Incarceration's Incapacitative Shortcomings
Louisiana State University, Baton Rouge - Paul M. Hebert Law Center
December 18, 2012
Santa Clara Law Review, Forthcoming
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: 16
Keywords: Criminal punishment, sentencing, incarceration, imprisonment, incapacitationAccepted Paper Series
Date posted: December 19, 2012 ; Last revised: May 7, 2013
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