Safety, Crisis, and Criminal Law

Abstract

Concepts of safety and prevention of danger pervade the criminal law canon.' Arizona is no exception. The state's criminal systems3 pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused's freedom might pose.4 The rules of criminal procedure and the criminal code designate some offenses and actors "dangerous" and urge judges to weigh not only the accused's risk of flight, but also his future dangerousness in making decisions to release or detain pretrial. On the other end of the criminal law continuum, post-conviction considerations follow suit. Arizona's sentencing guidelines permit enhancements of the ordinary term of imprisonment in the face of dangerousness.?

Those with the power to create, enforce, and interpret the law demonstrate a similar allegiance to goals of safety and protection. The criminal code designates state law enforcement officers "public safety officers" and charges them with protecting and serving the community.' State prosecutors share this commitment. The Maricopa County Prosecutor's Office is not unique when it proclaims online that it is "dedicated to keeping families safe." The Pima County Attorney's office's website echoes the sentiment, promising a trifecta of "Pursuing Justice. Prosecuting Criminals. Protecting the Community." The rhetoric of waging a war on crime to promote safety permeates electoral politics in the state.

None of this is unusual or surprising. Criminal law has long claimed the joined realms of safety and protection as its own." The narrative of these concepts, however, is deceptively complex. Despite their historical centrality to criminal law, the precise meaning of these terms remains elusive. Who warrants protection and how that protection is realized is obscure-its precise calculation a mystery. Likewise, outside of designating some crimes or actors dangerous, the code and rules define safety or the prevention of dangerous by what they are, but by what they are not. The task of crafting a more precise definition of safety or protection is left to discretionary decision-makers, who in an effort to lend meaning to the written law layer it with acts of application and interpretation. As formal discretionary decision-makers such as police, prosecutors, and judges interpret and apply law, they construct the previously absent or obscure borders of law's underlying principles. These discretionary moments matter, not only because they animate the law, but because they occur with far greater frequency than other moments of law creation.' Legislation occurs infrequently and seeks to establish baseline policies that are, by their nature, sufficiently general to apply broadly In contrast, discretionary moments of policing, prosecuting, or judging, happen in the lived trenches and represent moments of contact between the governed and the governing. For their part, those who live under the law-informal actors-may enjoy moments of discretionary decision-making when they vote as citizens or jurors, though these may be limited, literally and figuratively.