Punitive and preventive justice in an era of profiling, smart prediction and practical preclusion: Three key questions

TY - JOUR

T1 - Punitive and preventive justice in an era of profiling, smart prediction and practical preclusion

T2 - Three key questions

AU - Beyleveld, Deryck

AU - Brownsword, Roger

PY - 2019/6

Y1 - 2019/6

N2 - In the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be applied to the former); and (3) what should we make of preventive measures that rely not so much on rules and orders, but on 'technological management' (where the preventive strategy is focused on eliminating practical options)? Responding to the first question, a Gewirthian-inspired theory of punishment is sketched - a theory that is, broadly speaking, supportive of liberal values and respect for human rights. What makes this theory apodictic for any human agent is that it demands respect for the very conditions on which any articulation of agency is predicated. With regard to the second question, we indicate how a Gewirthian view of the relationship between punitive and preventive justice supports the logic of referring to the principles that guide the former as a benchmark for the latter; and we suggest some particular principles of preventive justice where the restrictions are targeted at individual agents (whether in their own right or as members of classes). Finally, we suggest that, although technological management of crime changes the complexion of the regulatory environment in ways that might be a challenge to a Gewirthian moral community, it should not be categorically rejected. Crucially, technological management, like other preventive strategies, needs to be integrated into the community's moral narrative and authorised only to the extent that it is compatible with the governing moral principles.

AB - In the context of a technology-driven algorithmic approach to criminal justice, this paper responds to the following three questions: (1) what reasons are there for treating liberal values and human rights as guiding for punitive justice; (2) is preventive justice comparable to punitive justice (such that the guiding values of the latter should be applied to the former); and (3) what should we make of preventive measures that rely not so much on rules and orders, but on 'technological management' (where the preventive strategy is focused on eliminating practical options)? Responding to the first question, a Gewirthian-inspired theory of punishment is sketched - a theory that is, broadly speaking, supportive of liberal values and respect for human rights. What makes this theory apodictic for any human agent is that it demands respect for the very conditions on which any articulation of agency is predicated. With regard to the second question, we indicate how a Gewirthian view of the relationship between punitive and preventive justice supports the logic of referring to the principles that guide the former as a benchmark for the latter; and we suggest some particular principles of preventive justice where the restrictions are targeted at individual agents (whether in their own right or as members of classes). Finally, we suggest that, although technological management of crime changes the complexion of the regulatory environment in ways that might be a challenge to a Gewirthian moral community, it should not be categorically rejected. Crucially, technological management, like other preventive strategies, needs to be integrated into the community's moral narrative and authorised only to the extent that it is compatible with the governing moral principles.

KW - algorithmic criminal justice

KW - false positives

KW - Gewirthian moral theory

KW - human rights

KW - prevention

KW - punishment

KW - technological management

UR - http://www.scopus.com/inward/record.url?scp=85067488576&partnerID=8YFLogxK

U2 - 10.1017/S1744552319000120

DO - 10.1017/S1744552319000120

M3 - Review article

AN - SCOPUS:85067488576

SN - 1744-5523

VL - 15

SP - 198

EP - 218

JO - International Journal of Law in Context

JF - International Journal of Law in Context

IS - 2

ER -