TJP

Preemptive Arrest: Where is the Crime?

Byron A. Ellis

Merriam-Webster’s dictionary defines crime as “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law; especially: a gross violation of law.” Thus, laws set by legislators, or dictators, define crime.

Governments control the criminalization process. The government is the arrestor, court, prosecutor, jailer, and executioner. Thus, the entire criminalization process is in the hand individuals controlling the government. And, the governments use force, or intimidation, to enforce compliance with the law.

In democratic societies, crime has been associated with behavior, the act of doing something that is forbidden by law. However, in repressive societies crime is associated with behavior and with thoughts or ideas. In these societies, governments tend to imprison individuals that advocate opposing thoughts.

After 9/11, the many democratic nations appeared to criminalize certain ideas or thoughts. However, no matter how deplorable thoughts or ideas are, criminalizing them is troublesome. On the other hand, if complete information were possible, waiting for a criminal act to occur would be dereliction of duty.

Some politicians have vehemently argued that it is this preemptive posture on thoughts and ideas that has kept America safe from terrorism after 9/11. This argument, although self-serving and dangerous, is difficult be refute or confirm. However, criminalizing thoughts or ideas is undemocratic.

An opposite argument is that governments should focus on what an individual does and not on what the individual thinks. For instance, if an individual thought that he or she should rob a bank, but actually never commits the robbery, the government should not be able to arrest and prosecute the individual merely for misguided thoughts. But, what if the individual thoughts and ideas advocated terrorism?

Here, governments claimed to have foiled terrorist plots in the early thought stages. Plots that had not crossed the line from talk to action. In some instances, governments even acknowledged that the plotters had no means to execute their thoughts or ideas. Yet, many of these individuals were arrested and imprisoned, based on their thoughts or information from informants.

Arresting individuals based on crimes that the government believes they will commit in the future mirrors The Minority Report movie. The Minority Report is a 2002 science fiction movie, where individuals are arrested and prosecuted for crimes they hope to commit, based on the foreknowledge provided by three psychics called the pre-cogs.” “Pre-cogs” implies precognition, the ability to perceive information about events that are yet to occur.

It is folly to adhere to the logic of precognition based on perceived interpretation on individuals’ thoughts, given that information is often incomplete. Even nations with the greatest resources have demonstrated, after the fact, that their intelligence and information-gathering machine were not sufficient to justify preemptive actions.