Crime prevention in the Western context

In the West, the concept of crime prevention is not clear. Under the umbrella of “crime prevention” there is a set of theories and practices ranging from criminal law statute transformations and new policing approaches, to the emergence of atypical penalties such as preventive orders and civil commitments. “Crime prevention” can be conceptualized in at least two dimensions. Used in a utilitarian perspective, “all correctional ideologies can be legitimized by the rhetoric of prevention,”10 and constitute key parts of the expansion of the state apparatus. The rise in crime prevention refers to the expansion of the coercive state through the criminal justice and policing systems, which also comprise approaches of situational crime control, multi-agency cooperation and community participation programs. While in another perspective, preventive methods tend to govern the future through criminalizing “risk,” rather than imposing punishment on existing harmful wrongdoing, which implies the use of restrictive methods on risky behavior based on recidivism, mental illness or summary offences. Preventive methods themselves are also subject to various interpretations. They are not limited to terrorist offences, encompassing a broad range of social policies and regulatory' endeavors, such as the proliferation of preventive offences like inchoate crimes, civil preventive orders, the courts’ preventive role, preventive detention of dangerousness and preventive counter-terrorism laws.11

These dimensions of the prevention concept overlap on some occasions; they are essentially “in stark contrast to the traditional retrospective orientation of the criminal justice system”12 but, at times, will be discussed separately by researchers who each have a distinctive focus. For instance, in the US, changes to criminal justice focus mostly on criminal conduct associated with terrorism and violent crimes. First, the Model Penal Code penalizes a person who “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury'.”13 Because reckless endangerment under this provision could be based on any' act or failure to act that creates the requisite danger, these statutes are routinely' upheld by' the courts against challenges of ambiguity.14 Second, since 2000, anti-terrorism laws have tremendously' extended state power. The USA Patriot Act of 2001 as well as its Extension Act of 2011 gave the FBI much more discretion in terms of search and surveillance, even without a court order.15 The provisions have generated a great deal of controversy' about the Act’s constitutionality since they may abuse the privacy' of not only' the suspects but also of innocent people.16 Third, in the US there is civil detention of sexual crime offenders as well as prolonged detention/continued supervision of criminals with risky personalities. For instance, the Supreme Court in Kansas v. Hendricks (1997) and Kansas v. Crane (2002) upheld sexually' violent predator statutes that provided for the post-imprisonment civil commitment of sex offenders who have a “mental abnormality” (but not a major mental disorder such as schizophrenia) which results in their becoming “likely to engage in repeat acts of sexual violence.”17 Fourth, the US has also enacted preventive orders to restrict gang-related activity, particularly' violent crimes and drug trafficking. A case in point is that, in 2011, the city of Chicago revised the Chicago Municipal Code 8-4-015 (1992) to make anti-loitering laws constitutional.18

In the UK, besides concerns over public security, the state aims to crack down more on minor crimes and anti-social behavior. The preventive shift is most evidently shown in a series of preventive orders—including Anti-Social Behaviour Orders, control orders (which have been repealed), sexual offence prevention orders and serious crime prevention orders—which were enacted to control minor behavior for the prevention of more serious crimes such as terrorist acts and sex crimes. Freed from the restraints of criminal procedure law, these civil orders allow the government to “avoid the rigorous procedural protections of the criminal law and perhaps eventually replace criminal justice altogether.”19 The pre-trial detention and investigative stops by police often—or always—depend upon dangerousness assessments as well.20 There are also cases of the expansion of inchoate and anticipatory offenses, as well as preventive detention of mentally disordered persons, all of which constitute the so-called “preventive justice,” manifesting how the state governs and the nature of criminal justice in the United Kingdom.21

UK and US practices have had enormous influence on other Western countries.22 In more and more countries all over the world, the prediction of dangerousness and the attempt to preempt future harm through deterrence, rehabilitation and incapacitation are becoming well-established pillars of punishment. A great variety of crimes are based on the prediction of harm, even without the proof of any harm. For instance, Australia has witnessed the pervasion of the term “prevention” in its anti-terror policy23 as it introduced control orders into its legal system.24 Other commonwealth countries also added new penalties for crimes of solicitation and crimes of conspiracy.25 In civil law countries like Germany, the legal system has not only attached increased importance to environmental interests, but also added new endangerment crimes and offences of weapon possession, as well as inchoate and conspiracy actions of terrorism crimes.26

Western experience shows that the fight against terrorism is one of the main driving forces of the preventive shift in its criminal justice system. But in addition to anti-terrorism laws, each country also has its own features. For instance, the US demonstrates the most intense control of terrorist behavior, while the UK focuses more on minor offences. In China, the expansion of crime prevention can be addressed in a variety of dimensions. Similar to that of the West is the expansion of the overall system and the increase in preparatory offences to commit terrorist attacks.27 Differences lie in the control of political risk and criminal law amendments as indications of the proactive trend of punitive law on crimes against public well-being. For instance, the three legislative changes to criminal penalties on minor misbehavior in the eighth amendment of Chinese criminal law—having been officially written in criminal law—represent the largest number of such proactive legislative changes. Anti-terrorism laws are mostly decided by the deciding bodies themselves, while these three changes illustrate more of the interplay between the public and the state, the law and the policy. Accordingly, this book will use these three changes as case studies, with the other reforms as supporting evidence. Preventive techniques can be understood in the context of a broader transformation of governance and society. “Crime is not only about the imposition of actual criminal sanctions but is also descriptive of situations in which crime provides the metaphors and narratives in which efforts to govern are cast.”28 It is “a mechanism for viewing the institutions, practices and personnel of government.”29

 
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