This Article exposes the ways in which non-custodial, 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, none of the criminal law procedural protections 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 fills a gap in the literature, looking at this category of preventive, non-custodial restraints as a whole and developing a framework for evaluating, limiting, and legitimizing their use. It accepts the preventive frame in which they operate, but argues that in some instances non-custodial 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.
Daskal, Jennifer C., Pre-Crime Restraints: The Explosion of Targeted, Non-Custodial Prevention, 99 Cornell L. Rev. (forthcoming 2014 ).