Preventive Policing

Policing has been a preventive enterprise from the start. Making punishment collective gave many a stake in encouraging would- be offenders not to act in the first place. While society was orga­nized in small communities, the state had little choice but to hope for enforcement from families, towns, corporations, and churches.

Sureties in pre-Norman England held those who had posted them—sometimes the entire community—liable for the actions of others and subject to the punishment the offenders dodged by fail­ing to appear for trial. Most extremely, those who acted as sureties were required to kill their charges if they continued to offend.²³⁸ The Statute of Winchester continued this system, imposing collec­tive responsibility on the hundreds. Under the frankpledge, every adult male was enrolled in a group of ten (a tithing), and it in turn in a group of one hundred, which guaranteed the appearance of its members in court and paid fines in their absence.²³⁹ Aztecs punished kin for both treason and drunkenness by their family members.

As with most other early means of enforcement, even when polic­ing finally fell mainly to the state, sureties and bonds remained— used against labor leaders in the United States in the 1930s and against antiwar demonstrators in the 1960s.²⁴² Canadians can still demand sureties, obliging each other to keep the peace. Anyone who fears harm to person or property or to spouse or child—for example, sex with a minor or publication of intimate photographs—can ask a court to require the defendant to sign a recognizance, promising to behave, with prison a threat otherwise. In 2014, a Canadian radio broadcaster, fired after allegations of sexual harassment, avoided one charge by agreeing to a peace bond guaranteeing his good behavior for a year.²⁴³ Chinese corporations are expected to police their employees even outside the workplace and are held account­able for their offenses.²⁴⁴ Bail grew out of the English variant of this approach in the thirteenth century. Prisoners were released into the custody of sureties who vouched for them. No distinction was drawn, legally speaking, between being in jail and being under the guardianship of the surety. This system broadly continues today in the United States, where commercial bondsmen have full custodial rights over bailees, whom they guarantee to bring to trial.²⁴⁵

Even more obviously preventive were individual pledges of good behavior. Ulysses famously tied himself to the mast to avoid suc­cumbing to temptation.

Policing in the form of Polizei was inherently preventive. It was woven into society's fabric, ordering and regulating almost every aspect of the community. As social engineering, it sought to prevent not only crime but also poverty, disease, hunger, pollution, unem­ployment, addiction, bad housing, illiteracy, and, indeed, most other social ills. The French revolutionaries designated part of policing as administrative, tasked with maintaining public order and thus with preventing offenses.²⁴⁹ What the English considered preven­tive policing—the scarecrow function of men in uniform—was by comparison much narrower: deterring by making police presence obvious.

Nonetheless, modern policing also had its preventive aspects. If crime were worth punishing after the fact, all the more reason to sidestep it in the first place. Spies and informers gave the police a head start on offenses. As we have seen, the law began to inter­vene evermore anticipatorily. Policing followed suit, expanding from a post facto reactive rounding up of miscreants to a preven­tive throttling of crime in the cradle. Preventive policing had been baked into traditional society's small gemeinschaftlich communities where privacy was scant and everyone's business public knowledge. Strangers could not settle there, and no one was unknown. Reputa­tion was part of society's informal information control. But in the anonymity of big cities, the authorities had to grow their own ears and eyes. Surveying the world from the compact urbanity of late eighteenth-century Edinburgh, Adam Smith noted that people in small communities were known, their actions observed. By misbe­having, they forfeited their good character and reputation. But in large cities residents could do as they pleased.²⁵⁰

Bereft of help from offenders' kin or community, metropolitan police had less chance to solve old crimes and therefore an incentive to prevent new ones. By surveillance, spying, warnings, and antici­patory arrests, police identified and supervised potential offenders, seeking to forecast what was coming. When the London bobbies were first organized in the 1830s, they were reactive, maintaining a public presence to deter crime and responding when that failed. But police gradually began investigating on their own initiative, gather­ing data to foresee and solve crimes, and deciding whom to keep tabs on.

Like the law, the police were preventive in different ways. Most rudimentarily, they deterred. A constant, uniformed, visible police presence reminded citizens they were under scrutiny. London watch­men occupied their stations throughout the night, while town criers walked the streets.²⁵² Nighttime curfews kept potential miscreants in bed. Police actively patrolled neighborhoods, seeking out crime and not just waiting for burghers to report offenses. The London and New York forces made such proactive intervention part of metropol­itan life.²⁵³ In the words of the instructions issued to its superinten­dent in 1829, the London police should make “it evident to all such that they are known and strictly watched, and that certain detection will follow any attempt they may make to commit the crime.”²⁵⁴ By their continual presence, Patrick Colquhoun's London river police deterred theft of cargo from boats. The French rural police of the nineteenth century, the gardes champetres, were also said to prevent merely by being there.²⁵⁵

Uniformed officers were visible deterrents—at least until they became taken for granted. As in the military, uniforms held their wearers to account. Much as mercenary soldiers in military regalia were dissuaded from melting away in battle, so uniforms hampered the police from repairing to the nearest bar rather than walk their beat in the cold. And it held them responsible. By contrast, plain­clothes police occasionally shirked duties or acted unaccountably— as they sometimes do today.²⁵⁶ Uniforms also kept police from secrecy, stealth, or subterfuge. The English made much of how their bobbies in blue (not red, the military color of the day) were the antithesis of the continent's civilian and therefore secret police.

The issue was more complicated in the United States. Uniforms were initially resisted to avoid suggestions that police were a military­style force but also because they were considered socially degrading. In the 1830s, even servants refused livery, as did railroad conductors and police. They gave in only later in the century as labor-market competition heated up. In 1844, officers in New York trialing new blue uniforms were hissed and stoned. Yet uniforms eventually won out. They enhanced the police's moral authority and also helped civilians avoid picking inadvertent fights with authorities in civvies. In 1853, New York police began wearing them on a regular basis.²⁵⁹

To this day, the police deter crime through an ongoing pub­lic presence. Zero-tolerance policing, introduced in the 1980s as a constant neighborhood patrolling, deliberately turned away from the hyperreactive 911 style of policing at a distance. Even with the most rapid 911 response times, police nabbed only a tiny fraction of criminals in the act (3 percent in some studies). Tactics were there­fore rejiggered. Officers continuously patrolled on foot, exercising a low-level discretionary authority to maintain order. That returned them to the scarecrow function implemented by the London bob­bies more than a century earlier.²⁶⁰ Community policing likewise provided a constant uniformed presence and a willingness to handle disorder and minor offenses, not just intermittently pursue serious crime. This made policing a more persistent, intrusive, and ongo­ing intervention into communities than the 911 style. Day after day, the police warned and advised, sending drunks home in taxis, shooing juveniles off the street, warning lovers to shun dangerous parks, cautioning the disorderly.²⁶¹ Everyday policing approximated the Japanese model, where officers behaved more like postal work­ers, patiently following quotidian routines, than firefighters, rousted only in emergencies. Most Japanese police work not in patrol cars, but from local mini stations, the Koban, keeping an eye on neigh- borhoods.²⁶² Similarly, the Chinese use “grid managers” as a form of community control to keep an informal check on residents.²⁶³

As we have seen, target hardening, or building crime resistance into everyday infrastructure, also rudimentarily prevented offend­ing by tamping down opportunities and temptations. A variant was the increasing passive knowledge that police collected on citi­zens. Routine sobriety checkpoints and other forms of suspicion­less testing, such as workplace drug probes, identified offenders and encouraged compliance by heightening the risk of being caught.²⁶⁴ Broad, possibly universal DNA collection will likely soon dampen offending—at least by rational would-be perpetrators. As the traces we leave behind in public reveal evermore information about us (about our diets from a dried drop of sweat via metabolite analysis, for example), our hope of keeping secrets will diminish.²⁶⁵

Deterrence and everyday keeping order were just the start of the preventive effort. Deterrence did not demand any deep inves­tigation, though omnipresent authority—its trump card—required resources. Moving beyond deterrence, the authorities also sought to get out ahead of crime. As new crimes were formulated, the police's remit expanded. Thoughts—the motor of potential offenses—had long been under the glass. As the concept of inchoate offenses devel­oped, the authorities had to investigate before or in the absence of the fact. Crimes without victims or witnesses could not await first being reported, nor could offenses where victims might not even know they had been harmed—fraud, say, or toxic-waste dumping.²⁶⁶

Some preventive policing was direct and uncomplicated. In the 1930s, US police goon squads targeted violent criminals who enforced business deals or extorted payments. These offenders were known to the authorities, who cruised in patrol cars until they recognized one, beating and disarming him. Decoy units were used to catch rob­bers, sting operations to nab burglars. Illicit-drug marketplaces were patrolled, and special units kept tabs on repeat offenders.²⁶⁷ The police sought those most likely to offend. They extrapolated from past behavior and the characteristics of specific groups to anticipate future acts. Certain categories of people were statistically likely to have offended. Belonging to one was therefore often treated as tan­tamount to having committed a crime. Predictions based on past conduct or on characteristics statistically associated with offending justified laws that targeted certain statuses or behaviors as proxies for others. Being statistically associated with offending often became a crime in itself.

Such guilt by proxy was not new. Those classified as Iandschadlich (harmful to the land) in the twelfth century (mainly robber knights and peasant vagabonds) were not allowed to defend themselves by oath and thus were legally disadvantaged. Nightwalkers were considered inherently suspicious and punished. Scolds were chas­tised in the early modern era for being just that and so made to wear bridles.²⁶⁸ In sixteenth-century England, Jesuits were declared ipso facto traitors. In early modern and Victorian Britain and in the Napoleonic penal code, being a vagrant was punished regard­less of any specific acts.²⁶⁹ Loiterers could be arrested for that rea­son alone in England as of 1824. So in 1829 could loose, idle, and disorderly Londoners as well as anyone lying down or loitering in public between sunset and morning.²⁷⁰ Loitering with intent to com­mit a felony was punishable, and after 1869 even the intent was not required for former convicts. The interwar fascist regimes also singled out political opponents and so-called asocial elements, aside from their supposedly racial enemies.²⁷¹ Japanese Americans were interred during World War II as enemy sympathizers because of their ethnic­ity. In 1934, New Jersey outlawed being a gangster, defined—among other ways—as possessing a machine gun while not in the military. A

Chicago ordinance in the 1970s forbade habitual drunkards, addicts, prostitutes, or felons from meeting in public.²⁷²

Gang membership has often been criminalized.²⁷³ If done in high- crime areas, otherwise legal behaviors have allowed police to stop suspects. British police gained broad powers to temporarily contain suspects, excluding certain categories of people from specific areas, stopping and searching, detaining for questioning, and remanding them to custody.²⁷⁴ Tax authorities have used algorithms to identify filers worth auditing. Terrorists have been targeted as such, before any act.²⁷⁵ Airport-security profiles justify pulling aside likely hijack­ers or drug couriers. Police have employed an array of shorthand descriptions of potential offenders: the car-thief profile, the poacher profile, the serial-killer profile—and, of course, not forgetting the alimentary-canal-smuggler profile. With a touching faith in reverse psychology, one Florida state trooper developed a drug-courier pro­file that targeted those who hoped to avoid drawing attention by driving through his remote beat precisely at the speed limit.²⁷⁶

Though modern policing sought more sophisticated criteria, it relied most heavily on past offenses to calculate the probability of future transgression.²⁷⁷ However crude, bygone behavior proved to be the most reliable indicator of that to come. Crime came to be seen not just as a one-off, spontaneous fluke but as the outcome of character, habit, or proclivity. Sentencing recidivists more harshly followed logically as a preventive tactic, even though it targeted the person more than the act. Recidivism was a self-fulfilling prophecy. As record keeping improved in the late nineteenth cen­tury, the British and French authorities recognized that crimes were disproportionately committed by a small group of hardened roues.²⁷⁸ In Britain, the Habitual Criminals Act of 1869 imposed seven years of police supervision for second-time felony offend­ers, with swift summary punishment for subsequent crimes.²⁷⁹ As of the 1880s, France relegated repeat offenders to penal colonies for life, while Italy used domicilio coatto, a form of internal exile.²⁸⁰

Louisiana passed a habitual offenders statute in 1870, allowing dou­bled and tripled prison terms for second and third offenses and a life term for a fourth. Britain's Prevention of Crime Act of 1908 tar­geted repeat offenders with indefinite preventive detention added to the sentences already imposed. US laws in the 1930s imposed life sentences for fourth felony convictions.²⁸¹ American three-strikes (habitual-offender) laws in the 1990s followed a similar logic. Ever- harsher subsequent punishments were not tailored to the crime but assumed that past offenses predicted future ones. They were in effect a form of preventive detention. Unfortunate results followed, such as lifelong prison for petty thefts, which had been haphazardly clas­sified as felonies.²⁸²

Predicting future behavior on the foregone meant believing that past acts betrayed a quality likely to repeat itself. Based on psychol­ogy, as a reading of character or proclivity, this type of prediction might have been plausible. Based on actuarial calculations asso­ciating certain citizens with particular behaviors, however, it had at most probability going for it. Two big problems bedeviled such reasoning. First, requiring a history of transgression meant that offenders were identified as recidivists only late in their criminal careers. Yet offending is largely inversely proportional to age, the old obeying the law more than the young. When someone could finally be identified as a dangerous recidivist, chances were that he no longer was.²⁸³

Second, if recidivism were a proxy for an underlying causal vari­able, then the problem had only been pushed back one level. To suspect someone on the basis of demographic, economic, social, or other indicators came close to criminalizing a certain status. But if a status were outlawed, how could being in breach of that sta­tus ever end? Status based on volitional behaviors was one thing: scolds could perhaps bite their tongues, vagrants find housing and a job. But being born in a poor neighborhood to immigrant ethnic minority parents was a potentially lifelong condition, impossible to overcome. Even so, targeting status rather than act proved a durable policing tactic. In 1962, the logic was challenged in the United States when a law making it illegal to be an alcoholic was struck down.²⁸⁴ Yet to distinguish legally between status and act proved difficult. Sometimes status made certain acts unavoidable. The homeless had no choice but to sleep and drink in the open. So laws forbidding pub­lic drinking, though technically targeting acts, effectively also pun­ished status.²⁸⁵ Rarely has jurisprudence come so close to Anatole France's trenchant bon mot about the law in its majestic impartiality forbidding both rich and poor from sleeping under bridges.

Despite flaws, actuarial predictions have increasingly been used to target recidivists and thus to prolong their sentences by denying them probation or parole and supervising them after release. The authorities have also moved to prevent future acts by the poten­tially dangerous. Restraining orders, antistalking orders, antiloiter­ing laws, limits on residence and employment, and restrictions on weapons have been tactics. In Chicago, thousands of young men on a “heat list” of those statistically predicted most likely to die in violent crime are warned by teams of detectives and social work­ers of their risk in hopes of turning their lives around. In Kansas City, police routinely gather young—often Black and Hispanic— lawbreakers to caution them that if caught again even for minor infractions, they will suffer the severest penalties possible.²⁸⁶ Extreme risk protection, or “red flag,” orders allowed authorities to deny access to weapons for those thought to pose threats. The US “war on drugs” permitted police to serve search-and-arrest warrants on sellers and users preemptively through no-knock raids.²⁸⁷ The implements of crime were also targeted. As we have seen, possess­ing the requisite tools has been used as evidence of inchoate crimes such as conspiracy and attempt. Targeting mere possession made it easier to prosecute. Confiscating tools mixed prevention and punishment.²⁸⁸ Impounding a john's auto might deter prostitution, but it also punished his wife as its co-owner. The same held for the house where drugs were stashed. Confiscating the cash intended for a drug buy became in effect a fine on intent.²⁸⁹ Together with punitive fines, such civil asset forfeitures built on the logic of deodands—punishing the things that had offended—and added a retributive element to civil cases.²⁹⁰

Preventive sentencing, too, has become a large-caliber weapon in the arsenal of anticipatory enforcement. Why, after all, iden­tify likely offenders if not to render them harmless? Subordinating individual rights to the public good, sentencing in anticipation of offending has understandably sparked controversy. Law enforce­ment here adopted a technique long common in public health, restricting the freedom of those whose travels, contacts, habits, or proclivities made them epidemiological threats. A community dan­ger justified civil rights restrictions.²⁹¹ The Old Testament imposed isolation and cleansing on those with unclean bodily discharges.²⁹² In fourteenth-century Venice, arrivals on ships from infected ports were detained for the forty days that the medicine of the day took to be the plague's incubation period. Suspected prostitutes were com­pulsorily tested for venereal disease in the nineteenth century. If infected, they were detained and treated. In the 1980s, Swedish and US authorities jailed HIV seropositives who continued to have unsafe sex.²⁹³ Sufferers of drug-resistant tuberculosis have been compulsorily medicated and sometimes detained, epileptics and narcoleptics forbidden to drive.²⁹⁴ Modern citizens suffer legally imposed bodily violations such as vaccination for the communi­ty's good. The motives of such interventions mix concern for the afflicted with the desire to protect society at large, but the results impinge on the rights of individuals. All nations permit drastic interventions in emergencies. Faced with the coronavirus pan­demic in early 2020, China imposed mass quarantines on several cities. Even otherwise liberal Denmark enabled its authorities tem­porarily to compel inspection, isolation, vaccination, and treatment of victims, end public assemblies, blockade neighborhoods, shut down transportation, forbid visits to hospitals and care homes, and close institutions.²⁹⁵ Thanks to the gravity of the potential conse­quences for not acquiescing to such public-health legislation, it has been broadly uncontroversial despite its draconian effects.

Preventive sentencing—selective incapacitation—expanded this logic to more people.²⁹⁶ Those judged to be risks could be detained or restrained even before trial. Already imposed sentences could be extended. To avoid the penal code's due-process restrictions, civil law was mustered to give the authorities more leeway.²⁹⁷ These impositions—not for offenses committed but for ones that might occur—moved punishment far from its retributive foundations. Not only were predictions unavoidably vague and often inaccurate, but even had they been true, holding potential offenders accountable for crimes not yet committed also amplified the utilitarian logic of subordinating individual rights to community needs.

In principle, an accused is presumptively innocent before being convicted and should therefore not be incarcerated, but detaining arrestees even before trial and conviction has become more common. Many nations make little or no use of bail or other means of pretrial release: most of the European continent and Japan, for example.²⁹⁸ Half of all prisoners in Italy and France remain jailed on remand, awaiting trial. Suspects in Japan can be jailed for twenty-three days before charges are brought.²⁹⁹ Even in the Anglo-American systems, the role of bail, which has been used since the early Middle ages, has shrunk. In England, a third of defendants are held in custody before trial, on average for nine weeks, though a quarter of those for up to half a year. In the United States, the bail bond industry allows release for those able to pay (usually 10 percent of bail). Even so, about a third of US arrestees remain jailed until trial.³⁰⁰

Not only those accused of crime were jailed before trial. Pretrial detention was the obverse of bail. Rather than assuming innocence before guilt was determined, even those whose offense was merely being potentially dangerous were jailed. Starting in the 1960s, the US and Britain passed laws allowing pretrial preventive detention. These laws made explicit judges' informal ability to detain suspects preventively by setting excessive bail. Judges could then deny bail to or impose other restrictions on defendants considered likely to commit crimes in the interim.³⁰¹ After trial, the sentences of those deemed to be risks have also been extended. Most countries allow prolonging the sentences of defendants considered special threats. The Netherlands have “detention at the Government's pleasure,” for two years at a time, indefinitely extendable by court decision; the Germans have Sicherungsverwahrung. Canada, too, allows pre­ventive detention for indefinite terms of those considered habitual criminals.³⁰² This tactic is also applied to sex offenders, as discussed in the next section.

To defang objections to this side-stepping of due-process restric­tions, the civil law was also roped in. Civil preventive orders were marshaled against offenses that although perhaps not quite criminal were sufficiently noisome to be worth targeting.³⁰³ They imposed punishments similar to the penal code, including jail, while having to meet only the civil law's lower standard of proof. In the United States, such orders began being levied in the 1970s against gangs and juvenile offenders as well as against nuisance and public-order behaviors and drug- and alcohol-related conduct. The Supreme Court allowed civil commitment of the potentially dangerous with­out the full due-process protection of criminal cases.³⁰⁴ Britain, too, enthusiastically adopted the technique early in the new millen­nium. A dozen variants emerged, from Anti-Social Behavior Orders (ASBOs) to Serious Crime Prevention Orders, Risk of Sexual Harm Orders, and Terrorism Prevention and Investigation Measures.³⁰⁵ Authorities could close noisy or drug-infested premises, pursue parents of chronically truant or misbehaved children, restrict where sex offenders could live or work, restrain people from harassing oth­ers, and disperse groups in public. ASBOs could last indeterminately and apply to offenders as young as ten. Breaching them was a criminal offense punishable by prison for up to five years or fines or both.³⁰⁶ Allowing the authorities broad discretion against low-level behaviors that individually might not have triggered sanctions but that collec­tively and over time were a nuisance, ASBOs were often eccentrically applied: the pirate DJ who had broadcast from a top floor forbidden ever to set foot in a building taller than four stories; the car thief pro­hibited from entering any parking lot anywhere for any purpose; the suicidal woman who had to promise not to approach rivers, lakes, or railway bridges; the hip-hop musicians forbidden to mention death, injury, or competing musicians in their songs.³⁰⁷

As the definition of crime expanded, the authorities were evermore concerned with risks, not committed offenses. Getting out ahead of crime meant investigating plans drawn up, intents formulated, conspiracies hatched, and dangers posed. Interrogative techniques were developed to ascertain what was being planned. Police noted, for example, that although dissembling about past events was often less detailed than truthful recounting of what had happened, for future plans the level of detail—with no actual experience to narrate—between false and true accounts was largely similar.³⁰⁸ Once the authorities began trying to prevent risk, few behaviors were indifferent, and almost all citizens potentially posed a threat.³⁰⁹ Preventive detention inevitably affected many false positives, people who were locked up even though they would have committed no crime. But falsely jailed innocents were less conspicuous in the media and political debate than the guilty set free to offend. Once estab­lished, a preventive system thus invariably generated data in favor of its expansion.³¹⁰ The logical extreme was universal preventive deten­tion, the ability to detain anyone considered a possible threat. In effect, all citizens began to be treated as parolees.³¹¹

Catholic inquisitors rooting out Cathar heretics in thirteenth­century Languedoc had taken this approach. All sentences were for life, in principle. Even after the sinner had been released, the issue could be revisited at any moment, adding new penalties for relapses or extending existing ones.³¹² Indeterminate sentencing and condi­tional release, practiced increasingly in most Western nations as of the late nineteenth century, applied a similar logic. Whether in or out of prison, offenders remained within the carceral loop. Laws on habitual criminality in the English colonies, modeled on the home­land, permitted police to keep discharged prisoners under surveil­lance and to search the dwellings of those suspected of receiving stolen goods. The Prussian penal code allowed indefinite deten­tion of thieves and other dangerous offenders until they showed they could provide for themselves honestly on release. Napoleon imposed postrelease surveillance on former prisoners that lasted from two years to life, depending on the offense, with the authori­ties allowed to decide where they could live.³¹³

In 1877, the prison administrator Zebulon Brockway proposed a law in New York to make all sentences indeterminate, releasing only the compliant. This law was adopted only partly, and parole and probation have fallen out of favor in the United States since the 1970s. But something like indefinite sentencing is now imposed, as we will see, on sex offenders.³¹⁴ In New York City, a common out­come of misdemeanor arrests is to adjourn the case for some speci­fied time, then dismiss it if the defendant has not been rearrested in the meantime. The British Criminal Justice Act of 2003 allowed mandatory life sentences. Prisoners could be released at the discre­tion of the parole board but remained on license for life, reincarcer­ated if judged a risk.³¹⁵

Universal preventive detention, where all citizens are treated as parolees, differs from our own state by degree, not kind. We are all on notice. At the end of Franz Kafka's novel The Trial, the court artist tells Joseph K. that final acquittals are elusive, the court forgets nothing, and he can be hauled before it again on renewed charges. Any citizen who offends is naturally subject to official attention. Yet as the definition of crime has expanded to new acts and to ever- earlier preparatory stages of potential offenses, the chances of being investigated have expanded, too. In no case is that truer than with sex offenders.