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Univ. of San Diego School of Law

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Tuesday, January 1, 2013

Bennardo on Incarceration's Incapacitative Shortcomings

Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Incarceration's Incapacitative Shortcomings on SSRN. Here is the abstract:

Incapacitation is the removal of an offender’s ability to commit further crime. This essay identifies two distinct types of incapacitative effects: offense-specific incapacitation and victim-specific incapacitation. The former focuses on limitations on the offender’s range of conduct. The latter focuses on limitations on the offender’s access to particular populations.

As a punishment, incarceration incapacitates quite incompletely. Because imprisonment does not render inmates totally unable to commit crime, it fails to achieve complete offense-specific incapacitation. And, because it merely substitutes one set of potential victims for another, imprisonment fails on the total victim-specific incapacitation front as well. Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations. When the incapacitative benefit of incarceration is discussed, however, it is not usually described in such a circumscribed way. Rather, commentators often state that imprisonment fully incapacitates by removing offenders from “society.” Such statements, which implicitly discount prison crime and its victims to zero, are factually inaccurate and dehumanizing. To avoid such inaccuracy and inadvertent discounting, this essay endeavors to accurately describe the offense-specific and victim-specific incapacitative benefits and limitations of incarceration.

http://lawprofessors.typepad.com/crimprof_blog/2013/01/bennardo-on-incarcerations-incapacitative-shortcomings.html

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