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The Future Of Incapacitation Policies

Various policy developments in the 1990s suggest that the era of punitiveness with emphasis on incapacitation will not be over anytime soon. Two instances of policies along these lines are the passage of "sexual predator laws" and the increasing use of the adult criminal system to prosecute and sanction juveniles as young as fourteen years of age.

Washington state passed the first sexual predators statute in 1990 and thereafter nine other states have enacted basically equivalent laws (Lieb et al.). These statutes target incarcerated sex offenders who are soon to be released having completed their sentences. If the offender can be shown to suffer from a "mental abnormality or personality disorder that makes [him] likely to engage in future predatory acts of sexual violence" (Wash. Rev. Code 71.09.020, emphasis added) the statute authorizes the state to confine the just released inmate for treatment until a jury finds him safe for release. Clearly, the objective of the statute is to extend the incapacitation of these inmates past the end of their incarceration sentence, a sort of "incapacitation beyond punishment."

These statutes have been particularly controversial. Disavowing well-established principles of civil commitment law and practice, the sexual predator statutes do not require a showing that the person is "mentally ill" but instead rely on the malleable concept of "mental abnormality or personality disorder." The former term is limited to diagnosable medical conditions such as schizophrenia; the latter does not have a uniform clinical definition. Some also argue that with the sex predator laws the state is able to apply in series, and essentially based on the same facts, two control mechanisms (criminal sanctions first and then civil commitment) that until now were incompatible with each other. The Supreme Court, however, has found these statutes constitutionally acceptable in two recent rulings (Seling v. Young, 121 S.Ct. 727 (2001); Kansas v. Hendricks, 521 U.S. 346 (1997), essentially on the ground that the statutes are not punitive and therefore do not constitute double jeopardy, and under the guise that incapacitation of dangerous sexual violent predators is a legitimate exercise of the states' regulatory power to secure public safety.

Thus far the sexual predator statutes have been applied in a very limited number of cases, by one count under 1 percent of all eligible released inmates (Lieb, 1998), and there is no evidence that the same approach will be extended to other violent predators. Still the precedent has been set for a policy of incapacitation beyond the completion of a criminal sentence.

Another telling indicator of the remaining support for tough criminal justice policy for the sake of crime prevention is the shift of underage perpetrators from the juvenile to the adult system. Of all new admissions into prison nationwide, 2.3 percent were children (as young as fifteen, in New York and North Carolina). Despite the sizable declines in violent crime levels since 1992, the public apparently agrees with the proposition that more gains can be achieved by further toughening criminal sanctions. California approved a referendum, by a two-to-one margin, that requires juveniles fourteen years of age or older charged with murder or a serious sex offense to be tried in adult court.

But there are also some promising policy developments for crime control that are not imprisonment-based. There is an impressive body of scientific evidence showing that drug treatment is a very efficient means for crime control, vastly superior to imprisonment in many contexts. Caulkins and colleagues have shown that the resources consumed by mandatory minimum sentences for drug offenders would have greater social returns—in terms of crime control and in other ways—if they were spent in drug treatment facilities. Along the same lines, a large quasi-experimental study of drug and alcohol treatment in California (Caldata) showed that on average every dollar invested in drug treatment yields the equivalent of $7 in social returns, most of it on account of the reductions in criminal behavior of the persons receiving treatment.

It has often been argued that the incarceration of drug users results in little or no incapacitation of serious crimes. That conventional wisdom may or may not hold true. Some rigorous studies have shown that the criminal records of offenders in prison for a drug offense are comparable, in terms of prior violent or property crimes, to the records of offenders in prison for property of violent offenses (Cohen et al.). But the point that drug users may be good targets for incapacitation does not contradict the notion that these same offenders, or at least a fraction of them, are even better targets for drug treatment.

California again is showing the way, in this case with a bold policy that finally heeds the findings of rigorous research that drug treatment pays off. Beginning on 1 July 2001, offenders convicted of a "nonviolent drug possession offense" are sentenced to probation and are required to complete a drug treatment program. This new system will require that the state create a treatment trust fund of almost $700 million for the first six years of the program. In return, the state expects to save up to $250 million a year in state prison operating costs and a one-time savings of $500 million on capital outlay costs. Of course, the attention will not focus on the financial savings from diverting offenders from prisons to drug treatment facilities. We have always known that the latter are substantially less expensive than the former. The focus will be on what happens to the criminal propensities of the diverted offenders: Will a drug offender in treatment not shoot your sister? Will the incapacitation returns on account of drug treatment surpass the incapacitation returns from imprisonment?

The drug treatment initiative is part of a more general trend in what can be called the cost-benefit analysis of imprisonment. Throughout the 1980s and most of the 1990s, scholars probing into the cost-efficiency of prisons posed the question simply in terms of incarcerate or not incarcerate (DiIulio and Piehl; Piehl and DiIulio). Whether prisons pay, in the sense that the benefits of incarceration exceed its costs, is by no means a settled matter (see Spelman, 2000b), but the interesting point is that presently the cost-benefit analysis of incarceration has been expanded beyond its traditional formulation. Greenwood and colleagues (1998) pulled together the best literature on the effectiveness of early interventions in the lives of children at risk of deviant behavior. While we are still awaiting large demonstration programs, the cumulative knowledge acquired to date is suggestive of the notion that, from the standpoint of incapacitating future crimes, an ounce of early intervention is worth a couple pounds of later incarceration. Perhaps the times are ripe to give that policy a real chance.

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal LawIncapacitation - The Scholarly Literature On Incapacitation And The Measurement Of Incapacitative Effects, Estimates Of Incapacitation, Offending Trajectories And Incapacitation Policy