Preventive Criminalization

The criminal laws of many states make increasing use of preventive offenses—offenses that aim to prevent a given type of harm by targeting conduct prior to the causation of that harm. Academic commentators have largely been skeptical about such offenses. Their most potent criticism is that many preventive offenses do not target culpable wrongdoing of a kind that warrants censure and punishment through the criminal law. This article responds to this argument. Its principal contention is that some preventive offenses may be rationalized as targeting regulatory or malum prohibitum wrongs. Even if conduct does not yet cause or risk causing harm, it may warrant penalization as part of a regulatory scheme aimed at preventing that harm. This is shown to have significant implications for the legitimacy of some offenses targeted by the skeptics—in particular, offenses targeting the possession of weapons such as knives or firearms.