Should We Make Crime Impossible?
Rich, Michael L., Harvard Journal of Law & Public Policy
INTRODUCTION I. DEFINING IMPOSSIBILITY STRUCTURES II. A FRAMEWORK FOR ASSESSING IMPOSSIBILITY STRUCTURES A. Benefits B. Costs 1. Interests of the Potential Perpetrator a. Autonomy b. Privacy c. Bodily Integrity and Personhood 2. Victim Interests 3. Third-party Interests 4. Societal Interests a. Financial Cost b. Imperfect Impossibility c. Undermining the Educational Function of the Criminal Justice System d. Preventing Beneficial Criminal Conduct e. Stifling Discussion of Underlying Legal Rules III. SHOULD WE MAKE DRUNK DRIVING IMPOSSIBLE? A. Benefits of the DADSS B. Costs of the DADSS 1. Perpetrator Interests a. Autonomy b. Privacy 2. Societal Interests a. Financial Cost b. Imperfect Impossibility c. Undermining the Educational Function of the Criminal Justice System d. Beneficial Criminal Conduct e. Stifling Discussion of Underlying Legal Rules IV. FUTURE CONSIDERATIONS
Technology often makes possible what once was impossible. (1) This Article does not deal with that technology. Rather, it discusses the use of technology to make impossible what once was possible. In particular, it discusses what will be called "impossibility structures," (2) government mandates that aim to make certain classes of criminal conduct effectively impossible. (3)
The idea behind impossibility structures--that the government could use technology to make criminal conduct impossible--is not new, (4) but advances in technology are making such structures increasingly feasible. (5) Automobiles provide a ready example. Computers are the brains of modern vehicles, (6) and car manufacturers use those computers to improve safety by, among other things, enabling them to take control of a car in an emergency. (7) When combined with technology that allows a car to communicate with roadside devices about road conditions, (8) these computers could also theoretically prevent drivers from violating traffic laws by speeding, running red lights or stop signs, or tailgating. Particularly promising is the Driver Alcohol Detection System for Safety (DADSS), a car-based technology under development by the federal government and car manufacturers that aims to prevent drunk driving. (9) Time Magazine recently named it one of the best inventions of 2011. (10)
Similarly, the possibilities for computer-based impossibility structures are bounded only by the imagination of technologists and legislators. (11) Digital music players enforce limits on shared music. (12) The Digital Millennium Copyright Act criminalizes the creation of copyright-avoiding software, thus making it effectively impossible for the average consumer to share copyrighted materials illegally. (13) Web filters prevent access to websites hosting illegal materials like child pornography. (14) Databases that track consumer purchases could be repurposed to prevent individuals from buying the ingredients for methamphetamine or explosives. (15) The possibilities are practically innumerable. Cellphones, for example, could be programmed to prevent those under a restraining order from harassing their victims.
Meanwhile, advances in medical science, pharmaceuticals, and psychiatry have opened the door to make even the most "traditional" crimes impossible to commit. The beginnings of this possibility are seen in "chemical castration" drugs administered to sexual predators to eradicate their sexual urges and thus remove their motivation to commit sexual offenses. (16) Other drugs exist that may be used to dampen a broader range of anti-social desires. (17) One recent study suggests that some drugs may reduce implicit racism. …