The Ethics of Preemptive Action
Danger: The Ethics of Preemptive Action Larry Alexander* & Kimberly Kessler Ferzan"* The law has developed principlesfor dealing with morally and legally responsible actors who act in ways that endanger others, the principles governing crime and punishment. And it has developed principles for dealing with the morally and legally nonresponsible but dangerous actors, the principles governing civil commitments. It has failed, however, to develop a cogent andjustifiable set ofprinciples for dealing with responsible actors who have not yet acted in ways that endanger, others but who are likely to do so in the future, those whom we label "responsible but dangerous" actors (RBDs). Indeed, as we argue, the criminal law has sought to punish RBDs through its expansive use of inchoate criminality; however, current criminalization and punishment practicespunish those who have yet to perform a culpable act. In this article, we attempt to establish defensible grounds for preventive restrictions of liberty (PRLs) of RBDs in lieu of contorting the criminal law. Specifically, we argue that just as a culpable aggressor becomes liable to defensive force, an RBD can become liable to PRLs more generally. Although there are many examples ofPRLs of RBDs currently in operation, the principles, if any, thatjustify and limit such PRLs have yet to be satisfactorilyestablished. In the movie Cape Fear, Sam Bowden, a lawyer in New Essex, North Carolina, is menaced by a recently released convict, Max Cady, whom Bowden had, in Cady's view, inadequately defended against a charge of a violent sexual crime.' In the first movie version, Bowden was played by Gregory Peck and Cady by Robert Mitchum; in the remake, Bowden was played by Nick Nolte and Cady by Robert DeNiro-with Gregory Peck and Robert Mitchum now making cameo appearances respectively as a lawyer and police officer.
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