Paradigms of Social Justice and Obligation
II. Presumptive criminalization
One trend in legislation and enforcement has been described as "presumptive criminalization", growing despite the civilized legacy of presumed innocence. Coercion formerly reserved for criminals is applied to persons accused or just suspected of crimes. The expanded license to presume criminality inspires a "preemptive justice": the same legitimized coercion for crimes not "yet" committed. Both trends superficially resemble prevention, eg., the latest practice is called "preventive detention". But prevention forestalls harm, while unjustifiable coercion exacerbates it. The preventive prescription would be to reform society and diminish the reasons for desperate acts.America's problem with drugs currently excuses presumptive criminalization, since law enforcement has required much greater police state powers for these victimless crimes. Prejudice however motivated the original presumptive criminalization, and continues to do so whenever people can be labelled and classified. Minorities and the disadvantaged are keenly aware of continuing police harassment related to their likelihood of committing crime, e.g., inner city young men are routinely detained and body searched. The unemployed are more likely to be arrested, convicted, and imprisoned. [Box]
A Short List of Examples of Presumptive Criminalization
- required ID, registration, licenses, liability insurance
- warrantless search, seizure, and detainment
- alien laws, vagrancy and loitering laws, wealth standards
- drug testing, lie detector tests, and other medical tests
- gun laws, marriage laws (DNA testing, consanguinity)
- IRS procedures for identifying audit-worthy returns
- social/psychological court counsel, parole considerations