone to change. To put it differently, much too few traits that seem reasonable will be considered permanent traits on this interpretation.
20 Hirsch and Shearing, “Exclusion from Public Space,” 90.
21 Ibid.
22 In the typology in this field, building the fences on the bridge would seem to be an example of the SCP technique known as target-hardening, since it makes it harder for potential offenders to achieve their (criminal) target.
23 Notice, that proponents of the agency objection here cannot refer to the fact that the rock throwing itself is morally wrong, to establish that erecting the fence is not. This is so because what is central for this variation of the objection is that the prediction that persons will throw rocks into traffic is based on data points about personal characteristics or conduct that are not themselves wrong to have or to engage in. To put it differently, if characteristic X and previous conduct Y are not independently morally wrong, then a prediction stating that morally wrong conduct Z is likely to follow from the presence of X and Y is, according to this view, not an appropriate basis on which to restrict agency.
24 Hirsch and Shearing, “Exclusion from Public Space,” 91, my emphasis. For a similar argument in relation to preventive detention, see Meyerson, “Statistics and Compulsory Measures,” 527–8.
25 See Pugh, Autonomy, Rationality, and Contemporary Bioethics.
26 Raz, The Morality of Freedom, 373. For a similar view, as well as discussion of other conditions plausibly necessary for practical autonomy, see Hurka “Why Value Autonomy?”
27 Some may hold that it is not the law’s business to regulate the kind of substantive agency that this section considers; that the law should be concerned with ensuring that persons comply with it, not with whether they do so for the right kind of reasons. Obviously, for those so minded, the discussion of moral agency in this section will seem out of place (if not downright irrelevant). I invite such readers to consider what follows a conditional discussion. That is, whether preventive exclusion would be wrong to employ if a substantive notion of agency is relevant when assessing the morality of crime preventive measures. I thank an anonymous reviewer for pressing me to consider my view on this point.
28 See Brownsword, “Code, Control, and Choice.”
29 For a somewhat similar view focusing on civic trust rather than moral agency, see Duff and Marshall “Benefits, Burdens and Responsibilities.”
30 Brownsword, “Code, Control, and Choice,” 19.
31 Brownsword, “Code, Control, and Choice,” 4, emphasis in original; see also Karen Yeung “Avoiding Brave New World?”
32 See Arpaly, Unprincipled Virtue.
33 See Kant, Groundwork of the Metaphysics, 23.
34 See Audi, “Moral Virtue,” 15–17; Hurka, Virtue, Vice, and Value. Furthermore, on several occasions John Harris has offered a similar argument against the use of mandatory moral enhancement of persons: see Harris, “Moral Enhancement and Freedom”; Harris, “Taking Liberties with Free Fall.” See also Douglas “Enhancing Moral Worth,” for a general discussion of Harris’ argument. Ryberg, Neurointerventions, Crime, and Punishment presents a narrower critical discussion of the argument in relation to the use of neurotechnology to prevent crime.
35 Of course, this response assumes that it is possible to determine empirically what acts confer moral worth, how much worth an act confers, and so on. And it is not clear how, exactly, this could be achieved in practice. However, this issue confronts Brownsword as well, since determining whether a policy or regulation reduces the opportunities to perform acts with moral worth seems to implicitly rely on the assumption that such an arithmetic of moral worth could be provided. Again, I thank an anonymous reviewer for pressing me to consider this issue.
36 Yeung, “Avoiding Brave New World?,” 20.
37 Brownsword, “Code, Control, and Choice,” 19; see also Yeung, “Avoiding Brave New World?”
38 At the very least, Brownsword does not explain why techno-regulation prescribing autonomic driving should be considered particularly likely to set us down such a slope.
39 For studies exploring the use of virtual reality to enhance individuals’ moral decision-making, see, e.g. Torda, “Medical Graduate Views on Statistical Learning Needs for Clinical Practice” or Sholihin et al., “Teaching Business Ethics.”