Despite the best efforts of researchers, a small sample of which are outlined above, it seems that there is little evidence for the efficacy of incapacitation as a method of crime reduction. There are a number of reasons why the incapacitative approach does not work when the aim and the justification is to make an impact on the general crime rate. As I have stated above if the justification for using incapacitation as a means of determining a sentence that is longer than the normal sentence would be for that offence, then it is important to show that the method does actually reduce crime. It has been shown above that it does seem to be difficult to show that incapacitation leads to a demonstrable reduction in crime and the basic reason for this is that crime does not operate in a constant, linear and predictable fashion. By and large offenders do not approach crime in the same way that a factory owner would approach production of merchandise. By this I mean that those committing crime do not set targets for the number of crimes that they aim to commit over a given period and then set about doing this, allowing for an easy measurement of the numbers and types of crime that would have been committed if they had not been in prison. What is known is that individual offenders very rarely specialise in one type of crime, making assumptions about the type of crimes that could be reduced by incapacitation very difficult. (Wilson, 2000 p117) It is also the case that individuals often do not have long criminal careers. (Von Hirsch, 2000 p121) It is more usual that offenders commit more crimes when they are younger and as they get older the numbers of crime committed reduces. This means that it is futile to estimate the numbers of crimes that could be prevented if certain offenders are
190
incapacitated for a defined period of time. It could very easily be the case that the offender would not go on to commit crimes at the same sort of rate that they had in previous years, if at all.
The problems for the justification of incapacitation do not end there however, as there are many types of crimes which will just be committed by someone else if an individual offender is incapacitated. This is particularly the case with organised criminal activities such as drugs, organised prostitution and other crimes committed by criminal gangs. (This type of crime could sit outside of the assumptions that I made above in relation to individual offending, it may be possible to predict the crime rates and patterns of criminal gangs which can be organised and operated with a defined business model). (Wilson, 2000) As soon as one offender is taken off the streets and put into prison, the criminal gang is able to replace them with someone else, thus having no impact on the overall crime rate despite the fact that a particular offender has been imprisoned and will no longer be able to commit any offences. Again this makes assumptions about reductions in crime due to the effect of individual incapacitation problematic.
Finally it has also been shown that young offenders in particular tend to commit crime in groups, meaning that if one of this group is taken off the streets there is no guarantee that the rest of the group will desist from offending. (Zimering & Hawkins, 1995 p92) This is not the case of course with all types of crimes and it is difficult to stretch this view to crimes such as sexual offences, and some violent offences that sit outside of
organised criminal activity. This analysis does lead, however, to the conclusion that there is no reason to believe that incapacitation will lead to an overall reduction in crime and it is very difficult to make the assumption that crime will be reduced by the removal of
191
individual offenders from the community. Even if this assumption is made it is very difficult to make an accurate prediction about the level of the reduction in crime that could be achieved by incapacitating an offender. Without this it is difficult to justify the introduction of incapacitation as a method of crime reduction.
The difficulties of making presumptions about the overall reduction in crime rates that could be achieved through incapacitation are further compounded by a more pressing problem for incapacitation if it is justified as a means of crime reduction: that of the
possibility of false positives. Linked closely to the problems highlighted above about the erratic way that many offenders commit crime, it is very likely that many offenders that are imprisoned in order to ensure that they never commit any offence in the future, would never actually go on to commit an offence. It could be said that in these instances offenders are being punished for crimes that they have not committed and would never commit. A proportion of the offenders identified as those that need to be incapacitated (and therefore receive a sentence that is longer than would normally be expected for their offence) would never go on to commit more offences if they are released. These offenders may meet all the criteria needed to be identified as requiring incapacitation but would not have gone on to commit future offences. The likelihood that predictions of dangerousness would lead to an unacceptably high proportion of false positives was demonstrated by the Floud Report in 1981 in the UK. The report found that this was particularly the case when using the kind of factors that the RAND study conclude are a good predictors of future offending behaviour, which are shown below. Having a high number of false positives in this way should be too high a price to pay for a liberal, just society that respects the rights and autonomy of its citizens.
192
The problem of false positives is connected closely to the issues associated with the unreliability of predicting future offending behaviour. If the methodology used to predict the likelihood of future dangerous offending behaviour is not accurate then it is likely that offenders who are not dangerous, and would never go on to commit any future offences, are sent to prison for longer than they deserve. The RAND Corporation study aimed to provide a rationale for the use of incapacitation as a means of preventing crime and based on their research, tried to give an estimate of the number of crimes that could be prevented by the incapacitation. The report also attempts to provide a framework for predicting which offenders could be considered likely to go on to commit more offences and that could be defined as dangerous.
The authors of the report concluded that there were seven factors that should be present if a prediction of dangerousness was to be made, and therefore the offender should be the subject of an extended prison sentence, thus incapacitating them. As was seen in the previous chapter’s analysis of the use of evidence of the character of offenders, rather than an assessment of the culpability of the offender, these factors could be seen as evidence of a so called bad character. The seven factors presented by the RAND report do not state that the offender is more deserving of punishment because they are in some way more culpable for the offence they have committed, or that they have caused more harm. The justification for harsher sentences for offenders who have these factors is because their research
showed that these factors are common to those who commit high numbers of crimes. Therefore if an offender has these factors they are more likely to go on to commit future crime leading to the conclusion that incapacitation of offenders with these factors will prevent crime.
193
Peter Greenwood concluded in the RAND study that there were a small number of offenders who were committing a large number of offences and by removing these offenders from the community crime would reduce. Through study of these offenders the RAND study concluded that they possessed seven common features. These factors are summarised below.
1) The offender was convicted as a juvenile 2) The offender had used drugs as a juvenile 3) Has used drugs in the previous two years
4) Has been employed less than 50% in the last two years 5) Has served time in a juvenile facility
6) Has been in prison more than 50% of the last 2 years
7) Has previously convicted of the same offence as the present one (Greenwood, 1982 p18)
If an offender’s history contains these factors then, according to the RAND study, they should be considered for an incapacitative sentence. I will come on to look at the obvious issues with this approach shortly, and there is also a discussion to have about the difference between a dangerous offender and a repeat offender, however I will first look at the
arguments which aim to defend the use of assessments, like the one from the RAND study to justify the extended imprisonment of offenders based on predications of the potential for future offending.
One argument in support of this kind of approach goes that it will never be possible with absolute certainty to predict whether or not an individual will go on to commit future offences. This is just not possible. What we could say, however, is that there needs to be
194
some assessment of whether we think a person is at risk of re-offending (particularly in the case of serious and violent offences). To make sure that these individuals are prevented from re-offending we are going to incapacitate them, thus taking away the uncertainty as to whether rehabilitation or persuasion is the best method for achieving this aim. Therefore we could say that if we need to have some way of making such an assessment then
developing a list of factors, like the RAND study or some other methodology that seems to be reasonably accurate, is good enough and this is best outcome we can hope for. (Wilson, 2000 p117) Andrew von Hirsch calls this The Sunlight Argument. What this argument says is that predictions of dangerousness are going to be made anyway and that if this is the case then using sophisticated modelling and analysis is better than being reliant on a subjective, human-error prone assessment of who could go on to commit future offences or be
considered dangerous from professionals working in the criminal justice system. (Von Hirsch, 1987 p130) Predictions of whether individuals are likely to go on to commit offences or pose a risk to the public are already in the criminal justice system of the UK. Examples of this are the system of bail and the role of parole boards, so the argument goes that it is better that these decisions are based on evidence in a standardised way rather than a subjective decision by individual professionals in the criminal justice system.
Andrew von Hirsch does not think that this reason is acceptable to justify the use of predictive assessments of future criminal behaviour. (Von Hirsch, 1987 p130-131) The point for von Hirsch and Duff, is that it is impossible to meet the requirements of even a negative interpretation of proportionality if sentencing is based on factors other than the offence for which that offender has currently been found guilty. In order for a sentence to convey the appropriate censure then an assessment of the harm caused by the offence and the
195
culpability of the offender is required. Offenders who are judged to be suitable for incapacitation would be sentenced on the basis of their possession of factors which sit outside of the harm caused by their offending behaviour and their culpability for that crime. They will also be subject to a harsher sentence (which results in their incapacitation) than those offenders who have committed the same or a similar crime but do not possess factors such as those outlined in the RAND study. This would result in differences between the sentences of different offenders for the same crime. As Andrew von Hirsch puts it “[w]hat chiefly counts is what was done, not who did it.” (Von Hirsch, 1987 p81) By relying on information about the past behaviour of the victim, some of which he or she may or may not have control over, the type and severity of sentence becomes reliant on who committed the crime rather than what the crime was, what harm was caused and how culpable the offender was. To accept that this is a good enough approach means that offenders will be punished more than they deserve. As Tonry states
If….one believes that the offender’s blameworthiness or culpability determines how much punishment he should suffer, to increase in that punishment for incapacitation reasons is, by definition, unjust. (Tonry, 2000 p130)