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Incarceration's Incapacitative Shortcomings


Kevin Bennardo


Indiana University Robert H. McKinney School of Law

April 26, 2014

54 Santa Clara Law Review 1 (2014)

Abstract:     
Incapacitation is the removal of an offender’s ability to commit further crime. This essay identifies two distinct types of incapacitative effects: offense-specific incapacitation and victim-specific incapacitation. The former focuses on limitations on the offender’s range of conduct. The latter focuses on limitations on the offender’s access to particular populations.

As a punishment, incarceration incapacitates quite incompletely. Because imprisonment does not render inmates totally unable to commit crime, it fails to achieve complete offense-specific incapacitation. And, because it merely substitutes one set of potential victims for another, imprisonment fails on the total victim-specific incapacitation front as well. Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations. When the incapacitative benefit of incarceration is discussed, however, it is not usually described in such a circumscribed way. Rather, imprisonment is often said to fully achieve incapacitation by removing offenders from “society.” By excluding the victims of prison crimes from the relevant measuring population, such statements imply that the sentencing authority possesses no interest in such crimes. To avoid such erroneous discounting, this essay endeavors to accurately describe the offense-specific and victim-specific incapacitative benefits and limitations of incarceration.

Number of Pages in PDF File: 19

Keywords: Criminal punishment, sentencing, incarceration, imprisonment, incapacitation

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Date posted: December 19, 2012 ; Last revised: June 12, 2014

Suggested Citation

Bennardo, Kevin, Incarceration's Incapacitative Shortcomings (April 26, 2014). 54 Santa Clara Law Review 1 (2014). Available at SSRN: http://ssrn.com/abstract=2191128 or http://dx.doi.org/10.2139/ssrn.2191128

Contact Information

Kevin Bennardo (Contact Author)
Indiana University Robert H. McKinney School of Law ( email )
530 West New York Street
Indianapolis, IN 46202
United States
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