Vice Crimes and Preventive Justice

Abstract

This symposium contribution offers a reconsideration of a range of crime legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms. This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, preventive justice legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.