INCAPACITATION THEORYProponents of the incapacitation theory of punish-ment advocate that offenders should be preventedfrom committing further crimes either by their(temporary or permanent) removal from society orby some other method that restricts their physicalability to reoffend in some other way. Incarcerationis the most common method of incapacitatingoffenders; however, other, more severe, forms suchas capital punishment are also used. The overallaim of incapacitation is to prevent the most danger-ous or prolific offenders from reoffending in thecommunity.

EXPLANATION

Incapacitation is a reductivist (or “forward look-ing”) justification for punishment. Reductivism isunderpinned by the theory of moral reasoningknown as utilitarianism, which maintains that an actis defensible and reasonable if its overall conse-quences are beneficial to the greatest number ofpeople. Thus, the pain or suffering imposed on anoffender through punishment is justified if itreduces or prevents the further harm that wouldhave been caused to the rest of society by the futurecrimes of that offender. The concern here is with thevictim, or potential victim. The rights of theoffender merit little consideration.

Incapacitation has long been a significant strat-egy of punishment. For example, in Britain duringthe 18th and 19th centuries, convicted offenderswere often transported to Australia and theAmericas. In the 21st century, the physical removalof offenders from society remains the primarymethod of incapacitation in most contemporarypenal systems. This usually takes the form ofimprisonment, although other methods of incapaci-tation are in operation.

The most severe and permanent form of incapac-itation is capital punishment. Capital punishment isoften justified through the concept of deterrence,but whether the death sentence actually deterspotential offenders is highly contested. What isindisputable is that once put to death an individual

is incapable of committing further offenses. Capitalpunishment is therefore undeniably “effective” interms of its incapacitative function.

Other types of severe or permanent incapacita-tive punishments include dismemberment, whichis practiced in various forms. For example, thephysical or chemical castration of sex offenders hasbeen used in some Western countries, notably NorthAmerica. Less severe forms of incapacitation areoften concerned with restricting rather than com-pletely disabling offenders from reoffending. Theseinclude sentences such as disqualification from dri-ving or curfews. In the United Kingdom, attendancecenter orders are used for individuals under the ageof 21. Their aim is to restrict the leisure time ofoffenders by requiring them to attend a center inorder to engage in some form of activity for a spec-ified number of hours.

However, as mentioned above, the primarymethod of incapacitation is imprisonment. As withcapital punishment, incapacitation in the form ofimprisonment is considered to be a strategy that“works” because, for the duration of their prisonsentence, offenders are restricted from committingcrimes within the community.

So, according to this theory, punishment is notconcerned with the nature of the offender, as is thecase with rehabilitation, or with the nature of theoffense, as is the case with retribution. Rather, pun-ishment is justified by the risk individuals arebelieved to pose to society in the future. As a result,individuals can be punished for “hypothetical”crimes. In other words, they can be incarcerated, notfor crimes they have actually committed but forcrimes it is anticipated or assumed they will commit.

DEVELOPMENT AND DETAILS

Since the 1970s, and the demise of rehabilitation asa primary aim of punishment, incapacitation hasbecome a significant goal of penal systems in boththe United States and the United Kingdom. Twostrategies have influenced penal policy and practiceon both sides of the Atlantic: the “three strikes andyou’re out” policy and the practice of “selectiveincapacitation.”

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The three-strikes policy is partly informed by thetheory of deterrence but is primarily underpinnedby the concept of incapacitation. It has been influ-ential in the United States since the early 1990s andaims to remove the most prolific or habitual offend-ers from society. Such offenders are given long sen-tences of up to life imprisonment for a third offense,regardless of the nature or gravity of that crime, ifone or both of their previous offenses was a “seri-ous” felony. In practice, this means that offenderscan be given sentences that are disproportionatelyharsh for the offense committed. One of the mostoft-cited examples of the severity of the three-strikes principle is the case of Jerry Williams, who,in 1995, was sentenced to life imprisonment with-out parole for stealing a piece of pizza.

The three-strikes principle has also had animpact on penal and criminal justice policy in theUnited Kingdom. The Crime Sentences Act (1997)proposed the use of harsh sentences, lengthier thanthe seriousness of the crime would normally war-rant, for “serious” or prolific offenders. In addition,discretionary life sentences were introduced inthe Powers of Criminal Courts (Sentencing) Actof 2000.

The second strategy, selective incapacitation, isconcerned with identifying “risk” and predicting“dangerousness.” This strategy emphasizes theproactive nature of incapacitative sentences. The aimis to incarcerate selectively those individuals whowould pose a serious risk to the public if left within,or released back to, the community. Identifying riskis inherently problematic, and there have been manycriticisms leveled at the subjectiveness of the meth-ods and criteria used to predict future dangerousness.Indeed, as Norwegian sociologist Thomas Mathiesenhas commented, many of the so-called aggravatingfactors often used to predict future behavior—suchas previous periods of imprisonment, drug use, andunemployment—might actually be considered, bysome, to be mitigating factors.

CRITIQUE

The use of incapacitation as a justification forpunishment can be inherently problematic in boththeory and practice. First, incapacitative sentences

such as the three-strikes principle effectivelyrepunish individuals for previous crimes. Alterna-tively, sentences based on selective incapacitationpunish individuals for crimes not yet committed.There is an inherent risk with selective incapacita-tion that some of the individuals who are identifiedas “dangerous,” and thus incarcerated, would nothave gone on to offend. However, even if the meth-ods of prediction were accurate, there are naturallymoral and ethical questions about incarceratingindividuals for what they may do rather than whatthey have actually done.

Incapacitative sentences also maintain and legit-imize structural divisions within society. U.S. sociol-ogist Christian Parenti comments that the excessiveuse of incarceration in the United States is indicativeof a growing class-based, racial intolerance. Thethree-strikes principle, as with imprisonment in gen-eral, is disproportionately applied to minorities andthe poor. While African Americans make up only 7%of the Californian population, for example, they con-stitute 31% of the state prison population and 44% ofits “three-striker” population.

At the same time, a penal strategy based aroundthe concept of incapacitation places no emphasis onthe crimes of the powerful. So white-collar, corpo-rate, and environmental crimes, which are morecostly and, some would argue, more harmful tosociety, are overlooked. The emphasis instead isplaced on street crime, which is disproportionatelycommitted by the young and the poor.

Finally, incapacitative sentences, which are fre-quently dispensed to young people, take no accountof the fact that most individuals “grow out” of theircriminal activity. Many “criminal careers” do notlast beyond the late teen years. Thus, long sentenceswithout the possibility of parole make no allowancefor the transitory nature of much law breaking.

—Alana Barton

See also Civil Commitment of Sexual Predators;Corporal Punishment; Determinate Sentencing;Deterrence Theory; Increase in Prison Population;Indeterminate Sentencing; Just Deserts Theory; LifeWithout Parole; Megan’s Law; Parole; Parole Boards;Prison Industrial Complex; Race, Class, and Genderof Prisoners; Rehabilitation Theory; Sentencing

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Reform Act 1984; Sex Offenders; Three-StrikesLegislation; Truth in Sentencing; War on Drugs

Further Reading

Feeley, M., & Simon, J. (1992). The new penology: Notes onthe emerging strategy of corrections and its implications.Criminology, 30(4), 449–470.

Mathiesen, T. (1990). Prison on trial. London: SageParenti, C. (1999). Lockdown America: Police and prisons in

the age of crisis. New York: Verso.Zimring, F. E., & Hawkins, G. (1995). Incapacitation: Penal

confinement and the restraint of crime. Oxford, UK:Oxford University Press.

INCREASE INPRISON POPULATION

It would be no exaggeration to say that during thepast two decades the U.S. prison system has been agrowth industry. There are now more than 2 millionpeople behind bars in America, with an incarcera-tion rate above 700 per 100,000 (if we includejails), triple what it was 20 years ago. The UnitedStates is way ahead of other industrial democracies,whose incarceration rates tend to cluster in a rangefrom around 55 to 120 per 100,000 population.Some countries have incarceration rates well belowthat range, such as Japan’s rate of 37. Canada has arate of only 115. The average incarceration rate forall countries of the world is around 80 per 100,000.Thus, America’s incarceration rate is almost ninetimes greater than the average country.

Table 1 shows changes in the U.S. prison systemduring the past 75 years. Note that the most signif-icant increases have occurred since the mid-1980s,when the war on drugs began to have its effects onjail and prison populations. Indeed, a recent esti-mate is that convictions for drugs accounted foralmost one half of the increase in state prisoninmates during the 1980s and early 1990s. Between1988 and 1994, the number of prisoners who hadbeen convicted of drug offenses went up by155.5%. By comparison, only modest increaseswere seen for violent and property offenders.Between 1980 and 1992, court commitments tostate prisons on drug charges alone increased bymore than 1,000%.

The increase for women offenders has been evenmore striking. From 1925 to 1975, there was virtu-ally no change in their rate of incarceration. Then,between 1975 and 2000, their incarceration rateincreased by more than 600%, twice the rate ofincrease for males. Once again, this increase can beexplained by drug policies, since the proportion ofwomen sent to prison for drug offenses jumpedfrom around 10% in the early 1980s to more thanone third in the 1990s. In the federal system, thegrowth rate is even more dramatic. Whereas in 1984a total of 28% of female offenders were drugoffenders, by 1995 their percentage had more thandoubled to 66%.

That the drug war has contributed to rising prisonpopulations is further supported with data fromU.S. district courts (federal system) showing thatwhereas in 1982 about 20% of all convictions werefor drugs, by 1994 this percentage had increased toabout 36. During this same period, the proportionof those convicted on drug charges who weresentenced to prison increased from 74% in 1982 to84% in 1994, and their actual sentences increasedfrom an average of 55 months in 1982 to 80 monthsin 1994. The average sentences for murder duringthis time actually decreased from 162 months to117 months, while for all violent offenses the aver-age sentence declined from 133 months to 88months. At present, all of these changes have meantthat on any given day, almost 60% of all federal

Increase in Prison Population———465

Year Total Rate Male Rate Female Rate

1925 91,669 79 149 61935 144,180 113 217 81945 133,649 98 193 91955 185,780 112 217 81965 210,895 108 213 81975 240,593 111 220 81985 480,568 202 397 171995 1,085,363 411 796 482000 1,321,137 478 915 59

SOURCE: Maguire and Pastore (2001, Table 6.27).

Table 1 The Growing Prison Population,1925–1999 (rates per 100,000 in stateand federal prison)

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