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Incarceration and Crime

Todd R. Clear

in Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse

This chapter examines the relation between incarceration and crime. It suggests that prisons can prevent crime in two ways: incapacitation and deterrence. It explains that incapacitation occurs when ... More

This chapter examines the relation between incarceration and crime. It suggests that prisons can prevent crime in two ways: incapacitation and deterrence. It explains that incapacitation occurs when the crimes a person would have committed are averted because the person is in prison while deterrence occurs when the thought of going to prison is sufficiently undesirable that people shape their behavior to comply with the law in order to avoid going there. It provides statistics showing the changes in incarceration rates and crime rates in the U.S. between 1970 and 2004.Less

The Strengths and Weaknesses of Alternative Distributive Principles

Paul H. Robinson

in Distributive Principles of Criminal Law: Who Should be Punished How Much

This chapter discusses the strengths and weaknesses of the alternative distributive principles examined in the previous chapters. These include general deterrence, special deterrence, rehabilitation, ... More

This chapter discusses the strengths and weaknesses of the alternative distributive principles examined in the previous chapters. These include general deterrence, special deterrence, rehabilitation, incapacitation, empirical desert, and deontological desert. It is shown that each principle has strengths and weaknesses, some of which seem disqualifying. But a principled criminal justice system must have an articulated controlling principle, and if forced to pick one of the above, one could weigh the strengths and weaknesses of each and come to a conclusion as to which, on balance, seems less problematic than the rest.Less

The Need for an Articulated Distributive Principle

Paul H. Robinson

in Distributive Principles of Criminal Law: Who Should be Punished How Much

Each of the justifications for punishment, or “purposes” as they are often called, might be used as a distributive principle for criminal liability and punishment. This chapter begins with a ... More

Each of the justifications for punishment, or “purposes” as they are often called, might be used as a distributive principle for criminal liability and punishment. This chapter begins with a discussion of the criterion for each alternative distributive principle. It then considers conflicts among distributive principles and the problem of unarticulated combinations of distributive principles.Less

Myopic Moral Responsibility

Bruce N. Waller

in The Stubborn System of Moral Responsibility

Preserving belief in moral responsibility requires blocking deeper inquiry into the systemic causes of behavior. This refusal to consider causal history is clearest in the criminal justice system, ... More

Preserving belief in moral responsibility requires blocking deeper inquiry into the systemic causes of behavior. This refusal to consider causal history is clearest in the criminal justice system, but can also be found among philosophers (for example, those who champion the “plateau” of moral responsibility). The insistence on not looking deeper and in greater detail at the subtle causes of behavior is a common feature of both libertarian and compatibilist accounts of moral responsibility. When moral responsibility is represented as a “basic right,” then scrutiny of the differences among those to whom moral responsibility is attributed is seen as a threat to the universal acknowledgment of human rights. Restrictions on deeper inquiry are built into the moral responsibility system.Less

Death as Incapacitation

Matthew H. Kramer

in The Ethics of Capital Punishment: A Philosophical Investigation of Evil and its Consequences

This chapter examines the incapacitative justification of capital punishment. The central idea in that rationale is that thugs who are strongly disposed to engage in savage murders are too dangerous ... More

This chapter examines the incapacitative justification of capital punishment. The central idea in that rationale is that thugs who are strongly disposed to engage in savage murders are too dangerous to be kept alive. Given the strongly consequentialist character of the incapacitative line of thought, it suffers from many of the same weaknesses which afflict other consequentialist approaches to the death penalty. Like retributivism, moreover, the incapacitative approach runs afoul of the Minimal Invasion Principle.Less

Voluntariness of Mentally Incapacitated Suspects

Roger W. Shuy

in The Language of Murder Cases: Intentionality, Predisposition, and Voluntariness

This chapter briefly outlines the history of the courts’ efforts to deal with mentally incapacitated suspects and then describes three murder cases involving suspects with varying degrees of mental ... More

This chapter briefly outlines the history of the courts’ efforts to deal with mentally incapacitated suspects and then describes three murder cases involving suspects with varying degrees of mental incapacitation: Florida v. Jerry Townsend (severely incapacitated), Michigan v. Benjamin Hauswirth (moderately incapacitated), and Alaska v. Larry Gentry (mildly incapacitated). Although linguists are not qualified to provide opinions about mental incapacitation, analysis of the language used can offer linguistic support for opinions made by specialists in psychology. At issue in all three of these cases was the degree to which the three men voluntarily produced the language evidence used against them versus the clear evidence of law enforcement’s language manipulations to make them appear guilty.Less

Failure to Reassure as Public Wrong

Peter Ramsay

in The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law

This chapter provides detailed analysis of the case law on the criminal offence of breach of an Anti-Social Behaviour Order (ASBO). It demonstrates first, that the offence converts the conduct ... More

This chapter provides detailed analysis of the case law on the criminal offence of breach of an Anti-Social Behaviour Order (ASBO). It demonstrates first, that the offence converts the conduct manifesting the unreassuring disposition that grounds liability to an ASBO from a threat to be controlled by a court order into a public wrong to be punished; and, second, that the penal wrong that the offence defines is, therefore, a wrong of dangerousness. This analysis is deployed to critique the theory that breach of ASBO is a criminal offence that serves to composite many minor offences for the purposes of punishment.Less

Criminal Punishment and Cognition

Mark Kelman

in The Heuristics Debate

Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of ... More

Because fast and frugal heuristics theorists believe that people make all decisions, including decisions about whether to comply with legal regulations, by looking to a small number of lexically-processed decision-relevant cues, they argue that we will not manipulate crime rates as well by tinkering with expected punishments as we will by, for instance, engraining habits or conforming law to pre-existing social norms or altering the capacity of putative violators to engage in unwanted conduct. Heuristics and biases theorists believe that would-be criminals may care about the expected value of crimes they are considering committing, but that they often misestimate the probability of being sanctioned and evaluate sanctions in ways that are highly contextually sensitive. The chances of punishment may often be underestimated, and both the experienced and remembered pain of the punishment that criminals actually suffer may be counter-intuitively low. Incapacitationists should note that F&F scholars are wary of using multi-cue regression measures in predicting future dangerousness, and that H&B work should lead us to worry that we will systematically overestimate the dangerousness of criminals.Less

Introduction

Richard S. Frase

in Just Sentencing: Principles and Procedures for a Workable System

The Introduction provides an overall summary of the book, describing the origins and contents of the proposed sentencing model. The need for a new model is evident in light of four important ... More

The Introduction provides an overall summary of the book, describing the origins and contents of the proposed sentencing model. The need for a new model is evident in light of four important developments: reduced emphasis on rehabilitation as a sentencing goal, with greater emphasis on retribution, deterrence, and collective (nonindividualized) incapacitation; movement away from highly discretionary sentencing and parole release; massive increases and racial disparities in prison and jail populations; and constitutional law decisions imposing minimal limits on severe prison sentences and racial disparities but increased procedural requirements for sentencing enhancements. The Introduction shows how Norval Morris’s limiting retributivism theory helps to harmonize and prioritize the often-conflicting purposes of punishment, and how the best state sentencing guidelines provide suitable procedures for implementing that theory. The proposed model’s principles and procedures are then summarized, showing the most important ways in which they differ from Morris’s model and existing sentencing guidelines systems.Less

Three Strikes as Crime Control

E.Zimring Franklin, Gordon Hawkins, and Sam Kamin

in Punishment and Democracy: Three Strikes and You're Out in California

This chapter explains the logic of the test for the short-term deterrent impact of Three Strikes and demonstrates that the 1994 law could have had only a small fraction of the deterrent impact that ... More

This chapter explains the logic of the test for the short-term deterrent impact of Three Strikes and demonstrates that the 1994 law could have had only a small fraction of the deterrent impact that has been attributed to it. It first outlines the claims made by California law enforcement about the effectiveness of Three Strikes in California cities before and after the effective date of Three Strikes and discusses the ambiguities of these trends as evidence of the new law's impact. It defines and contrasts two potential sources of Three Strikes crime prevention — incapacitation and deterrence — and addresses the likely timing of the impacts from these two different mechanisms.Less

Reconceptualizing the Recidivist Sentencing Premium

Roberts Julian V

in Punishing Persistent Offenders: Exploring Community and Offender Perspectives

This chapter reviews the principal findings and conclusions of the volume, discusses the role that public opinion should play, and makes some modest proposals with respect to the sentencing of repeat ... More

This chapter reviews the principal findings and conclusions of the volume, discusses the role that public opinion should play, and makes some modest proposals with respect to the sentencing of repeat offenders. The principal points emerging from this study include the following: statutory frameworks around the world all consider an offender's previous convictions at sentencing, although there is considerable variability in the way in which this information influences the severity of sentence imposed; sentencers generally follow a cumulative sentencing model, a pattern that emerges in jurisdictions that ostensibly pursue a different sentencing model, namely, the progressive loss of mitigation; sentencing theories vary considerably in the way that they justify the imposition of harsher sentences on repeat offenders. From the perspective of incapacitation or individual deterrence, the recidivist sentencing premium is easily justified. Public support for some kind of recidivist sentencing premium can be explained by reference to public knowledge of offenders, offending, and the sentencing process, as well as lay theories of culpability.Less

Reductivist Sentencing Perspectives and the Role of Previous Convictions

Roberts Julian V

in Punishing Persistent Offenders: Exploring Community and Offender Perspectives

This chapter explores the relevance of previous convictions for a number of criminal sentencing objectives and perspectives, including individual and general deterrence, incapacitation, and ... More

This chapter explores the relevance of previous convictions for a number of criminal sentencing objectives and perspectives, including individual and general deterrence, incapacitation, and restorative justice. The focus is on sentencing purposes that attempt to reduce crime directly, by means of threats or detention, or indirectly through some other purpose such as restoration. At first glance, utilitarian theories — and in particular incapacitation — offer the most persuasive rationale for a recidivist sentencing premium. To the extent that an offender's criminal history is a good predictor of future offending, there will be some crime prevention benefit associated with imposing harsher sentences on recidivists. Upon closer examination, however, it is clear that individual deterrence rests on the dubious assumption that progressive increments of severity will deter offenders more effectively than a ‘flat rate’ approach, while incapacitation is a sentencing model applicable principally to the most serious offenders. However, all sentencing perspectives take an interest in the nature of the offender's criminal record.Less

How Psychology is Changing the Punishment Theory Debate

Paul H Robinson

in Law and Psychology: Current Legal Issues Volume 9

This chapter shows how psychology is changing the debate about the theory of punishment. Psychology has been more successful, it may be thought, in helping the law to get its best evidence in ... More

This chapter shows how psychology is changing the debate about the theory of punishment. Psychology has been more successful, it may be thought, in helping the law to get its best evidence in forensic settings. The American Law Institute's proposed change in the Model Penal Code's ‘purposes’ section is also considered. Under the proposal, the traditional utilitarian mechanisms of deterrence, rehabilitation, and incapacitation can be given play only if they are not inconsistent with an offender's deserved punishment and if there is some evidence to think that they would be effective in that situation.Less

It Is Wrong to Punish Anyone for Any Reason

Andrew Skotnicki

in Conversion and the Rehabilitation of the Penal System: A Theological Rereading of Criminal Justice

The first chapter argued that violence is the default value of all justifications for criminal detention. This chapter then investigates retribution; deterrence; incapacitation, and, to some degree, ... More

The first chapter argued that violence is the default value of all justifications for criminal detention. This chapter then investigates retribution; deterrence; incapacitation, and, to some degree, rehabilitation to reveal this coercive mechanism always in play. It concentrates mostly upon an exposition and critique of the retributive position since its underlying perception of personhood is shared by most proponents of the other positions. It then maintains that the historical and moral antidote to the ontology of violence is provided by an approach to human malfeasance found in the penitential and monastic ethos of early Catholicism. It was there that the belief that no one needs to be punished to come to full personhood was given institutional basis not only in the sacrament of penance but in the moral and methodological guidelines of the monastic prison.Less

Are Record-Based Enhancements a Cost-Effective and Fair Way to Reduce Crime?

Richard S. Frase and Julian V. Roberts

in Paying for the Past: The Case Against Prior Record Sentence Enhancements

Even if a guidelines criminal history score, other prior record formula, or some combination of record and non-record factors accurately reflects the offender’s recidivism risk, sentence enhancements ... More

Even if a guidelines criminal history score, other prior record formula, or some combination of record and non-record factors accurately reflects the offender’s recidivism risk, sentence enhancements based on that formula are not justified unless the increased penalty will prevent further offending in a cost-effective, fair, and legal manner. This chapter summarizes the voluminous literature on the relationship between punishment severity and crime. That literature shows that increased penalty severity has at best a modest deterrent effect on offending rates, and is as likely to cause more crime as it is to prevent crime by means of general and specific (individual) deterrence and/or incapacitation. The chapter also discusses whether such enhancements—particularly when based on non-record factors such as age and gender—are unfair to offenders, and whether non-record, risk-based enhancements are consistent with constitutional requirements of proof beyond reasonable doubt and jury trial under the Blakely v. Washington doctrine.Less

COPS and Cuffs

Emily Greene Owens

in Lessons from the Economics of Crime: What Reduces Offending?

A large literature in economics and criminology has established that hiring more police officers will reduce crime. Using variation in police employment generated by the COPS grant program, this ... More

A large literature in economics and criminology has established that hiring more police officers will reduce crime. Using variation in police employment generated by the COPS grant program, this paper investigates the relative contribution of the two mechanisms by which this crime reduction may occur – deterrence and incapacitation. The main finding is that hiring more police officers does not necessarily result in more arrests for serious crimes, and does not appear to have resulted in higher levels of incapacitation overall.Less

The Proliferation of Actuarial Methods in Punishing and Policing

in Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age

This chapter documents the ascendance of the actuarial paradigm, focusing on a wide range of predictive tools in criminal law and punishment. It explores the use of actuarial methods in the larger ... More

This chapter documents the ascendance of the actuarial paradigm, focusing on a wide range of predictive tools in criminal law and punishment. It explores the use of actuarial methods in the larger context of selective incapacitation and the resulting reliance on sentencing guidelines that mete out punishment based on prior criminal history. It also describes a gradual shift in law enforcement toward the increased use of criminal profiling—from the early instances of hijacker profiles developed in the 1960s to the more frequent use in the 1970s of drug-courier and alien-smuggler profiles and the more frequent use of profiling in the last quarter of the twentieth century. The historical trajectory reflects the breadth of the actuarial paradigm—from preliminary investigation, through sentencing, and ultimately to the prison-release decision.Less

Philosophy and Policy

Michael Tonry

in Doing Justice, Preventing Crime

Punishment theories and policies have marched in different directions in the United States for nearly 50 years. Philosophers and others who try to understand what justice requires, policymakers who ... More

Punishment theories and policies have marched in different directions in the United States for nearly 50 years. Philosophers and others who try to understand what justice requires, policymakers who create the rules for dispensing it, and practitioners who try to achieve it don’t communicate with each other very well, or at all. They lack a common vocabulary. More importantly, they lack a shared understanding of what punishment is and does, and what it should aspire to be and to do. This is unusual. Shared understandings exist in most countries and did in the United States through the 1960s. The costs have been high. They include mass imprisonment, extraordinary injustice, assembly-line case processing, and moral impoverishment.Less