In response to:
Who Should Go to Prison? from the April 1, 1982 issue
To the Editors:
In his review of Sherman and Hawkins’s Imprisonment in America: Choosing the Future [NYR, April 1], Graham Hughes elucidates an incipient policy line concerning the proper role of prison in an era of failed social expectations and diminished commitment to social goals.
In fastening onto incapacitation as their proposed criterion for incarceration, Sherman and Hawkins implicitly subordinate the importance of theories of penal justification generally, including retribution specifically. Such theories attempt to account for the infliction of criminal punishment in all its forms, not simply imprisonment. Thus, ironically, do the authors sever their proposal for fewer and shorter prison sentences from precisely those retributive theoretical underpinnings which could provide the soundest justification for certain of the authors’ policy goals. Incapacitation is, finally, a description of how we punish a subset of those we convict, not a justification of why we punish in the first place.
The penal theory of retribution, or desert predicates punishment solely on (previously unpunished) past criminal behavior. Contrast one of desert’s policy implications with the Sherman-Hawkins proposal to incarcerate for substantial periods (only) those whose history of violent criminality has putatively demonstrated a continuing potential danger to society. Professor Hughes well states the dilemma. “May we [as sentencers] look also at his [the defendant’s] past crimes? But if he has already been punished for them, does taking them into account again not amount to extra punishment for disappointing our hopes of rehabilitation or [my emphasis] because we estimate he may be dangerous in the future? This would seem to be a major dilution of the purity of the principle of desert” (p. 39).
So it would. And for that reason I suggest a consistent retributivist must, and without embarrassment can oppose both: “recidivist statutes” which enhance present punishment on the basis of prior (and already punished or otherwise disposed of) offenses; and also, “predictive restraint,” a corollary of the incapacitation idea, which exceeds just punishment for what an offender did, this time, resting instead on a guess about what he might do in future (a penological preemptive first strike, as it were). The retributivist constraint cuts in both directions: no extra time inside prison merely because we guess (or even know with virtual certainty) that the inmate might offend again: no less time inside because we guess (or even know with virtual certainty) that he will not repeat the offense. The loss in individual flexibility under this approach is adequately counterbalanced by a uniformity which is, and is perceived to be, one of the hallmarks of egalitarian justice. Precisely because prison is an instrument of punishment in the retributivist view, and retributive punishment must be proportionate in some reprobative way to the degree of harm which the offender caused, a retributive sentence of imprisonment must not be excessive, must have definite limits.
What of incapacitation? The purpose of imprisoning offenders under this criterion is not punishment, but protection of the public. There are no limits, based on principle, to incapacitation’s duration. Given the positive correlation between decline in repeated criminal violence and advancement in the career-offender’s age, and given that most recidivists enter prison the first time quite early in life, and, finally, in view of the criminogenic conditions rampant in our penal institutions—how, in terms of their own stated rationale, can Sherman and Hawkins justify a five-year recommended ceiling on incapacitative confinement? If incapacitation is to be the purpose of prison, and prison reserved for the violent and dangerous, then why not sentences of ten years, or twenty, or whatever length of time is necessary to safeguard the non-incarcerated citizenry?
If this last sounds familiar, it should; it’s the obverse of the rehabilitative rationale for indeterminate sentencing. What rehabilitation wanted to do “for” the offender incapacitation seeks to accomplish in behalf of society namely, to keep the two entities separate. Indeed, many critics will see in this new push for incapacitation a move one step closer to the unvarnished truth. Rehabilitation, they will assert, was at base always about incapacitating (or “warehousing”) the offender for the sake of society and now, finally, the wraps of rhetorical benevolence are coming off.
If incapacitation catches on as an idea and not merely a practice, it might achieve some decent goals—such as fostering increased reliance on non-incarcerative yet significant, punishments—for inadequate, even wrong, reasons. Its theoretical proponents would imprison fewer for shorter periods, not for the reason that such a resolution might be in accord with the dictates of desert in particular cases, but because the State no longer has the ideological fortitude, and chooses to no longer spend the monies required, for coercive individual “reformation.”
The academic proponents of incapacitation must beware of political betrayal no less than the idealistic advocates of desert, whose definite-sentencing proposals have in some states been distorted by opportunistic politicians into instruments of revenge, not retribution. And, those in the public policy arena who have eviscerated correctional facilities under cover of budgetary restraint are even less likely to enrich and fortify those earlier links in the chain of criminal justice—from detection and arrest through adjudication and disposition—where, Professor Hughes cogently argues, any real likelihood of coping with and reducing crime must reside.
Robert A. Pugsley
Southwestern University School of Law
Los Angeles, California
Graham Hughes replies:
Professor Pugsley is of course right that incapacitation is not a theory of punishment. It is an attempt to justify incarceration. As such it could be advanced in two very different senses. First, it might be no more than a standard to select some from among those who deserve to be punished as the most suitable candidates for imprisonment for utilitarian reasons of public protection. Second, it might be the more radical proposition that we are justified in locking up some people to protect the public even though they have done nothing that deserves punishment. Sherman and Hawkins do not clearly disentangle these questions, though it appears that they are making the first kind of proposal and not the more radical one. Their failure to discuss general justifications of punishment leads naturally to the questions and criticisms leveled by Professor Pugsley.
September 23, 1982