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Overview

Among the manifold goals of penal confinement, incapacitation aims to impose a period of “time out” from the criminal career, by removing the opportunity for an individual to commit crime in the community for the duration of his or her sentence. After a period of empirical stagnation, questions concerning the incapacitation effect of imprisonment have recently become salient. This recent empirical attention has been spurred, in part, by the unparalleled growth in the use of incarceration in Western society over the last three decades. This growth is most stark in the United States. Yet in Europe as well, two-thirds of the 35 countries surveyed experienced growth in their incarceration rate during the first half of the 2000s (Aebi et al. 2006).

A growing literature has become attentive to the effects of incapacitation. This research paper gives an overview of the current literature and pays attention to the (a) effects of general incapacitation and (b) effects of specific incapacitation of frequent offenders.

Effects Of General Incapacitation Effects Of Prison

Approaches To Estimation Of General Incapacitation Effects Of Prison

A key goal for a study of incapacitation is to estimate the number of crimes that an incarcerated offender would have committed, where he/she is free in the community rather than confined in prison. This is taken as an estimate of the incapacitation effect, defined as the number of crimes averted by physically isolating an offender from society at large (Blumstein et al. 1978). This task would seem straightforward at first glance, but the problem on closer inspection is that this quantity is a counterfactual which can never, even in principle, be directly observed.

Estimation of the incapacitation effect of imprisonment is fundamentally an actuarial exercise. The empirical challenge is one of overcoming the counterfactual problem, that is, providing a credible estimate of behavior that is not observed because an individual is locked up in jail or prison rather than being free in the community. The key quantity for incapacitation is known as lambda, l, representing the annual offending frequency conditional on active offending, which can be taken as an estimate of the number of crimes avoided through incarceration. Zimring and Hawkins (1995, p. 81) observe that there are two approaches to estimating lambda: [T]o determine the level of crime that would have occurred if a particular group had not been confined, one must either study the criminal activity of the same group at a different time in their lives to estimate what that group would have done if not confined, or one must study the behavior of persons other than those confined to approximate the crimes avoided by imprisonment in the past.

It can be referred to the first as a within-person counterfactual approach, and to the second as a between-person counterfactual approach. Point of departure for both approaches mentioned is that the crimes the offender would have committed while free are actually prevented by incarcerating the offender. As such, these methods do not account for the mitigating effects of replacement – other offenders filling in the position left vacant by incarcerating the original offender – or the fact that co-offenders might have committed the particular crime regardless of the absence of the incarcerated offender. Replacement however seems especially relevant for drug offenses and is deemed largely irrelevant for the large majority of crimes. Group offending in turn might be more relevant for juveniles than for adults since juvenile offenders more often co-offend.

Within-Person Approach

The most influential incapacitation studies are universally of the first kind in Zimring and Hawkins’ (1995) typology. These studies provide within-person counterfactual offending rates from self-report surveys of arrestees or prison inmates. With this approach, targeted individuals are questioned about their criminal activity during the months leading up to their arrest or confinement. These estimates are taken as the number of crimes they committed on an annual basis when they were free (prior to incarceration) and by implication, the number of crimes they would have committed per year during the time that they were incarcerated. Therefore, the counterfactual offending rate for incarcerated individuals is their own offending rate in the months preceding their confinement.

The best-known source of a within-person counterfactual is the Rand Corporation’s second inmate survey, a study of over 2,000 male inmates in California, Michigan, and Texas (Chaiken and Chaiken 1982). This study, for example, revealed that annual offense frequencies for ten different crimes were highly skewed, with active offenders at the median committing 15 offenses and offenders at the 90th percentile committing 605 offenses (these figures exclude drug offending). They estimated the mean offending rate to be between 187 and 278 crimes per year, depending on how ambiguous survey responses were treated. Based on these figures, incarceration was shown to have the capacity to substantially incapacitate criminal behavior. In fact, on the basis of this research, policy-oriented criminologists began to advocate selective incapacitation of high-rate criminal offenders as an explicit penal policy.

These incapacitation studies had limitations, however. First and foremost is the question of the reliability of offender self-reports of their criminal behavior (Spelman 1994; Zimring and Hawkins 1995). Specifically, it is unclear whether incarcerated offenders, particularly high-rate offenders, can accurately recall their prior criminal activity. Even if they can, they may not be motivated to report it honestly to interviewers. Spelman (1994), in fact, found evidence of both over-reporting and underreporting in the second Rand inmate survey, but by individuals at different locations in the distribution of offending rates. Second, the presence and nature of crime spurts can introduce serious distortions in estimates of lambda (Blumstein et al. 1986) and therefore in estimates of incapacitation effects. Research has shown that offenders experience relatively short periods of high-rate offending immediately prior to incarceration, meaning that incapacitation effects will be severely overstated, especially if reporting windows are comparatively narrow. Moreover, a portion of the pre-incarceration crime spurt appears to be artifactual rather than behavioral, that is, a function of the way that individuals are filtered through the criminal justice system and selected for custodial sentences rather than reflective of genuine growth in offending frequency.

Finally, these early incapacitation studies were guilty of overly optimistic assessments of the incapacitative benefits of incarceration. The studies showed self-report offending rates to vary widely from one jurisdiction to another. For example, Chaiken and Chaiken (1982) reported the median total nondrug crime frequency among prisoners (not including jail inmates) in California, Michigan, and Texas to be 42, 17, and 9, respectively. The median offender reported committing 4.2 nondrug offenses per year in Nebraska (Horney and Marshall 1991), 4.4 nondrug offenses in New Orleans (Miranne and Geerken 1991), and 12 nondrug offenses in Wisconsin (DiIulio 1990). Relatedly, the incapacitation estimates from this research tend to assume constant offending during the reference period, whereas Horney and Marshall (1991) demonstrated that most offenders were actively involved in crime only intermittently and that failure to account for this intermittency would inflate estimates of the incapacitative benefits of imprisonment when offense rates are annualized.

Between-Person Approach

Until recently, within-person counterfactual studies exhausted all empirical research in the incapacitation tradition. Three studies in the recent years have adopted the second approach in Zimring and Hawkins’ (1995, p. 81) typology, that of estimating the offending rate of persons other than those confined to approximate the crimes avoided by imprisonment.

Sweeten and Apel (2007) relied on propensity score matching to select incarcerated and non-incarcerated individuals who closely resembled each other on a wide variety of background variables, including criminal history. Using data from a contemporary, nationally representative sample of American youth, they limited their attention only to individuals who were not incarcerated prior to the reference conviction. They estimated lambda among the non-incarcerated sample to be about nine offenses per year among 16–17 year olds and about six offenses per year among 18–19 year olds.

Owens (2009) took advantage of a change in the sentencing guidelines in Maryland that lowered the age at which an offender’s juvenile record could be used to add criminal history points for the purpose of criminal sentencing. This policy change effectively reduced the recommended sentence faced by certain groups of young adults with a juvenile criminal history. In her study, individuals who were sentenced after the policy change accumulated 2.8 arrests per year (with an implied Index offending rate of 1.5 offenses per year) during the time that they would still have been confined under the old sentencing regime.

Wermink et al. (2012) relied also on the between-person approach, but combined it with the within-person approach using a sample of all offenders convicted of a crime in the Netherlands in 1997. Using the between-person counterfactual approach, offenders who were convicted but not imprisoned in 1997 were matched to those individuals convicted to imprisonment in 1997. To estimate the incapacitation effect, they investigate the criminal behavior of the matched controls after their matched counterpart was sent to prison. Using the within- and between-person counterfactual approach, their best estimate is that between 0.17 and 0.21 convictions are prevented per year of first-time incarceration. Distinguishing for different social groups, their results show larger first-time incapacitation effects for male offenders compared to female offenders and for juveniles compared to adults. Their incapacitation estimates are considerably smaller than those of earlier studies.

Remarks On Effects Of General Incapacitation

In conjunction with these prior findings, the current results inform both penal policy and the public discourse surrounding the use of imprisonment as the societal reaction to crime. The current results suggest that in as far as imprisonment is used with the primary goal of reducing crime, a general increase of imprisonment as the sanction of choice is not likely to yield high crime control benefits. While the incapacitative effects of imprisonment are likely to be larger when specific offender groups are selectively targeted, studies examining the effects of such selective policies mostly find rather disappointing effects. In addition, prior studies indicate that even a relatively short prison sentence may have long-lasting detrimental effects in terms of increased offending. Given the incapacitation effect of first imprisonment is not that large to begin with, it is therefore likely to be offset – if not overruled – by the long-term collateral effects of incarceration. This is not to say that imprisonment does not have any function in the criminal justice system. It does however clearly point to its limitations and downsides, underscoring that imprisonment is to be regarded not as a panacea to the crime problem, but merely as an ultimum remedium.

Selective Incapacitation Of Frequent Offenders

Criminal justice policies also aim for effects of selective incapacitation, that is, imprisonment policies specifically targeting some predefined group of offenders. Selective incapacitation policies are increasingly being implemented, both in the USA and in Europe. The rationale behind these policies is straightforward: reducing crime at lower cost. The more skewed the distribution of offense frequency in the offender population, the more offenses can be prevented by selectively incapacitating those offenders that are at the high end of this distribution. If frequent offenders are also more serious and violent offenders, as both theory and empirical research suggests, the benefits of removing these offenders from society may be even greater (Piper 1985). Selective incapacitation however is not uncontroversial. Ethical objections have been raised to the sanction disparity inherent to these selective policies (e.g., Moore 1986). Others have stressed the “stochastic” selectiveness that is already built-in to the judicial system, predicting low yields of an additional focus on frequent offenders (Blumstein et al. 1993). Finally, researchers have pointed to the rising prison costs, wastage of prison capacity, the costly care of the aging prison population, possible problems in monitoring growing groups of inmates serving long-term sentences, and the growing number of appeals lodged by those offenders meeting the selective criteria that may result from selective policies.

Research into the effects of incapacitation has either been at a macro-level, combining aggregate data on prison populations and crime rates, or at the micro-level using models combining information on individual offense rates, probability of conviction, and sentence length. Aggregate research is faced with the problem of separating the effect of imprisonment on crime from the effect crime has on imprisonment. Additionally, this type of research can only address the combined deterrent and incapacitative effects of imprisonment. Micro-level research does focus solely on imprisonment’s incapacitative effect, but finds that outcomes vary widely depending on the estimates of the various criminal career characteristics used. Also, thus far, these latter studies pertain to adult offenders only.

Macro-Level Studies On Effects Of Selective Incapacitation

Studies into the effects of selective incapacitation on crime have used one of two approaches: macro- and micro-level studies. Macro-level or, as Spelman (2000a) refers to them, top-down studies have relied on aggregate data on society-level crime rates and prison populations. These studies typically estimate the relation between crime rates and prison populations, while controlling for other variables that may affect crimes rates like the population’s age distribution or its unemployment rate using multivariate regression techniques.

Researchers using aggregate data have specifically focused on the implementation of selective policies, most often the “three strikes” laws (Clark et al. 1997; Vitiello 1997; Zimring et al. 2001). As with the studies on imprisonment in general cited above, many of the studies into selective imprisonment did not control for simultaneity. This may lead effects of these selective policies to be underestimated, since outcome measures may also be affected by preexisting increasing crime trends that gave rise to implementing the selective policy in the first place. Many studies also have a short follow-up period. However, as Kovandzic (2001) notes, the incapacitative effects of selective policies most probably do not occur for many years after the policy is implemented, since most offenders selectively imprisoned under the new policy would have been imprisoned for at least some period even under prevailing nonselective policy. Using long-term data from Florida, Kovandzic (2001) finds little evidence for a general deterrent effect of Florida’s habitual offender laws on crime and concludes that its limited effects on crime are mostly due to incapacitation.

It must be noted, however, that while policy shifts on imprisonment in the USA have been both quick and dramatic, these data are far from experimental (Spelman 2000a). Decisions to expand imprisonment or to implement a selective policy did not occur randomly, and therefore results of these changing conditions are confounded with existing between-state differences in crime trends and prison rates and all other factors that may have influenced either one of these variables. Results, even of the most complex models, are therefore still potentially subject to bias.

Micro-Level Studies On Effects Of Selective Incapacitation

Instead of relying on aggregate data, micro-level, or bottom-up, studies try to model the workings of the criminal justice system in more detail. Making estimates of the offense rate per year, the probability of arrest and conviction, and the average sentence length, these studies calculate the proportion of the criminal career that a typical offender will spend imprisoned. This proportion then represents the benefits of imprisonment in terms of decreased crime rates. Unlike most aggregate studies, these micro-level studies focus solely on the incapacitative effect of imprisonment.

Recent studies by DiIulio and Piehl (1991), Spelman (1994), and Piehl and DiIulio (1995) have yielded elasticity estimates ranging from -0.16 to -0.26. However, recognizing the still limited precision of the estimates used, Spelman (2005) concludes that it is more reasonable to expect a 0.1–0.3 % decrease in crime for a 1 % prison expansion. Micro-level studies necessarily make assumptions about several criminal career characteristics. Small – and plausible – changes have been demonstrated to considerably affect the studies’ outcomes (Spelman 1994). While over the years these studies have gained validity, as a result of more detailed data on criminal career becoming available, they still need to rely on simplifications regarding the distribution and interrelationships of the various criminal career dimensions (Spelman 1994, p. 110).

In an effort to circumvent uncertainties and simplifications tied to the use of criminal career estimates, Bernard and Ritti (1991) designed a rolling cohort methodology that allowed them to estimate the incapacitative effect of selective policies using actually observed data. Their analyses were based on count data from the Philadelphia birth cohort. In brief, they simulated the implementation of some hypothetical selective policy and then counted the actual number and type of offenses recorded after the youth had been incapacitated under the hypothetical policy. These offenses would make up the incapacitative effect of the selective policy since they would not have occurred under the selective policy, but actually did occur under existing, nonselective policy. Based on only the “chronic” offenders in the Philadelphia cohort (those offenders who accumulated at least five police reports), a selective policy which entailed imprisoning a youth after his second arrest until his eighteenth birthday resulted in a 25 % decrease in all reported crimes and a 35 % decrease in the serious crimes reported for this cohort. A similar study using Swedish birth cohort data showed that imprisoning every recidivist in this cohort for a period of 2 years would reduce registered crime for this cohort by 28 % (Andersson 1993). However, while both studies found that selective incapacitation would reduce crime, both studies also showed implementation of a selective policy would markedly inflate prison populations by as much as 22 times the rate under nonselective policy.

Finally, Blokland and Nieuwbeerta (2007) use data from the Netherlands Criminal Career and Life-course Study to estimate the incapacitative effects of alternative selective prison policies. Using the rolling cohort method, implementations of various penal scenarios differing in selection rate, sentence disparity, and selective accuracy are simulated. Results show that it is hard for selective policies to yield a positive societal result: costs of imprisonment typically exceed benefits gained from crimes prevented. Selectively incapacitating presumed frequent offenders on the basis of the number of offenses they have committed in the past – or in the preceding 5 years – leads to a substantial decline in crime. This decline is the greatest in the first years after the introduction of the selective policy as a rising share of offenders are selectively imprisoned. After some time, depending on the duration of the standard prison term, some of the offenders having completed their prison term rejoin the population, thus causing crime to rise again. The ultimate result of our simulations – assuming only incapacitative effects – is a 25 % decrease in crime under the strictest regime. However, these benefits are offset by the fact that the introduction of a selective policy causes the prison population to rise considerably – up to 45 times the population under prevailing nonselective policy for a very strict selective regime. As a result, if a selective policy based on the total number of prior convictions is to be efficient, the average conviction prevented by the selective incapacitation of frequent offenders would have to generate four to eight times as much in benefits than it would cost detaining an offender for 1 year.

The study by Blokland and Nieuwbeerta (2007), however, also shows that on the basis of the total crime costs for 2004, the benefits from preventing an average conviction are only approximately twice as high as the costs of 1 year of prison. Under the assumption of equal probability of conviction across all offenders, this would mean that even the selective incapacitation scenario with the most favorable CBR (five prior convictions in the entire criminal history, 5 years of prison) is only efficient if the costs per prisoner can be reduced from 190 to 58 Euros per day, which cannot be considered a realistic option. Allowing disparity in the probability of conviction, however, may – at current prison costs – result in a breakeven situation for some selective policies if frequent offenders are less than half as likely as non-frequent offenders to be convicted given an actual crime. Finally, risk estimation merely on the basis of criminal past generates high wastage of prison capacity. A lower selection rate (employing a stricter selection criterion) reduces this problem, but the resulting policy has hardly any added crime reduction value over prevailing nonselective policy.

Remarks On Selective Incapacitation

Selectively incapacitating offenders on the basis of an estimation of their future behavior rooted in their past criminal behavior points to the growing influence of risk-oriented thinking in criminal legislation and judicial policy. Frequent offenders belong to the category of offenders with a high risk of recidivism, and society thinks that they therefore ought to be removed from its midst. Offenders with a sufficiently extensive criminal history are thus penalized not for what they have done but for what they are expected to do in the future. This implies that a prison term is converted from a punitive into a preventive measure, one that our results suggest is used unnecessarily in many cases. Moreover, under a selective policy, there is no longer any relationship between the offense committed and the duration of the sentence. Selective incapacitation conflicts with a number of fundamental principles of criminal law systems. On the basis of our research results, which were mainly negative about the selective detention of frequent offenders, one may well wonder whether such a fundamental change to criminal law systems is actually opportune and even whether this policy has any empirical legitimacy. It is possible and even likely that criminological research would point to other policy alternatives, primarily those that do find support in criminological research, as a more obvious choice – for example, investing more in the socioeconomic functioning of prisoners by improving and expanding the probation and aftercare service.

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