Forfeiture of the Presumption of Law Abidingness

Abstract This chapter describes the possibility of forfeiting the presumption of law abidingness (POLA) as a basis for incapacitation. As a preliminary matter, Section 16.1 argues that there are only two ways the state can justify targeted restrictions, not based on punishment or penalty, when agents are fully accountable: when they have forfeited the POLA or when they have an enforceable positive duty to restrict themselves for the sake of others because they cannot otherwise avoid posing a threat to others. Section 16.2 discusses how the POLA can be forfeited, covering general and specific POLA forfeiture, the bases for POLA forfeiture, and some paradigmatic cases of POLA forfeiture. It also discusses how to distinguish POLA forfeiture from punishment, how to distinguish POLA forfeiture from the “double track system,” and some procedures required to establish POLA forfeiture. Section 16.3 discusses proportionality limits on forfeiture of the POLA, covering the tension between POLA forfeiture and reconciliation within the criminal law, the need to use the least restrictive alternative for POLA forfeiture to be proportional, and the fact that POLA forfeiture implies that compensation for restrictions is not required.