Selective Incapacitation and the Justifications for Imprisonment


Let us suppose that we could distinguish the dangerous criminals from the nondangerous criminals. Then a judge who was about to pass sentence on an offender would know whether the criminal standing before the bench was a menace to society or a harmless offender. Would it be wrong for that judge to send to prison a convict who, if she is not incarcerated, will commit a hundred more offenses in the next ten years and to place on probation a convict who will never endanger another individual’s safety? Isn’t it in society’s interest to incarcerate the dangerous—the potential murderers, rapists, burglars and robber—as long as they are likely to commit more crimes; and isn’t it contrary to society’s interest to imprison convicts who have “learned their lesson?”

In the last couple of years, several criminologists have proposed that state governments implement selective incapacitation, a sentencing policy that seeks to identify dangerous high-risk offenders and imprison them for lengthy terms while placing the remaining nondangerous offenders on probation. The advocates of selective incapacitation maintain that we should base the punishment upon the offender. Otherwise the punishment will prove inappropriate. The punishment will be overly severe in many cases so that society will be forced to pay thousands of dollars to maintain in prison people who can make contributions to society, and the punishment will be overly lenient in other cases so that dangerous, habitual offenders will be able to commit crimes that a lengthier sentence would have prevented. To avoid these inappropriate sentences, proponents of selective incapacitation suggest that convicted offenders be divided into two groups, dangerous offenders (those offenders who pose a high risk of committing further dangerous crimes) and nondangerous offenders (those offenders who are unlikely to commit more dangerous crimes if released). The former group would be imprisoned; the latter would not.

Selective incapacitation’s opposition to imprisoning the nondangerous offender makes it a seemingly attractive theory. The proponents of selective incapacitation observe that it is unnecessary to imprison the nondangerous, since by definition the nondangerous offender endangers no one. Therefore, penalization should be reserved for those offenders who are likely to commit violent crimes if they are released. Incapacitating the dangerous, it is argued, is the only way to protect the law-abiding public.

The good news that proponents of selective incapacitation offer is that they can reduce crime rates dramatically and make the streets once again safe for law-abiding citizens. The bad news, rejoin the opponents, is that selective incapacitation will lead to the harsh new world of George Orwell’s Big Brother. In fact, both sides overstate their cases.

Selective incapacitation is being seriously considered today -in many ways it is already applied in our criminal justice system.” In addition, selective incapacitation forces the public to reconsider long held assumptions about the role of prisons.’ Therefore, it should not immediately be dismissed by facilely raising practical problems, such as the current inability to identify the dangerous offender, that may prove surmountable.

Nevertheless, dangerousness is an inappropriate criterion in sentencing proceedings. This Note, after pointing out why selective incapacitation is now so attractive, will argue that it should not be a factor in sentencing proceedings because at present it is impossible to predict with any accuracy who is likely to prove dangerous. The courts cannot distinguish the dangerous from the nondangerous. In addition, because the definition of violent crime will undoubtedly exclude most dangerous corporate crime, many dangerous offenders will remain free. Next, the Note will discuss the ethical concerns implicit in the use of selective incapacitation as a sentencing tool. Even if it were possible to identify the dangerous offender, it would be impermissible to incarcerate her on the grounds that she was dangerous. Imprisoning an offender because she is dangerous is punishment based on status and future behavior. It constitutes an immoral and illegal intrusion upon the individual’s freedom. Next, the Note raises various constitutional problems with selective incapacitation.

The next section discusses the likely consequences of the implementation of a formal policy of selective incapacitation. It appears probable that selective incapacitation will neither lower the crime rate nor reduce the prison population. The Note concludes with an analysis of selective incapacitation’s theoretical premises and what these premises imply about the future of imprisonment.

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Panel I: Defund Means Defund Andrea Ritchie (she/her) is a Black lesbian immigrant whose writing, litigation, and advocacy has focused on policing of women and LGBT people of color for the past two decades. She is currently a researcher with