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April 26, 2017

"Penal Incapacitation: A Situationist Critique"

The title of this post is the title of this recent paper authored by Guyora Binder. The piece appears to have come out on SSRN earlier this year, but I just now came across it. Here is its abstract:

Incapacitation of offenders has been an influential goal of criminal justice policy during the era of mass incarceration. The Supreme Court’s Eighth Amendment Jurisprudence has accepted incapacitation alone as a justifying purpose for recidivist sentencing enhancements. Yet recent Eighth Amendment decisions have required that severe sentences of incarceration be justified by reference to all purposes of punishment cumulatively, and have tested claims of incapacitative benefits against empirical evidence.

This Article critiques penal incapacitation as both theoretically and empirically flawed. Incapacitation theory underestimates situational factors contributing to crime, over-attributes dangerousness to individuals, and fails to account for crime committed in prison. These flaws preclude incapacitation from rationally justifying recidivist sentence enhancements as preventive. In addition, they support a critical interpretation of penal incapacitation as an expressive practice of segregating and stigmatizing offenders on the basis of status and disposition rather than conduct and desert. These weaknesses may prevent incapacitation from justifying lengthy recidivist sentences under the more demanding proportionality standard applied in recent Eighth Amendment cases.

April 26, 2017 at 01:47 PM | Permalink


Nice review of the retribution argument. However, it is divorced from current reality. People will not change, especially from a highly rewarding, habitual activity such as crime. It is reinforced by money, sexual pleasure, and shortcuts to the reward centers of the brain by substances. There is no way to beat those rewards by retribution.

Very few crimes are prosecuted, so each arrest must stand in for 1000's of crimes committed by the repeat offender. People never change. The repeat offenders are well known by age 3, since the crime meter has begun to spin at that age. Nor does crime end at 50. It slows down at the same rate as all behavior does at that age. When little girls say, Grandpa touched my weewee, whom do you think they are talking about?

The utility of incapacitation is worth $10's of millions compared to $100's of thousands in prison cost for each prisoner. Prison has to have the biggest return on investment of any government spending, guaranteed, no risk, year after year. The onset of the incapacitation model was associated with a great performance of the economy in the 1990's, but is never counted as a factor by economists. The value of the 40% drop in crime ws returned to the public for their own consumption, and stimulation of economic activity.

The author fails to disclose the real motivation of the decarceration movement: big government, Democratic Party registered voter, lawyer unemployment.

People like the author only want to debate other lawyers. They will never take on representatives of the people of earth and of the real world, especially victims of lawyer toxicity in poor neighborhoods, where the toxic client of the lawyer is always dumped, and herded into.

Posted by: David Behar | Apr 27, 2017 9:09:34 AM

I lost my husband to another woman, i was so heart broken.. I was in PAINS.. physically hurts in the chest.... emotionally distraught...wish there was a pill or shot to take that would make you feel all better..but today, OMG this is exactly how I feel..I feel so happy, i contact dr.uzor in regard of getting my husband back and ( uzorspelltemple@gmail.com) or visit his website//:www.uzorspelltemple.webs.com reunited i and my husband together with his powers,

Posted by: ossyle | Apr 29, 2017 10:13:10 AM

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