Incapacitation Theory

Explanation

Incapacitation is a reductivist (or “forward looking”) justification for punishment. Reductivism is underpinned by the theory of moral reasoning known as utilitarianism, which maintains that an act is defensible and reasonable if its overall consequences are beneficial to the greatest number of people. Thus, the pain or suffering imposed on an offender through punishment is justified if it reduces or prevents the further harm that would have been caused to the rest of society by the future crimes of that offender. The concern here is with the victim, or potential victim. The rights of the offender merit little consideration.

Incapacitation has long been a significant strategy of punishment. For example, in Britain during the 18th and 19th centuries, convicted offenders were often transported to Australia and the Americas. In the 21st century, the physical removal of offenders from society remains the primary method of incapacitation in most contemporary penal systems. This usually takes the form of imprisonment, although other methods of incapacitation are in operation.

The most severe and permanent form of incapacitation is capital punishment. Capital punishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual is incapable of committing further offenses. Capital punishment is therefore undeniably “effective” in terms of its incapacitative function.

Other types of severe or permanent incapacitative punishments include dismemberment, which is practiced in various forms. For example, the physical or chemical castration of sex offenders has been used in some Western countries, notably North America. Less severe forms of incapacitation are often concerned with restricting rather than completely disabling offenders from reoffending. These include sentences such as disqualification from driving or curfews. In the United Kingdom, attendance center orders are used for individuals under the age of 21. Their aim is to restrict the leisure time of offenders by requiring them to attend a center in order to engage in some form of activity for a specified number of hours.

However, as mentioned above, the primary method of incapacitation is imprisonment. As with capital punishment, incapacitation in the form of imprisonment is considered to be a strategy that “works” because, for the duration of their prison sentence, offenders are restricted from committing crimes within the community.

So, according to this theory, punishment is not concerned with the nature of the offender, as is the case with rehabilitation, or with the nature of the offense, as is the case with retribution. Rather, punishment is justified by the risk individuals are believed to pose to society in the future. As a result, individuals can be punished for “hypothetical” crimes. In other words, they can be incarcerated, not for crimes they have actually committed but for crimes it is anticipated or assumed they will commit.

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