Incapacitation

Trends and New Perspectives

Marijke Malsch, Marius Duker

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317117667
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

In many criminal justice systems a new trend towards incapacitation can be witnessed. A ubiquitous want for control seems to have emerged as a consequence of perceived safety risks. This can be seen not only in the mass incarceration of offenders but also in the disqualification of offenders from jobs, in chemical castration in cases of sexual crimes, the increased use of electronic monitoring and in the life-long monitoring of individuals who pose certain risks. Trends towards incapacitation are now even spreading to public administration and the employment sector, in the refusal of licenses and the rejection of employees with past criminal records. This book discusses the topic of incapacitation from various angles and perspectives. It explores how theories of punishment are affected by the more recent emphasis on incapacitation and how criminal justice practice is changing as a consequence of this new emphasis. Many contributors express criticisms with this trend towards incapacitation. They argue for a better calibration of measures to the severity of the misconduct. In addressing an increasingly important development in criminal justice, the book will be an essential resource for students, researchers, and policy-makers working in the areas of criminal law, sentencing, probation and crime prevention.

Chapter 1
Introduction

Marijke Malsch and Marius Duker

Over the past decades, a serious harshening of sentencing can be observed in many countries throughout the world. Responses to crime and harassing behaviors have changed; they are approached differently now than they were a few decades ago. In the US, ‘Three Strikes’ sentencing and mandatory minimum sentencing laws have been called into existence. Apart from longer prison terms, punitive trends have mounted up to the creation of several other ways of locking people up, disabling them or disqualifying them to such an extent that it is, in fact, made impossible for them to continue or repeat certain criminal behaviors or behaviors that intrude on the public order: Incapacitation.

Prison terms present one of the most inclusive forms of incapacitation. Since the early 1970s, many countries have witnessed steadily rising imprisonment rates that are presently, at the beginning of the twenty-first century, roughly four times higher per capita (Tonry 2004a). Not all countries witnessed an increase in the prison population, however. In Finland and Japan, these rates even declined. In the other Scandinavian countries, prison rates remained stable, while those of France and Italy fluctuated. Imprisonment rates in England were roughly stable from 1970 to the early 1990s, after which they nearly doubled. They reached the highest level ever in the Western world after the United States (Tonry 2004b). German imprisonment rates remained grossly stable, but those of the Netherlands increased. Over the past decades, the number of incarcerated people has tripled in that country and now one in every thousand citizens remains in custody (Vollaard and Moolenaar 2009). By way of comparison: incarceration rates in England are 151 per 100,000 of the population, while this number is 190 for New Zealand.

These trends do not come out of the blue. They are highly interwoven with developments in Western societies, among which the most prominent is the increasing concern for security. Security fears are stimulated by and have affected media reporting, and they have been picked up by politicians and translated into an outcry for harsher sentences (Garland 2001, Roberts and Stalans 1997, Tonry 2004a). These trends are also reflected in perspectives on goals of punishment. The level of tolerance for safety risks and disturbances in the street has diminished, both for perceived security risks and for the individuals presenting them (Zedner 2007). Views change as to how to tackle these risks. There seems to be an inclination to employ different instruments now than were used 30 years ago. Maybe more urgency is now felt while trying to bring those who pose certain risks or who exhibit annoying behaviors back on the right track. As will be illustrated in this book, incapacitating measures generally take less time than rehabilitation processes do; on certain points, they may also be more effective, at least immediately after a crime or misbehavior has occurred.

This book is about these new trends and changing perspectives. It presents a collection of chapters, most of which have been presented at the International Workshop on Incapacitation in Amsterdam in December 2010, organized by the Netherlands Institute for the Study of Crime and Law Enforcement (NSCR) in cooperation with VU University. In this introductory chapter, we will provide an impression of the type of sanctions and interventions that have been developed in various countries over the past decades and that exert the effect of “incapacitation.” We will attempt to describe the simultaneous evolution in the perspectives on goals of punishment and how these should be served. Finally, we will present a reading map of all the chapters in this book. At the end of the book, in the concluding chapter, we will try to pull the various lines together and discuss the issues that have been addressed in the various chapters.

Incapacitation: Character and Scope

One question that has to be answered first is: what is incapacitation? What is its scope? Is the term restricted to the most invasive forms of disabling a person, such as the death penalty or life sentences, or do less far-reaching measures also qualify as such? In a special on incapacitation of the Journal of Quantitative Criminology (2007: 23), Miles and Ludwig define incapacitation as “the inability of an incarcerated person to commit additional offenses” (290). This definition has two aspects to it: incarceration and a previous conviction. This substantially restricts the scope of the definition. Although the individual authors in this volume actually use their own definitions, we as editors propose a wider conception of the term “incapacitation.” In our view, this concept relates to all sanctions and interventions that aim to impede, restrict or make impossible certain actions, without necessarily being accompanied by measures that aim at other goals and effects, such as retribution, rehabilitation, restoration, et cetera. The other effects may be there in practice, but they are not aimed for in the first place, according to our definition. For us as editors, the focus on restriction and impediment of behaviors has the consequence that the worldwide increase of the tendency to control and monitor conduct is included in the definition of “incapacitation” as well.

The death penalty is the ultimate form of incapacitation. A dead person is no longer capable of anything; all risks of a relapse into criminal conduct have evaporated. A less invasive but still very encompassing form of incapacitation is presented by the life sentence, but also by certain measures that mount up to a lifelong confinement (for example, in case of serious mental disorders). The person serving a life sentence is prevented for the rest of his or her life from freely moving outside the walls of the prison. Other kinds of freedom are restricted as well, depending on the level of security of the institution. Working life is not free either, since it is highly regulated; relations with others cannot be freely developed; sexual life is highly restricted or made impossible; sports can only be done at times that the institution allows them it; and hobbies are subject to licenses and regulations, too.

Protection orders, restraining orders and orders that have more recently been called into existence (like anti-social behavior orders, control orders) restrict the freedoms of movement and/or of contacting another person, without locking up the people they pertain to. Some of these orders are old sanctions, and their application has been widened in many countries with the aim of combating certain behaviors more effectively by incapacitating or hindering perpetrators. Other types of orders or sanctions that are of a primarily incapacitative nature are new.

Ashworth (2009) and Zedner (2007) discuss the English “control order” as a means of restraining persons suspected of involvement in terrorist activity. This order restricts the liberty of persons by confining them to a particular place for up to 14 hours per day, forbidding them to use the telephone, the Internet, and so on. Other examples are the anti-social behavior orders (ASBOs), which include various prohibitions, and the “notification requirement” for persons convicted of a wide range of sexual offenses that are automatically imposed by the English Sexual Offences Act 2003 (Ashworth 2009). The English ASBOs, control orders and notification orders do not stand on their own. Other countries have created similar orders and their basis seems to be highly similar to these ASBOs. This book pays ample attention to these and other new orders (see Moerings, Van der Laan, this volume). In sum, the tendency to incapacitate is not only geared towards an increased use of incarceration as a means of criminal punishment but towards several kinds of other measures as well, which aim to impede offenders from re-offending by controlling their daily life in one way or another.

An increasing emphasis on incapacitation surfaces in segments of society other than criminal law, too. This book is not restricted to interventions in criminal justice only. The past decades have witnessed legislative initiatives to criminalize behaviors that were, up to then, not considered as criminal acts: the preparation of terrorist acts and of several specific other crimes, posing particular kinds of threats and so forth (Albrecht 2005, Zedner 2007, Ashworth 2009, McSherry et al. 2009). In the Netherlands, authorities such as the local mayor have been given powers to restrict the freedom of movement of persons who pose certain dangers to the public order. Banning orders of non-nationals who have (repeatedly) committed certain crimes are implemented by the legislatures of a number of European countries. Entrance prohibitions (casino, brothels, shops, and so on) have the direct effect of incapacitating those who might wish to enter, and they often are of a civil nature. Barring orders have been created in several countries to enable the removal of a husband who batters his or her partner. The closing down of companies and disqualification to act as director generate the same effect in the financial sphere. Administrative law is at stake in many such situations. These administrative and civil approaches justify an even wider use of the concept of “incapacitation.” Nevertheless, most incapacitating interventions discussed in this book pertain to criminal law.

Incapacitating sanctions are often accompanied by interventions which aim at some kind of rehabilitation of the perpetrator, for example by inciting and assisting him to gain insight into his own behaviors. Typical of incapacitating interventions remains, however, that they can also be applied without being accompanied by any measure that aims at other effects. Such is the case, for example, with disqualifications: they aim exclusively at taking away the person from the situation in which things have gone wrong. The same applies to chemical castration: it is purely aimed at taking away the ability and/or the urge to have sex. In that sense, these incapacitative interventions are “neutral”; they do not convey a moral message or aim and do not aim at educating the perpetrator, they just remove possibilities for certain behaviors.

During the Workshop on Incapacitation that we organized in December 2010, it appeared that different legal cultures view “incapacitation” and its contents in different ways. Scholars from the United States regarded the death penalty and (long) prison terms, including the isolation of the convict, as the essence of incapacitation, whereas participants from Europe were inclined to regard other types of interventions and measures as a form of “incapacitation” as well. This diversity of views probably reflects differences in legal traditions and cultures. For example, the majority of states in the US still impose and execute the death penalty, while Western European countries have since long stopped doing so, and this may have led to differential views on what is incapacitation and what is not. Different legal cultures thus may lead to differential perspectives on incapacitation. This book will uncover at least some of these differences without aiming to exclude any of the perspectives brought forward.

Incapacitation and Goals of Punishment

Punishment theories distinguish a number of different goals of punishment: retribution, prevention (consisting of deterrence, rehabilitation and incapacitation) and restoration (Walker 1991). All (criminal) sanctions seem to serve more than one goal at the same time. A prison sentence is traditionally expected to primarily serve the goal of retribution, but it also aims at prevention and even, in a certain sense, to restoration. With community services, the emphasis is different; it focuses more strongly on rehabilitation and prevention than is the case with imprisonment, but it has retributive aspects as well. The goal of retribution essentially focuses on the past: the severity of the actual offense committed is guiding. Other goals (prevention, but also restoration) are forward-looking. The regular distinction between penalties and so-called “measures” relates to these two main perspectives within punishment theories: retribution and prevention. Penalties primarily aim at retribution, while measures are usually forward-looking; they generally are justified by strictly preventative aims. Prevention may result in practices in which the duration of incarceration or mandatory treatment exceeds what is proportional in retributive terms. This is then justified by referring to the need of eliminating high risks. Incapacitation also plays an important part in this context as a means of eliminating those risks.

When considering “incapacitation” as a punishment goal, the umbrella concept of “prevention” is at stake. Sub-goals of prevention are rehabilitation and deterrence, and also incapacitation. Deterrence aims at preventing future crime by posing a threat of being caught and punished. There is some skepticism about the effects of a deterrent approach. Some kinds of behaviors might be deterred by changes in enforcement and sanctions, like tax evasion, speeding, illegal parking and littering. What might work there is the perceived likelihood of apprehension or the severity of penalties. Most other types of crime, however, concern impulsive offenses or are crimes committed under the influence of drugs, alcohol, peer influences, powerful emotions or situational pressure. For these crimes, deterrence would not work (Tonry 2008). Rehabilitation aims in the first place at bringing about certain effects in the offender, to teach him or her to live in society without committing crimes. This means that the offender should learn new capacities and abilities, follow certain training programs that enable him to earn his own living, or to handle his own inclinations and urges. Rehabilitation processes generally take much time. Learning new capacities is not possible within a brief time period.

Incapacitation, as a sub-goal of prevention, looks forward to the future and tries to make a relapse into (a particular) crime impossible by actually taking away the opportunity to do so. Tonry (2004a) characterizes incapacitation as the “flip side” of rehabilitation. It could be argued that as long as the offender is not rehabilitated, he should be incapacitated.1 Incapacitation works directly and speedily, which renders it attractive to policy makers, for example. In this book, the question will be addressed to what extent incapacitation can be regarded as a goal of punishment on its own, or whether it should continue to be considered as a sub-goal of prevention.

Apart from addressing its relation with concepts like retribution and prevention, incapacitation can also be distinguished from the other purposes of sentencing in that it is value-free. In itself, it does not point in a certain direction, does not have the purpose of improving the offender or making the world better. It just takes away opportunities for future crime or other undesired behaviors. Whether or not offenders or the public at large may learn something new from incapacitation is not of importance; what are of relevance are the technical effects. In that sense, incapacitation thus has a narrow scope: preventing certain future crimes with the help of interventions that are more technical in character. In contrast to the authentic goals of punishment, which are relatively more of a sociological or psychological nature, incapacitation is supported by a ratio that does not have a value-driven character. Incapacitating measures merely impede certain behaviors; that is all they do.

Incapacitation: Justifications

The question might be asked what gives the state the right to create incapacitative sanctions as described in this introductory chapter. In a broader evaluation of incapacitating orders, Ashworth (2009) refers to John Stuart Mill’s On Liberty (1895, 1991). According to Mill, the prevention of harm to others would be the only purpose for which severely restricting powers can be justifiably exercised over individuals in society. The central issue remains, however, how far this can go, and this issue becomes more salient in the present era, with its focus on incapacitation. Arguments generally brought forward include the idea that a person predicted to be dangerous could justifiably be detained if he or she had already been found (by a conviction or an insanity verdict) to have committed a dangerous act. The same would apply if a person would present a danger of inflicting serious harm on others, or in the situation where the cost to society of not taking preventative measures would be great in proportion to the invasion of the offender’s rights (Dworking 1977, Ashworth 2009). Mere restrictions (and not a full incapacitation) would require less strong justifications. Thus, notification orders and foreign travel orders might be expected to be in need of less strict justification requirements than orders which present a highly invasive restriction of one’s freedom of movement. Nevertheless, making it impossible to execute one’s professional life forms an invasive measure as well, so here issues of justification are at stake as well. A number of chapters in this book pay attention to such issues (see Boone, this volume, Malsch et al., this volume).

Fears for security probably have contributed most to the increases in incarceration rates of the past decades (Zedner 2007, McSherry et al. 2009, Ashworth 2009), or more generally, to trends towards incapacitation. The terrorist attacks of 9/11 have caused great safety concerns. Fears for “regular” crime have increased as well, as did apprehension about groups of youngsters who cause harassment in the street. All these crimes and behaviors have been committed for ages, but some of them seem to have increased in severity and/or volume recently, or at least they attract more attention now than they did previously. Media attention to these phenomena has always been substantial, and it has also augmented in volume. According to some, media attention and the simultaneous fears of the public even have become disproportionate. Tonry (2004a) contends that so-called “moral panics” have substantially contributed to increased incarceration rates. Politicians are alleged to make use of such moral panics to increase their popularity by advocating harsher sentences (see also Roberts and Stalans 1997, Albrecht 2005, Simon 2007). As a result, the proportionality of sentencing has decreased. Tonry (2004a) notes that there is no obvious and demonstrable relation between the rise of incarceration rates and an increase of crime: the overwhelming growth of prison populations would by no means be justified by crime rates, which have even been steadily declining in most parts of the world since the 1990s.

Tonry (2004a) describes the changes in values and norms that lie at the basis of justifications of harsher sentencing. He claims the public has become less sympathetic to offenders and more moralistic and judgmental about wrongful behaviors, while prosecutors have become more aggressive in th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Tables
• List of Contributors
• 1 Introduction
• 2 Total Incapacitation: The Penal Imaginary and the Rise of an Extreme Penal Rationale in California in the 1970s
• 3 The Incapacitation of the Dangerous Offender: Criminal Policy and Legislation in the Federal Republic of Germany
• 4 The Risk of the Persistent Offender and the Special Security Measure
• 5 Post-Sentence Incapacitation of Sex-Offenders and the Ethics of Risk Assessment
• 6 Incapacitation by Pre-Trial Detention
• 7 Part-Time Incapacitation: Probation Supervision and Electronic Monitoring
• 8 Incapacitation: Anti-libidinal Medication in the Treatment of Sex-Offenders
• 9 Circles of Support and Accountability: Combining Prevention and Incapacitation within a Communitarian Approach for Released Sex-Offenders
• 10 Disqualification from a Profession or an Office: Nature and Actual Practice
• 11 The Application of Administrative Law against Organized Crime: Refusing and Revoking Licenses as Incapacitation
• 12 Criminal Records as an Instrument of Incapacitation
• 13 Estimating the Effects of Imprisonment: Intended and Unintended Consequences of Incarceration
• 14 Incapacitation: Trends and New Perspectives
• Index