1-Apr-20 Incapacitation

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Incapacitation is a method of removing or limiting someone’s freedom such that they cannot commit further crime.  It can be seen also to protect society.  Examples include prison, electronic tagging, restraining orders or the stocks.  For white collar crimes, there is removal of license to practice or a restraint of trade order, for example. Indeed, we are all experiencing a mild form of house arrest at the moment, during the COVID-19 lockdown! There is a useful overview of incapacitation techniques in history and currently, here (see pp.17-20) and further explanation and critique, here (see pp.463-465): 

Incapacitation is controversial.  Sometimes it is imposed on those who are considered at risk of committing a crime, but have yet to do so: see for example control orders, introduced in the Prevention of Terrorism Act 2005.  Prison is our foremost tool of incapacitation but has a poor record in deterring future crime once individuals are released.  So while incapacitation might meet our immediate needs for retribution (think of chemical castration for  sex offenders or the ultimate disabler – capital punishment), there is a risk that we temporarily confine the risk but do not change offender’s hearts, minds or social context. 

To address this, many call for more investment in rehabilitative programmes for offenders.  Interestingly, the former Director General of the Prison Service Sir Martin Narey said in October 2019 :

“Stop fretting about rehabilitation. Politely discourage those who will urge you to believe that they have a six-week to six-month course which can undo the damage of a lifetime. The next time someone tells you they have a quick scheme which can transform lives – transform is the word of which you should be particularly suspicious – politely explain that life isn’t that simple.”

His argument was that we should instead be focusing on providing prisons which are safe and where prisoners are treated with “decency and dignity”.  He probably has a point, but it also reflects the current state of our prison system which is experiencing record levels of prisoner self-harm, violence and drug use.  It is not possible to find any space to reflect and grow in our prisons today; nor can prisons address the neglect, poverty, exclusion, violence and poor mental health which characterise the back-stories of so many inmates. That requires social, rather than criminal justice, policy.

So in summary, while incapacitation has its place, it does not solve the problem and may not address future risk.  Perhaps you will be involved one day in designing something better.

© Natasha Mulvihill and Criminology Tales, 2020. 

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