Pre-crime: Pre-emption, Precaution and the Future. By Jude McCulloch and Dean Wilson (London and New York: Routledge, 2016, 154pp. £34.99)

Pre-crime: Pre-emption, Precaution and the Future. By Jude McCulloch and Dean Wilson (London and... The gradual whittling away, in the name of security, of the core legal principles of due process and ‘innocent until proved guilty beyond reasonable doubt’ has been a major theme of critics of the emerging security state. Following in the footsteps of many other writers—from criminology (notably Zedner 2007) but also international relations, geography and media studies—the authors have produced a very welcome, clear formulation of some of the key moves involved in the emergence of what has come to be known, following Philip K. Dick’s Minority Report (2002), as pre-crime, though the term ‘pre-emptive criminalisation’ has also been widely used in the literature (see Fitzgibbon 2007). One of the strengths of McCulloch and Wilson’s treatment is the attempt to carefully locate the boundaries between pre-crime strategies and other forms of crime control. Traditional criminal justice pursues crimes that have already taken place. By contrast, both crime prevention and pre-crime are oriented to the anticipation and prevention of future crimes. Indeed, many people may be unaware of the distinction between the two. However, the authors distinguish between crime prevention using risk profiles based on past offending aimed at anticipating future crime and pre-crime strategies which, by contrast, cut the link with past offending as a guide to the future and construct the likelihood of future crime from a wide range of additional variables most of which may have no relationship with past offending. The future is thus not a risk of the past repeating itself but rather an attempt to grapple with a world of uncertainty in which Donald Rumsfeld’s ‘unknown unknowns’ may strike at any moment with devastating effect. Indeed, the clearest example of pre-crime, and the backbone of the authors’ argument, is recent anti-terrorist legislation in the United States, United Kingdom and Australia. In such a context, the precautionary principle that underlies pre-crime strategies is clear. Preparations for a terrorist outrage on the scale of 9/11 may not be amenable, e.g., to a conspiracy charge that requires the perpetrators to have already taken sufficient preparatory steps to identify themselves as conspirators. To allow preparations to get to this stage would be far too risky. As far as the security services are concerned, pre-emptive arrests based on profiles of known offenders and sympathizers are only part of what is required. The perpetrators may be ‘sleepers’ and ‘lone wolves’ unknown to the police and security services or not hitherto regarded as terrorist risks. For this reason, a very wide range of criteria—few of which would stand up in a traditional criminal trial—have been deployed to identify and convict suspects or justify preventative detention. The latter has ranged from incarceration in Guantanamo Bay to Control Orders and their successors (under UK legislation—and similar in the United States and Australia) restricting freedom of movement. The ‘evidence’ on which such constraint is based can be very wide and also insulated from normal legal challenge by the accused. The authors note how anti-terrorist legislation has undermined traditional safeguards by enabling criminal convictions based on vague notions of action or association well short of criminal conspiracy with the result that individuals can be convicted of ‘anticipated future crime regardless of the likelihood of that crime occurring’ (p. 63). The end result is the re-location of terrorism from crime to war such that ‘the task ... shifts from detecting crime to identifying foes. This shift mandates pre-emptive action to neutralize the threat imbricated in enemy identities’ (p. 26). The authors make the analogy with Second World War emergency restrictions such as the incarceration of ‘enemy aliens’. Thus, ‘is there evidence that this individual is engaged in terrorist activity?’ is gradually replaced by ‘is this individual the sort of person who would possibly engage in terrorist activity?’ The shift is illustrated by reference to a recent (2013) US case in which an individual was convicted of terrorist intent based on the fact that he was carrying a copy of a Muslim prayer, which the court deemed to be of the type that a terrorist might carry. This violation of due process is driven, the authors point out, by the unimaginable consequences of terrorist success. In this way, pre-crime ‘provides a platform for catastrophic futures to be pre-enacted’ (p. 67). The terrorist suspect is then convicted not on the basis of what he has done, or clearly intended to do, but on the basis of what would have happened had he in fact had such intentions and had succeeded in carrying them out. An important consequence is the creation of ‘suspect communities’. The authors mention resentment in the UK Muslim community concerning pressure to become informants (p. 116). They are also aware that, given the wide definitions in anti-terrorist legislation of ‘actions preparatory to terrorism’, informants may themselves provoke pre-crime responses by creating a pressure for action within the circles they have infiltrated. A further effect of pre-crime is the increasing role of ‘data-mining’ and ‘smart’ surveillance technology and ‘behavioural detection software’ at airports or in public places aimed at video detection of aggressive body postures or facial expressions. Most importantly, they note how such wide-ranging risk profiling unrelated to actual past crime can inevitably become infused with racial and ethnic prejudices. The explanation (not to be confused with justification) of the shift to pre-crime in the terrorist context is clear: the key driver is the possibility of catastrophic success, however remote. But this raises issues when, as the authors note, pre-crime strategy ‘also spreads and intensifies as it is recycled and revised to address a broader range of threats’ (p. 136), notably both organized crime and low-level anti-social behaviour. The authors note the widening and dilution of notions of criminal activity in criminal justice legislation in both these areas. In organized crime legislation, notions of preparation and participation have widened out from traditional notions of conspiracy. Likewise, (UK) Anti-Social Behaviour Orders (and their successors) are imposed on the basis of past behaviour that is not criminal but rather ‘disorderly’, but which is seen to anticipate possible future criminality. The problem, in my opinion, that is rather left hanging in the air is the following: given the absence of the threat of catastrophic success in the manner of the ‘new terrorism’ of 9/11, what is driving the extension of pre-crime to these areas? The organized crime issue might be solved by reconsidering what is new in modern terrorism. The authors focus on ‘new terrorism’ in terms of its orientation to mass casualties as in 9/11. But from Al Qaeda onwards, what was new was also organizational forms characterized by open networks and secure internet communications (the ‘dark web’) rather than hierarchical organization on the model of the IRA, for example. These loose global networks have made detection and infiltration by informants—and hence conspiracy charges—much harder, and this is arguably a factor in the pressure to pre-crime orientations with vague specifications regarding preparatory actions. But modern organized crime precisely parallels these developments with similar organization structures in which loose global trading networks (also reliant upon the ‘dark web’) have displaced older hierarchical ‘mafia’ structures in which membership—and therefore conspiracy—were fairly clear. In other words, the pressure on the state to adopt pre-crime strategies derives—it might be argued—equally from within both terrorism and organized crime. The governance of anti-social behaviour through pre-crime raises other issues. While the authors mercifully spare the reader yet another foray into the Wilson-Kelling argument, there does seem to be lacking a discussion of the progress of pre-crime in this area other than by a ‘trickle down’ from anti-terrorist and organized crime strategy. This, of course, may be one element; witness the tendency of crime control agencies to over-stress the coherence of street gangs and perhaps too readily assimilate them to varieties of organized crime. Nevertheless, a fuller understanding would arguably require a consideration of the extent to which, in the jurisdictions studied by the authors, there has been a return to the 19th-century idea of the management of the ‘dangerous classes’ requiring—from the standpoint of the state—control through pre-crime measures which do not rely on the actual commission of criminal offences but rather a looser concept of anti-social behaviour. In noting the 19th-century habit of imprisoning vagrants and ‘habitual criminals’ (p. 21), the authors do provide tantalizing indications of just such a hypothesis but the discussion is not developed further. It is always easy to criticize authors for not writing the book the reviewer would have liked, and none of these critical comments should be taken as reducing the importance of the book as a whole. It remains a clearly written, accessible and indeed the most incisive deconstruction to date of the phenomenon of pre-crime, how it has partially displaced other adjacent crime control strategies and what it portends for the likely character of the security state in the coming period. References Dick P. K. ( 2002), Selected Stories of Philip K. Dick . Pantheon. Fitzgibbon W. ( 2007), ‘ Institutional Racism, Pre-emptive Criminalisation and Risk Analysis’, The Howard Journal , 46: 128– 44. Google Scholar CrossRef Search ADS   Zedner L. ( 2007), ‘ Pre-crime and Post-criminology?’, Theoretical Criminology , 11: 261– 81. Google Scholar CrossRef Search ADS   © The Author(s) 2016, 2017. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The British Journal of Criminology Oxford University Press

Pre-crime: Pre-emption, Precaution and the Future. By Jude McCulloch and Dean Wilson (London and New York: Routledge, 2016, 154pp. £34.99)

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Oxford University Press
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© The Author(s) 2016, 2017. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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0007-0955
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Abstract

The gradual whittling away, in the name of security, of the core legal principles of due process and ‘innocent until proved guilty beyond reasonable doubt’ has been a major theme of critics of the emerging security state. Following in the footsteps of many other writers—from criminology (notably Zedner 2007) but also international relations, geography and media studies—the authors have produced a very welcome, clear formulation of some of the key moves involved in the emergence of what has come to be known, following Philip K. Dick’s Minority Report (2002), as pre-crime, though the term ‘pre-emptive criminalisation’ has also been widely used in the literature (see Fitzgibbon 2007). One of the strengths of McCulloch and Wilson’s treatment is the attempt to carefully locate the boundaries between pre-crime strategies and other forms of crime control. Traditional criminal justice pursues crimes that have already taken place. By contrast, both crime prevention and pre-crime are oriented to the anticipation and prevention of future crimes. Indeed, many people may be unaware of the distinction between the two. However, the authors distinguish between crime prevention using risk profiles based on past offending aimed at anticipating future crime and pre-crime strategies which, by contrast, cut the link with past offending as a guide to the future and construct the likelihood of future crime from a wide range of additional variables most of which may have no relationship with past offending. The future is thus not a risk of the past repeating itself but rather an attempt to grapple with a world of uncertainty in which Donald Rumsfeld’s ‘unknown unknowns’ may strike at any moment with devastating effect. Indeed, the clearest example of pre-crime, and the backbone of the authors’ argument, is recent anti-terrorist legislation in the United States, United Kingdom and Australia. In such a context, the precautionary principle that underlies pre-crime strategies is clear. Preparations for a terrorist outrage on the scale of 9/11 may not be amenable, e.g., to a conspiracy charge that requires the perpetrators to have already taken sufficient preparatory steps to identify themselves as conspirators. To allow preparations to get to this stage would be far too risky. As far as the security services are concerned, pre-emptive arrests based on profiles of known offenders and sympathizers are only part of what is required. The perpetrators may be ‘sleepers’ and ‘lone wolves’ unknown to the police and security services or not hitherto regarded as terrorist risks. For this reason, a very wide range of criteria—few of which would stand up in a traditional criminal trial—have been deployed to identify and convict suspects or justify preventative detention. The latter has ranged from incarceration in Guantanamo Bay to Control Orders and their successors (under UK legislation—and similar in the United States and Australia) restricting freedom of movement. The ‘evidence’ on which such constraint is based can be very wide and also insulated from normal legal challenge by the accused. The authors note how anti-terrorist legislation has undermined traditional safeguards by enabling criminal convictions based on vague notions of action or association well short of criminal conspiracy with the result that individuals can be convicted of ‘anticipated future crime regardless of the likelihood of that crime occurring’ (p. 63). The end result is the re-location of terrorism from crime to war such that ‘the task ... shifts from detecting crime to identifying foes. This shift mandates pre-emptive action to neutralize the threat imbricated in enemy identities’ (p. 26). The authors make the analogy with Second World War emergency restrictions such as the incarceration of ‘enemy aliens’. Thus, ‘is there evidence that this individual is engaged in terrorist activity?’ is gradually replaced by ‘is this individual the sort of person who would possibly engage in terrorist activity?’ The shift is illustrated by reference to a recent (2013) US case in which an individual was convicted of terrorist intent based on the fact that he was carrying a copy of a Muslim prayer, which the court deemed to be of the type that a terrorist might carry. This violation of due process is driven, the authors point out, by the unimaginable consequences of terrorist success. In this way, pre-crime ‘provides a platform for catastrophic futures to be pre-enacted’ (p. 67). The terrorist suspect is then convicted not on the basis of what he has done, or clearly intended to do, but on the basis of what would have happened had he in fact had such intentions and had succeeded in carrying them out. An important consequence is the creation of ‘suspect communities’. The authors mention resentment in the UK Muslim community concerning pressure to become informants (p. 116). They are also aware that, given the wide definitions in anti-terrorist legislation of ‘actions preparatory to terrorism’, informants may themselves provoke pre-crime responses by creating a pressure for action within the circles they have infiltrated. A further effect of pre-crime is the increasing role of ‘data-mining’ and ‘smart’ surveillance technology and ‘behavioural detection software’ at airports or in public places aimed at video detection of aggressive body postures or facial expressions. Most importantly, they note how such wide-ranging risk profiling unrelated to actual past crime can inevitably become infused with racial and ethnic prejudices. The explanation (not to be confused with justification) of the shift to pre-crime in the terrorist context is clear: the key driver is the possibility of catastrophic success, however remote. But this raises issues when, as the authors note, pre-crime strategy ‘also spreads and intensifies as it is recycled and revised to address a broader range of threats’ (p. 136), notably both organized crime and low-level anti-social behaviour. The authors note the widening and dilution of notions of criminal activity in criminal justice legislation in both these areas. In organized crime legislation, notions of preparation and participation have widened out from traditional notions of conspiracy. Likewise, (UK) Anti-Social Behaviour Orders (and their successors) are imposed on the basis of past behaviour that is not criminal but rather ‘disorderly’, but which is seen to anticipate possible future criminality. The problem, in my opinion, that is rather left hanging in the air is the following: given the absence of the threat of catastrophic success in the manner of the ‘new terrorism’ of 9/11, what is driving the extension of pre-crime to these areas? The organized crime issue might be solved by reconsidering what is new in modern terrorism. The authors focus on ‘new terrorism’ in terms of its orientation to mass casualties as in 9/11. But from Al Qaeda onwards, what was new was also organizational forms characterized by open networks and secure internet communications (the ‘dark web’) rather than hierarchical organization on the model of the IRA, for example. These loose global networks have made detection and infiltration by informants—and hence conspiracy charges—much harder, and this is arguably a factor in the pressure to pre-crime orientations with vague specifications regarding preparatory actions. But modern organized crime precisely parallels these developments with similar organization structures in which loose global trading networks (also reliant upon the ‘dark web’) have displaced older hierarchical ‘mafia’ structures in which membership—and therefore conspiracy—were fairly clear. In other words, the pressure on the state to adopt pre-crime strategies derives—it might be argued—equally from within both terrorism and organized crime. The governance of anti-social behaviour through pre-crime raises other issues. While the authors mercifully spare the reader yet another foray into the Wilson-Kelling argument, there does seem to be lacking a discussion of the progress of pre-crime in this area other than by a ‘trickle down’ from anti-terrorist and organized crime strategy. This, of course, may be one element; witness the tendency of crime control agencies to over-stress the coherence of street gangs and perhaps too readily assimilate them to varieties of organized crime. Nevertheless, a fuller understanding would arguably require a consideration of the extent to which, in the jurisdictions studied by the authors, there has been a return to the 19th-century idea of the management of the ‘dangerous classes’ requiring—from the standpoint of the state—control through pre-crime measures which do not rely on the actual commission of criminal offences but rather a looser concept of anti-social behaviour. In noting the 19th-century habit of imprisoning vagrants and ‘habitual criminals’ (p. 21), the authors do provide tantalizing indications of just such a hypothesis but the discussion is not developed further. It is always easy to criticize authors for not writing the book the reviewer would have liked, and none of these critical comments should be taken as reducing the importance of the book as a whole. It remains a clearly written, accessible and indeed the most incisive deconstruction to date of the phenomenon of pre-crime, how it has partially displaced other adjacent crime control strategies and what it portends for the likely character of the security state in the coming period. References Dick P. K. ( 2002), Selected Stories of Philip K. Dick . Pantheon. Fitzgibbon W. ( 2007), ‘ Institutional Racism, Pre-emptive Criminalisation and Risk Analysis’, The Howard Journal , 46: 128– 44. Google Scholar CrossRef Search ADS   Zedner L. ( 2007), ‘ Pre-crime and Post-criminology?’, Theoretical Criminology , 11: 261– 81. Google Scholar CrossRef Search ADS   © The Author(s) 2016, 2017. Published by Oxford University Press on behalf of the Centre for Crime and Justice Studies (ISTD). All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

Journal

The British Journal of CriminologyOxford University Press

Published: Mar 1, 2018

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