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48 San Diego L. Rev. 1273 (2011)
Inchoate Crimes at the Prevention/Punishment Divide

handle is hein.journals/sanlr48 and id is 1283 raw text is: Inchoate Crimes at the Prevention/ Punishment Divide KIMBERLY KESSLER FERZAN* TABLE OF CONTENTS I. INTRODUCTION ................................................. ....... 1273 II. INCHOATE CRIMES' PREVENTION-BASED RATIONALE .................... 1275 A. Attempts ....................................... ..... 1277 B. Preparatory Offenses......................... .......... 1282 III. A CASE FOR CRIMINALIZATION: WALEN ON THREATS... .................. 1285 A. Walen's Argument ..................................... 1285 B. Assessing the General View.............................. 1286 C. Does Walen Solve the Problems with Inchoate Criminality?................. 1288 D. Comparing the Views..................... ............... 1290 IV. CHOOSING BETWEEN REGIMES ................................... 1291 A. Is Punishment More Protective or Respectful? ........... ........... 1291 B. Does Prevention Present the Same Puzzles as Inchoate Criminality? ............................ ...... 1294 C. Why Proportionality Favors Prevention ......................... 1295 V. CONCLUSION .......................................................... 1297 I. INTRODUCTION The state has a strong interest in preventing harm to its citizens. Simultaneously, however, it must take its citizens' liberty and autonomy seriously as well. Although it may ask citizens to suffer small deprivations * Professor of Law and Co-Director, Institute for Law and Philosophy, Rutgers University, School of Law, Camden. I thank the participants at the University of San Diego School of Law's Conference on the Morality of Preventive Restriction of Liberty for their helpful discussion, as well as Larry Alexander and Dennis Patterson for comments on the draft manuscript. 1273

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