Incapacitation is a philosophy of punishment that seeks to restrict an individual’s ability to commit crimes through artificial means. Historically, capital punishment was commonly used to incapacitate dangerous offenders, but in the 21st century incapacitation is most often accomplished through incarceration in jail, prison, and/or solitary confinement. In the modern age, prisons have become the means by which offenders are isolated from civil society, although incarceration alone is sometimes insufficient to curb all criminal behavior. Crimes may be committed in prison against other inmates, and offenders who retain the ability to communicate with those outside of the prison may use outside agents to accomplish their criminal objectives. Only those offenders who are physically isolated from all human contact can be considered fully incapacitated.
Incapacitation and Utilitarian Goals
During the colonial age, criminal laws were largely based on moral precepts derived from biblical texts, religious norms, and precedents handed down from English common law. However, the Enlightenment prompted many to reject ecclesiastical influences in civil governments. Italian philosopher Cesare Beccaria, author of On Crimes and Punishment (1764), was successful in persuading some American colonies to abandon divine law in favor of positive law that advanced utilitarian goals. According to Beccaria, punishment should only be imposed if it deters bad behavior.
For deterrence to work, however, people’s rational self-interest must be employed so that they are persuaded not to break the law. Beccaria’s utilitarian counterpart, Jeremy Bentham, argued that as rational beings, people calculated the cost and benefits of criminal behavior before they acted; therefore, it was incumbent on legislatures to estimate how much punishment was required to convince individuals to obey the law instead of breaking it. While Beccaria also believed that individuals considered the costs and benefits of crime, he posited that the consequences for breaking the law needed only to be administered with celerity, with certainty, and with enough severity to counter the benefits of criminal behavior. Moreover, Beccaria believed that for enlightened societies, deterrence is more likely to be achieved by the certainty of apprehension and the immediate imposition of mild consequences than by the threat of extreme punishments that have little chance of being imposed.
Despite Beccaria’s disavowal of extreme punishments, the invention of the modern penitentiary in the early 1800s allowed the theory of incapacitation and the theory of deterrence to work together to foster the utilitarian objective of overall crime reduction. Instead of relying solely on capital punishment to deter and incapacitate offenders, lawmakers began to sentence offenders to prison instead. This moderated response satisfied deterrence theorists who rejected extreme sanctions and it yielded incapacitative benefits because the offender was isolated in a prison cell for a set period of time.
In the mid-1970s, lawmakers returned to a penal philosophy that favored deterrence over incapacitation. Sentences, which had previously been tailored by judges to meet the rehabilitative needs of individual offenders, were reconfigured by state legislatures in order to make them more certain; they were determined in advance by lawmakers and gradated to fit the severity of the crime. As crime rates increased, lawmakers responded by lengthening the terms of imprisonment, either through modifications to the determinate sentencing model, through a reduction of good-time credits, and through the adoption of sentencing enhancements that tacked on additional years in prison for gun use, drug trafficking, or prior criminal behavior. They promoted the deterrent benefits of longer prison sentences—they believed that more severe sentences would be more effective at persuading individuals to forgo their life of crime—while at the same time yielding incapacitative benefits for the duration of the sentence.
Unlike deterrence, however, incapacitation assumes that offenders will continue to break the law once they are released from prison. Determinate sentences, even lengthy ones, have a fixed ending date; therefore, most offenders at some point will be released from prison. However, incapacitation theorists argue that in order to be effective, offenders must be continuously isolated from civil society. Releasing an offender from prison will presumably begin the crime and punishment cycle anew.
Sentences based solely on the theory of incapacitation are often considered punishments of “last resort” because they require a lifetime of isolation in order to be effective. Consequently, they are typically reserved for incorrigible offenders who have failed to respond to other interventions or punishments. Accordingly, incapacitative sentencing measures are most often levied on recidivist offenders who have accumulated a voluminous or violent criminal record. Three-strikes laws, for example, impose lengthy prison sentences on felons upon commission of their third felony offense. Not all incapacitative policies require a life sentence. Laws targeting certain types of sex offenders may impose lengthy prison sentences upon first offense, but subsequently use registration and community notification procedures, residency restrictions, and lifelong electronic monitoring requirements to incapacitate sex offenders once they are released from prison.
Incapacitation and Rehabilitative Goals
In contrast, theories of incapacitation and rehabilitation promote distinctly different objectives. Incapacitation seeks to segregate offenders from society, whereas rehabilitation attempts to reform the individual and restore him or her to the community. Additionally, rehabilitation presumes that criminal behavior is causally related biological, psychological, and/or social dysfunction, and asserts that restored functioning can be accomplished through education, treatment for substance abuse, counseling, and behavioral therapy. To do this effectively, however, the offender must be kept in treatment until he or she is judged to be fit for reintegration.
Indeterminate sentences—or sentences without a fixed ending date—are the chief means by which rehabilitation is accomplished. Offenders who require much intervention need to be kept in a custodial environment until rehabilitative programming is complete. Incapacitation advocates also favor lengthy sentences because they allow the public to be safeguarded for longer periods of time. Although their objectives are different, the common purpose of retaining a person in prison for long periods of time has allowed incapacitation to flourish even when policies are designed to be rehabilitative in nature.
Constitutionality of Incapacitation
Although the U.S. Constitution does not specify which theories of punishment are constitutional and which ones are problematic, challenges to sentences based on the theory of incapacitation have generated a mixed response from the U.S. Supreme Court. In some cases, the court has rejected incapacitative punishments for being disproportionately severe. For example, in Weems v. United States (1910), the court declared that a sentence of 15 years of hard labor and a permanent restriction on basic political rights for a first offense for falsifying a public document was unconstitutionally excessive. According to the court, the Constitution requires the punishment to be graded according to the nature and severity of the crime. This so-called proportionality principle also led the court in Coker v. Georgia (1976) to declare that the death penalty could not be imposed for the crime of rape, even though rape is universally considered to be a heinous crime. Capital punishment cannot be used to incapacitate offenders convicted of less serious crimes.
In other cases, however, the court has validated states’ use of incapacitation to protect its citizens from victimization by repeat offenders. In Rummel v. Estelle (1980), the court upheld a lifetime sentence for a third-time felon convicted of credit card fraud even though none of his previous convictions involved crimes of violence. In speaking for the court, Justice William Rehnquist affirmed the right of Texas to incapacitate incorrigible offenders who lacked the capacity to conform their behavior to the standards established by the state. This same reason was used by Justice Sandra Day O’Connor in announcing a decision to uphold a three-strikes sentence in the case Ewing v. California (2002). Ewing, who did have a record of violence, had been sentenced to 25 years to life for a less serious offense of attempting to steal three golf clubs. In rejecting Ewing’s claim that the sentence was disproportionate to the offense and thus unconstitutional, O’Connor upheld the right of states to incapacitate repeat felons through lengthy prison sentences. According to O’Connor, states have the prerogative to respond to crime using any valid penological theory, including the theory of incapacitation. Nonetheless, O’Connor acknowledged that the Eighth Amendment’s ban on “cruel and unusual” punishments might preclude legislatures from requiring sentences that were “grossly disproportionate” to the offenses or for first-time or misdemeanant offenders.
Selective Incapacitation
Generally, lawmakers are not interested in imposing lengthy prison sentences on first-time offenders because a large percentage of them will not repeat their criminal behavior. In fact, sociologists who studied cohorts of juveniles in the 1960s found that half of all first-time delinquents never committed another crime. Even those who committed two offenses desisted shortly afterward; therefore, incarcerating these offenders for lengthy periods of time would be expensive and unnecessary. However, these researchers discovered that approximately one-fifth of the cohort committed five or more offenses before the age of 18, and combined, these chronic offenders were responsible for more than half of all the crimes committed during the study period. This main finding that a small percentage of offenders disproportionately commit a large number of offenses has been replicated in other studies as well. One federal study, for example, estimated that repeat offenders committed an average of twelve crimes per person before incarceration. An additional 5 percent of the offenders studied had been charged with an average of 45 crimes per person. Incarceration did not seem to deter them; upon release from prison, these chronic offenders quickly resumed their criminal careers: approximately 94 percent of those released from prison with 11 or more prior arrests committed a new crime within three years. Using these statistics, one researcher estimated that incarcerating only chronic offenders would reduce crime between 200 and 500 percent.
Lawmakers were initially optimistic they could find ways to selectively incapacitate chronic and/ or dangerous offenders. Using criminal history data and other sociological and psychological factors, criminologists developed statistical models that attempted to predict future criminality. However, when the predictive models were compared with actual criminal history data, they were found to be subject to error. In many cases, the models falsely predicted some to be chronic offenders; in other instances, the models failed to identify those who would later turn out to be habitual offenders. Both types of errors were problematic for advocates of selective incapacitation because both false positive and false negative errors would result in the wrong offenders targeted for lengthy imprisonment.
Even if the models were able to perfectly predict threats to public safety, some lawmakers would likely object to sentencing policies based solely on estimations of future dangerousness. This is because the theory of retribution—along with the principle of “just deserts”—requires that punishment only be imposed in response to actual criminal behavior. Punishments imposed for any other primary reason would be considered unjust. Preventive detention or anticipatory incarceration might yield utilitarian crime-control benefits, but in the U.S. system of justice, punishment is primarily imposed only upon deserving offenders.
Incapacitation in Practice
As with most crime and justice theories, incapacitation in practice works less elegantly and less efficiently than it proposes in abstract form. This is because the political, economic, and social realities that govern the criminal justice system result in compromises that undermine the theoretical precepts. For example, Beccaria argued that for deterrence to work, punishment must be swiftly imposed in order to cement the connection between behavior and punishment in the mind of the offender. Modern due process requirements, in contrast, encourage and promote delay. As a result, the deterrent benefits of punishment are potentially undermined by the adoption of constitutional measures that safeguard the rights of offenders.
Incapacitation is often compromised in similar ways. First, incapacitation theory presumes that inmates will be completely isolated from external communities so that they will have no further opportunity to engage in criminal behavior. In practice, however, adherence to substantive and procedural due process means that offenders are likely to have some contact with the outside world, including visits with attorneys and opportunities for interaction with clergy and other parishioners in regular religious services. To accomplish rehabilitation-oriented goals, correction officials have encouraged participation in education and counseling programs, vocational training programs, and halfway house services that prepare offenders for re-entry into the community. Second, even offenders who are subject to life imprisonment are occasionally allowed to leave prison for the purpose of conjugal visits, weekend furloughs, or medical release programs.
Isolating the benefits of incapacitation-oriented policies is also difficult. Even for repeat offender laws that promote a clear incapacitative objective, criminal justice researchers have difficulty determining if lengthy prison terms are responsible for an overall reduction in crime—and, if so, how much of that reduction can be attributed solely to incapacitation. Evaluations of California’s three-strikes law, for instance, have found that separating the impact of deterrence from that of incapacitation takes time; offenders are not considered effectively incapacitated by the law until the duration of the typical sentence ends and the added sentence length begins. Additionally, it is difficult to ascertain how much crime is actually prevented from lengthy prison terms given that even chronic offenders tend to desist as they approach middle age. If released in advance of their sentence completion date, most criminologists would expect elderly parolees to be unwilling or unable to resume their criminal careers. In this case, incapacitation would be accomplished by age, not by policy.
Efforts to incapacitate dangerous offenders have also fallen short when laws are put into practice. Many states now require sex offenders to register with authorities and notify communities of their presence in order to heighten awareness of the danger and thereby reduce opportunities for predatory behavior, but authorities have a difficult time enforcing such notification requirements. Similarly, states which restrict where sex offenders can live have inadvertently created incentives for sex offenders to live together, thus magnifying the potential danger for neighboring communities. To complicate things further, sex offenders have a very high recidivism rate—often upward of 80 percent—but determinate sentencing laws prevent corrections officials from holding offenders beyond their release date, even if they are certain that they will reoffend. As a result, some states have adopted civil commitment laws that seek to incapacitate offenders through involuntary detention in mental health facilities, although such means are ethically and constitutionally dubious. Other states have sought more invasive means of incapacitation, endorsing the chemical and/or physical castration of recidivist sex offenders. Understandably, these policies have also raised ethical concerns, and many judges in states where these laws are in effect have refused to enforce them.
Recently, California lawmakers have tried to combat the problem of prison overcrowding by resurrecting the theory of selective incapacitation. Through the use of predictive modeling, correctional officials are hopeful that they can more efficiently determine which parolees should be returned to prison if they violate the terms of their release. Most will violate the terms of parole, but not all parole violators need to be incapacitated in state prison. Low-risk offenders could be returned to the community, which will save space for more high-risk offenders who are at risk for recidivating. Like previous experiments with selective incapacitation, correctional officials acknowledge that statistical models are prone to error; not all “low-risk” parolees will refrain from committing crimes, and not all “high-risk” parolees need to be incapacitated in state prison. Nevertheless, researchers argue that the predictive abilities of statistical models still yield better results than intuition or guesswork alone.
Finally, lawmakers across the United States are feeling political pressure to reduce the nation’s large inmate population. Although crime has dropped with widespread adoption of incarceration-based punishment policies, overreliance on incapacitation is proving to be unsustainable. Before long, lawmakers will need to identify alternative ways to address the nation’s crime and punishment concerns.
Bibliography:
- Auerhahn, Kathleen. Selective Incapacitation and Public Policy. Albany: State University of New York Press, 2003.
- Beck, Allen J. and Bernard E. Shipley. “Recidivism of Prisoners Released in 1983.” Washington,
DC: U.S. Department of Justice, Office of Justice Programs, 1989.
- Blumstein, Alfred, Jacqueline Cohen, and Daniel Nagin, eds. Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions in Crime Rates. Washington, DC: National Academy of Sciences, 1977.
- Gottfredson, Don M. and Michael Tonry, eds. Prediction and Classification: Criminal Justice Decision Making. Chicago: University of Chicago Press, 1987.
- Wolfgang, Marvin E., Robert M. Figlio, and Thorsten Sellin. Delinquency in a Birth Cohort, Studies in Crime and Justice. Chicago: University of Chicago Press, 1972.
This example Incapacitation Essay is published for educational and informational purposes only. If you need a custom essay or research paper on this topic please use our writing services. EssayEmpire.com offers reliable custom essay writing services that can help you to receive high grades and impress your professors with the quality of each essay or research paper you hand in.
See also:
ORDER HIGH QUALITY CUSTOM PAPER
Always on-time
Plagiarism-Free
100% Confidentiality
Special offer!
