'Incapacitation is an effective way to reduce crime.' Discuss

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LAWS10412 Explaining Crime and Deviance (7163342)

Before attempting to answer the question, it is necessary to put the definition of incapacitation into context. As the question regards the incapacitation of offenders, and concerns the criminal justice system (CJS), it is evident that we are viewing incapacitation as a penal policy. This encompasses prison, surveillance in the community, house arrest, chemotherapy, mutilation, banishment, and execution (Gabor 1985). However, authors ‘like’ Wilson are Conservative criminologists such as Hernstein and Charles Murray. Their approach is defined by their policy recommendations that almost invariably set forth rationales for the use of more punishment, especially the use of incapacitation (imprisonment), as the lynchpin of crime control.  Therefore this essay will focus on whether or not the use of incarceration to incapacitate offenders is a viable, efficient and effective strategy to reduce crime. In other words, an analysis of the incapacitative effect of imprisonment, defined by Greene (1977) as ‘…the reduction in crime resulting from the temporal removal of an offender from society.’ This will include an analysis of the different forms of incapacitation as well as the problems inherent in both, a brief account of the presumptions held in the incapacitative theory, and a discussion of the prevalence of incapacitation in today’s Western world.

Conservative criminologists explain criminality through classical school depictions of crime as the result of individual actors’- exercising rational choice (Reynolds, 1996), or the positivistic portrayal of crime as the result of organic anomalies and psychological/ intellectual defects (Herrnstein and Murray 1994; Wilson and Herrnstein 1985).  However, the criticism of the ideas espoused by conservative criminologists focuses on the problems inherent in the concept of incapacitation. It is widely acknowledged (Clear & Barry 1983; Van Dine & Dinitz & Conrad 1979) that there are conceptual problems with incarceration. As an incapacitative strategy, imprisonment is based on a presumption that offenders who are imprisoned would have continued to commit crimes if they had remained free. However, this presumption is invalidated by member replacement, which overcomes any real incapacitative effect incarceration might have (Clear & Barry 1983). Another problem is that prisons are known as ‘schools of crime’ (Ehrlich 1974). This suggests that imprisonment may aggravate characteristics that led to criminal behaviour, which in turn increases offender’s post-incarcerative criminal activity. This argument validates the call for less use of prison amongst minor offenders (Gibb 2006). Furthermore, although disputed by the 'reintegrative shaming' theory (Braithwaite 1989), the classic labelling theory suggests that the stigmatising effect of imprisonment and the ‘label’ that a prisoner acquires on conviction can lead to further offending (Matza, 1964). In addition, crime continues in prison and it stretches the concept of incapacitation to say that it has occurred; when all that has really happened is that the scope of victims has been limited to those ‘inside’.

Prison can also psychologically damage inmates (Chicknavorian 1990), and the prevalence of prison suicide is evident due to the extent of official enquiries conducted upon it (Home Office, 1984, 1986, 1988). Dooley (1990) established prison suicide as a ‘phenomenon’ noting that between 1972 and 1987, the increase in the suicide rate was far in excess of the rate of rise in the prison population. If offenders are readily available to take their own lives, then the concept of restraining individuals until they are ready to rejoin mainstream society is violated. Furthermore, the existence of prison rape also violates inmate’s safety, with prisoners launching pre-emptive strikes and joining gangs to counter the threat of rape (Dooley 1990). In addition, a prisoner’s right to safe custody is contravened by the risk of diseases being transmitted during sodomy. Recent cases (Rideau & Sinclair 1982; Human Rights Watch 2001) depict human destruction and degradation; and research by Mariner (2000) indicates those raped in prison return to society vengeful and brutalised. A system in which this occurs cannot be a viable, effective or efficient strategy to reduce crime.

There are three presumptions incapacitative theory is based on, and all three have to be concrete in order for it to survive as a theory (Glanz 1990). The first assumption, that most crime is committed by a small number of offenders was corroborated by Woolfgang, Figlio and Sellin (1972). These findings sparked interest in incapacitation and led to authors such as Wilson (1975) and Van den Haag (1975) to hypothesize about incapacitation as an effective penal policy. However, evidence from Miller, Dinitz, and Conrad (1982) counters these claims, indicating a far larger proportion of offenders commit a greater number of offences than was initially thought.

The second assumption, that these offenders will all eventually be apprehended, convicted and incarcerated, is even more controversial. If it is the less skilful criminals that are caught, then incapacitation is being used on the wrong group of offenders. Furthermore, case attrition interferes with the conviction process and is a well-known phenomenon in many Western countries. Gabor (1985) discovered one conviction is obtained for every twelve reported felonies, whilst Glanz (1990) concluded that only 4% of felonies resulted in a conviction. Therefore incapacitation will have limited effect, as offenders, especially the skilled, are free to commit crime with little chance of being convicted.

The third assumption is that the prediction of future criminality is an ability the CJS has. This concerns the feasibility of prediction involved in the two types of incapacitation (selective (SI) /collective (CI)). Greenberg (1975) defined CI as ‘…crime reduction accomplished through physical restraint [which]…need not necessarily entail predictions as to future conduct’. One way of assessing the incapacitative effect of CI was to utilise aggregate data (Gabor 1985) and draw assumptions from average rates. Wilson (1975) stated that by concentrating on incapacitating a larger fraction of convicted robbers, a 20% reduction of serious robbery was conceivable. However, a 1973 cohort study found that an impractically stringent sentencing policy would have prevented no more than 4% of violent crime during that year (Dine et al 1977, p.34). One of the problems of Wilson’s theory was that it was based on an assumed high average annual rate of offending (lambda), which accounts for such sizeable crime reduction effects of across the board incapacitation being predicted. However Blumstein et al (1986) said the rate of individual offences across the community was unknown, and the assumption that all parameters are both stable over time and applicable to all individuals has not been adequately tested in studies (Blumstein et al 1978). Furthermore, when assuming a lower rate, the calculated effect in terms of crime reduction decreased dramatically. The estimated effects of CI vary from a low of between 0.6 and 4% (Greenberg 1975) to an unrealistic 80% (Shinnar and Shinnar 1975). These different rates can be attributed to the different assumptions of the lambda. Although studies using actual offender data appear more viable (Van Dine et al (1979); Brody and Tarling (1980), a review of all the major incapacitation studies indicates that the incapacitative effect of imprisonment is not very great (Blumstein et al 1978). Furthermore penal history in North America shows very clearly how ineffective CI is (Blumstein et al 1986). Between 1973 and 1982 the prison population in the United States doubled, however during this period the crime rate increased 29%. Furthermore, the population was trebled between 1975 and 1989, and the effect on the registered rate of violent crime was marginal at best (Reiss and Roth 1993).

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The Californian ‘three strikes and you’re out’ model was the most important attempt to achieve an abrupt increase in incapacitative punishment in modern times (Zimring et al 2001). Some claimed the new law was responsible for the ‘largest overall drop in crime over any four-year period in [California] history.’ (Office of the Attorney General 1998). Zimring and Hawkins (1995) however assert that it only appears to have had the effect of incarcerating a larger proportion of burglars and thieves for longer periods. They suggest there has been ‘no consistent and measurable decrease over the decade in homicide or…violent…offences’ (1995, ...

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