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6. The Institutional Logic of Preventive Crime
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132 | 6 The Institutional Logic of Preventive Crime Mariano-Florentino Cuéllar Most organized societies promise to punish unjustified violence.1 An assassin wrapping up her latest job seems as deserving of criminal punishment as the underworld boss who hired her or the intoxicated driver who smashes into them. But crime control drives a hard bargain. As police walk their beats, investigators sift through evidence, and prosecutors charge, the machinery of criminal justice routinely reveals a darker side. Mass incarceration imposes severe fiscal burdens and social costs.2 Police action often seems to reflect glaring inequities, sometimes degenerating into brutal episodes as violent as those used to justify criminal enforcement in the first place.3 And the specter of wrongful convictions looms even in systems with elaborate adjudicatory constraints. When balancing this darker side with the value of punishing past harms, society confronts familiar and difficult tradeoffs dominating much of criminal law scholarship and policymaking. Yet the world is even more complicated than these trade-offs imply. With life constantly at risk from the very world that sustains it, society’s well-being depends not only on punishing paradigmatic violent offenses but also on managing risks of adulterated food, faulty medical devices, complex and difficult -to-price financial products, toxic water supplies, and terrorist attacks. The impulse to manage those risks is a major factor fueling the emergence of a modern regulatory state in advanced industrialized countries.4 Not surprisingly , the role of criminal enforcement in managing seemingly intangible , hidden risks inspires sharp debate among scholars and policymakers. Given these debates, at least three questions about the intersection of crime and preventive risk regulation deserve sustained attention: (1) Is preventive criminal enforcement in the regulatory or national security context an aberration , as some participants in recent debates have suggested? (2) Why do lawmakers and executive officials support preventive criminal enforcement in the first place? (3) In light of the institutional characteristics affecting the The Institutional Logic of Preventive Crime | 133 organizations implementing the law, what role can (or does) criminal justice play in the modern regulatory state? My purpose here is to address these puzzles by showing how much organization theory, criminal law, and the study of the regulatory state have to learn from each other. My approach involves closely scrutinizing existing criminal law provisions to elucidate their relationship to risk regulation, rethinking the political economy of criminal enforcement in light of the crime-regulation connection, and applying organization theory to make sense of how criminal justice operates in regulatory and national security domains. In the course of pursuing this approach, the chapter challenges a number of widely accepted notions about the institutional realities of criminal justice. Scholars and policymakers often suggest that criminal justice is ill-suited to prevention ,5 that criminal enforcement bureaucracies are poorly equipped to manage risk-creating behavior in the domestic policy or national security domains,6 or that pervasively dysfunctional political dynamics fuel ill-conceived expansive crime definition.7 I find otherwise. I. Legal Constraints and Organizational Capacity Criminal law is supposed to regulate private conduct. But its scope also determines what organizations engage in risk regulation, and how they undertake that mission. Some forms of criminal liability, for example, could be described as “preventive” in orientation because they encompass prophylactic offenses such as record-reporting violations designed to prevent the realization of some ultimate harm, or inchoate conduct in preparation for the completion of problematic behavior. The creation of such liability allows bureaucracies with distinctive investigative and analytical capacities to take part in regulating social conduct. Capacity is what allows a bureaucratic organization to perform its ostensible function. Even if one dispenses with frequently unrealistic assumptions about bureaucratic “slack,”8 attaining capacity tends to be costly. It requires individual and organizational investments of time, energy, and resources. Since individuals in public organizations often aim for a suboptimal aspirational standard instead of maximally effective performance (what Cyert and March describe as “satisficing”), organizations may miss opportunities to enhance their performance.9 In some cases they may be deliberately engineered to fail.10 All these factors make it unlikely that bureaucracies charged with preventive enforcement functions will naturally build all the capacity they can to perform in accordance with public expectations. [44.210.235.247] Project MUSE (2024-03-29 13:18 GMT) 134 | Mariano-Florentino Cuéllar Yet not all organizational actors operate the same way. Organizations routinely differ in how they define their missions, what trade-offs their leaders consider acceptable, and how...