Should we make crime impossible?

• Author: Rich, Michael L.
• Position: Introduction through II. A Framework for Assessing Impossibility Structures, p. 795-828

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 INTRODUCTION

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. (18) Although it seems farfetched to imagine the government distributing such drugs through the public water supply to eradicate urges among the citizenry to engage in criminal conduct, the prospect is at least theoretically possible.

At least one commentator has argued, however, that impossibility structures are essentially nothing new and that they are just amplified "structural controls" used by the government to deter undesirable courses of actions by making them more difficult, more likely to be punished, or less rewarding. (19) Such controls are used in a variety of contexts already. Government-mandated "default rules," for example, encourage socially beneficial behavior in areas such as financial decisionmaking and employment. (20) Similarly, "coding" in the architecture of cyberspace permits the government to engage in ex ante regulation of online behavior. (21) Structural controls are used to curb criminal behavior as well. The "Situational Crime Prevention" movement is based on the notion that manipulation of environmental factors can deter crime by making it either less possible or more costly. (22) A steering column lock, for instance, deters theft by making the crime more difficult to accomplish. (23) And the police might deter prostitution by closing roads to make it more challenging for "johns" to cruise. (24)

But the claim that impossibility structures are merely enhanced structural controls glosses over a critical distinction between them. (25) Structural controls depend on the traditional notion that criminals are essentially, if not perfectly, rational actors who can be convinced that criminal conduct is a bad idea. (26) By making crime more costly, structural controls generally, and Situational Crime Prevention more specifically, seek to convince this rational potential criminal not to break the law or to break it in some less harmful way. But impossibility structures do not target a potential criminal's rational decisionmaking; they aim instead merely to frustrate her efforts. Put another way, whereas structural controls and traditional crime-fighting tell criminals that they "shouldn't" do something, impossibility structures make it so that they simply "can't." (27) This distinction matters, because it challenges the assumption that the criminal justice system is about shaping the choices that individuals make freely and punishing those who choose of their own free will to violate the law. (28) In essence, impossibility structures seek the same goal as traditional crime fighting--the prevention of crime--but by new means.

Some respond to these new means with a sense of intense discomfort, describing government attempts to prevent criminal conduct in Orwellian language. (29) So it was when the National Highway Transportation Safety Administration briefly required in the 1970s that all new cars be equipped with an ignition interlock to make it impossible to drive a car without wearing a seatbelt. (30) Public outcry over the interlocks, including claims of "Big Brotherism," led Congress to forbid the Department of Transportation from requiring them. (31) By contrast, others offer unqualified optimism that impossibility structures are the solution to prevent the substantial harm caused by some crimes. (32)

These conflicting, visceral responses suggest the need for a full accounting of the costs and benefits of impossibility structures. Indeed, the impending feasibility of these structures demands that this accounting be provided sooner rather than later so that legislators can decide intelligently whether to implement them. Yet the existing discussions of impossibility structures are either incomplete (33) or fail to recognize impossibility structures as a unique phenomenon requiring separate analysis. (34) Meanwhile, considerations of structural controls as crime-fighting tools are more fully developed, but generally proceed on the basis of foundational assumptions that avoid or obscure important questions. Some assume that crime prevention is an unalloyed good and thus fail to engage with difficult normative questions raised by structural controls on crime. (35) Others approach structural controls with an overriding skepticism about government interference that preempts a discussion of the practicalities of such controls. (36) None of these discussions provide legislators (and future scholars) with a starting point for their analysis of specific impossibility structures.

This Article does so by proceeding in four parts. Part I defines more precisely what constitutes an impossibility structure. Part II establishes a framework for analyzing impossibility structures by setting forth the most common arguments that can be raised for and against their use. Part IV applies this framework to the DADSS that aims to make drunk driving impossible. Finally, Part V concludes the discussion by briefly suggesting some lessons from the DADSS example and highlights issues that are likely to arise in applying the framework to future structures.

1. DEFINING IMPOSSIBILITY STRUCTURES

   An impossibility structure is government action aimed at making it effectively impossible for individuals to engage in proscribed conduct. Specifically, impossibility structures possess three characteristics that, in conjunction, distinguish them from more traditional methods of crime prevention.

   First, impossibility structures involve government, rather than private, conduct. Private entities frequently seek to protect themselves from crime by making that crime impossible. An individual afraid of burglary or home invasion might install locks on exterior doors or place bars over windows to prevent intruders from entering. Financial institutions put in place substantial security protocols to prevent theft. Corporations guard their data through cybersecurity measures. Impossibility structures differ from these private steps in that the government is the driver for the implementation of the structure. (37) The government's involvement is important for three reasons. First, it means that the structure constitutes state action and thus implicates constitutional concerns. (38) Second, the involvement of the government heightens concerns about autonomy, privacy, and bodily integrity. (39) Third, the government's mandate makes it possible for the impossibility structure to be...