Back to the Future: The Epistemic Origins of Speculative Adjudication

• In Event: Theoretical Debates and Dimensions of Punishment

Abstract

The desire not just to know but to anticipate criminality has defined both the study of crime and crime policy in the US for the last 150 years. Indeed, criminology as a discipline has been fueled by an interest in the social, economic, and cultural factors that predict future criminality. Accordingly, the “predictive” or “preemptive” turn in contemporary punishment that has been closely associated with September 11th, 2001, and the rise of big data policing has deep and oft-overlooked historical roots. In this paper, I use comparative historical methods and discursive analysis to uncover the epistemic origins of “anticipatory prosecutions,” or what I term, more broadly, “speculative adjudication.” Drawing on thousands of pages of legal documents from so-called entrapment cases of both past and present--an exemplar in speculative adjudication--I argue that legal discourse reveals that the most pernicious tool of speculative crime management is not algorithmic policing and punishment, but a belief in criminal determinism. The analysis shows how criminological ideas that have been critiqued as both empirically unsubstantiated and racialized remain a central component of future-oriented legal narratives in contemporary criminal courts, operating independently of high-tech predictive analytics.

Author

• Anya Degenshein, Marquette University