Does 'Precrime' Mesh With The Ideals of U.S. Justice Implications For The Future of Predictive Policing

Does ‘Precrime’ Mesh with the Ideals of U.S. Justice?
Implications for the Future of Predictive Policing
Jackson Polansky*
and
Henry F. Fradella‡
Abstract
Both the short story and film Minority Report are premised on a Precrime unit that relies on the
psychic abilities of human mutants who can predict the commission of crimes before they occur.
Advances in technology suggest that the science fiction depicted in Minority Report may one day
become a reality. This paper summarizes the ways in which the criminal justice system currently
derives crime predictions and extrapolates from these methods how technology might one day
allow police to intervene before crimes are committed with great regularity and accuracy. The
paper contemplates how an actual precrime system would struggle to fit into the framework of
inchoate crimes as they are currently defined, but might fit into a system of preventative
detention that is not dramatically inconsistent with the approaches currently used in the United
States. The implications for current conceptualizations of constitutional rights, including
contemporary notions of privacy, are discussed.
*
Mr. Polansky earned a B.A. in philosophy through the Barrett Honors College at Arizona State University in
2016. This article is derived, in part, from his senior honors thesis.
‡
Professor and Associate Director, School of Criminology and Criminal Justice, Arizona State University. Dr.
Fradella earned a B.A. in psychology from Clark University in 1990, a master’s in forensic science and a law
degree from The George Washington University in 1993, and a Ph.D. in justice studies from Arizona State
University in 1997. Dr. Fradella chaired Mr. Polansky’s honors thesis project during the 2015-2016 academic
year and is honored to be Mr. Polansky’s co-author on this paper. Both authors thank Dr. Christine S. Scott-
Hayward, Dr. Stephen S. Owen, and Dr. Michael D. White for their feedback on earlier drafts of this paper.
Table of Contents
I. INTRODUCTION ............................................................................................................................. 3
A. Contemporary Predictive Policing ......................................................................................... 4
B. From Predictive Policing to Precrime? .................................................................................. 7
II. GETTING AHEAD OF CRIME USING TECHNOLOGY ....................................................................... 9
A. Imperfect Databases and Probable Cause ............................................................................ 11
B. Other Imperfect Tools of Technology Used in Predictive Policing ..................................... 16
C. Imperfect Informants and Probable Cause ........................................................................... 18
III. PRECRIME AND INCHOATE LIABILITY ...................................................................................... 21
A. Conspiracy ........................................................................................................................... 22
B. Attempt ................................................................................................................................. 24
IV. CIVIL COMMITMENT, PREVENTATIVE DETENTION, AND PREEMPTIVE INCARCERATION .......... 26
A. The Inapplicability of Punishment ....................................................................................... 26
B. Bail ....................................................................................................................................... 31
C. Involuntary Civil Commitment ............................................................................................ 32
D. Preventative Detention of Insanity Acquitees ...................................................................... 36
E. Preventative Detention of Sexually Violent Predators ......................................................... 36
F. Preventative Detention of Enemy Combatants ..................................................................... 38
G. Summary .............................................................................................................................. 39
V. CONCLUSION ............................................................................................................................. 40
A. Human Agency and the Limits of Precrime Predictive Policing ......................................... 40
B. Potential Obstacles to a Big Data Policing Predictive Analytics System ............................ 41
C. New Problems in Policing .................................................................................................... 43
2
D. Precrime and the Constitution .............................................................................................. 44
I. INTRODUCTION
The film adaptation1 of Philip K. Dick’s dystopian short story Minority Report2 begins with
the last-minute prevention of the murder of an unfaithful wife.3 Set in the not-too-distant future,
a new police initiative called “Precrime” has been created that relies on the psychic abilities of
three precognitive human mutants (referred to as “precogs”) to predict the commission of crimes
before they occur.4 The Precrime5 unit ostensibly proves to be a wild success; crimes are almost
entirely eliminated.6 But the short story and the movie offer dramatically different endings. In
Dick’s version, the visions of the precogs are validated, concerns about errors and corruption are
allayed, and Precrime continues to operate with great public credibility.7 But director Steven
Speilberg’s movie adaptation of Minority Report presents a cautionary tale of the fallible nature
1
MINORITY REPORT (Twentieth Century Fox Film Corp. & DreamWorks SKG, 2002).
2
PHILIP K. DICK, The Minority Report, in THE PHILIP K. DICK READER 324 (Citadel Press 1987) (1956).
3
For a comparison of the differences between the short story and the movie, see Cynthia D. Bond, Law as
Cinematic Apparatus: Image, Textuality, and Representational Anxiety in Spielberg's Minority Report, 37
CUMB. L. REV. 25 (2006-07).
4
DICK, supra note 2, at 324-25. As Mark Niles explains,
The precrime methodology depicted in the film is different from that in the book. Notably, in
the film, there is a limit to the detail of the information the precogs provide. They give the
Precrime officers the names of the murder victim and the assailant as well as the day and time
of the attack. Then, the Precrime officers review images of the precogs' visions projected on a
large computer screen. By manipulating and scrutinizing the images as if they were digital
video, the officers solve the future murder.
Mark C. Niles, Preempting Justice: "Precrime" in Fiction and in Fact, 9 SEATTLE J. SOC. JUST. 275, 287
(2010). Niles suggests that the difference is not just an aesthetic one to highlight the nature of visual media.
Rather, it mirrors the way that viewers often see a visual record of the commission of crimes as they are
portrayed on television. Id. at 288.
5
For the sake of clarity, we capitalize Precrime when referring to the fictional unit in Minority Report, but keep
the term in lower-case when used to refer to the potential predictive policing systems of the future.
6
DICK, supra note 2, at 326.
7
Id. at 352-54.
3
of governmental intelligence initiatives. “It depicts their conclusion that the risks inherent in a
precrime program are not justifiable if there is even a chance that the innocent are punished as
well as the guilty.”8 In the movie, Precrime is abandoned and all of those incarcerated as a result
of arrests made by Precrime are pardoned and released.
Few would argue that the end results of a successful precrime system—living in a safe world
with virtually no violent crime—are anything other than highly desirable. But Spielberg clearly
wants us to consider whether these desirable ends are justifiable when weighed against the
potential abrogation of the rights of free citizens—especially those who are identified by
Precrime as the presumed perpetrators of criminal activity.9 Importantly, this dilemma does not
merely pose an academic question. In fact, precrime systems somewhat similar to those
envisioned by Dick in the 1950s seem increasingly plausible today in light of the ever-evolving
technologies that support predictive policing—the use of technology to predict crimes before
they occur so that police may intervene proactively, rather than reactively.10
A. Contemporary Predictive Policing
In 2015, IBM produced a television commercial about using their software to reduce crime. It
depicts a would-be offender preparing to rob a convenience store, with frequent cuts to a police
officer reviewing crime analysis data. The police officer narrates the commercial with only 59
words:
8
Niles, supra note 4, at 294.
9
Spielberg on Spielberg (Turner Classic Movies television broadcast July 9, 2007),
http://www.youtube.com/watch?v=hAXFV6TvjJM.
10
See, e.g., Zach Friend, Predictive Policing: Using Technology to Reduce Crime, FBI L. ENFORCEMENT BULL.
(Apr. 2013), https://leb.fbi.gov/2013/april/predictive-policing-using-technology-to-reduce-crime; Walter L.
Perry, Brian McInnis, Carter C. Price, Susan C. Smith, & John S. Hollywood, Predictive Policing: The Role of
Crime Forecasting in Law Enforcement Operations (2013),
http://www.rand.org/content/dam/rand/pubs/research_reports/RR200/RR233/RAND_RR233.pdf.
4
I used to think my job was all about arrests . . . chasing bad guys. Now I see
my work differently. We analyze crime data, spot patterns, and figure out
where to send patrols. It’s helped some U.S. cities cut serious crime by up to
30 percent. By stopping it before it happens. Let’s build a smarter planet.11
The commercial ends with the would-be offender pulling into the convenience store parking lot
and getting out of his car only to find the officer there waiting for him. Robbery averted.
Although the commercial is fictional, it dramatizes how computer analytics is currently being
used to support predictive policing.12
According to the U.S. Department of Justice,
Predictive policing tries to harness the power of information, geospatial
technologies and evidence-based intervention models to reduce crime and
improve public safety. This two-pronged approach—applying advanced
analytics to various data sets, in conjunction with intervention models—can
move law enforcement from reacting to crimes into the realm of predicting
what and where something is likely to happen and deploying resources
accordingly.13
To be clear, predictive policing as it currently exists is far more accurately depicted in the
IBM television commercial than it is in science fiction. Indeed, like weather forecasting, we
11
IBM, Police Use Analytics to Reduce Crime, YOUTUBE (Dec. 3, 2015),
https://www.youtube.com/watch?v=5n2UjBO22EI.
12
As of the writing of this paper, IBM makes a distinction between predictive analytics and prescriptive analytics.
According to the IBM analytics website, the former utilizes “statistical analysis, predictive modeling, data
mining, text analytics, entity analytics, optimization, real-time scoring, machine learning and more” while the
latter makes “strategic decisions based not only on what has occurred or is likely to occur in the future, but
through targeted recommendations based on why and how things happen.” IBM, Advanced Analytics,
http://www.ibm.com/analytics/us/en/technology/advanced-analytics/ (last visited August 8, 2016).
13
U.S. Dep’t of Just, Predictive Policing ¶ 3, NIJ.COM, http://www.nij.gov/topics/law-
enforcement/strategies/predictive-policing/Pages/welcome.aspx.
5
might have a reasonably high degree of certainty in the data and the predictions derived from it,
but the predictions may still be wrong.14 Thus, contemporary predictive policing differs
significantly from the visions of the precogs in Minority Report in that computers do not actually
know the future. “Although much news coverage promotes the meme that predictive policing is a
crystal ball, these algorithms predict the risk of future events, not the events themselves.”15
Moreover, most of contemporary predictive policing is placed-based, drawing on crime data,
geography, weather information, consumer financial records, property records, and other data to
predict “where and when future crime is most likely to occur.”16 While some forms of person-
based predictive policing exists today, person-based predictive policing is far less developed than
place-based predictive policing.17 Yet, it is this latter type of prediction that we anticipate
growing in the future since it has already been piloted, in rudimentary forms, in several U.S.
cities,18 and, as the next section of this paper explains, researchers are already working on honing
algorithms that provide more accurate person-based predictions.19
14
For more information on how computers model weather using radar, satellites, and algorithms derived from a
range of scientific fields and past weather data that is written for the novice, see PAUL FLEISHER, DOPPLER
RADAR, SATELLITES, AND COMPUTER MODELS: THE SCIENCE OF WEATHER FORECASTING (2010). More a far
more complex examination, see IAN ROULSTONE & JOHN NORBURY, INVISIBLE IN THE STORM: THE ROLE OF
MATHEMATICS IN UNDERSTANDING WEATHER (2013).
15
Perry et al., supra note 10, at xix.
16
Is Predictive Policing the Law-Enforcement Tactic of the Future?, WALL ST. J. (Apr. 24, 2016),
http://www.wsj.com/articles/is-predictive-policing-the-law-enforcement-tactic-of-the-future-1461550190; see
also Sarah Brayne, Alex Rosenblat, & Danah Boyd, Predictive Policing. Data & Civil Rights: A New Era of
Policing and Justice, http://www.datacivilrights.org/pubs/2015-1027/Predictive_Policing.pdf.
17
See infra at Part II.B.
18
See, e.g., Matt Stroud, The Minority Report: Chicago's New Police Computer Predicts Crimes, but Is It Racist?,
THE VERGE (Feb. 19, 2014), http://www.theverge.com/2014/2/19/5419854/the-minority-report-this-computer-
predicts-crime-but-is-it-racist; Priscillia Hunt, Jessica Saunders, & John S. Hollywood, Evaluation of the
Shreveport Predictive Policing Experiment. Santa Monica, CA: Rand, available at
http://www.rand.org/content/dam/rand/pubs/research_reports/RR500/RR531/RAND_RR531.pdf (reporting that
the program in Shreveport, LA, did not generate statistically significant reductions in crime).
19
E.g., Paul Mcgorrery & Dawn Gilmore, Can We Predict Who Will Turn to Crime?, FORENSIC MAGAZINE (Aug.
2, 2016), http://www.forensicmag.com/news/2016/08/can-we-predict-who-will-turn-crime.
6
It should also be noted that even accurate predictions of crime do not automatically lead to
major reductions in crime; appropriate police responses are necessary to achieve that goal.20 But
in the not-too-distant future, might advances in technology render accurate predictions of crime a
reality, rather than the realm of science fiction?
B. From Predictive Policing to Precrime?
The August 2, 2016 edition of Forensic Magazine reproduced an article published the day
earlier in The Conversation entitled “Can We Predict Who Will Turn to Crime?”21 The opening
paragraph references Minority Report and then goes on to explain that University of
Pennsylvania Professor Richard Berk, a statistician and criminologist, has embarked on a
research project in Norway “to pre-classify some children as ‘likely criminals’” using computers
to develop algorithms that harness large data sets.22
The Norwegian government collects massive amounts of data about its
citizens and associates it with a single identification file. Berk hopes to crunch
the data from the files of children and their parents to see if he can predict
from the circumstances of their birth whether a child will commit a crime
before their 18th birthday.23
Berk’s current endeavor builds on his prior research that uses machine learning to improve a
variety of criminal justice risk assessment efforts.24 To date, Berk has been remarkably
20
Perry et al., supra note 10, at xx.
21
Mcgorrery & Gilmore, supra note 19.
22
Id. at ¶ 4.
23
Id. at ¶ 3.
24
See, e.g., Richard Berk, Asymmetric Loss Functions for Forecasting in Criminal Justice Settings, 27 J.
QUANTITATIVE CRIMINOLOGY 107 (2011); Richard A. Berk, Lawrence Sherman, Geoffrey Barnes, Ellen Kurtz,
& Lindsay Ahlman, Forecasting Murder within a Population of Probationers and Parolees: A High Stakes
Application of Statistical Learning, 172 J. ROYAL STATISTICAL SOC’Y 971 (2009); Richard Berk, Brian
Kriegler, & Jong-Ho Baek, Forecasting Dangerous Inmate Misconduct: An Application of Ensemble Statistical
7
successful at predicting low-risk individuals: “For example, he identified 89 [percent] of those
people unlikely to commit domestic violence, 97 percent of inmates unlikely to commit serious
misconduct in prison and 99 percent of past offenders unlikely to commit a homicide offence.”25
On the other hand, accurate predictions of high-risk people, however, have been largely
unsuccessful so far. But the Norway experiments might yield information that helps to improve
such predictions. Others will likely build on that research. It is not far outside the realm of
possibility that one day in the future, we may be able to accurately predict crimes before they
occur. In light of this possibility, the authors consider whether a true precrime system could exist
in harmony with the ideals of the U.S. justice system.
At the outset, we want to make it clear that this paper is premised on the potential
evolution—perhaps even the probable evolution—of current predictive policing to a terminus of
precrime. Such an outcome may never occur. But given the possibility of harnessing data to
predict future crimes, this paper advances arguments about the legal and moral implications of
such a scheme, especially in light of the relative low standards of proof necessary to support a
variety of police actions, including reasonable suspicion to stop, question, and perhaps even frisk
a suspect,26 and probable cause to conduct a search, seize evidence, or make an arrest.27 To do
so, Part II of this Article briefly summarizes the ways in which the criminal justice system
currently derives crime predictions and how technology might one day allow police to intervene
Procedures, 22 J. QUANTITATIVE CRIMINOLOGY 131 (2006); Richard Berk, Yan He, & Susan Sorenson,
Developing a Practical Forecasting Screener for Domestic Violence Incidents,” 29 EVALUATION REV. 358
(2005).
25
Mcgorrery & Gilmore, supra note 19, at ¶ 16; see also sources listed supra in note 24.
26
See generally MICHAEL D. WHITE & HENRY F. FRADELLA, STOP AND FRISK: THE USE AND ABUSE OF A
CONTROVERSIAL POLICE TACTIC (2016).
27
See generally PHILIP RAOUL TETU, PROBABLE CAUSE: BETWEEN THE POLICE OFFICER AND THE MAGISTRATE
(1995); BARBARA J. SHAPIRO, "BEYOND REASONABLE DOUBT" AND "PROBABLE CAUSE": HISTORICAL
PERSPECTIVES ON THE ANGLO-AMERICAN LAW OF EVIDENCE (1993).
8
before violent crimes are committed. Part III contemplates how a potential precrime system
would struggle to fit into the framework of inchoate crimes as they are currently defined. Part IV
examines some of the ways in which preventative detention is currently used in the United
States. And finally, Part V ruminates on how precrime and preemptive detention would
challenge current conceptualizations of constitutional rights (including contemporary notions of
privacy).
II. GETTING AHEAD OF CRIME USING TECHNOLOGY
In both the print and cinema versions of Minority Report, officers in the Precrime unit take
would-be criminals into police custody. These arrests constitute “seizures” within the meaning of
the Fourth Amendment.28 The Fourth Amendment requires that arrests be supported by probable
cause that a crime has been or is being committed.29 Moreover,
[t]he U.S. Supreme Court said that “the informed and deliberate
determinations of magistrates empowered to issue warrants…are to be
preferred over the hurried actions of officers…who may happen to make
arrests….” In other words, impartial judicial authorities are better suited to
determining probable cause than law enforcement officers who, in their
eagerness to enforce the law and investigate crime, may violate constitutional
rights.30
28
California v. Hodari D., 499 U.S. 621 (1991).
29
Michigan v. Summers, 452 U.S. 692 (1981).
30
JOHN R. FERDICO, HENRY F. FRADELLA, & CHRISTOPHER D. TOTTEN, CRIMINAL PROCEDURE FOR THE CRIMINAL
JUSTICE PROFESSIONAL 244 (2016).
9
Nonetheless, law enforcement officers may make warrantless arrests in certain situations, most
notably when there is probable cause to believe that the person being arrested is committing or
has committed a felony.31
In light of the Fourth Amendment and the case law interpreting it as it applies to arrests, the
actions of a precrime unit would likely be unlawful in the United States unless the predictive
powers of precrime functioned in ways that established probable cause for arrests. Although
seemingly implausible at first blush, a future iteration of predictive policing that harnesses the
power of big data—“vast troves of information that can be used by police such as databases that
capture criminal and driving history, biometric data, employment and housing records, spending
habits, and a wide range of other individually-specific behaviors or attributes”32—might meet the
probable cause standard in this context.33 This is not a speculative question stemming from
science fiction. We have already
entered the age of decision by algorithm—the computer application of
statistical formulas to large bodies of data to identify relationships or patterns.
This can be carried out through "data matching"—linking individuals with
data about them—or "data mining"—identifying people who fit a designated
computer-generated profile. In some sense, these computerized searches are
just higher-tech versions of long-standing investigative methods. Data
31
United States v. Watson, 423 U.S. 411 (1976). Note than an even lower burden of evidentiary proof—
reasonable suspicion—is necessary for police to stop and question people to determine if they are involved in
criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968); see also WHITE & FRADELLA, supra note 26, at ch. 2 &
3.
32
WHITE & FRADELLA, supra note 26, at 178.
33
See, e.g., Laura Myers, Allen Parris, and Alexis Williams, Big Data and the Fourth Amendment: Reducing
Overreliance on the Objectivity of Predictive Policing, 8 FED. CTS. L. REV. 231 (2015); cf. Andrew G.
Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. PA. L. REV. 327 (2015) (exploring the use of
“big data” to satisfy the Fourth Amendment’s reasonable suspicion standard for Terry stops and frisks).
10
matching harks back to techniques such as one-to-one fingerprint comparison
and the manual searching of court and other records. Countless detective
novels and movies depict the labors of the gumshoe in gathering pieces of
information and relating them to a suspect. Now, the investigator will likely
go online or tap into available databases. The assemblage of immense stores
of personal information in computer databases and the ability to search them
almost instantaneously, though, make data matching vastly more powerful
than earlier efforts.34
A brief review of some of the existing technologies used by police to establish probable cause to
arrest provides a good starting point for understanding where predictive policing may go in the
near future.
A. Imperfect Databases and Probable Cause
The National Crime Information Center (“NCIC”) database was established in 1967 and is
the central crime information database in the United States.35 Run by the Federal Bureau of
Investigation, NCIC is interlinked with the databases of a wide variety of justice agencies from
local to the federal level.36 This allows local, state, and federal law enforcement agencies to use
data in NCIC to establish probable cause to arrest suspects, although this practice is not without
long-standing controversy.37
34
Daniel J. Steinbock, Data Matching, Data Mining, and Due Process, 40 GA. L. REV. 1, 4 (2005).
35
See FBI National Crime Information Center website, https://www.fbi.gov/about-us/cjis/ncic/ncic_history.
36
Id.
37
See, e.g., Patrick Hand, Probable Cause Based on Inaccurate Computer Information: Taking Judicial Notice of
NCIC Operating Policies and Procedures, 10 FORDHAM URB. L.J. 494, 501 (1982).
11
Since the early 1970s, concerns over the inaccuracy of information stored in NCIC called
into question its legitimacy as a source of information that may establish probable cause.38
Similar concerns about inaccuracies in many national databases persist to this day—both for
those related to crime data39 and for other types of databases.40
[There are] numerous errors in government databases. “As technology
evolves, law enforcement officials are increasingly using a vast, cross-
referenced system of public and private databases, which contains numerous
errors.” In these inter-linked databases, one error can spread like a disease,
infecting every system it touches, plaguing the individual with false records
and undue suspicion.41
38
See Judith Rentschler, Comment, Garbage In, Gospel Out: Establishing Probable Cause through Computerized
Criminal Information Transmittals, 28 HASTINGS L.J. 509 (1976); Kenneth C. Laudon, Data Quality and Due
Process in Large Interorganizational Record Systems, 29 COMM. ACM 4 (Jan. 1986).
39
See, e.g., Robert Garcia, “Garbage In, Gospel Out”: Criminal Discovery, Computer Reliability, and the
Constitution, 38 UCLA L. REV. 1043, (1991); Bureau of Justice Statistics, Use and Management of Criminal
History Record Information: A Comprehensive Report, 2001 Update (2001),
http://www.bjs.gov/content/pub/ascii/umchri01.txt (explaining that although improvement had been made, a
multiplicity of factors impede the accuracy of databases tracking criminal offending); U.S. Dep’t Just., The
Attorney General’s Report on Criminal History Background Checks (2006),
https://cdn2.hubspot.net/hub/78380/file-294128238-
pdf/docs/attorney_generals_report_on_criminal_history_background_checks_-_june_2006.pdf; Joshua D.
Wright, The Constitutional Failure of Gang Databases, 2 STAN. J.C.R. & C.L. 115 (2005); see also Robert E.
Capwell, What Employers Need to Know about the FBI Criminal Records Database – Part 2, EBI'S SCREENING
NEWS NETWORK BLOG (Sept. 12, 2013), https://www.ebiinc.com/bid/95142/What-Employers-Need-to-Know-
about-the-FBI-Criminal-Records-Database-Part-2; Steve Friess, Why You Can’t Trust the Nation’s Frequently
Inaccurate, Terribly Organized Sex Offender Registries, HUFFINGTON POST: THE BLOG (May 1, 2016),
http://www.huffingtonpost.com/steve-friess/why-you-cant-trust-the-na_b_7173820.html (explaining that the
U.S. Department of Justice, which oversees the National Sex Offender Public Website, declaimed responsibility
for ensuring the accuracy of the data on the website);
40
See, e.g., William R. Hogan, & Michael M. Wagner, Accuracy of Data in Computer-based Patient Records, 4 J.
AM. MED. INFORM. ASSOC. 342 (1997) (reporting highly variable levels of accuracy in electronically-stored
patient records); Kathryn Elliott, The Who, What, Where, When, and Why of WHOIS: Privacy and Accuracy
Concerns of the WHOIS Database, 12 SMU SCI. & TECH. L. REV. 141 (2009) (explaining not only how
inaccurate the WHOIS database is, but also how criminal offenders exploit the system to for the purposes of
identity theft and financial fraud); Peter M. Shane, The Bureaucratic Due Process of Government Watch Lists,
75 GEO. WASH. L. REV. 804 (2007) (explaining the serious errors that plague terrorist watch lists).
41
Alex R. Hess, Herring v. United States: Are Errors in Government Databases Preventing Defendants from
Receiving Fair Trials?, 11 J. HIGH TECH. L. 129, 146-47 (2010) (internal citations omitted).
12
These issues raise important questions about using official databases to establish probable
cause.42 Thus far, however, the U.S. Supreme Court has been reluctant to require improved
accuracy in criminal databases.43 Quite the opposite, the Court’s decision in Herring v. United
States,44 which applied the good faith exception to the exclusionary rule to an arrest based on an
outstanding warrant that appeared in a database due to negligent recordkeeping, signals
acceptance of these errors absent a reckless pattern of reliance on an unreliable warrant system
containing systemic errors.45 In other words, “Herring not only provides no protection to victims
of government database errors or negligent police bookkeeping, it actually strips away a
fundamental judicial remedy historically used to protect these victims.”46
Errors like the one in Herring may be unique to relying on digital data, but certainly mistakes
are not. Law enforcement officers conducting more traditional forms of criminal investigations
make mistakes all the time by relying on what Professor Andrew Ferguson calls small data—
42
For discussions about a variety of limitations of different databases used in law enforcement, see Frederika A.
Kaestle, Ricky A. Kittles, Andrea L. Roth, & Edward J. Ungvarsky, Database Limitations on the Evidentiary
Value of Forensic Mitochondrial DNA Evidence, 43 AM. CRIM. L. REV. 53 (2006); Won Kim, On U.S.
Homeland Security and Database Technology, 16 J. DATABASE MGMT. 1 (2005); Kenneth C. Laudon, Data
Quality and Due Process in Large Interorganizational Record Systems, 29 COMM. ACM 4 (Jan. 1986); EILEEN
R. LARENCE, COMBATTING CHILD PORNOGRAPHY: STEPS ARE NEEDED TO ENSURE THAT TIPS TO LAW
ENFORCEMENT ARE USEFUL AND FORENSIC EXAMINATIONS ARE COST EFFECTIVE (2011); Rachel Lindsay,
Thomas Jackson, & Louise Cooke, Mobile Access to Information Systems in Law Enforcement: An Evaluation
of Its Implications for Data Quality, 13 ELEC. J. INFO. SYS. EVAL. 143 (2010); Laura Parker, Law Databases
Missing a Link, USA TODAY (Nov. 24, 2002), http://usatoday30.usatoday.com/tech/news/2002-11-24-database-
usat_x.htm.
43
Herring v. United States, 555 U.S. 135 (2009).
44
Herring, 555 U.S. at 147-48.
45
Id. at 146.
46
Hess, supra note 41, at 158. Herring could enable those in control of the data used by precrime units to abuse
their authority. Indeed, data could be manipulated to produce desired “predictions” that would enable police to
take people into custody for reasons that have nothing to do with an accurate prediction of criminal activity.
Logically, such a purposefully nefarious manipulation of data falls outside the scope of Herring’s holding,
which is limited to negligence. But that provides little comfort to those who worry about data tampering and the
corresponding havoc such actions would cause to civil rights and liberties.
13
“discrete facts, limited information, and little knowledge about the suspect.”47 Indeed, a range of
“cognitive roadblocks” from tunnel vision and confirmation bias to racism and implicit racial
biases all impact law enforcement officers’ abilities “to evaluate accurately the totality of the
circumstances in many cases.”48 In spite of the psychological factors that introduce human error
into the assessment of probable cause, the criminal justice system has relied upon data-matching
for quite some time as evidenced by the number of U.S. Supreme Court cases in which the stop
of a suspect was premised on a match to a predictive formula, such as a drug courier profile.49
More than a decade ago, Professor Daniel J. Steinbock argued that these cases—especially
Ornelas v. United States because it relied, in part, on a database of known and suspected drug
traffickers50—could be interpreted as supportive of the notion that reasonably reliable predictive
policing practices drawn from intelligence data could establish reasonable suspicion for Fourth
Amendment purposes.51 Indeed, a precrime system drawing on large volumes of data would
likely be a vast improvement over the low accuracy rates of New York City’s stop-and-frisk
program based on small data.52 These stops yielded confiscation rates for guns of 0.14 percent,
47
Ferguson, supra note 33, at 329.
48
Michael L. Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, 164 U. PA.
L. REV. 871, 899 (2016) (internal citations omitted); see also L. Song Richardson, Police Efficiency and the
Fourth Amendment, 87 IND. L.J. 1143 (2012); Ferguson, supra note 33, at 389-91; Henry F. Fradella, Weston J.
Morrow, & Michael D. White, Terry and SQF Viewed Through the Lens of the Suspicion Heuristic, 52 CRIM. L.
BULL. 871 (2016).
49
Steinbock, supra note 34, at 29 (citing Ornelas v. United States, 517 U.S. 690, 692 (1996); United States v.
Sokolow, 490 U.S. 1, 10 n.5, 13 (1989); INS v. Delgado, 466 U.S. 210, 215-17 (1984); Florida v. Royer, 460
U.S. 491, 497-501 (1983); Reid v. Georgia, 448 U.S. 438, 440 (1980); United States v. Mendenhall, 446 U.S.
544, 551-57 (1980)).
50
Ornelas, 517 U.S. at 694.
51
Steinbock, supra note 34, at 29-30; see also Ferguson, supra note 33, at 386-97.
52
See Delores Jones-Brown, Brett G. Stoudt, Brian Johnson, & Kevin Moran, Stop, Question, & Frisk Policing
Practices in New York City: A Primer 18 (rev. ed. 2013),
http://www.atlanticphilanthropies.org/app/uploads/2015/09/SQF_Primer_July_2013.pdf.
14
for knives and other weapons of 1.13 percent, and for other contraband of 1.7 percent.53 Put
differently, precrime data that allowed law enforcement officers to stop, question, and frisk
suspects who were armed or carrying contraband with greater than 2 percent accuracy would
represent an improvement.
With regard to searches, seizures, and arrests, Professor Steinbock noted that a “database
search containing sufficiently specific and credible information linking an individual to a past
crime can establish the necessary probable cause to arrest.”54 Computerized analyses of big data
would likely yield significant increases in the accuracy and efficiency of predictions of criminal
activity over these more traditional database searches.55 On the other hand, might the same
cognitive biases that affect small data decision-making also affect the programmers who develop
the algorithms that predict crime? If so, then precrime predictions using big data may suffer from
some of the same limitations as traditional police decision-making.56 Consider, for example, that
the Chicago Police Department deployed a computing system in 2014 that uses an algorithm
created by an engineer at the Illinois Institute of Technology to create a “‘heat list’—an index of
the roughly 400 people in the city of Chicago supposedly most likely to be involved in violent
crime.”57 Critics counter that the system masks racial profiling that is embedded into the
programming.58
53
Id. at 18.
54
Steinbock, supra note 34, at 32; see also Arizona v. Evans, 514 U.S. 1, 13-16 (1995) (holding that an arrest
prompted by a database search yielding an outstanding arrest warrant was valid even though the databased
contained inaccurate and outdated information); Herring, 555 U.S. at 147-48 (same).
55
Ferguson, supra note 33, at 386-97.
56
See sources supra at note 48.
57
Stroud, supra note 18, at ¶ 2.
58
Id. at ¶¶ 23–24.
15
Professor Steinbock provocatively suggested that even proof beyond a reasonable doubt
needed to support criminal convictions might be achieved using accurate data matching or data
mining techniques in the way that fingerprint and DNA matches currently do.59 But Steinbock
was careful to point out that
Criminal convictions are solely reactive in that they deal with past events.
Unlike surveillance and investigative searches or seizures, a conviction cannot
be imposed for crimes the defendant is projected to commit in the future. A
form of civil confinement for this reason is possible, though to my knowledge
no one has yet employed data mining results as a basis for such predictions of
future dangerousness.60
B. Other Imperfect Tools of Technology Used in Predictive Policing
Predictive policing already relies on a diverse range of computer analyses of data to identify
potential criminal activity. Computer mines “massive quantities of securities trading data and
notifies the Securities and Exchange Commission of investors who might be engaged in insider
trading.”61 Computers perform similar analyses of medical billing information to identify “likely
instances of fraud”62 and analytics of cash-register shortages and employee shifts to detect
59
Steinbock, supra note 34, at 36. Of course, the scientific validity and reliability of DNA is well established,
even though forensic DNA can be controversial in specific cases. See, e.g., William C. Thompson, Laurence D.
Mueller, & Dan E. Krane, Forensic DNA Statistics: Still Controversial in Some Cases, CHAMPION, Dec. 2012,
at 12. Before data from future predictive policing databases could be used as evidence in court, the validity and
reliability of the algorithm would presumably need to be similarly established under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993) and its progeny.
60
Id. at 36-37. Parts IV and V discuss the possibility of preventative detention of precrime detainees.
61
Rich, supra note 48, at 872 (citing Mary Jo White, Chair, SEC, Keynote Address at the 41st Annual Securities
Regulation Institute (Jan. 27, 2014), http://www.sec.gov/News/Speech/Detail/Speech/1370540677500).
62
Id. at 872, n.1 (citing Colin Caffrey, Can a Computer Read a Doctor's Mind? Whether Using Data Mining as
Proof in Healthcare Fraud Cases Is Consistent with the Law of Evidence, 30 N. ILL. U. L. REV. 509, 510-11
(2010)).
16
employee theft.63 “Computer systems connected to networks of video cameras alert police when
bags are abandoned on subway platforms, when people on a street corner interact multiple times
in a short period, or when a single individual visits multiple cars in a parking structure.”64
Modern predictive policing also relies on systems like Compstat to identify hotspots (i.e.,
locations with high criminal activity) using crime mapping software that draw on various police
databases.65 And Risk Terrain Modeling (RTM) reasonably predicts, with a certain level of
confidence, “the most likely places where crimes will emerge—even if they haven’t occurred
there already.”66 Granted, police currently use these tools to help place human and technological
resources in the locations where they are most likely to be able to deter crime, stop crime in
progress, or clear crimes via arrests soon after they occur. This constitutes a qualitatively
different type of policing than the fictionalized Precrime unit in Minority Report. But if
technology were to evolve such that databases could be used to accurately predict specific crimes
at specific times, perpetrated by specific individuals, a reasonable argument could be made that
such predictions more than satisfy the Fourth Amendment standard for probable cause—namely
63
Ed Burns, Retailers Are Mining Big Data to Help Stop Employee Theft, TECH TARGET (Jan. 2014),
http://searchbusinessanalytics.techtarget.com/feature/Retailers-are-mining-big-data-to-help-stop-employee-
theft/
64
Id. at 872 (citing Firetide, City of Chicago: Firetide Wireless Mesh Key to City-Wide Video Security
Development (2007), http://www.firetide.com/files/9014/0122/6078/City_of_Chicago.pdf; Russell Nichols,
Smart Cameras Aim to Stop Crimes Before They Occur, GOV'T TECH. (Oct. 26, 2010),
http://www.govtech.com/featured/Smart-Cameras-Aim-to-Stop-Crimes-Before-They-Occur.html; Diane
Cardwell, At Newark Airport, the Lights Are On, and They're Watching You, N.Y. TIMES (Feb. 17, 2014),
http://www.nytimes.com/2014/02/18/business/at-newark-airport-the-lights-are-on-and-theyre-watching-
you.html).
65
See Michael D. White, The New York City Police Department, Its Crime-Control Strategies and Organizational
Changes, 1970–2009, 31 JUST. Q. 74 (2014).
66
Joel M. Caplan, Leslie W. Kennedy, Eric L. Piza & Phillip Marotta, Risk Terrain Modeling for Strategic and
Tactical Action, 1 CRIME MAPPING & ANALYSIS NEWS 10, 12 (2014), http://crimemapping.info/article/risk-
terrain-modeling-strategic-tactical-action/; see also Joel M. Caplan, Leslie W. Kennedy, & Joel Miller, Risk
Terrain Modeling: Brokering Criminological Theory and GIS Methods for Crime Forecasting, 28 JUST. Q. 360
(2011).
17
that there is a “fair probability” that criminal activity is afoot.67 Ever-evolving technologies
suggest that such a system may soon be possible using big data. Consider the following:
The federal government has field tested a device that screens individuals and
predicts whether, based on physiological data, the individual intends to
commit a terrorist act. Researchers at Carnegie Mellon, funded by the Defense
Advanced Research Projects Agency, are developing computer systems to
index and analyze the text and images in online advertisements for sex
services to identify likely sex traffickers and their victims. While these current
technologies generally follow a comprehensible logic—looking for facts that
we understand to correlate with criminal conduct—technologies of the near
future will analyze more data than a human being could and unearth
connections that evade obvious logic. In other words, soon a computer may
spit out a person’s name, address, and social security number along with the
probability that the person is engaged in a certain criminal activity, with no
further explanation.68
C. Imperfect Informants and Probable Cause
Another way to conceive of big data’s potential role in predictive policing is to analogize its
status to that of an informant. It is not uncommon for informants to give police information about
67
See Illinois v. Gates, 462 U.S. 213 (1983).
68
Rich, supra note 48, at 872-73 (citing, inter alia, Sharon Weinberger, Terrorist "Pre-Crime" Detector Field
Tested in United States, NATURE (May 27, 2011),
http://www.nature.com/news/2011/110527/full/news.2011.323.html; Byron Spice, Carnegie Mellon Developing
Online Tools to Detect and Identify Sex Traffickers, CARNEGIE MELLON U. NEWS (Jan. 13, 2015),
http://www.cmu.edu/news/stories/archives/2015/january/detecting-sex-traffickers.html; Margaret Hu, Small
Data Surveillance v. Big Data Cybersurveillance, 42 PEPP. L. REV. 773 (2015); Tal Z. Zarsky, Transparent
Predictions, 2013 U. ILL. L. REV. 1503 (2013)).
18
crimes that have yet to be committed.69 If such tips prove to be reliable, police can intervene to
stop a crime from being committed. Indeed, police regularly use such tips to secure warrants.
When weighing the reliability of an informant’s tip, judges typically assess the credibility of the
informant’s information by examining “totality of circumstances.”70 This typically involves
checking on the basis of an informant’s knowledge (i.e., how the informant came to possess the
information regarding the crime) and the reasons for deeming that information credible enough
to constitute probable cause.71 Historically (and continuing to this day in a minority of U.S.
jurisdictions), this required the application of a two-pronged approach.72
To satisfy the first prong, law enforcement had to demonstrate how the informant acquired
his information so that an independent judicial officer could conclude that the information was
gathered reliably, or, alternatively, that there were significant details to establish that the
information was not based on a mere rumor or an assumption based on reputation.73
Although the predictions of the precogs in Minority Report included a significant number of
details concerning how particular people would commit particular crimes, the source of the
precogs’ ability lies within the realm of science fiction. The supernatural ability to “see” the
future would likely not meet the first-prong of the probable cause test as set forth in Aguilar v.
Texas or even the more relaxed standard articulated in Illinois v. Gates. And certainly today’s
69
See generally FERDICO, FRADELLA, & TOTTEN, supra note 30, 107–121; compare Aguilar v. Texas, 378 U.S.
108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), with Illinois v. Gates, 462 U.S. 213 (1983).
70
Gates, 462 U.S. at 233.
71
FERDICO, FRADELLA, & TOTTEN, supra note 30, at 117–18.
72
The modern approach under Gates is less mechanistic and, arguably, easier to satisfy that the Aguilar/Spinelli
approach. Because the latter represents a somewhat more exacting approach to probable cause determinations,
we analyze precrime under Aguilar/Spinelli since a finding of probable cause under Aguilar/Spinelli would
undoubtedly support a finding of probable cause under Gates. See FERDICO ET AL., supra note 30, at 107
(explaining that the underlying rationales of the Aguilar and /Spinelli decisions “retain their vitality in analyzing
the totality of the circumstances under Gates”).
73
Id. at 108 (citing Aguilar v. Texas, 378 U.S. 108 (1964)).
19
policing databases and techniques do not come close to the accuracy of the fictional precogs in
Minority Report. Compstat, RTM, and the like do little more than show where policing efforts
should be directed to prevent crimes; they do not predict when crimes will take place, much less
who the perpetrator of such crimes might be. But one day, a predictive analytics system could be
constructed using state-of-the-art crime mapping and statistical procedures that draw on volumes
of actual data concerning both crime and other activities (e.g., the location of particular suspects
as identified through facial recognition software, license plate scanners, real-time social network
monitoring, etc.).74 Predictions harnessing these data presumably would constitute sufficiently
reliable data sources to meet this first part of the traditional probable cause determination.75
The second prong of the Aguilar-Spinelli test involves demonstrating a sufficient basis to
assess the informant’s veracity or truthfulness.76 This is normally achieved through the process
of police corroborating key pieces of information provided by the informant.77 Professor Michael
Rich argues that the traditional corroboration of an informant’s tip provides far more reliable
insight into a suspect’s potentially criminal activities than any predictive algorithm could
because a corroborated tip provides particularized information which “suggests that the
informant has some inside knowledge of the suspect’s conduct and thus is more likely to be right
about the suspect’s illegal activities.”78 But truthfulness is the linchpin to an informant’s tip
under the second prong of Aguilar-Spinelli test; hence, a well-constructed predictive analytics
74
See, e.g., Elizabeth E. Joh, The New Surveillance Discretion: Automated Suspicion, Big Data, and Policing, 10
HARV. L. & POL'Y REV. 15 (2016) (discussing how big data technologies have already expanded traditional
police surveillance capabilities).
75
But see Rich, supra note 48, at 907–11 (rejecting such predictions as being analogous to the use of informants).
76
Id. at 108 (citing Aguilar v. Texas, 378 U.S. 108 (1964)).
77
Id.
78
Rich, supra note 48, at 911.
20
system assembled using reliable data and well-honed algorithms should be more than sufficient
to meet the relatively low evidentiary standard of probable cause. Moreover, it presumably
would offer the benefit of not being capable of lying in the way a human informant can. Still,
Professor Rich’s point is well taken, especially given the current limitations of predictive
algorithms. Even a highly reliable database is not necessarily inherently trustworthy, accurate, or
capable of producing particularized suspicion. But, as Professor Ferguson notes, as technologies
improve, predictive analytics is likely to yield detailed, “particularized information about a
suspect.”79 Thus, the future’s harnessing of big data in a manner that produces high levels of
predictive accuracy would be the key to its data satisfying the second prong of traditional
probable cause inquiries. What would be an acceptable error rate? Minority Report’s fictional
Precrime unit boasted a 99.8 percent accuracy rate; if such a rate were duplicated using a real
database, its credibility would be difficult to reject. But what if the error rate were 5, 10, or even
20 percent? Such error rates would also likely satisfy the probable cause standard considering
that dog sniffs do and we have little data to suggest the rate of false positives they produce,
especially since the error rate varies from dog to dog.80 But error rates of 10 or more percent
would likely be substantial enough to create reasonable doubt, thereby precluding most criminal
convictions, even for most inchoate crimes.
III. PRECRIME AND INCHOATE LIABILITY
In addition to being able to predict crimes with 99.8 percent accuracy, the fictional Precrime
unit in Minority Report is able to predict major crimes up to two weeks before they occur.
79
Ferguson, supra note 33, at 376, 386–89.
80
Rich, supra note 48, at 912 (a “drug dog's brain is like an [automated suspicion algorithm]: we know the inputs,
and we receive the outputs, but we cannot fully understand how the internal mechanism works”); see also
Illinois v. Caballes, 543 U.S. 405, 406 (2005).
21
Knowing about a crime two weeks in advance would no doubt be enormously beneficial to real
police forces. But in our criminal justice system, there is no “future murder” offense the way
there is in the fictional world of Minority Report. The closest offenses we have to “future”
crimes are the inchoate offenses of conspiracy and attempt.
A. Conspiracy
“A conspiracy is nothing more than an agreement—a meeting of the minds—with wrongful
intent. The object of the agreement must be the commission of an unlawful act, or the
commission of a lawful act by illegal means.”81 The target offense, however, need not be
completed or even attempted for conspiracy liability; the offense is complete with the formation
of the agreement with the requisite intent.
As with most crimes, the standards of criminal liability for conspiracy include at least two
elements in most jurisdictions:
1. An actus reus element consisting of an express or implied agreement to commit one
or more criminal offenses (or to commit a lawful act via illegal means);
2. A mens rea element of specific intent or purpose to commit the target offense(s).82
In most conspiracies, the actus reus consists of a bona-fide bilateral agreement between two or
more people. Many jurisdictions also accept so-called “unilateral agreements” in which at least
one party to the agreement honestly and reasonably believes that a bilateral agreement was
formed, even though the other party did not actually agree to participate in any criminal
81
HENRY F. FRADELLA, KEY CASES, COMMENTS AND QUESTIONS ON SUBSTANTIVE CRIMINAL LAW 119 (2000);
AM. JUR. 2D Criminal Law § 154 (2016)
82
Id.; see also MPC § 5.03(1); 16 AM. JUR. 2D Conspiracy §§ 2–15 (2016).
22
venture.83 In addition, some jurisdictions require proof of the performance of some overt act in
furtherance of the conspiracy.84
The broad nature of the offense of conspiracy opens the door for the crime to fit a large array
of circumstances. In fact, the Model Penal Code reinforces this definitional flexibility by
including the act of “planning” a crime, in addition to assisting in the actual performance of the
crime, as worthy of a conspiracy charge.85 Additionally, conspiracy charges may be filed even
after the target crime has been completed because the agreement is viewed as a distinct evil
worthy of punishment separate and apart from the commission (or attempts to commit) any
substantive crimes.86 Moreover, all parties to a conspiracy are liable for any criminal acts that
occur in furtherance of the conspiratorial objectives, regardless of their actual involvement in any
particular action.87
Conspiring—merely forming an agreement in the most basic sense—is often enough to
satisfy the requirements of a conspiracy charge. The lack of immediate danger posed by
conspiracy and the somewhat nebulous nature of these “agreements” make it an interesting
question for potential precrime policing. The prediction of a crime may occur well before or after
the action that constitutes an agreement between parties. In the event that a prediction is made
before the criminal agreement, a precrime unit would need to wait for such an agreement to be
made before action could be taken against defendants. Luckily, unlike in the case of waiting for
actions that satisfy the requirements for a conviction for attempt, there seems to be little risk in
83
See sources id.; see also Garcia v. State, 394 N.E.2d 106 (Ind. 1979).
84
16 AM. JUR. 2D Conspiracy § 15 (2016).
85
MPC § 5.03(1)(c) (1985).
86
87
16 AM. JUR. 2D Conspiracy § 20 (2016); see also Pinkerton v. United States, 328 U.S. 640 (1946).
23
waiting and no likely increase in immediate danger to potential victims. If, however, the
prediction of a crime is made after the criminal agreement has been made, precrime police units
would need to wait for a qualifying overt act to occur. Unlike with criminal attempts, however,
in most U.S. jurisdictions, any overt acts in furtherance of the conspiracy would suffice; those
acts need not constitute “substantial steps” toward the commission of a crime in the ways
required for attempt liability.88 In other words, precrime units could take preemptive action after
any overt act occurs to advance the conspiracy, even if that step occurs so far back in time as to
constitute mere preparation to commit an offense—a point in time that would be premature for
attempt liability.89
B. Attempt
Criminal liability for the crime of attempt generally requires proof of three elements:
1. A mens rea element of specific intent or purpose to commit some target offense;
2. An actus reus element consisting of some affirmative actions taken towards
successful commission of the target crime; and
3. An attendant circumstance of failing to commit the target offense.90
The actus reus element of the crime of attempt has always involved more than mere preparation.
At common law, the actor had to pass a threshold that constituted a point of no return, thereby
coming “dangerously close” to committing the target offense. The Model Penal Code relaxed
that standard a bit by looking not at how close the defendant had come to committing the target
crime, but rather how many steps the defendant had taken towards its commission.91 So long as
88
89
90
See FRADELLA, supra note 81, at 86–100; AM. JUR. 2D Criminal Law § 154 (2016).
91
MPC § 5.01(1)(c).
24
the defendant takes “substantial steps” toward the commission of a crime, and those steps are
“strongly corroborative of the actor’s criminal purpose,” then the actus reus element for the
crime of attempt is satisfied.92
By definition, the successful performance of a precrime unit would satisfy the attendant
circumstance element of the crime of attempt by thwarting the commission of the target crime.
But both the mens rea and actus reus elements could prove troublesome in any case in which a
precrime unit made a preventative arrest. Consider, for example, that in Minority Report, a two-
week advance notice of a crime might mean that the defendant had not taken substantial steps
that corroborate his or her intent to commit the target offense. But even if that were not the
case—even if a potential murderer had his hand on the trigger of a gun with the barrel pointed at
his intended victim—he could still change his mind. After all, this is exactly the factual outcome
(and moral lesson) of Minority Report. At common law and under the provisions of the Model
Penal Code, such a defendant would satisfy all of the elements of the crime of attempt; under the
Model Penal Code, however, the defendant might have the defense of abandonment (sometimes
called renunciation) available to him, assuming that he completely, effectively, and voluntarily
withdrew from the attempted murder for reasons unrelated to the arrival of precrime officers.93
Given this state of the criminal law, a precrime unit would be wise wait for suspects to take
substantial steps toward the commission of a crime that are strongly corroborative of mens rea.
But that defeats the whole purpose of a precrime unit being able to thwart attempts before
anyone is in real danger. Accordingly, criminal convictions for attempt ought not be the purpose
92
MPC § 501(2); see also FRADELLA, supra note 81, at 88; Robert Batey, Minority Report and the Law of
Attempt, 1 OHIO ST. J. CRIM. L. 689 (2004).
93
MODEL PENAL CODE § 5.01(4) (1985) (“When the actor’s conduct would otherwise constitute an attempt . . . , it
is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevent its commission,
under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
25
of a precrime unit that utilizes big data to predict criminal activity. Rather, a form of preventative
detention may be the better approach.
IV. CIVIL COMMITMENT, PREVENTATIVE DETENTION, AND PREEMPTIVE INCARCERATION
The U.S. system of criminal justice generally seeks to impose criminal punishment on those
who are morally blameworthy for their offenses. Thus, the criminal law excuses acts that would
ordinarily constitute a punishable criminal offense when such acts are committed under
circumstances without moral blameworthiness.94 Although there is a difference between moral
and legal blame, the two generally overlap for crimes that constitute gross violations of a
community’s moral code, known as mala in se crimes.95 In crimes such as murder, rape, or theft,
a person’s moral blameworthiness for having committed an inherently bad act forms the very
basis of the state’s legal authority ability to punish those who commit such offenses. But
precrime poses problems for imposing punishment outside of the traditional inchoate crimes
framework.
A. The Inapplicability of Punishment
Punishment is most simply defined as “a form of deprivation imposed on a person.”96 The
U.S. criminal justice system relies on four common justifications for imposing criminal
punishment on crime offenders: retribution, deterrence, incapacitation, and rehabilitation.97 To
94
See generally HENRY F. FRADELLA, FROM INSANITY TO DIMINISHED CAPACITY: MENTAL ILLNESS AND
CRIMINAL EXCUSE IN CONTEMPORARY AMERICAN LAW (2007); Weisberg, The Nature, Structure, and Function
of Heat of Passion/Provocation as a Criminal Defense: Essay in Response: the Values of Interdisciplinarity in
Homicide Law Reform, 43 U. MICH. J.L. REFORM 53 (2009).
95
See Peter Aranella, Convicting the Morally Blameless: Reassessing the Relationship between Legal and Moral
Accountability, 39 UCLA L. REV. 1511 (1992) [hereinafter “Aranella, Convicting the Morally Blameless”];
Peter Arenella, Character, Choice and Moral Agency: The Relevance of Character to Our Moral Culpability
Judgments, 7 SOC. PHIL. & POL'Y 59 (1990).
96
STEPHEN S. OWEN, HENRY F. FRADELLA, TOD W. BURKE, & JERRY W. JOPLIN, THE FOUNDATIONS OF CRIMINAL
JUSTICE 272 (2nd ed. 2015).
97
Id. at 274.
26
varying degrees, deterrence, rehabilitation, and incapacitation all embody principles of utilitarian
justice. The justifications are generally forward looking and aim to maximize the well-being of
society by using punishment as a means of not only incapacitating a criminal and preventing him
from continuing to commit crimes, but also by making an example of those who commit crimes
which damage the welfare of the society in hopes of deterring others from committing crimes as
well.98 Retributive justice, in contrast, looks backwards in an effort to punish criminals in
proportion to the wrongdoing that the criminal has performed.99
The United States does not take official stance sanctioning any particular theory to justify
punishing criminals. Indeed, all five theoretical justifications for punishment are employed in a
hodgepodge approach to sentencing and corrections in the United States, although the Model
Penal Code lists deterrence and rehabilitation as the two most important goals of criminal law
and punishment.100 The fact that the MPC has served as the basis for replacing or updating the
criminal laws of more than two-thirds of all U.S. states suggests that social utility notions
underlie the U.S. criminal justice system.101
Research suggests that most people agree with utilitarian justice principles, at least in the
abstract; when it comes to actually making punishment decisions, however, many people resort
to retributive justice notions.102 But this does not necessarily mean that revenge, just desserts, or
expiation permeate criminal justice thought. Consider that the U.S. justice system aims to punish
98
See Erik Luna, Psychopathy and Sentencing, in HANDBOOK ON PSYCHOPATHY AND LAW (Kent Kiehl & Walter
Sinnott-Armstrong eds. 2013).
99
See John Bronsteen, Retribution’s Role, 84 INDIANA L.J. 1129 (2009).
100
MODEL PENAL CODE § 1.02(2) (Official Draft and Revised Comments 1985) [hereinafter “MPC”].
101
See MARKUS DIRK DUBBER, AN INTRODUCTION TO THE MODEL PENAL CODE (2d ed. 2015).
102
Kevin M. Carlsmith, John M. Darley, & Paul H. Robinson, Why Do We Punish? Deterrence and Just Deserts as
Motives for Punishment, 83 J. PERSONALITY & SOC. PSYCHOL. 284 (2002).
27
those who are guilty in a morally blameworthy sense as evidenced by the widespread availability
of defenses of criminal excuse, such as infancy, mistake, duress, and diminished capacity.103 The
principle of blameworthiness does not logically follow from adherence to the most basic form of
utilitarianism.
Precrime ala Minority Report poses serious problems for both retributive and utilitarian
schools of thought. For example, wrongdoing is a necessary predicate for punishment for
retributivists.104 But a successful precrime system would prevent most crime from being
committed, leaving little cause for retributive punishment other than for inchoate offenses.105
With regard to utilitarian approaches, rehabilitation, incapacitation, and deterrence would
likely have strong relationships to declines in criminal activity in a precrime system.
Rehabilitation programs could be made offender- and offense-specific, leading to potential
growth in efficacy. Problems with contemporary incapacitation strategies have been in
identifying who actually would (versus who would not) commit future offenses, which has never
been that accurate a determination.106 But with an effective precrime system, that prediction
would be highly accurate, leading to the incapacitation of future offenders. Additionally,
deterrence would be nearly perfect in an accurate precrime system, like the one in Dick’s short
story, as it would be swift and certain.107 The key to making deterrence work in a precrime
103
See generally FRADELLA, supra note 94, passim.
104
Erik Luna, supra note 98, at 360.
105
The handling of inchoate crimes by precrime is discussed infra in PART III. It could be argued that the
punishments meted out for intended (but successfully averted) crimes could still reflect a retributive bent by the
public. But the imposition of punishment for thoughts of crime commission that fall short of inchoate offense
seems woefully premature to fall within a traditional revenge or “just desserts” philosophy.
106
For a detailed review of the shortcomings of incapacitation, see Doris Layton MacKenzie, Criminal Justice and
Crime Prevention, in LAWRENCE W. SHERMAN, DENISE GOTTFREDSON, DORIS MACKENZIE, JOHN ECK, PETER
REUTER, AND SHAWN BUSHWAY, PREVENTING CRIME: WHAT WORKS, WHAT DOESN'T, WHAT'S PROMISING ch.
9 (1997), available at https://www.ncjrs.gov/works/chapter9.htm.
107
Indeed, the utilitarian nature of precrime detention would likely have a highly deterrent effect for many rational
crimes. In criminology, rational choice theory, see Ronald L. Akers, Rational Choice, Deterrence, and Social
28
system would be to maximize social utility by detaining those planning to commit crimes, but
only if the period of detention were just long enough to prevent the crime from occurring. There
are a number of distinct ways in which this premise could be undermined and thereby undercut
the social utility of precrime deterrence.
First and most obviously, if the system for identifying would-be offenders were inaccurate,
then the innocent would be detained. Most would argue that the wrongful detention of innocent
people would significantly reduce the social utility of a precrime system.108
Second, assuming a highly accurate precrime prediction system, law enforcement officers
would need to act in a temporal “Goldilocks zone.” If they prematurely arrested people for mere
thoughts without corresponding actions, then social utility would not be maximized. Conversely,
if they waited too long to intervene, then social utility would also be negatively impacted
because criminal victimization would not have been prevented.
Learning Theory in Criminology: The Path Not Taken, J. CRIM. L. & CRIMINOLOGY 653 (1990), is premised on
putative criminal offenders engaging in a cost-benefit analysis akin to classical theory’s hedonistic calculus. See
Cesare Beccaria, On Crimes and Punishments, in ON CRIMES AND PUNISHMENTS, AND OTHER WRITINGS 1
(Richard Bellamy, ed., Richard Davies & Virginia Cox, trans., 1995) (1764); JEREMY BENTHAM, THE
PRINCIPLES OF MORALS AND LEGISLATION (Prometheus 1988) (1789). Simply put, this view of human agency
posits that people are rational beings empowered with free will. Bentham argued that people exercise their free
will based on a hedonistic calculus in which rationale beings seek to maximize pleasure and minimize pain. In
other words, when deciding on a course of action, people consider the potential for both the pleasure and the
pain an action would produce. If the pleasure outweighs the potential pain, Bentham argued that the person will
likely engage in the act. Conversely, if the potential pain outweighed the potential pleasure, a rationale person
would not engage in the act. Presumably, that cost-benefit equation can change right up to the moment before a
crime would be committed.
108
It should be noted, however, that a valid utilitarian argument could be made to support making an example of
someone—even if he or she were actually innocent—to advance general deterrence. If such actions were taken,
and further, if a greater number of people were effectively deterred from committing crimes because of the
detention of the exemplar, even though social utility is decreased by detaining an innocent person, a net amount
of positive social utility could be the result of crimes that are never committed. For detailed discussions of
general deterrence, see, e.g., DAVID M. KENNEDY, DETERRENCE AND CRIME PREVENTION: RECONSIDERING THE
PROSPECT OF SANCTION (2009); Ray Paternoster, The Deterrent Effect of the Perceived Certainty and Severity
of Punishment: A Review of the Evidence and Issues, 4 JUST. Q. 173 (1987); Greg Pogarsky, Identifying
“Deterrable” Offenders: Implications for Deterrence Research, 19 JUST. Q. 431 (2002); Travis C. Pratt, Francis
T. Cullen, Kristie R. Blevins, Leah E Daigle, & Tamara D. Madensen, The Empirical Status of Deterrence
Theory: A Meta-Analysis, in TAKING STOCK: THE STATUS OF CRIMINOLOGICAL THEORY (Francis T. Cullen,
John Paul Wright, & Kristie R. Blevins (eds. 2009).
29
Third, assuming a highly accurate precrime system both in terms of the prediction of crime
and the suppression of crime vis-à-vis timely action by law enforcement, the period of detention
would also need to fall into a “Goldilocks zone.” Specifically, the detention of would-be
offenders would have to be long enough to prevent them from committing their intended
offenses, but not any longer. As discussed in Part V, the preventative detention of people beyond
the period of time they pose any danger not only fails to serve social utility, but also violates due
process.109
Finally, and again assuming a precrime system that is highly accurate in terms of both
prediction and execution, the most salient threat that precrime poses to utilitarian justice involves
the caution at the heart of Spielberg’s movie adaptation of Minority Report: free will. The film
concludes with the lead character, John Anderton (played by Tom Cruise), choosing not to fulfill
the precogs’ prediction that he would kill after becoming aware that the prediction had been
made. In the absence of sufficient evidence of an inchoate offense like attempt or conspiracy, 110
punishing people for crimes they have yet to commit—and may never commit because they
might opt simply not to do so—does not maximize social utility; indeed, such a system would
challenge the philosophical foundations of criminal punishment. No rational actor would have
agreed to such terms under the social contract.111 Nonetheless, the U.S. legal system employs a
109
O’Connor v. Donaldson, 422 U.S. 563 (1975). Indeed, it is somewhat ironic that a Minority Report-type
precrime program could match a variety of punishment philosophies and yet violate constitutional law.
110
The handling of inchoate crimes by precrime is discussed infra in PART III.
111
Bentham and Beccaria were concerned with arbitrariness and cruelty of the criminal justice system of the time.
Given their views of humans as rational thinkers, criminal punishments at that time seemed incompatible with
people having voluntarily and rationally given up freedom to become a part of a social order in which torture
and arbitrariness was the rule. As reformists, they articulated a view of the state in which it played a highly
limited role in which it was “accorded only that power necessary to protect individuals' rights and liberties …
based on a consensus between rational citizens.” Jock Young, Thinking Seriously About Crime: Some Models of
Criminology, in CRIME AND SOCIETY: READINGS IN HISTORY AND THEORY 257 (Mike Fitzgerald, Gregor
McLennan & Jennie Pawson. eds., 1981). The consensus is often referred to as the social contract—a concept
30
number of procedures that limit people’s freedoms in ways that resemble punishment that
follows criminal convictions, but technically do not constitute punishment. These procedures, in
turn, suggest that approaching precrime from the perspective of preventative detention may
provide a path forward within the confines of existing jurisprudence.
B. Bail
Most bail decisions involve the weighing of factors that predict future dangerousness.112
Judicial officers in most jurisdictions make such decisions without the benefit of reliable and
formulated to explain the legitimacy of the state, the exercise of its civil and criminal regulatory power, and the
source of political obligation. See RICHARD KRAUT, SOCRATES AND THE STATE 91-114 (1984).
Social contract theory begins with humans in what Thomas Hobbes and John Locke called the State of Nature.
See THOMAS HOBBES, LEVIATHAN (1909 ed.) (1651), http://oll.libertyfund.org/titles/hobbes-leviathan-1909-ed;
JOHN LOCKE, SECOND TREATISE OF GOVERNMENT (C.B. McPherson ed. 1980) (1690),
https://www.gutenberg.org/files/7370/7370-h/7370-h.htm. In this state, all humans are equal and have complete
autonomy; no person has authority over another person. See Edward A. Harris, From Social Contract to
Hypothetical Agreement: Consent and the Obligation To Obey the Law, 92 COLUM. L. REV. 651, 657 (1992)
(citing THOMAS HOBBES, LEVIATHAN 63-66 (I, 13), 105 (II, 20) (J.M. Dent & Sons Ltd. 1914) (1651); John
Locke, The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil
Government, in TWO TREATISES OF GOVERNMENT, 265, 315, 330-51 (§§ 73, 95-126) (Peter Laslett ed. 1988)
(3d ed. 1698)). The State of Nature is a dangerous place since, with no person having authority over the next, it
is a chaotic environment in which every person is out only to protect himself or herself without any rules for
doing so. In the State of Nature, people need to meet their basic needs—food, water, shelter, and sleep—and
have the autonomy to do whatever is necessary to meet these needs. When two people want the same thing and
cannot use or enjoy it at the same time, “they become enemies; and in the way to their end ... endeavour to
destroy or subdue each other.” April L. Cherry, Social Contract Theory, Welfare Reform, Race, and the Male
Sex-Right, 75 OR. L. REV. 1037, 1045 (1996) (quoting THOMAS HOBBES, LEVIATHAN in INTRODUCTION TO
THOMAS HOBBES 183 (C.B. MacPherson, ed. 1981) (1651)).
Given this violence and the need for self-preservation, the logical end of existing in the State of Nature is the
extinction of the species unless some form of cooperation is developed to avoid that end. Keeping in mind the
premise of rationale decision-making, social contract theorists posit that humankind opted to relinquish some of
their autonomy so that they could not only avoid death, but also pursue other things in life protected from the
chaos in the State of Nature. HOBBES, supra note 111, at ch. XIV-XI; LOCKE, supra note 111, at ch. II. In doing
so, they formed the state. They gave up the power to do anything at any cost in exchange for the government to
provide stability and peace. To avoid going back to the State of Nature, each person has an obligation to obey
the rules set forth by the state. Correspondingly, the state has an obligation to protect its citizens by honoring
their freedoms and protecting their interests. The role of law in this social contract is to “promote the greatest
happiness shared among the greatest number.” BECCARIA, supra note 107, at 9. Not only, then, should law
represent the wishes of the majority, but also should ensure compliance with that consensus via punishment.
BECCARIA, supra note 107, at 8-10.
112
See DAVID W. NEUBAUER & HENRY F. FRADELLA, AMERICA’S COURTS AND THE CRIMINAL JUSTICE SYSTEM
271–77 (12th ed. 2016).
31
valid risk assessment data,113 although that began to change in the 1980s. For example, “bail
schedules” represent rudimentary schemas for predicting the future dangerousness of an arrestee
and the likelihood of the arrestee failing to appear for to scheduled court appearances.114 Since
that time, newer risk assessment instruments appear every few years to offer improved predictive
validity over risk assessment instruments previously in place.115 Consider that in 2013, Kentucky
implemented a statewide Public Safety Assessment Court that utilizes a “comprehensive,
universal risk assessment” instrument that can “accurately, quickly, and efficiently assess the risk
that a defendant will engage in violence, commit a new crime, or fail to come back to court.”116
An evaluation study of that effort revealed that the actuarial assessment of arrestees resulted in a
15 percent crime reduction “among defendants on pretrial release, while at the time increasing
the percentage of defendants who are released before trial.”117 The use of forensic risk
assessment of pretrial defendants to determine bail eligibility has expanded beyond Kentucky to
approximately 21 more U.S. jurisdictions.118
C. Involuntary Civil Commitment
The power of the state to remove dangerous people from society takes two forms. The first is
through the criminal processes that are a function of the state’s police power—the authority to
113
Id.
114
See, e.g., JOHN S. GOLDCAMP & MICHAEL R. GOTTFREDSON, POLICY GUIDELINES FOR BAIL: AN EXPERIMENT IN
COURT REFORM (1985).
115
E.g., Spurgeon Kennedy, Laura House, & Michael Williams, Using Research to Improve Pretrial Justice and
Public Safety: Results from PSA’s Risk Assessment Validation Project, 77 FEDERAL PROBATION 28 (2013).
116
Pretrial Justice Center for Courts, Public Safety Assessment-Court (PSA-Court),
http://www.ncsc.org/Microsites/PJCC/Home/Tools/Pretrial-Risk-Assessment/PSA-Court.aspx.
117
THE ARNOLD FOUNDATION, RESULTS FROM THE FIRST SIX MONTHS OF THE PUBLIC SAFETY ASSESSMENT –
COURT IN KENTUCKY 2 (2014), http://www.arnoldfoundation.org/wp-content/uploads/2014/02/PSA-Court-
Kentucky-6-Month-Report.pdf.
118
Shaila Dewan, Judges Replacing Conjecture with Formula for Bail, NY TIMES (June 26, 2015),
http://www.nytimes.com/2015/06/27/us/turning-the-granting-of-bail-into-a-science.html
32
provide for the public health, safety, welfare, and perhaps even the morality of the people.119 It is
through the exercise of the government’s police power that offenders are criminally punished in
an effort to produce justice. The second is the state’s parens patriae power. Translated from the
Latin for “the state as parent,” parens patriae authority originally stemmed from the duty of the
king to care for “certain classes of people who lacked parental care, such as neglected children
and incompetents.”120 In the United States, the parental role of the state refers to the
governmental authority to care for and protect “the well-being of its entire populace and its
economy.”121
Traditionally, the state exercises parens patriae authority in contexts in which the state acts
on the behalf of children or those with severe mental impairments who cannot care for
themselves. The U.S. Supreme Court’s decision in O’Connor v. Donaldson clarified that parens
patriae authority permits the state to involuntarily confine those who are both mentally ill and
dangerous.122 Notably, though, although the central holding of O’Connor v. Donaldson has been
repeatedly affirmed, the key terms of “mental illness” and “dangerousness” remain ambiguous
and open to such a wide-range of interpretation that U.S. states vary significantly in assessing not
only what qualifies as a mental illness for the purposes of involuntary civil commitment, but also
how dangerousness is assessed.123
119
See Santiago Legarre, The Historical Background of the Police Power, 9 U. PA. J. CONST. L. 745 (2007);
William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061,
1093-94 (1994).
120
Legarre, supra note 119, at 764.
121
Id. at 764, n. 106.
122
422 U.S. 563 (1975).
123
See ROBERT SCHUG & HENRY F. FRADELLA, MENTAL ILLNESS AND CRIME 474–80 (2014); see also Christopher
Slobogin, Rethinking Legally Relevant Mental Disorder, 29 OHIO N.U. L. REV. 497 (2003); Bruce J. Winick,
Ambiguities in the Legal Meaning and Significance of Mental Illness, 1 PSYCHOL., PUB. POL’Y, & L. 534
(1995).
33
Though diagnoses of mental illness are derived from the fields of psychology and psychiatry,
there hardly exists a scientific definition of “mental illness” within the law. Indeed, some
behavioral scientists, such as trained psychiatrist Thomas Szasz, dispute the existence of “mental
illness.”124 Nonetheless, most state’s civil commitment statutes share a common element of
significant impairment, whether it be from developmental disabilities, personality disorders,
substance abuse disorders, severe psychopathology.125
“Dangerousness” similarly suffers from a lack of clarity in meaning. O’Connor v. Donaldson
somewhat tautologically defined dangerousness as presenting a physical danger to oneself or
others.126 But since that time, determinations of dangerousness tend to employ three distinct
criteria concerning “the type of danger, the immediacy of the danger, and the likelihood of the
danger.”127
The type of danger refers to the category of the harm. Examples include
bodily harm, threat of bodily harm, and property damage. Immediacy
accounts for when the danger will occur. Some statutes, for example,
require “imminent” danger or danger in the “near future.” As these
forecasts project further into the future, uncertainty and the risk of error
increase. The likelihood of the danger refers to the accuracy of the
dangerousness prediction. Because studies have found that such
predictions are more accurate when based on prior overt acts, some states
124
Thomas S. Szasz, The Myth of Mental Illness, 15 AM. PSYCHOL. 113 (1960); THOMAS S. SZASZ, THE MYTH OF
MENTAL ILLNESS: FOUNDATIONS OF A THEORY OF PERSONAL CONDUCT (Harper-Perennial ed. 2010).
125
SCHUG & FRADELLA, supra note 123, at 474–80.
126
422 U.S. at 571.
127
SCHUG & FRADELLA, supra note 123, at 477.
34
require evidence of similar dangerous behavior in the respondent’s recent
past.128
But even terms like “imminent” are ambiguous; does “imminent” mean in the next few seconds,
minutes, or hours, or days? Because “imminent danger” was often interpreted very restrictively
in ways that may have contributed to some serious tragedies such as the Virginia Tech shooting,
some states have relaxed the need for some threat of harm to be nearly immediate and have
instead adopted statutory language requiring proof of a “significant risk” that in “the near future”
an individual will be a danger to others or his/herself.129 Still, how much is a “significant risk”?
How close in time is the “near future.” And how are such judgments made?
Although judges make civil commitment decisions, they typically base their judgments on
the testimony of psychologists, psychiatrists, and other clinical mental health professionals.130
These clinical evaluations of dangerousness have been historically inaccurate at alarming
levels.131 However, advances in forensic risk assessment have produced actuarially-derived
instruments, some of which offer promising levels of predictive validity.132 Although forensic
risk assessment has improved significantly in its ability to predict dangerousness, Yang, Wong,
and Coid warn that “[e]ven with a moderately accurate method of prediction, predicting low- or
128
Id. (quoting Christyne E. Ferris, Note, The Search for Due Process in Civil Commitment Hearings: How
Procedural Realities Have Altered Substantive Standards, 61 VAND. L. REV. 959, 966–67 (2008)).
129
Id. at 477–78.
130
Id. at 478.
131
Id. at 478 (citing JOHN MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR (1981); David Faust &
Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 SCI. 31 (1988); JOHN MONAHAN & HENRY J.
STEADMAN (EDS.), VIOLENCE AND MENTAL DISORDER (1994)).
132
Id. at 481 (citing Mary Ann Campbell, Sheila French, & Paul Gendreau, The Prediction of Violence in Adult
Offenders: A Meta-Analytic Comparison of Instruments and Methods of Assessment, 36 CRIM. JUST. & BEHAV.
567 (2009); Jay P. Singh, Martin Grann, & Seena Fazel, A Comparative Study of Violence Risk Assessment
Tools: A Systematic Review and Metaregression Analysis of 68 Studies Involving 25,980 Participants, 31 CLIN.
PSYCHOL. REV. 499 (2011)).
35
very-low-frequency events, such as serious violence … will inevitably result in a high false-
positive error rate.”133
D. Preventative Detention of Insanity Acquitees
Contrary to popular belief, when criminal defendants are found not guilty by reason of
insanity, they are rarely set free. “Between 84% and 95% of insanity acquittees are hospitalized
for treatment of their mental illness, often for periods of time that exceed the maximum period of
time for which they could have been imprisoned had they been convicted.”134 Their incarceration
occurs in secure mental hospitals, rather than correctional institutions. Such incarceration is not a
form a criminal punishment, but rather is “imposed for the dual purposes of providing treatment
to those adjudicated insane and protecting society from the risk of danger posed by such
people.”135 This represents a form of preventative detention that the U.S. Supreme Court has
upheld so long as the insanity acquittee remains both mentally ill and dangerous (whatever those
terms may mean).136
E. Preventative Detention of Sexually Violent Predators
Another form of preventative detention sanctioned by the U.S. Supreme Court concerns the
involuntary civil commitment of “sexually violent predators.” 137 Originating with the
Community Protection Act passed in the state of Washington in 1990 and later mimicked by
other jurisdictions before finally being upheld by the Supreme Court in Kansas v. Hendricks,138
133
Min Yang, Stephen C. P. Wong, & Jeremy Coid, The Efficacy of Violence Prediction: A Meta-Analytic
Comparison of Nine Risk Assessment Tools, 136 PSYCHOL. BULL. 740, 741 (2010).
134
SCHUG & FRADELLA, supra note 123, at 486 (citing Eric Silver, Carmen Cirincione, Henry J. Steadman,
Demythologizing Inaccurate Perceptions of the Insanity Defense, 18 LAW & HUM. BEHAV. 63 (1994)).
135
Id. (citing Jones v. United States, 463 U.S. 354 (1983)).
136
Foucha v. Louisiana, 504 U.S. 71 (1992).
137
Kansas v. Hendricks, 521 U.S. 346 (1997).
138
Id.
36
sexually violent predator laws were passed that “authorize the indefinite civil commitment of
sexually violent predators after their release from prison, provided that they suffer from a mental
abnormality or personality disorder that makes them likely to engage in future sexually violent
acts.”139 The power of the state to involuntarily hospitalize individuals was even further
expanded with the passage of the Adam Walsh Child Safety and Protection Act in 2006.140 One
of the provisions of this Act effectively made it possible to impose preventative detention on
people, subsequent to their release from criminal custody, upon a finding that they are dangerous
sexual predators “even though they were never convicted of, or even charged with, a sex
crime.”141 The U.S. Supreme Court upheld the Adam Walsh Act as a constitutional exercise of
congressional authority in United States v. Comstock, although it did not specifically consider the
constitutionality of the provision that expanded the class of persons that may be held in
preventative detention under federal law.142 To date, lower courts have reached differing
conclusions on the constitutionality of that specific provision, suggesting that the U.S. Supreme
139
Tamara Rice Lave, Throwing Away the Key: Has the Adam Walsh Act Lowered the Threshold for Sexually
Violent Predator Commitments Too Far?, 14 U. PA. J. CONST. L. 391 (2011).
140
Pub. L. 109–248, 20 Stat. 587 (July 27, 2006) (codified as amended at 8 U.S.C. §§ 4247–48 (2015)).
141
Lave, supra note 139, at 408. Technically, the statute authorizes federal authorities
to divert someone to a sex offender detention facility if: (1) he or she was “in the custody of
the Bureau of Prisons”; (2) “the Attorney General or any individual authorized by the
Attorney General or the Director of the Bureau of Prisons [certified] that the person is a
sexually dangerous person”; and (3) “after the hearing, the court finds by clear and convincing
evidence that the person is a sexually dangerous person.” To prove that a person was
“sexually dangerous,” the Government needed to show that “a person [had] engaged or
attempted to engage in sexually violent conduct or child molestation and . . . suffers from a
serious mental illness, abnormality, or disorder as a result of which he would have serious
difficulty in refraining from sexually violent conduct or child molestation if released.”
Corey Rayburn Yung, Sex Offender Exceptionalism and Preventive Detention, 101 J. CRIM. L. & CRIMINOLOGY
969, 978 (2011).
142
560 U.S. 126 (2010).
37
Court “may need to adjudicate the constitutionality of preempted incarceration on due process
grounds soon.”143
F. Preventative Detention of Enemy Combatants
In the wake of the September 11, 2001 terrorist attacks, Congress enacted an “Authorization
for Use of Military Force”144 (“AUMF”) to retaliate against terrorists and prevent future acts of
terrorism.145 Pursuant to this grant of authority, former president George W. Bush signed an
executive order authorizing the indefinite detention and military trial of people who are
suspected terrorists at “an appropriate location” outside of the United States as determined by the
U.S. secretary of defense.146 Although the U.S. courts have held that certain judicial processes
must be in place to review the legality of the detentions of suspected enemy combatants,147 the
federal courts have continued to uphold the legality of the detention of suspected enemy
combatants at Guantanamo Bay, Cuba, and elsewhere under the AUMF, Section 412 of the USA
143
SCHUG & FRADELLA, supra note 123, at 489.
144
Pub. L. 107–40, 115 Stat. 224 (Sept. 14, 2001).
145
For a discussion of the implications of this and subsequent authorizations for the use of military force against
terrorists and the executive actions ostensibly taken pursuant to them, compare Jordan J. Paust, Symposium:
Terrorism: The Legal Implications of the Response to September 11, 2001: Use of Armed Force against
Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT'L L.J. 533 (2002), with William S. Castle,
National Security and the Separation of Power: The Argument for a New and Flexible Authorization for the Use
of Military Force, 38 HARV. J.L. & PUB. POL'Y 509 (2015).
146
See Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism, 3 C.F.R. § 918
(2002).
147
See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that enemy combatants who are U.S. citizens have
the right to have their detentions reviewed by an impartial judge as part of the guarantees of both due process
and habeas corpus); Rasul v. Bush, 542 U.S. 466 (2004) (holding that non-U.S. citizens held at Guantanamo
also have the right to use habeas corpus to have U.S. federal courts review the legality of their detentions as
enemy combatants); Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (invalidating ex parte military tribunals as the
mechanism for reviewing the legality of enemy combatant detentions); Boumediene v. Bush, 553 U.S. 723
(2008) (invalidating the suspension of habeas corpus for enemy combatants).
38
PATRIOT Act,148 and subsequent legislation149 to this day.150 Put differently, when there are
reasonable grounds to believe certain people have been involved in terrorist activities, U.S. law
permits them to be detained indefinitely as enemy combatants even though there may be
insufficient evidence to obtain a conviction in a court of law for any crimes related to such
activity.
G. Summary
The above-summarized forms of preventative detention—from involuntary civil
commitments designed to rehabilitate and care for individuals who pose a risk of danger to
themselves and others, to potential life detention for individuals who “attempted to engage in
sexually violent conduct or child molestation” and suffers from some “mental illness,
abnormality, or disorder” that causes “serious difficulty in refraining from sexually violent
conduct or child molestation if released”—seem to portend the possibility of an even more
extreme method of preventive detention, namely preemptive incarceration. If a precrime unit
were able to harness the power of big data in real-time crime centers with reliable, accurate
predictive algorithms,151 might we one day reach a point when evidentiary and due process
concerns are sufficiently ameliorated by the reliability and validity of data-based crime
predictions?
148
Pub. L. 107–56, title IV, § 412(a), 115 Stat. 350 (Oct. 26, 2001) (codified as amended at 8 U.S.C § 1226a).
149
E.g., National Defense Authorization Act, Pub. L. No. 112-239, 126 Stat. 1913 (Jan. 2, 2013).
150
See, e.g., Gov’t Filing, In re: Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (D.D.C. March 13, 2009);
Al-Bihani v. Obama, 2010 WL 10411 at *3 (D.C. Cir. Jan. 5, 2010); Janko v. Gates, 741 F.3d 136, 138 (D.C.
Cir. 2014).
151
See Joseph D’Amico, Stopping Crime in Real Time, 73 POLICE CHIEF (Sept. 2006),
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=995&issue_id=
92006.
39
V. CONCLUSION
The January 2012 of Scientific American published an article by James Vlahos entitled “The
Department of Pre-Crime.”152 In it, he discussed how the City of Memphis, Tennessee, had used
a predictive policing system called “Blue CRUSH” to lower crime rates by 26 percent over an
approximately five-year period of time. Memphis is not alone.153 Data-driven predictive policing
is a “present day reality” according to a book entitled Pre-crime.154 Indeed, we routinely employ
analyses of big data to design counter-terrorism measures like the No Fly List.155 Some
commentators suggest that we are in the midst of a “temporal shift in crime control” that focuses
in prevention, perhaps without sufficient restraints.156 As technology improves and big data
grows, it is reasonable to assume that even more emphasis will be placed on the accurate
prediction of crime and its subsequent prevention by law enforcement.
A. Human Agency and the Limits of Precrime Predictive Policing
Even in a world with effective, accurate, transparent, data-driven precrime police units,
there will always be crimes that escape the abilities of predictive analytics. The example in
Minority Report—a killing upon the sudden discovery of adultery—serves as an excellent
example. Crimes of passion are not likely predictable, and therefore preventable, for a precrime
unit. Predictive analytics depend on patterns in data. Crimes that follow distinct patterns and
152
James Vlahos, The Department of Pre-Crime, 306 SCI. AM. 62 (2012).
153
See, e.g., G. O. Mohler, M. B. Short, Sean Malinowski, Mark Johnson, George E. Tita, Andrea L. Bertozzi & P.
J. Brantingham, Randomized Controlled Field Trials of Predictive Policing, 110 J. AM. STATISTICAL ASS’N
1399 (2015); see also Nadeem Badshah, “Pre-Crime” Predictions, EASTERN EYE (Oct. 18, 2013), at 4.
154
JUDE MCCULLOCH & DEAN WILSON, PRE-CRIME: PRE-EMOTION, PRECAUTION, AND THE FUTURE (2015).
155
Jennifer C. Daskal, Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention, 99 CORNELL L.
REV. 327 (2013-2014); Phil Palmer, Dealing with the Exceptional: Pre-Crime Anti-Terrorism Policy and
Practice, 22 POLICING & SOC’Y 519 (2012).
156
Lucia Zedner, Pre-Crime and Pre-Punishment: A Health Warning, 81 CRIM. JUST. MATTERS 24 (2010); see
also Radley Balko, Pre-Crime Policing, 42 REASON 42 (2010).
40
produce consistent data—like some property crimes which tend to occur in specific geographic
and economic environments—are probably the most predictable of criminal offenses.157 Crimes
of passion occur without preparation and are, therefore, unlikely to manifest themselves in any
patterns upon which a predictive analytics system may discern.158 In other words, human agency
renders some crime beyond prediction by even the most reliable data. Conversely, the moral of
Minority Report cautions that even predictable human behavior, including select crime, might
not occur as predicted. Indeed, human agency leaves open the very real possibility that even
someone who conspired to commit a crime and then took substantial steps towards its
commission might voluntarily and completely abandon his crime.159 So while an effective
precrime system may reduce crime considerably, and perhaps in doing so, increase the overall
social welfare of a community, it is important to consider that although crime is preventable to
some degree, it would not be possible to eradicate crime entirely.
B. Potential Obstacles to a Big Data Policing Predictive Analytics System
Information often considered private—information derived from our consumer habits or our
communications with others—would be crucial in developing comprehensive profiles of
potential criminal offenses and offenders. Acquiring such data, however, would likely not be
possible without the complicity of private enterprises that often have goals that are inconsistent
157
See Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion, 62 EMORY L.J. 259 (2012). For a
comprehensive exploration of how physical space and rationale choice theory interact to explain and even
predict crime, see RICHARD WORTLEY & LORRAINE MAZEROLLE, ENVIRONMENTAL CRIMINOLOGY AND CRIME
ANALYSIS (2011).
158
Monica Rozenfeld, The Future of Crime Prevention: Big Data Can Stop Criminals in Their Tracks, THE
INSTITUTE (Sept. 14, 2014), http://theinstitute.ieee.org/technology-focus/technology-topic/the-future-of-crime-
prevention.
159
MODEL PENAL CODE § 5.01(4) (1985).
41
with government surveillance, such as consumer privacy and providing an appealing product.160
(Interestingly, this very conundrum forms one of the secondary plotlines in the 2016 movie,
Jason Bourne).161 Without receiving a benefit that would outweigh the potentially damaging
effects of sharing customer data, big data entities such as Google would not likely contribute to
the creation of database that predicts crime. Consider, for example, that Apple resisted working
with the FBI to unlock the iPhone of a detained terrorist on the grounds that such aid might open
the door to continued breaches of customer security.162 Without open data sharing, either the
scope or reliability of person-based crime predictions is likely to suffer.
Is there perhaps an inherent wrong in the possession of data for the purposes of surveillance
that might detriment social welfare too? In amalgamating as much data as possible, does the
government not at the very least blur the line between its responsibility to protect citizens and its
responsibility to respect their privacy?163 The USA PATRIOT Act, which enabled the
government to enhance its surveillance abilities in an effort to prevent terror, came with an
expiration that was intended to ensure that privacy would as we knew it would be restored.164
This prioritization of our privacy demonstrates the value of privacy to American citizens. A
database that is too invasive or too expansive may lower social welfare just by existing. Consider
160
See, e.g., Lev Grossman, Inside Apple CEO Tim Cook’s Fight with the FBI, TIME (March 17, 2016),
http://time.com/4262480/tim-cook-apple-fbi-2/.
161
The movie Jason Bourne revolves, in part, around the professional relationship between the head of the CIA
and the Bourne-universe equivalent of Mark Zuckerberg. Specifically, this plotline involves the push and pull
between their respective organizations in trying to utilize data gathered from this hugely popular social network.
The head of the social network fears that that the widespread discovery of his company’s complicity with the
CIA would result in the devastation of the public’s trust in social media.
162
Id.
163
See, e.g., Christine S. Scott-Hayward, Henry F. Fradella, & Ryan G. Fischer, Does Privacy Require Secrecy?
Societal Expectations of Privacy in the Digital Age, 43 AM. J. CRIM. L. 19 (2016).
164
Pub. L. 107−56, 115 Stat. 272 (October 26, 2001) (codified as amended at scattered sections of the U.S. Code).
42
the NSA wiretapping scandal.165 On one hand, the program showed that the government is more
than willing to gather mass amounts of data in the name of security.166 On the other hand, the
outcry that occurred in the wake of the public learning of the NSA wiretapping program
ultimately led to the program’s demise,167 suggesting that privacy remains an important value in
both U.S. law and politics.168
C. New Problems in Policing
The creation of a precrime unit would introduce new variables into the behavior of police
officers. Minority Report presents the scenario in which a Precrime officer is identified as the
perpetrator of future crime, but he is in the position of covering-up this information. Outside the
realm of fiction, a serious question concerning whether—and if so, how—police with access to
incredibly powerful predictive analytics might leverage such data for their own benefit. There is
no way to know how officers assigned to a precrime would behave—yet another example of how
human agency complicates the prediction of human behavior. Given that the law enforcement
profession is marred by incidents of unprofessionalism that ranges from minor forms of
misconduct to major police corruption (even criminality such as the unjustified use of excessive
force), it is reasonable to expect that some new forms of police misconduct attendant to precrime
165
See, e.g., Austen D. Givens, The NSA Surveillance Controversy: How the Ratchet Effect Can Impact Anti-
Terrorism Laws, HARV. NAT’L SECURITY J. (July 2, 2013), http://harvardnsj.org/2013/07/the-nsa-surveillance-
controversy-how-the-ratchet-effect-can-impact-anti-terrorism-laws/.
166
For an interesting discussion of how the gathering of such data both serves and undermines legitimate
governmental interests and operations, see Arwen Mullikin & Syed M. Rahman, The Ethical Dilemma of the
USA Government Wiretapping, 2 INT’L J. MANAGING INFO. TECH. 32 (2010); see also Neil M. Richards, The
Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013).
167
See Charlie Savage & James Risen, Federal Judge Finds N.S.A. Wiretaps Were Illegal, NY TIMES (March 31,
2010), at A1.
168
Scott-Hayward, Fradella, & Fischer, supra note 163, at 52–57; see also Susan Landau, Making Sense from
Snowden: What’s Significant in the NSA Surveillance Revelations, IEEE SEC. & PRIVACY (July/Aug. 2013), at
54.
43
data would occur.169 Over time, prediction methods might improve in ways that allow us to
predict which police officers are best suited to work in a precrime unit, but given how poor we
are now at predicting who will be a good police officer and who will not, there is clearly a long
way to go.170
The limitations of predictive policing and the application of precrime seem to arise from the
fallibility inherent in human beings themselves. Perhaps Philip Dick knew that the cessation of
criminal activity and harm to one another was beyond mere human capacity. After all, the
precogs responsible for predicting crimes were something beyond human—mutants whose
physical appearance and transcendent mental abilities made them distinctly non-human. Was
Dick suggesting that humans will never be able to fully and accurately predict their own
behavior?
D. Precrime and the Constitution
Precrime policing that harnesses the power of big data presents the potential of threatening
the protections of the Fourth Amendment, especially as they apply to particularized suspicion.171
169
See ALLYSON COLLINS, SHIELDED FROM JUSTICE: POLICE BRUTALITY AND ACCOUNTABILITY IN THE UNITED
STATES (1998); SAMUEL E. WALKER & CAROL A. ARCHBOLD, THE NEW WORLD OF POLICE ACCOUNTABILITY
(2d ed. 2013).
170
The limitations of the behavioral sciences to predict who poses a risk to society is not limited to the realm of
police hiring. Numerous studies assessing psychological risk assessments of dangerousness indicate that they
were incorrect two out of three times, yielding an error rate worse than that predicted by chance. See, e.g.,
David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 SCI. 31 (1988); JOHN
MONAHAN, THE CLINICAL PREDICTION OF VIOLENT BEHAVIOR (1981); JOHN MONAHAN & HENRY STEADMAN,
VIOLENCE AND MENTAL DISORDER: DEVELOPMENTS IN RISK ASSESSMENT (1994). Although the behavioral
science of risk assessment has improved significantly with actuarial-derived instruments that take into account
both static and dynamic factors, the prediction of dangerousness remains an inexact science. See Mary Ann
Campbell, Sheila French, & Paul Gendreau, The Prediction of Violence in Adult Offenders: A Meta-Analytic
Comparison of Instruments and Methods of Assessment, 36 CRIM. JUST. & BEHAV. 567 (2009); see generally
Schug & Fradella, supra note 123, at 478–86.
171
Maryland v. Pringle, 540 U.S. 366, 371 (2003) ("Belief of guilt must be particularized with respect to the person
to be searched or seized"); see also United States v. Cortez, 449 U.S. 411, 418 (1981).
44
Although the “precise contours of the individualized suspicion requirement are unclear,”172 there
is reason to worry that precrime’s potential erosion of Fourth Amendment protections will
disproportionally impact communities in the lower socio-economic strata.173 As it is, the law
currently has a difficult time keeping pace with technology and adapting for the preservation of
privacy.174 Judicial decisions have further compromised the privacy of people in predominantly
low-income, minority neighborhoods. In Illinois v. Wardlow, for example, the U.S. Supreme
Court explicitly declared that the designation of a neighborhood as a “high-crime area” could
serve as a factor in establishing reasonable suspicion for a Terry stop.175 However, the term
“high-crime area” has never been clearly defined. Jurisdictions across the United States have
struggled to apply the term with any consistency. Though some courts require empirical data to
suggest that an area might be described as “high-crime,” others simply defer to subjective
characterizations made by police officers.176 To safeguard constitutional protections from
predictive policing tactics, “mandatory uniform standards and best practices must be established
to ensure that the information produced by predictive policing technologies is fair, accurate,
reliable, and transparent.”177 Moreover, as Professor Rich suggested, when assessing precrime
data as part of the totality of the circumstances for a stop, search, or seizure, “courts could focus
172
Rich, supra note 48, at 387, n. 107 (citing Jane Bambauer, Hassle, 113 MICH. L. REV. 461, 468-80 (2015)
(laying out various explanatory theories of individualized suspicion)).
173
See Kelly K. Koss, Leveraging Predictive Policing Algorithms to Restore Fourth Amendment Protections in
High-Crime Areas in a Post-Wardlow World, 90 CHI.-KENT L. REV. 301 (2015).
174
Monu Bedi, Social Networks, Government Surveillance, and the Fourth Amendment Mosaic Theory, 94 B.U. L.
REV. 1809 (2014).
175
528 U.S. 119 (2000).
176
Koss, supra note 173, at 303-04 (citing Andrew Guthrie Ferguson & Damien Bernache, The "High-Crime Area"
Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion
Analysis, 57 AM. U. L. REV. 1587, 1607-08 (2008)).
177
Id. at 327.
45
on the precision of the data, in terms of place and time, to observe how the data correlate with
the predicted suspicion.”178 To date, however, no such standards or practices exist.
Despite the possibility of some kind of precrime to exist within the letter of the law, precrime
seems at odds with the goals of our criminal justice system, especially the principles of
culpability and due process.179 Yet, it is clear that the civil detention of potentially dangerous
people to prevent them from committing criminal offense in the future serves the ends of social
utility within the boundaries of the U.S. Constitution, as the preventative detention of
dangerousness, mentally ill people illustrates.180 Might temporary civil detentions effectuated by
precrime units upon showings of data-driven probable cause similarly serve the goals of social
utility and due process?181 After all, law enforcement officers are empowered to temporarily
detain people who appear mentally ill and dangerous for periods of 48 to 72 hours in order for
mental health professionals to make a determination about whether the state should seek
involuntary civil commitment of such individuals. Of course, mental illness is the key to such
temporary holds, but there is nothing magical about mental illness and the constitutionality of
preventative detention. As previously discussed, statutory law also authorizes the preventive
detention of suspected terrorists182 and the pretrial detention of those facing criminal charges, but
not yet convicted of any offense.183 Additionally, the law permits immigration detentions of
178
Rich, supra note 48, at 407.
179
See generally George P. Fletcher, Criminal Theory in the Twentieth Century, 2 THEORETICAL INQ. L. 265
(2001); MICHAEL S. MOORE, PLACING BLAME: A THEORY OF THE CRIMINAL LAW (1997).
180
See PART V, supra.
181
See, e g., ARIZ. REV. STAT. § 36-524; CAL. WELFARE & INSTITUTIONS CODE § 5150
182
See, e.g., David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 CALIF. L.
REV. 693, 700 (2009).
183
See, e.g., Laura I. Appleman, Justice in the Shadowlands: Pretrial Detention, Punishment, & the Sixth
Amendment, 69 WASH & LEE L. REV. 1297 (2012).
46
those awaiting deportation hearings,184 and even the detention of material witnesses who are not
facing any charges.185 Indeed, laws at the federal, state, and local levels provide broad authority
to place people in protective custody, ranging from the quarantine of people who have
communicable diseases to the short-term detention of “the intoxicated, alcoholics, drug addicts,
the homeless, and pregnant drug users.”186 These laws have led some legal commentators to
conclude that U.S. law generally eschews preventative detention “except where legislatures and
courts deem it necessary to prevent grave public harms.”187
The unifying theme is that the law unsentimentally permits preventive
detention where necessary but insists upon adequate means—and the means
vary according to the detention’s purpose— of insuring both the accuracy of
individual detention judgments and the necessity of those detentions.
Necessity is not, in American practice, a static determination over time. . . .
[S]ome detention authorities shrink as circumstances change. Others expand.
The doctrine has a way of following society’s perception of necessity at
particular moments in time. At any given time, the permissible bounds of
184
See 8 U.S.C. § 1231(a)(6). But see Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that although
preventative detention of a deportable alien is constitutionally permissible, the length of detention must be
reasonable and, therefore, may not be indefinite).
185
See 18 U.S.C. § 3144. Notably, this statute places no specific time limits on the detention of material witnesses.
Thus, the statute does not, on its face, prevent a witness from being detained indefinitely. Presumably, however,
due process considerations would, just as they do for immigration detainees facing deportation. Zadvydas, 533
U.S. at 701-02. For an interesting discussion of how material witnesses detentions have been used in the war on
terror, see Ricardo Bascuas, The Unconstitutionality of "Hold Until Cleared": Reexamining Material Witness
Detentions in the Wake of September 11th Dragnet, 58 VAND. L. REV. 677 (2005).
186
Adam Klein & Benjamin Wittes, Preventive Detention in American Theory and Practice, 2 HARV. NAT’L SEC.
J. 85 (2011).
187
Id. at 88.
47
detention almost always seem defined by society’s judgment of the threat of a
serious harm and the minimum constraint necessary to prevent it.188
A precrime unit capable of harnessing the power of big data in ways that accurately predict
certain types of crimes could very well serve as “adequate means” for determining both the
accuracy and the necessity of the preventative detention of people before they are able to commit
select criminal offenses. But the fact that such data could achieve these goals does not mean it
should be allowed to do so. As previously discussed, human agency always provides the ability
of someone to come to their senses and abandon their criminal plans, thereby calling into serious
question whether any precrime system is wise.
The Precrime unit in Philip K. Dick’s Minority Report poses an interesting dilemma and asks
critical questions about our prioritization of security versus privacy. Precrime is responsible for
the safety of all citizens and the virtual elimination of crime, yet it is also the central entity in a
dystopian world where private behavior is a relic of a time gone by. Although the law works to
carefully define this balance in the United States, technology is rapidly bringing precrime out of
science-fiction and into our reality. In a time when concerns over terror and increased crime
dominate media and public attention, it is supremely important to not only consider how far we
are willing to go to prevent crime, but to review how far we have already gone. Though increases
in preventative detention and overall crime prevention help to secure our liberties, values and
general way of life, we must be careful not to sacrifice the welfare of our society through
overzealous application of preemptive crime prevention. Precrime can certainly be a tool in
reducing crime, but unless it is applied deliberately and carefully, it may still fail to mesh with
the U.S. ideals of justice.
188
Id. at 187.
48

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Does ‘Precrime’ Mesh with the Ideals of U.S. Justice?

Implications for the Future of Predictive Policing

States. The implications for current conceptualizations of constitutional rights, including

contemporary notions of privacy, are discussed.

A. Contemporary Predictive Policing ......................................................................................... 4

B. From Predictive Policing to Precrime? .................................................................................. 7

II. GETTING AHEAD OF CRIME USING TECHNOLOGY ....................................................................... 9

A. Imperfect Databases and Probable Cause ............................................................................ 11

B. Other Imperfect Tools of Technology Used in Predictive Policing ..................................... 16

C. Imperfect Informants and Probable Cause ........................................................................... 18

III. PRECRIME AND INCHOATE LIABILITY ...................................................................................... 21

IV. CIVIL COMMITMENT, PREVENTATIVE DETENTION, AND PREEMPTIVE INCARCERATION .......... 26

A. The Inapplicability of Punishment ....................................................................................... 26

C. Involuntary Civil Commitment ............................................................................................ 32

D. Preventative Detention of Insanity Acquitees ...................................................................... 36

E. Preventative Detention of Sexually Violent Predators ......................................................... 36

F. Preventative Detention of Enemy Combatants ..................................................................... 38

A. Human Agency and the Limits of Precrime Predictive Policing ......................................... 40

B. Potential Obstacles to a Big Data Policing Predictive Analytics System ............................ 41

C. New Problems in Policing .................................................................................................... 43

of arrests made by Precrime are pardoned and released.

A. Contemporary Predictive Policing

30 percent. By stopping it before it happens. Let’s build a smarter planet.11

used to support predictive policing.12

According to the U.S. Department of Justice,

Predictive policing tries to harness the power of information, geospatial

technologies and evidence-based intervention models to reduce crime and

improve public safety. This two-pronged approach—applying advanced

analytics to various data sets, in conjunction with intervention models—can

what and where something is likely to happen and deploying resources

Moreover, most of contemporary predictive policing is placed-based, drawing on crime data,

algorithms that provide more accurate person-based predictions.19

reality, rather than the realm of science fiction?

B. From Predictive Policing to Precrime?

Pennsylvania Professor Richard Berk, a statistician and criminologist, has embarked on a

to develop algorithms that harness large data sets.22

The Norwegian government collects massive amounts of data about its

before their 18th birthday.23

in harmony with the ideals of the U.S. justice system.

evolution—perhaps even the probable evolution—of current predictive policing to a terminus of

challenge current conceptualizations of constitutional rights (including contemporary notions of

II. GETTING AHEAD OF CRIME USING TECHNOLOGY

cause that a crime has been or is being committed.29 Moreover,

determinations of magistrates empowered to issue warrants…are to be

preferred over the hurried actions of officers…who may happen to make

arrests….” In other words, impartial judicial authorities are better suited to

determining probable cause than law enforcement officers who, in their

has committed a felony.31

science fiction. We have already

entered the age of decision by algorithm—the computer application of

statistical formulas to large bodies of data to identify relationships or patterns.

This can be carried out through "data matching"—linking individuals with

data about them—or "data mining"—identifying people who fit a designated

computer-generated profile. In some sense, these computerized searches are

just higher-tech versions of long-standing investigative methods. Data

go online or tap into available databases. The assemblage of immense stores

of personal information in computer databases and the ability to search them