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, p.180), and hypothesise that because the sentencing gradient has been flattened, the relative deterrence against committing serious crimes has been reduced (fuller analysis, see Hirsch et al 1999). and took this further, suggesting that the model increased the incidence of homicide. Worrall (2004) disputed this and also explored the effect of three-strikes legislation on serious crime; concluding it has had no discernible positive or negative effects. Regardless, the statistical portrait of the effect of the three strikes law on reducing crime rates seems sufficient enough to conclude it is not an effective, viable nor efficient method to reduce crime (Zimring, Hawkins and Kamin 2001).
For incapacitation to be viable, it must be cost-effective and therefore efficient. The rise in prison population that would occur as a consequence of incapacitation is needed to complete a cost-benefit analysis of incapacitation measures. Studies producing estimates (Glanz 1990) produce figures indicating that any further incapacitative policies would require new cells to be built. If construction of new cells for inmates is required, this will incur costs ten to fifteen times higher than utilising existing cells (Clear and Barry 1983, p.539). Furthermore; Camp and Camp, (1987) concluded that a modest reduction in crime was only achieved with a substantial drain on state treasuries nationwide, whilst Spelman (2000) noted that the same money spent on doubling the prison population could provide a job for every unemployed youth, or a college education for every high school graduate. Furthermore, it is estimated that the annual cost of imprisonment in Britain would rise by almost a third if the costs to the family and wider society were included in the calculations (Joseph Rowntree Foundation 2007).
Through the imprisonment of their kin and kith, mass incarceration brings millions of women into contact with the criminal justice system (Comfort 2003), who experience ‘secondary prisonization’. Murray (2005) detailed qualitative accounts of the financial burdens, psychological traumas and practical difficulties that can accompany a relative or partners imprisonment; whilst Boswell and Wedge (2001) suggest that parental imprisonment is a risk factor for mental health problems among children. Murray (2005) concludes that without further research, prison will continue to punish these ‘forgotten victims’, possibly resulting in more crime in the next generation (Shaw, 1987). Creating more crime and punishing those who have done no wrong is hardly a viable, effective or efficient way to reduce crime.
Auerhan (2003) argues that the incapacitation objective now manifests itself in the specific form of SI, which Greenberg (1975 p.542) defines as ‘…the prevention of crime through physical restraint of persons selected for confinement on the basis of a prediction that they…will engage in forbidden behaviour in the absence of confinement’. SI increases prison sentences for high-risk/ dangerous offenders and decreases them for low-risk offenders. However, for SI to be a viable, effective and efficient way to reduce crime the prediction instruments used must share these characteristics. In one of the first SI studies, the Rand Corporation held that certain background factors were linked to those that committed a high proportion of self-reported serious crime. There is the methodological question of whether self-reported criminal behaviour has the required validity to be applicable to a CJS; however the main problem was that the ‘Rand’ produced an unacceptably high proportion of false positives. This occurred when a person who reported no robberies was identified as a probable high-rate robber (Chaiken & Chaiken, 1982). The Salient Factor Score was also found to have unacceptably high levels of both false negatives (22%) and false positives (35%), whilst projects focusing on the ‘dangerousness’ of the offender have also been found wanting in terms of accuracy. (Menziez 1992, p.23, 1994, p.19) Sentencing policies based on systems with such low predictive accuracy (Visher 1986; Mathiesen 1998) could potentially cause real injustice (Chaiken & Chaiken 1982, p.27). However, Blackmore and Welsh (1983) discovered that low-rate offenders could be identified with considerable accuracy. The policy implication of this would involve releasing from prison those offenders identified as low risk; a concept known as ‘reverse SI’ (Blackmore and Welsh 1983). However, Glanz’s (1990) proposal that reverse SI could be part of sentencing policy is unrealistic. Any momentum the policy gained would be extinguished the moment a dangerous offender incorrectly released committed a heinous act. The reasoning here being that one event can often swell public opinion to become more punitive (Philip, 2006); and in an already punitive society the possibility of releasing dangerous offenders will not be tolerated.
SI is also subject to criticism on ethical and legal grounds, which are not limited to the dire consequences that the extremely uncertain predictions may have for the individual who is the object of prediction; the factors used in prediction instruments are also questionable. For example age at the time of arrest, heavy use of alcohol and heroin use are all signs of personal trouble, yet in prediction instruments they are often used as aggravating circumstances. However, if prison really does have a de-criminalizing effect, why is prior prison experience aggravating? Bourdieu, (1977) believed that the factors used often indicate a weakness, which is used against the individual. Furthermore, by treating these factors as ‘things’, to use Emile Durkheim’s term, they are treated as ‘objective factors’ in a predictive scheme stripped of moral content. Furthermore, some methods of prediction consider arrests and charges. Research indicates that ethnic minority groups are more likely to be stopped and searched, arrested and charged than other groups, supporting the claim that SI could victimise ethnic minority groups (Gabor 1985).
Under SI, two people who commit the same crime may get very different sentences, which violates the legal requirement that all have an equal standing before the law. The use of prediction instruments is often justified on the basis they are at least better than chance (Wright, 1994, p.126), which overlooks how in court a series of considerations negotiate to come to a final result. Using instruments alters the negotiating enterprise in court in the direction of considerations of possible future crimes, which contradicts with the principles of a civilised legal system. Additionally, the requirement of most legal systems that the offence needs to be proven beyond all reasonable doubt cannot be ratified with the poor accuracy of prediction, which is by no means beyond doubt, in any case.
Some feel a small sacrifice of justice does not stop incapacitation being a viable and effective method of reducing crime, so long as it favours the greater aggregate social benefit. One argument being that high rate offenders are convicted seldom, in relation to the high amount of crimes they commit; and therefore sentencing by SI can be seen as a way to redress this imbalance. Others believe that the criteria for prediction coincide with the criteria for a ‘just deserts’ rationale. Hirsch (1984) counters this claim, contending that the criteria for prediction and for ‘desert’ differ significantly in the degree of emphasis placed on prior criminal history. Hirsch (1984) also criticises the argument that desert furnishes the outer limits on punishment, within which predictive determinations may be used. Grisso and Appelbaum (1992, p.632) however, would ‘…not advise psychology, psychiatry, or the courts to conclude that all predictions of dangerousness are unethical.’ Nevertheless, as arguments to the contrary appear throughout the majority of literature concerning SI, Grisso and Appelbaum’s opinion does appear somewhat counterintuitive.
Why are these apparently invalid methods continually being utilised? ‘Mass incarceration’ is alive in the US, and the Criminal Justice Act 2003 (CJA) introduced several new sentences, which seem likely to ensure heavy reliance on custody continues in the UK. Furthermore, ‘Three Strikes and You’re Out’ laws are in operation in half of the US, whilst in Britain the IPP is prescribed for certain offenders classified as ‘dangerous’. Mathiesen (1998) describes a research culture that ‘glosses over’ ethical issues, assumptions in results and problems with accuracy to draw money, positions and tenure into research. Tonry (1999) however says ‘mass imprisonment’ in the US arises from American moralism and structural characteristics of American government that provide little insulation from emotions generated by moral panics and cycles of tolerance and intolerance. In addition, political pressure to have some incapacitative measures available in the sentencing process has been felt in most countries (Reiner et al 2007, p.995).
From the early 1990's, crime has been declining dramatically in America (Palacios et al 2001). Some argue that this decline in the crime problem in the US is a consequence of ‘mass imprisonment’, and the public media certainly corroborate this viewpoint (USA Today, 2002). These trends provide a prima facie case for the effectiveness of prisons. However, it is dangerous to interpret the correlation between the national prison population and state crime rate as causation, in the absence of a plausible explanation. Although some authors (Spelman 2000; Blumstein & Rosenfeld 1999) argue that much of the decline is attributable to incapacitation, the bulk of literature suggests otherwise. Blumstein and Wallman (2005) explain the drop in crime by emphasising the mutual effects of economic shifts, the abolition of abortion, a major focus of youth violence/ gun control efforts, and changes in the drug market. Palacious et al (2001) also support the argument that social and economic trends have the largest impact on crime-reduction. Furthermore, much of the decline was in property offences. Garland (2001) proposed the 27% decline in burglary between 1980 and 1990 may have been displaced onto drug offences, and the $20,000 per year to imprison a burglar could be better spent resolving drug misuse and low-wage jobs that cause these offences. To summarise, “Between 79 and 96 percent of the violent-crime drop cannot be explained by prison expansion.” Even if the US had not spent $20 billion per year on incarceration, violent crime would have decreased anyway (Blumstein and Wallman 2005).
To conclude, Wilson’s observation that “Wicked people exist. Nothing avails except to set them apart from innocent people” (p.235) ignored the root causes of crime, and was a convenient way to repress the poor and minorities. ‘Mass imprisonment’ only makes sense if prisons reduce lawlessness by deterring the calculated and incapacitating the wicked. There is seldom evidence that incarceration deters, and the incapacitation effect is achieved only at a substantial cost. Indeed, mass incarceration drains funds, not only from health care and education, but from other forms of crime prevention as well. Furthermore, many scholars do not make comparisons between any alternatives to prison; they assume the alternative is allowing prisoners to roam free. The real issue is how much crime can be prevented through incapacitation as opposed to other interventions. However, despite all these issues, Zimring and Hawkins (1995) provide a nuanced view of incapacitation. They treat it as a possible element of sentencing policy; after all, it is, bar the death penalty the most severe sanction and sometimes the public do need protecting. However, they suggest further research is essential and offer a healthy dose of scepticism about claims for dramatic crime-prevention effects. Clear and Barry (1983) feel that incapacitation technology has been dominated by intrusive, costly and unimaginative methods, however propose that a better understanding of the nature of the behaviours and persons targeted for incapacitation may improve the situation. Blumstein et al (1978) stated that for SI is to overcome the ethical hurdles facing it, the ability to predict future criminality will have to improve. However, it still appears this is not the case (Tonry 2004, p.19). To question how viable, efficient and effective incapacitation is in reducing crime is not to suggest prison has no impact on these matters. From a crime reduction perspective however, continued expansion is likely to produce diminishing returns, as less serious offenders are incarcerated on average. Regarding Wilson’s ‘wicked people’ declaration:
“To assert in any case that a man must be absolutely cut off from society because he is absolutely evil amounts to saying that society is absolutely good, and no-one in his right mind will believe this today.” (Camus, 1961)
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