What is Incapacitation Theory and how does it relate to crime prevention?
Similar to Deterrence Theory, Incapacitation Theory follows a reductivist school of thought, meaning that policymakers justify punishment through incapacitation by positioning it as a way to avoid potential future consequences. That being said, Incapacitation Theory operates under the assumption that any person who commits a crime may commit another crime. Incapacitation Theory suggests that people who have committed crimes should be prevented from committing other crimes through removal from society and/or other methods that restrict an individual’s physical ability to commit another crime.
Proponents of Selective Incapacitation, an incapacitation strategy within Incapacitation Theory, argue that people who are convicted of committing a crime should be divided into two groups before sentencing:
- “Dangerous offenders,” people who pose a high risk of committing further dangerous crimes; and
- “Non-dangerous offenders,” people who are unlikely to commit more dangerous crimes if they are released from prison.
While the intention of Selective Incapacitation supporters may be to avoid overly severe punishments that result in longer sentences and prison overcrowding, there is no known method through which the courts could distinguish dangerous individuals from non-dangerous individuals with accuracy. Sentences based on Selective Incapacitation punish individuals for crimes not yet committed, which runs the risk that people who are identified as dangerous and are incarcerated will not actually commit another crime.
There are multiple types of Incapacitation within Incapacitation Theory:
- Incarceration– Imprisonment serves as the primary method of incapacitation in the United States. Incapacitation through incarceration functions through the perspective that a person who committed a crime cannot commit more crimes in their community while they are carrying out their prison sentence;
- Capital Punishment– The Death Penalty is the most severe and permanent form of incapacitation. An individual is not capable of committing any other crimes once they are put to death, so capital punishment fulfills the goal of incapacitation to an extreme degree;
- Lesser Penalties– Lesser penalties may concern restricting a person from committing a crime rather than completely disabling a person from committing another crime. For instance, revoking an individual’s driver’s license in response to numerous speeding tickets or putting a person on house arrest both achieve restrictive forms of incapacitation.
Policy Origins of Mass Incarceration in the US
Following President Richard Nixon’s presidential campaign concerning “law and order,” his administration allocated $1.5 billion in state and local law enforcement grants to prevent crime in America. Soon thereafter, Nixon declared the “War on Drugs,” and Congress passed the Comprehensive Drug Prevention and Control Act (CSA) in 1970 to prevent drug abuse, provide treatment for drug abusers, and strengthen law enforcement authority in the field of drug abuse. The CSA also provided a legal basis for the government’s “War on Drugs.” For instance, New York’s strict 1973 sentencing guidelines known as the “Rockefeller Drug Laws” placed mandatory prison sentences of fifteen years to life for drug dealers and addicts, including marijuana. Some policymakers argue that sentencing laws like the Rockefeller Drug Laws expanded the United State’s prison population from the 330,000 in 1973 to a peak of 2.3 million today.
President Ronald Reagan’s administration further expanded Nixon’s “War on Drugs” through the Anti-Drug Abuse Act of 1986, which authorized $1 billion to state and federal law enforcement and mandated harsher penalties in federal drug cases. The policy also expanded the use of no-knock warrants. Reagan’s administration’s drug reform policies resulted in an increase of incarceration rates of non-violent drug offenders from 50,000 in 1980 to over 400,000 in 1997.
The 1994 Crime Bill under President Bill Clinton’s administration paved the way for states to pass more tough-on-crime laws, as coined through Clinton’s “Tough on Crime” era. The 1994 law encouraged prosecutors and police to incarcerate more people and for longer periods of time. The Three Strikes Law, one of the most well known policies under the 1994 Crime Bill, required a minimum sentence of twenty-five years to life for people who commited three crimes with prior serious felony convictions. While Deterrence Theory partly informed the Three Strikes Law, the policy took shape through Incapacitation Theory. In California alone, there were almost 43,000 individuals in prison under the Three Strikes Law as of 2004, which was 26% of the total CA prison population.
Due to sentencing policies resulting from the “War on Drugs,” the number of Americans incarcerated for drug offenses has increased from 40,900 in 1980 to 430,926 in 2019. Overall, there has been a 500% increase in US prison and jail populations over the past forty years, with over two million people incarcerated today.
Effectiveness of Incarceration and the Impact on People of Color
Despite the steady decrease in violent crime over the past twenty years, the population of people in prison for violent crimes has quintupled since 1984. The National Research Council concluded that although prison growth was a factor in reducing crime “the magnitude of the crime reduction remains highly uncertain and the evidence suggests it was unlikely to have been large.” That being said, higher incarceration rates do not correlate to lower violent crime rates. The Sentencing Project points to two main factors that can explain why the impact of mass incarceration on reducing crime today is limited:
- Incarceration is not a very effective tool to prevent youth crimes and drug crimes, since those individuals are quickly replaced by other people seeking an income or struggling with addiction.
- Additionally, people tend to “age out” of crime, where crime drops rapidly when adults reach their 30s and 40s.
John Ehrlichman, Counsel and Assistant to the President for Domestic Affairs under President Nixon, later admitted in a “War on Drugs” confessional statement:
“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.”
African Americans make up 12% of the US population, but they account for 44% of the US prison and jail population as the largest single demographic group behind bars. Harsher sentencing laws for drugs disproportionately fell on communities of color after the Reagan administration’s Anti-Drug Abuse Act of 1986. In particular, mandatory minimum sentences that were authorized for drug users as a result of the Anti-Drug Abuse Act of 1986, specifically the 100:1 ratio between crack and powder cocaine sentences, led to wider racial disparities in incarceration rates. After the enactment of federal mandatory minimum sentencing on crack cocaine offenses, the average federal sentence for African Americans was 49% higher than for white people, 38% higher than it was four years prior. Although the Fair Sentencing Act of 2010 reduced the crack and powder cocaine sentencing disparity, Black Americans are incarcerated in state prisons at nearly five times the rate of white people.
Incapacitation through Capital Punishment and the Impact on People of Color
Proponents of the capital punishment argue that incapacitation through the death penalty ensures that executed individuals who committed a crime are unable to commit another crime. However, there is no evidence pointing to the fact that the death penalty prevents crime more effectively than long term imprisonment, especially since states that have capital punishment do not show significant changes in either crime or murder rates. While capital punishment is a form of incapacitation, it is not more effective than life imprisonment in preventing crime, which explains why thirty-seven states allow juries to sentence defendants to live imprisonment without the possibility of parole instead of the death penalty.
Out of the 3,350 people currently on “death row” in the US, more than 40% are African American, and a disproportionate number are Native American, Latino, and Asian. Since October 2002, twelve people have been executed in cases where the defendant was white and the murder victim was black, while 178 African American defendants have beeen executed for murders with white victims, demonstrating the disproportionate impact of the death penalty on people of color.
