Did The Greeks Have The Right Idea: Ostracism for Future Tyrants.
A few years back the cinegenic Thomas Cruise started in a lesser Steven Spielberg movie called “Minority Report.” Through sci-fi and psy-fi, Spielberg brought to life a near future dystopian vision of law enforcement where post-modern seers connected to computers can predict future crimes. Of course, the obvious moral problem with pre-crime is the fact that it ignores the basic morality of crime itself.
As any second year law student(yes, that’s usually when you get criminal law) The requirements for a crime are two-fold in western culture. We do not punish thought or status (or so we claim) but bad acts coupled with bad intent.
Hence the two Latin phrases that clutter the rules of criminal jurisprudence: mens rea and actus reus.
Translated this means the guilty mind combined with the volition always act. For it is the will to do harm that we punish in a free society. As one great legal mind said, we don’t care about the evil man who never acts upon his evil thoughts.
The evil man who thinks evil thoughts would only face repercussions in the land of pre-crime enforcers — where Cruise and his colleagues might be alerted to the thought of what the bad person wants to do before he can do it.
Our concepts of civil liberties and due process teach us that volition and will cannot be “pre-crimed” lest we entangle ourselves in metaphysical claims about probabilities instead of being satisfied with redressing palpable harms and injuries.
The constant temptation to try to forfend or forestall hurt to society has been with us no doubt since time began. For as any prosecutor or police officer can tell you, criminal prosecution can never truly stop evil or harmful conduct — it is always backward looking even as it justifies its punishment through uncertain predictions.
We claim that we punish only conduct and not character for to punish character is, in essence, to punish status and to engage in predictions about the exercise of will — or even predictions about the conduct of others. How can we know that the intentional murder may not act in the next context in justifiable self-defense. Predilections are not prologue no matter how much social science tries to teach us.
But, the lessons of dystopia in the depictions of “pre-crime” while showing us the failures of such predictions and their unacceptable costs to our liberties are teaching us why we are so tempted to acquiesce in such shortcuts. It is because we have come to realize that in a highly anomic culture the threat of criminal sanctions seems to fade into the din of other forms of social disapprobation.
In a culture where many people feel the worst punishment may be mere anonymity, the idea of social shame and formal isolation (imprisonment) seems like a modest trade-off if coupled with notoriety and attention in a world cluttered in mass media.
The leap of the status of painful anonymity or insignificance to a brief but intense level of cultural abuse infamy or villainy serves as a faux acclaim for those never to be acclaimed. It is the something in darkness unknownness.
In a society that is too large for face-to-face democracy to operate, how can we eliminate this aspiration that disregards all other rules or future sanctions in an effort just step from isolation and anonymity?
As a free society we cannot readily predict these acts or the actors who will do them without violating basic tenets of personal liberty. We cannot even know if our predictions will be accurate.
Nor should we be willing to do what other regimes have undertaken intentionally and that we do by default — that is to identify racial and socioeconomic characteristics of past actors and then focus our own version of “pre-crime” upon them and their communities — through over-enforcement.
Nor are we willing to do in the world of public affairs what the Greeks did in the classical era, commit to ostracism of those the larger community fears might act to do us evil — as dictators or ambitious tyrants.
Yet, where our predictions of “private crimes” will inevitably be doomed to failure statically and will always run afoul of constitutional norms and the categorical imperative of due process, we can make certain predictions in the area of public life.
We can before approving or entrusting public office and official power to individuals subject them to the most rigorous evaluation of their fitness and qualifications. No due process rights are violated by these predictions — or by the refusal to confer authority or positions of trust on unfit individuals.
The power to undertake this sort of dispositional outcome was recognized by the Framers in the inclusion of the power to disqualify an impeached party from ever holding any office of profit, trust or honor following conviction by impeachment.
Here, we see the Founders recognizing that at certain level, the power of prediction is completely acceptable to prevent future injuries to the Nation — despite the fact of our human inability to make these prognostications.
Here, no due process is violated. Here, the Framers’ likely classical understanding of the tradition of public ostracism in democracy still exists.
Here, the idea that a once and future tyrant cannot return to office still lives in the public memory and in the Constitution.