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Minority Report: Is the Future Now?
by Paul R Joseph
*Note: This article contains
"spoilers." Do not read until you have seen the film.
At the end of the recent film,
Minority Report, the Pre-Crime experiment is disbanded.
The immediate reasons seem to be two: first, the existence of
"minority reports" (occasions when one of the three
Pre-Cogs has a different image of events than the other two)
indicates that not all Pre-Crime suspects will actually kill
as predicted; and second, it is possible, with deep inside knowledge
of the system, to fool it by "hiding" a murder so that
it will be read as a "deja vu" Pre-Cog reading and
discarded. Neither reason supports the elimination of the unit
and the film's conclusion may give an erroneous impression about
the accuracy of our own criminal justice system.
 Let's
be clear. Both reasons for disbanding the Pre-Crime unit essentially
boil down to the fact that the system is not perfect. Either
an innocent will be punished for a crime he would not have committed,
or a guilty person may elude detection.
The very same objections can
be made about our own system. True, we do not attempt to punish
crimes before they occur; rather, we generally know that a crime
has taken place. What we don't know is whether the defendant
is the person who committed the acts in question (and, of course,
we must often judge the state of mind of the defendant at the
time he acted). The trial mechanism is intended to resolve these
issues but we do not require that the resolution rest on absolute
proof to the exclusion of any other possibility. The "reasonable
doubt" standard is a high one but it falls short of requiring
absolute certainty. As a standard jury instruction puts it (in
part), "A reasonable doubt is not a mere possible doubt,
a speculative, imaginary or forced doubt." (Section 3.7,
Florida Standard Jury Instructions in Criminal Cases, Fourth
Edition, 2002). Because absolute proof is not possible, we do
not require it. We label such "well, there is always a possibility
that he's innocent no matter what the evidence"as "unreasonable
doubt" and we tell the jury to convict.
In essence, we accept an error
rate-we know that some- but very few-- innocents will be condemned.
It is only when the error rate appears to be larger than what
is "acceptable" that we become alarmed. Something like
this crisis of confidence is now brewing with regard to the death
penalty as the number of accounts of innocents condemned to die
swell, leading to moratoria and calls for reform or even abolition
of this impossible-to-correct punishment. In Minority Report,
the "error" rate seems very low-certainly lower than
in our own very real legal system. Further, the error rate could
be cut down significantly by not condemning in any case for which
there is a "minority report." And, since the condemned
in Minority Report are not executed but merely kept in
stasis, there is always the ability to release a person determined
to have been wrongly accused.
It is also not a strong case
for abandonment of the project that its founder was able to conceal
his own crime. First, this appears to be the only such case in
the history of the Pre-Crime Unit and it is clear that only someone
with an intimate knowledge of the workings of the system could
have pulled the deception off, even for a short time. The glitch
in the system, that "deja vu" visions of murders were
routinely erased, would certainly have been corrected.
In our own criminal justice
reality, we have become aware that sometimes cops go bad. They
lie, they steal, they cheat and they frame innocents for crimes.
Scandals in the New Orleans Police Department and the Ramparts
division in Los Angeles are not unique. We know this but we do
not call for the abolition of all police departments. Rather,
we investigate allegations of wrongdoing, sometimes prosecute
bad cops, maintain "internal affairs" divisions, look
for systemic ways to further professionalize police, etc. All
in all, the Pre-Crime unit in Minority Report doesn't
seem like a likely candidate for closure on the grounds of corruption.
Perhaps the problem with Pre-Crime
is its premise, that we punish what might happen rather than
what has happened. Certainly, the idea of punishing thoughts
is abhorrent to any society that believes in freedom. What is
in our minds is our most private and intimate domain.
But Pre-Crime does not purport
to punish mere thought. Rather, the premise is that the Pre-Cogs
see the future-or at least, as we come to learn, the very likely
future. Even here, it isn't so clear that our own criminal justice
system does not have at least some parallels to the Pre-Crime
approach portrayed in Minority Report. Consider two examples:
conspiracy and preventive detention.
Conspiracy is really an agreement
among persons to commit a crime. The District of Columbia, where
Pre-Crime operated in Minority Report, requires some overt
act be committed towards achieving the criminal goal but it need
not be committed by the particular defendant. Acts of each conspirator
are attributed to all other members of the conspiracy. The underlying
crime need not actually be committed. Thus, a defendant could
be charged with conspiracy to commit murder even though the murder
never takes place and even when the plot did not evolve to a
stage where the conspirators could be charged with an attempt.
Although we define conspiracy
itself as a separate criminal offense, which means that we do
not have to deal directly with the issue in Minority Report,
it could be argued that there is a near parallel between criminal
liability for conspiracy and holding people accountable for crimes
they would very likely have committed unless arrested. In both
cases, society has found a way to hold people to account for
their intended and likely future wrongful acts without the necessity
of waiting until the act has actually come to pass.
In bail hearings, judges routinely
calculate the likelihood that the defendant will appear at trial
and deny bail when the defendant is a "flight risk."
This form of preventive detention is applied because the judge
has calculated that the defendant is likely to flee in the future
and therefore can be held in jail now to assure his appearance.
While we staunchly deny that this jail term is "punishment,"
it is unlikely that the incarcerated person takes much comfort
in that. Jail is jail whatever label we put on it.
There is a growing belief that
some violent sex offenders suffer from some sort of personality
disorder or mental condition and that this produces a high probability
that they will repeat their crimes. In response to this, some
states have passed violent sexual predator laws (The Florida
version is called the Jimmy Ryce Act and can be found at FL ST
Section 394.910 et. seq. ) Under these laws, the person in question
(generally someone already incarcerated for a past crime but
shortly to be released), upon appropriate legal findings, can
be civilly committed for an unlimited term in a secure treatment
facility until such time, if ever, that the person is no longer
a danger to others. Because the process is civil rather than
criminal-that is, its purpose is not punishment-- the statutes
artfully dodge the "punishment for future crime" issue
directly faced in Minority Report [the civil nature of
the commitment also avoids many of the Constitutional protections
which would apply to a punitive regime. See, for example, Seling
v. Young, 121 S.Ct. 727 (2001)], but the result is much the same.
A person found likely to commit particularly serious future crimes
is involuntarily removed from society primarily due to a prediction
of future crimes the individual may (or may not) commit.
While we do not yet claim to
punish criminals before they commit crimes, the core concept
of Minority Report, that predicted future criminal conduct
is sufficient grounds for locking a person up, may be closer
to realization in the real world than some might suppose. If
anything, the Pre-Crime process shown in the film probably has
fewer errors and better predictive value than analogous parts
of our own system.
Minority Report ends with the abolition of the Pre-Crime
unit. It is just too dangerous and too error prone to be allowed
to function. We come to realize that there is something deeply
troubling about locking people up for what they may do in the
future. If those views are right, then perhaps there are parts
of our own system that should be carefully reexamined.
Posted: July 9, 2002
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