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General Deterrence, Three Strikes law

Incapacitation is a philosophy of incarceration that argues that some offenders might have to be incarcerated not for what they have done but to prevent future harm to the community. Selective incapacitation is provided for under dangerous offender legislation.

The philosophy of incapacitation depends on the   ability of the community to identify those that might re-offend. Some also argue that incapacitation is unfair as incapacitation is punishment to people for what they might do, rather than for what they have done.

Incapacitation is considered to be a subset of specific deterrence. Incapacitation aims to prevent future crimes not by rehabilitative ideal but rather by taking away the ability to commit such acts.

The Ethics of Selective Incapacitation: Observations on the Contemporary Debate 
Andrew von Hirsch, Crime & Delinquency, Vol. 30, No. 2, 175-194 (1984)
"Selective Incapacitation" strategies raise the issue of the fairness of prediction-based sentencing. Some recent advocates of such strategies have argued that predictive sentencing is just, because the criteria for prediction coincide or overlap with the criteria for deserved punishment.

This article contends that such claims are mistaken: that, in fact, the criteria for prediction and for desert differ significantly in the degree of emphasis that may be placed on the prior criminal history, and in the type of information about that history which may appropriately be used. The tension between selective incapacitation and desert cannot be ignored; and that the use of selective-incapacitation strategies in sentencing entails sacrifices of equity for offenders.

Selective Incapacitation: Sentencing According to Risk - John Blackmore, Jane Welsh, Crime & Delinquency, Vol. 29, No. 4, 504-528 (1983)
In October 1982, the Rand Corporation published Selective Incapacitation, a sentencing proposal based on seven years of research by a team of Rand researchers under the direction of Peter Greenwood. In his report, Greenwood claims to have developed a classification scheme that would enable criminal Justice practitioners to determine which offenders should receive long, "incapacitating" prison sentences and which can be sentenced to alternative programs or safely released to the community. If implemented in its purest form, he says, selective incapacitation could result both in a net reduction of crime in the community and in the number of offenders who would need to be incarcerated. Since the release of the Rand report, most criminologists agree that Greenwood's findings are incomplete, methodologically flawed, and do not justify his policy proposal. In this article we outline the history, criticism and impact of selective incapacitation.

The ANNALS of the American Academy of Political and Social Science, Vol. 478, No. 1, 135-149 (1985)
Recent sentencing proposals for the selective incapacitation of criminal offenders have generated a great deal of enthusiasm and controversy. The concept has been greeted enthusiastically because it promises simultaneously to decrease the crime rate and to reduce crowding in the nation's prisons. The controversy stems from two sources: concerns of science and of ethics. This article describes the selective incapacitation proposal and the scientific and ethical controversies it has generated.

Are Idle Hands the Devil's Workshop? Incapacitation, Concentration, and Juvenile Crime - Jacob B.A.; Lefgren L.
Source: The American Economic Review, Volume 93, Number 5, 1 December 2003
Abstract: This paper examines the short-term effect of school on juvenile crime. To do so, we bring together daily measures of criminal activity and detailed school calendar information from 29 jurisdictions across the country, and utilize the plausibly exogenous variation generated by teacher in-service days. We find that the level of property crime committed by juveniles decreases by 14 percent on days when school is in session, but the level of violent crime increases by 28 percent on such days. Our findings suggest that both incapacitation and concentration influence juvenile crime.

Deterrence and Incapacitation: An Interrupted Time-Series Analysis of California's Three Strikes law - Ramirez J.R.; Crano W.D. - Source: Journal of Applied Social Psychology, Volume 33, Number 1, 1 January 2003.
Abstract: Using uniform crime statistics, this research investigates the impact of California's three-strikes law on instrumental, violent, minor, and drug-related crimes over the first 5 years of the law'simplementation. Three-strikes laws are statutes in the United States which mandate state courts to impose harsher sentences on habitual offenders who are convicted of three or more serious criminal offenses. Autoregressive integrated moving average (ARIMA) models reveal little immediate impact of the law,but significant effects on instrumental crime over time, suggesting an incapacitation effect. After correcting for autocorrelation distortions, less restrictive multiple regression models that test simultaneously for immediate and gradual intervention effects disclose immediate (deterrent) effects on instrumental and minor crimes and arrests, and long-term (incapacitation) effects on these and violent crimes as well. Drug-related crimes appear impervious to the Three Strikes law under any analytic model, suggesting the unresponsiveness of such crimes to increasingly severe legal sanctions.

The Determinants of Punishment: Deterrence, Incapacitation and Vengeance
Does the economic model of optimal punishment explain the variation in the sentencing of murderers? As the model predicts, we find that murderers with a high expected probability of criminal recidivism receive longer sentences. Sentences are longest in murder types where apprehension rates are low, and where deterrence elasticities appear to be high. However, sentences respond to victim characteristics in a way that is hard to reconcile with optimal punishment. In particular, victim characteristics are important determinants of sentencing among vehicular homicides, where victims are basically random and where the optimal punishment model predicts that victim characteristics should be ignored. Among vehicular homicides, drivers who kill women get 56 percent longer sentences. Drivers who kill blacks get 53 percent shorter sentences.

The Philadelphia Birth Cohort and Selective Incapacitation 
Journal of Research in Crime and Delinquency, Vol. 28, No.1, (1991)
The birth cohort data from Wolfgang and colleagues' 1972 study is analyzed to determine marginal benefits (police reports and serious adjudications that would not have occurred) and marginal costs (the juvenile incarceration rate that would have resulted, as compared to present rates) if nine hypothetical incapacitation policies had been in effect at the time.

Assessing the Impact of Exposure Time and Incapacitation on Longitudinal Trajectories of Criminal Offending 
Alex R. Piquero, Northeastern University, Alfred Blumstein, Carnegie Mellon University, Robert Brame, University of Maryland, Rudy Haapanen, California Youth Authority, Edward P. Mulvey, University of Pittsburgh, Daniel S. Nagin, Carnegie Mellon University, Journal of Adolescent Research, Vol. 16, No. 1, 54-74 (2001)
The authors examine the potential effect of accounting for exposure time by examining the arrests of 272 serious offenders who were paroled at age 18 and followed through age 33. The authors describe the overall change in the arrest rate over the 16-year period, with and without adjustments for exposure time. The authors also estimate latent class models that decompose the heterogeneity of arrest rate trends, with and without variation in exposure time. (a) conclusions about the level of arrest activity did depend on adjustments for exposure time, but the overall trend in arrest activity did not depend on these adjustments; and (b) latent class analysis without exposure time adjustments suggested that more than 92% of the sample exhibited their highest level of arrest activity in late teens and early 20s; then offending declined during the late 20s and early 30s.

Sex Offender Laws: Can Treatment, Punishment, Incapacitation, and Public Safety be Reconciled? - Mary Ann Farkas, Amy Stichman - Criminal Justice Review, Vol. 27, No. 2, 256-283 (2002)
Sex offenders are viewed a unique type of criminal offender, particularly as more "objectionable,' less treatable, more dangerous, and more likely to recidivate. In recent years, these offenders have once again become the focus of intense legal scrutiny, primarily through laws specifically targeting them for indefinite confinement, registration and community notification, polygraph testing, and chemical castration. We ask whether treatment, punishment, and public safety can be reconciled as justifications for the laws. We conclude that, even though treatment is an implicit rationale in the laws' provisions, punishment, incapacitation, and public safety are the ostensive purposes of these special laws and policies directed toward sex offenders.

The Goals of Corrections: Perspectives from the Line 
Misty Kifer, Craig Hemmens, Mary K. Stohr 
Criminal Justice Review, Vol. 28, No. 1, 47-69 (2003)
Four different goals of corrections are commonly espoused: retribution, deterrence, incapacitation, and rehabilitation. Each of these goals has received varied levels of public and professional support over time. In an effort to assess the level of professional support for these goals, a survey was administered to staff in three prisons, two jails, and a jail academy in a rural mountain state. The results indicate that jail and prison staff are more likely than not to perceive the primary goal of corrections as incapacitation. Respondents generally ranked incapacitation first, followed by deterrence, rehabilitation, and retribution. Age, years of service, military background, and facility type (prison or jail) were significant predictors of staff orientation toward rehabilitation. For jail staff, only gender was related to a rehabilitation orientation. For prison staff, only age and years of service were related to a rehabilitation orientation. The authors conclude that role perceptions are colored by a variety of factors, including age, gender, years of service, facility type, and prior military service.

Prison Overcrowding: The Law's Dilemma 
EDWARD M. KENNEDY - The ANNALS of the American Academy of Political and Social Science, Vol. 478, No. 1, 113-122
The author focuses on the importance of criminal sentencing policy to prison overcrowding and advocates comprehensive sentencing reform that emphasizes selective incapacitation of dangerous offenders as a sensible approach to conserving scarce prison resources. The Sentencing Reform Act, which embodies the most comprehensive reform of criminal sentencing ever undertaken by Congress, establishes an independent United States Sentencing Commission to establish a uniform sentencing policy and mandatory sentencing guidelines to be used by federal judges. The act abolishes early release on parole, cautions the Sentencing Commission to develop guidelines that minimize prison overcrowding, and emphasizes use of incarceration for dangerous, violent repeat offenders. The use of uniform sentences and selective incapacitation provided for in the new law offers a constructive approach to the intractable problem of prison overcrowding.

Incapacitation and Just Deserts as Motives for Punishment 
PAUL H. ROBINSON, University of Pennsylvania Law School, KEVIN CARLSMITH, Colgate University, JOHN M. DARLEY, Princeton University - Law and Human Behavior, Vol. 24, pp. 659-683, 2000 
Abstract: What motivates a person's desire to punish actors who commit intentional, counternormative harms? Two possible answers are a just deserts motive or a desire to incarcerate the actor so that he cannot be a further danger to society. Research participants in two experiments assigned punishments to actors whose offenses were varied with respect to the moral seriousness of the offense and the likelihood that the perpetrator would commit similar future offenses. Respondents increased the punishment as the seriousness of the offense increased, but their sentences were not affected by variations in the likelihood of committing future offenses, suggesting that just deserts was the primary sentencing motive. Only in a case in which a brain tumor was identified as the cause of an actor's violent action, a case that does not fit the standard prototype of a crime intentionally committed, did respondents show a desire to incarcerate the actor in order to prevent future harms rather than assigning a just deserts based punishment.

Dangerousness and Incapacitation: A Predictive Evaluation of Sentencing Policy Reform in California - Kathleen Auerhahn - Sponsoring Agency: US Dept of Justice, National Institute of Justice, United States 
This predictive evaluation of sentencing policy reform in California concludes that the State's "Three Strikes" law will not be effective in incapacitating dangerous offenders. 
Abstract: Sentencing policies that claim to enhance public safety by selectively incapacitating dangerous offenders must make clear the characteristics of a dangerous offender and must ensure that these dangerous offenders are actually the ones targeted for selective incapacitation. Three alternate scenarios are presented to explore various ways to achieve greater average dangerousness in the incarcerated population, thus increasing the incapacitation of dangerous offenders.

On the Usefulness of Controlling Individuals: An Economic Analysis of Rehabilitation, Incapacitation, and Deterrence
Ehrlich, Isaac.

Effects of Judges' Sentencing Decisions on Criminal Careers 
Don M. Gottfredson - Sponsoring Agency: US Dept of Justice, National Institute of Justice, United States 
This study determined the degree to which judicial sentencing decisions affected subsequent criminal careers for 962 felony offenders in Essex County, N.J., who were variously to confinement and noncustodial programs. 
Abstract: The 18 participating judges exercised considerable discretion in their sentencing decisions. The data collected included judicial perceptions, the judges' predictions of the offenders' future criminal behavior, the judges' sentencing purposes, offender backgrounds, execution of sentences, and offenders' arrests and charges during the 20 years after sentencing. Also measured were the judges' selection of various sanctions, the validity of subjective and objective predictions of future criminal behavior (risks), and the offenders' time in the community (free of the incapacitating effects of jail or prison). Available sentencing choices had little effect, other than that of incapacitation, on recidivism as measured by new arrests and charges. The findings offer little support, aside from incapacitation, for increased use of confinement, emphasis on longer terms, or more acceptance of specific deterrence as a crime-control strategy.

Selective incapacitation under dangerous offender legislation.