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Incapacitation - The Scholarly Literature On Incapacitation And The Measurement Of Incapacitative Effects, Estimates Of Incapacitation, Offending Trajectories And Incapacitation Policy

Law Library - American Law and Legal InformationCrime and Criminal Law

Incapacitation is one of the mechanisms through which prisons contribute to crime prevention. While incarcerated an offender is restrained from committing crimes, at least outside the prison walls, and thus it is said that prisons incapacitate offenders from "additional mischief," as William Blackstone once put it. For at least two hundred years incapacitation has been recognized as one of the legitimate objectives of the criminal law alongside deterrence and retribution, but arguably since the mid-1970s incapacitation may have become the main rationale for imprisonment, certainly in the case of the United States.

Until 1975 the incarceration rate nationwide remained strikingly steady averaging 107 prison inmates per 100,000 residents. Thereafter, and particularly since the early 1980s, the prison population grew at an astonishing rate of 7.2 percent each year, leading to a fourfold increase in the nation's incarceration rate by the end of the century.

The so-called war on drugs was certainly an important factor fueling this colossal expansion of imprisonment. Under this approach, introduced during the first Reagan Administration, stiff criminal sanctions replaced treatment-on-demand as the main weapon of choice to fight the use of illegal substances. The effects of this policy change were dramatic in the extreme. The number of drug inmates increased from just under 24,000 in 1980 to almost 240,000 in 1996. Yet, it would be a mistake to conclude that the shift in imprisonment levels was entirely or even mainly attributable to the change in drug policy. During the period 1980–1996 the number of inmates in prison for a violent offense increased by 248,000 whereas inmates serving time for a property offense grew by almost 150,000 prisoners (Blumstein and Beck). The wave of punitiveness did not materialize equally across states and among crime types, but there is no documented instance of a single jurisdiction or crime domain completely sidestepping the trend toward higher levels of punishment (Cohen and Canela-Cacho).

To an important extent, the increase in incarceration levels was the result of the public's cry for swifter and tougher criminal sanctions simply on grounds of retribution, particularly after the proliferation of victims' rights groups. The late 1970s saw not only the demise of the "rehabilitation ideal"—the use of prisons as a tool for the reformation of offenders—but also the rebirth of the notion of prisons as a place of penance. But to a much larger extent, the unprecedented expansion of incarceration reflected almost a blind faith among a large portion of the population and a dominant segment of elected officials that prisons are an effective means, and sometimes the only means, to prevent serious crimes. True, chronic offenders may be beyond rehabilitation and may be essentially immune to deterrence, but, in the words of the celebrated conservative columnist Ben Wattenberg, "a thug in prison can't shoot your sister."

The enactment since 1993 of so-called three-strikes-and-you're-out statutes in twenty-six states (Zimring et al.) is perhaps the best indicator of the public's confidence that crime can be best prevented through incapacitation. These statutes typically provide for mandatory sentences or life imprisonment for offenders convicted of a serious offense and who also have two or more prior convictions for violent or serious crimes. In some states, such as California, the "third-strike" need not be a conviction for a violent offense. These draconian measures have been largely accepted by the public not only as fair policies but as wise ones, premised on the notion that "three times an offender, always an offender," and that society has a right to permanently incapacitate those who cannot control their criminal urges.

This entry reviews the extant scientific literature on incapacitation, in particular studies that have attempted to measure the crime suppression effects of incapacitation. In a subsequent section, the entry reviews current knowledge on patterns of offending behavior that has a direct bearing on incapacitation policy. In this regard it is of special importance to assess what we know and do not know about offenders that are the prime targets of incapacitation, namely those who engage in frequent criminal doings over a long portion of their lives, and that historically have been called habitual offenders, chronic offenders, career criminals, and, more recently, life-course persistent offenders. The entry closes with a brief discussion of new policy developments, some of which continue the trend toward more incapacitation, while other teens seem to offer a reprieve from the era of punitiveness.



Kansas v. Hendricks, 521 U.S. 346 (1997).

Selig v. Young, 121 S.Ct. 727 (2001).

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