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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

August 22, 2010


One of the factors a judge in Wisconsin must consider at a criminal sentencing is the protection of the public. If a defendant is considered dangerous by being a threat to either the physical safety of others or the property of others, a defendant may be incarcerated to protect the community. If a defendant is incapacitated through incarceration, he is unable to commit crimes he may desire to commit had he not been incapacitated.

Studies have been completed that attempt to quantify the value of incapacitation in terms of number of crimes reduced. The estimates of the reduced crimes due to incarceration have varied considerably. There are many conceptual and procedural hurdles in quantifying reduced crimes due to incapacitation that make me skeptical of the results.

A recent study out of Cornell attempted to quantify the amount of crime prevented through incapacitation by using a change in Maryland sentencing guidelines which reduced the sentences of 23-25 year olds with juvenile delinquent records by 222 days.[i] This research showed that incarcerating each of these offenders for an additional year prevented 2.8 arrests per person. Most of these arrests are for drug offenses. The researcher then estimated that incarcerating these offenders an additional year would result in preventing 1.5 index crimes (murder, manslaughter, assault, robbery, rape, car theft, burglary, and larcency) per year.[ii]

This researcher concluded that her research showed estimates of reduced criminal behavior “an order of magnitude lower than those produced by previous studies of the incapacitation effect.” [iii] She further estimates that the additional cost to the State of Maryland for incarcerating one extra prisoner for one year to be in the range of $13,800 to $11,350. She then estimates that the social cost of crimes averted through an additional one year of incarceration to be somewhere in the range of $12, 500 and $26,000 per year. Therefore, she concludes that the costs of an additional year of incarceration to the State of Maryland is outweighed by the benefits of the reduced crime.[iv]

As I stated at the beginning of this entry, I am skeptical of the estimates of these types of studies. This study commendably defines the class of defendants it is studying, and confines the analysis to a period immediately following release. However, the complexity of reality is glossed over by the aggregation of data and the use of marginal costs of incarceration.

When it comes to incapacitation, the interesting question is not how a group of offenders, on average, will recidivate, but whether we can narrowly define the group, using quantifiable characteristics, to increase the accuracy of identifying those individual offenders most likely to recidivate. Those offenders most likely to recidivate are the offenders we should be more willing to expend public resources on for incapacitation in order to protect the public.

[i] Owens, Emily G. 2009, “More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements” 54 Journal of Law & Economics 551, p. 551.

[ii] Ibid, pages 564-6.

[iii] Ibid., p. 567.

[iv] Ibid, pp571-3

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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