Incapacitating Errors: Sentencing and the Science of Change

53 Pages Posted: 6 Dec 2019 Last revised: 4 May 2020

See all articles by Eve Hanan

Eve Hanan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: November 22, 2019


Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.

This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies. Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable. Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.

Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.

The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude. Rather, sentencing policy should engage in only modest predictions about future behavior. The presumption of reintegration as a full member of society should be the norm. Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.

Keywords: sentencing, punishment, neuroscience, incarceration, prison, rehabilitation, criminal law, criminal procedure

JEL Classification: K14, K42

Suggested Citation

Hanan, Eve, Incapacitating Errors: Sentencing and the Science of Change (November 22, 2019). Denver Law Review, Vol. 97, No. 1, 2020, Forthcoming. Available at SSRN: or

Eve Hanan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States


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