Selective Incapacitation and the Effort to Improve the Fairness of Existing Sentencing Practices


The principal objective of this paper is to provide a justification for pursuing a policy of selective incapacitation. This issue is extremely timely because the nation’s approach to criminal sentencing and corrections policy is in disarray. Correction officials are unsure of the utility of alternatives to existing sentencing procedures and are therefore uncertain about new steps that might be taken to improve existing practices. Because priorities are confused and resources misallocated, citizens perceive that federal, state and local governments are paralyzed in their efforts to combat crime and to develop a sound, just corrections strategy. There is a disquieting, even cynical attitude among our citizens that our elected public officials, criminal justice professionals and other policymakers are bereft of constructive ideas precisely at a time when the nation seeks innovative proposals.

What I hope to bring to this colloquium is an additional perspective, that of the policymaker who has the task of weaving the insights and thoughts of Messrs. von Hirsch, Gottfredson, Morris and Greenwood into politically viable, realistic public policy. Fashioning a politically acceptable and rational criminal justice policy is almost impossible.

It is hard to discuss the issues of violent crime and criminal justice reform outside of a political, ideological context. For five years, first as Special Counsel to the United States Senate Committee on the Judiciary and then as Administrative Assistant to Senator Edward Kennedy, I assisted Senator Kennedy in shaping federal criminal justice policy. I believe that the pragmatic political considerations which guide our elected public officials and appointed criminal justice professionals must be an integral part of this colloquium. My defense of a policy of selective incapacitation is therefore grounded as much in my perception of what is politically obtainable as in any belief I may have in the policy itself. I view my role today in large part as a political gadfly, occasionally reminding the recognized experts on this panel of the realities of current practice and what is realistically likely to transpire in the future.

At the same time, I view the recent trend towards selective incapacitation as affording an opportunity to make the criminal justice system in general, and criminal sentencing in particular, more equitable and just. The motivations of those who advocate the policy solely as a crime control measure may distract attention from my point but do not destroy it.

My defense of selective incapacitation is based on two overriding considerations. First, and of primary importance is that regardless of the imperfect state-of-the-art of predicting future criminal behavior, a policy of selective incapacitation as an important (but not exclusive) justification for imprisonment would constitute a major improvement over existing sentencing practices. A candid, public consideration of offender “dangerousness” is preferable to the arbitrary and unarticulated assumptions upon which sentencing often rests today.

Second, and of somewhat less importance to this panel, but of very real concern to the policy-maker, are the financial advantages of a carefully crafted policy of selective incapacitation. The criminal justice system can no longer afford the luxury of scattering financial and technical resources in the direction of all offenders. There are not enough police to apprehend suspects, not enough prosecutors to prosecute, not enough judges to try the cases and not enough prisons to house all of those convicted.

The issue of prison capacity is of particular importance. Selective incapacitation, if properly implemented, offers the public official the way out of a thorny political thicket-either build more prisons (and confront the inevitable twin dilemmas of who will pay for the cost of construction and maintenance and where will the new prison be located) or de-emphasize the sanction of imprisonment in favor of non-incarcerative alternatives (a policy that calls for more than a modest degree of political courage). Selective incapacitation provides the way out of this political Hobson’s choice by focusing on the composition of the prison population and asking who should be incarcerated and for how long. We can remedy the current prison population crisis indirectly through a more selective determination of who should occupy available prison space.

Finally, there are two errors proponents of selective incapacitation often make. First, they overstate their case by arguing that such a policy offers society a revolutionary break with past sentencing practices. Second, proponents argue that incapacitation of the high-risk offender should be the sole purpose of imprisonment. Both arguments are flawed and promise too much. Selective incapacitation is not new; the law enforcement community has always, to some extent, attempted to establish as a priority the apprehension and conviction of the violent criminal. What is new and promising is recent research used to justify a broad based incapacitation policy that seeks to imprison a relatively small, highly-active segment of the criminal population in order to prevent high rate offenders from committing crimes in the future.

Nor should the policymaker readily discard other equally important rationales for imposing criminal sanctions. Selective incapacitation should not be viewed as the sole justification for comprehensive sentencing reform.We will always need to depend on concepts of retribution, deterrence and “just deserts” to justify the incarceration of some offenders and to help determine their length of imprisonment. In cases, for example, where there is obviously no likelihood of repetition of the offense, it may still be necessary to imprison the offender, either to acknowledge the seriousness of the offense or to deter others similarly disposed. Indeed, to the extent that a policy of selective incapacitation relies exclusively on evidence of the prior criminal history of the offender in predicting future dangerousness, it can be justified independently in terms of “just deserts,” i.e., since the truly high-risk offender has a more extensive criminal track record, he “deserves” more punishment.

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