Incapacitation is generally recognized as one of the primary goals of punishment policy in the United States, along with rehabilitation, deterrence, and retribution. Selective incapacitation is a relatively recent correctional approach that aims to utilize scarce prison space more carefully by sentencing only the most dangerous and likely to recidivate offenders to prison for lengthy periods of time (i.e., 20 years and more). Similar to incapacitation, selective incapacitation is focused on reducing and/ or eliminating the opportunities that individuals have to commit crime.
The main priority then is to identify those individuals most likely to continue to commit crime, especially serious and violent crimes, and then to lock them up in order to eliminate the risk they pose to public safety. Although the emphasis on increasing public safety—by incarcerating those who put the public at risk of victimization—is certainly a laudable goal, selective incapacitation as a primary crime control and punishment strategy involves a number of practical, financial, and ethical challenges and considerations.
The Process of Selective Incapacitation
The correctional practice of selective incapacitation has been legislatively required in many states through the passage of various three-strikes laws, habitual/chronic-felon laws, mandatory minimum laws, and truth-in-sentencing statutes. These laws mandate, in different ways, that dangerous and/ or threatening offenders (or offenders who have committed certain kinds of crimes) serve lengthy terms in prison. All states have some kind of mandatory minimum requirements for specific crimes (e.g., gun-related offenses), over two-thirds have implemented truth-in-sentencing practices, and as of 2013, more than half of all states have implemented a version of three-strikes or habitual/ chronic-felon laws.
Although mandatory minimum laws and truth-in-sentencing legislation are important in their own rights, three-strikes and habitual/chronic felon laws are critical to any kind of discussion of selective incapacitation as they are typically the legal mechanism through which selective incapacitation is actually implemented. It is important to note that selective incapacitation is just that— selective. It does not advocate simply locking away all criminal offenders, regardless of crime type or criminal history, in the hope of increasing public safety. Rather, some experts have argued for a number of years that a very small group of criminal offenders (6–8 percent) is responsible for the majority of crime in the United States. Thus, the idea behind selective incapacitation is to identify this group of highly active and dangerous offenders and then incarcerate them in prison for decades or more—thus, protecting the public from their predation.
The process of identifying which criminal offenders should be selectively incapacitated is rife with the potential for mistakes—raising some significant ethical concerns. The attachment of a three-strikes or habitual/chronic-felon label begins with a discretionary decision by the prosecuting attorney to apply the charge in a particular criminal case. Most often this decision is made based on an objective risk assessment instrument, which is used to calculate an accurate and comprehensive risk score. Although the specific indicators used to make the overall assessment of offenders’ risk vary across jurisdictions, common indicators of risk typically include the following information about the offender and the offense currently under prosecutorial consideration: prior convictions, both adult and juvenile, specifying if these past convictions were for the same type of crime currently under consideration; prior (recent) incarcerations in adult or juvenile institutions; general and more specific kinds of past and current drug use identifying, specifically, drug use as a juvenile; early age of criminal onset (e.g., convictions/detentions before age 16); and employment-related information (past and recent un- and underemployment). Some experts suggest that these kinds of factors can accurately predict the likelihood of future offending/recidivism; other experts strongly disagree with the purported accuracy of these indicators in predicting future crime.
To be sure, as with any kind of prediction effort, especially one that attempts to predict human behavior, errors can be made. It is generally recognized that two kinds of errors are possible during this behavior prediction endeavor: false negatives and false positives. False negatives occur when criminal offenders pose safety risks to others and society because they are highly likely to reoffend but are wrongly predicted to be good risks in the community (and thus are not targeted for selective incapacitation). False positives, on the other hand, occur when criminal offenders do not in fact pose a safety risk to society but are wrongly predicted to be a probable serious recidivist or pose a significant risk to the public, and thus are targeted for selective incapacitation. Each of these errors, along with the processes of selective incapacitation discussed above, involve considerable ethical issues.
Ethical Considerations in Selective Incapacitation
Quite clearly a utilitarian ethical framework underlies any advocacy of selective incapacitation as a correctional policy or punishment strategy because the fundamental goal is to protect the public—providing the greatest good for the greatest number of people. There remain, however, numerous ethical considerations surrounding selective incapacitation and its application. At the most basic level there is concern about the suitability of increased length and severity of punishment for those who are predicted to pose a future risk to public safety. Akin to this is the fear of increased governmental and correctional control over criminal offenders for what they may do, not what they have already done. As indicated above, there are significant concerns about society’s ability to accurately predict future human behavior and the instruments and indicators used to do so—according to some, Americans appear to be notoriously bad at calculating accurate predictions of peoples’ behavior.
The major ethical issues here concern the use of predictive indicators that may in fact be proxy measures of factors such as race, ethnicity, and/or socioeconomic status. Alternatively, they may just be inappropriate or incapable of predicting future criminal offending. Moreover, as some experts suggest, prior involvement with the criminal justice, juvenile justice, and corrections systems may be much more prevalent among racial/ethnic minorities and the poor primarily due to police practices rather than criminal behavior.
Thus, selective incapacitation policies that are reliant on these faulty predictive risk instruments are argued to have a disproportionately negative impact on particular minority groups—leading to poor, racial/ethnic minority offenders locked up for significantly longer periods of time than other similarly situated offenders. Remember, too, that it is ultimately the discretionary decision of prosecuting attorneys to apply three-strikes and/ or habitual/chronic-felon statutes to a particular offender/offense. Discretionary decisions are fraught with the potential for misuse or abuse of power—with some experts suggesting that three-strikes and habitual/chronic-felon labels are disproportionately applied to minority offenders, particularly African Americans.
Two additional ethical issues warrant mention here and involve the logistics and practical consequences of utilizing selective incapacitation as a major correctional and punishment strategy: imprisonment costs and the aging-out process. One of the major motivating factors behind the development of selective incapacitation was the increased reliance on imprisonment as the main response to a variety of crimes, resulting in significant overcrowding (and costs) for correctional institutions. More specifically, there was a fourfold increase in U.S. incarceration rates from the 1970s through the 2000s—often attributed to the War on Crime, generally, and the War on Drugs, particularly. Selective incarceration was offered as a surefire way to reduce over-reliance on imprisonment for garden-variety criminal offenders and focus instead on incarcerating only those criminals at high risk for recidivism. Further, it was intended to reduce the problematic overcrowding and costs associated with operating U.S. correctional facilities. Critics argue that it has not fulfilled these promises. Ironically, some suggest that the costs of imprisonment have actually increased under selective incapacitation policies as offenders grow old in prison, resulting in significantly greater costs. This leads to the last major ethical issue surrounding selective incapacitation—that it fails to recognize that most criminal offenders, even chronic/habitual offenders, naturally age out of crime.
The age/crime relationship and the aging out process is one of the most widely agreed upon theses in criminology. In effect, most experts agree that adolescence and early adulthood is the most likely period in any individual’s life to be involved in criminal activity, and that involvement in property or personal/violent crime is most prevalent during these years. After people enter their 20s, the risk of involvement in crime drops off significantly. Thus, many argue that selective incapacitation is unnecessarily punitive in that it continues to incarcerate individuals way beyond the time that they would be criminally active—again, producing, among other things, increased and gratuitous costs for the U.S. criminal justice system.
Despite the ongoing practical, financial, and ethical debates surrounding selective incapacitation, it is important to note that, in 2003, the U.S. Supreme Court upheld California’s three-strikes law as constitutional. The court stated generally that the state had the authority to define its own criminal punishments, and more specifically pertaining to the case under review it ruled that the provision in the three-strikes legislation allowing for extremely long prison terms was not a grossly disproportionate punishment for a third criminal conviction.
- Auerhahn, Kathleen. Selective Incapacitation and Public Policy: Evaluating California’s Imprisonment Crisis. Albany: State University of New York Press, 2003.
- Auerhahn, Kathleen. “Selective Incapacitation and the Problem of Prediction.” Criminology, v.37 (1999).
- Blokland, Arjan A. J. and Paul Nieuwbeerta. “Selectively Incapacitating Frequent Offenders: Costs and Benefits of Various Penal Scenarios.” Journal of Quantitative Criminology, v.23 (2007).
- Gottfredson, Stephen D. and Don M. Gottfredson. “Selective Incapacitation?” Annals of the American Academy of Political and Social Science, v.478 (1985).
- Pollock, Joycelyn M. Ethical Dilemmas and Decisions in Criminal Justice. 7th ed. Belmont, CA: Wadsworth/Cengage Learning, 2012.
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