Penal Incapacitation: A Situationist Critique

57 Pages Posted: 25 Jan 2017  

Guyora Binder

University at Buffalo Law School

Date Written: 2017


Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence. This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.

Keywords: Criminal Law, Punishment Theory, Proportionality, Incapacitation, Law and Psychology

Suggested Citation

Binder, Guyora, Penal Incapacitation: A Situationist Critique (2017). American Criminal Law Review, Vol. 54, No. 1, 2017; University at Buffalo School of Law Legal Studies Research Paper No. 2016-037. Available at SSRN:

Guyora Binder (Contact Author)

University at Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-2673 (Phone)
716-645-2640 (Fax)

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