Posted on 9/18/17

The United States Justice System imposes jail time on those who commit certain acts. Some acts carry a mandatory jail sentence while others are at the discretion of the judge to determine whether jail is the proper punishment. Texas alone holds more than 140,000 inmates and has the reputation of being a state tough on crime.

Scholars discuss the purpose of jail time, wherein the system removes people from the streets and locks them away. One theory is one of incapacitation, which enforces the idea that jail positively prevents people from committing crime. That is to say, by removing people from the streets and placing them in jail, those people cannot commit more crimes because they have been removed from larger society. This theory does not view jails as a deterrent or place to rehabilitate, but as a protection to those who do not commit such crimes. As the theory goes, once a criminal always a criminal.

Parole Boards

Incapacitation scholars cite the use of parole boards, which use the incapacitation theory to judge whether the offender learned his or her lesson and no longer needs to be separate from society. If the offender has not learned his lesson, releasing the offender would lead to more crime. Therefore, the offender would have to remain incapacitated to protect broader society.

Rehabilitative Measures

According to this theory, providing inmates with counseling, spiritual outlets, and job training is not a rehabilitative measure; instead, it is a tool to determine whether the inmate learned his lesson and will no longer commit crime. An inmate who excels at computer programming in prison shows that he or she has discovered that crime does not pay, not that the prison rehabilitated the inmate by changing his or her thinking.

Statistics show that as incarceration rates have increased, the crime rate has decreased. This suggests that incapacitation prevents a criminal from continuing his or her trade.


Other scholars sharply disagree with the incapacitation theory by citing how it ignores the replacement theory of crime. That is, crime, like everything else, is market driven. The market dictates what people spend their money on and so does crime. If people are buying flat-screen televisions, crime will revolve around flat-screen televisions. Criminals will look to steal flat-screens and sell them on the black market. Therefore, if the authorities remove one criminal involved in stealing flat-screens, another criminal will “replace” that criminal and look to sell flat-screens. Thus, according to those criticizing incapacitation theory, removing criminals does not affect how crimes are committed.

Moreover, according to these scholars, the market-driven crime economy is not limited to property crimes. One can argue that market-driven crimes may apply to the latest technology and jewelry but not to bodily crimes like assault and prostitution. The counter argument is that even these crimes have “markets” that have replacement theory.  

Have you been accused of a crime? Do not fight the system alone. Contact the criminal defense firm of Christopher Abel, a board-certified criminal defense attorney.

(image courtesy of Scott Webb)


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