Cornell Law Review Volume 99 Issue 2

Pre-Crime Restraints: The Explosion of Targeted, Noncustodial Prevention

This Article exposes the ways in which noncustodial pre-crime restraints have proliferated over the past decade, focusing in particular on three notable examples—terrorism-related financial sanctions, the No Fly List, and the array of residential, employment, and related restrictions imposed on sex offenders. Because such restraints do not involve physical incapacitation, they are rarely deemed to infringe core liberty interests. Because they are preventive, not punitive, criminal law procedural protections do not apply. They have exploded largely unchecked—subject to little more than bare rationality review and negligible procedural protections—and without any coherent theory as to their appropriate limits.

The Article examines this category of noncustodial pre crime restraints as a whole and develops a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate but argues that in some instances, noncustodial restraints can so thoroughly constrain an individual’s functioning that they are equivalent to de facto imprisonment and ought to be treated as such. Even in the more common case of partial restraints, enhanced substantive and procedural safeguards are needed to preserve the respect for individuals’ equal dignity, freedom of choice, and moral autonomy at the heart of the liberty interest that the Constitution and a just society protect.

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