The latest prominent principle of criminal sentencing is that of "selective
incapacitation". Selective incapacitation, like general incapacitation,
involves sentencing with the goal of protecting the community from the
crimes that an offender would commit if he were on the street. It differs
from general incapacitation in its attempt to replace bluntness with
Under a strategy of selective incapacitation, probation and short
terms of incarceration are given to convicted offenders who are identified
as being less likely to commit frequent and serious crimes, and longer
terms of incarceration are given to those identified as more crime prone.
Selective incapacitation has the potential for bringing about a reduction in
crime without an increase in prison populations. This reduction could be
Reserving prison and jail space for the most criminally active
offenders in some instances conflicts not only with other norms of legal
justice, but with norms of social justice as well. If we reserve the sanction
of incarceration only for the dangerous repeat offender, excluding the
white collar offender and certain other criminals who pose no serious
threat of physical injury to others, we may end up permitting harmful
people from the middle class to evade a sanction that less privileged
One of the most pervasive criticisms of selective incapacitation is that
it is based on the statistical prediction of dangerousness; because such
predictions are often erroneous, according to this point of view, they
should not be used by the court. This criticism is related to both the
nature of the errors and to the use of certain information for predicting a
defendant‘s dangerousness. Let‘s first consider the nature of errors in
Prediction usually results in some successes and in two kinds of
errors: "false positives"- and "false negatives". The problem of false
positives in sentencing is costly primarily to incarcerated defendants who
are not really so dangerous, while false negative predictions impose costs
primarily on the victims of subsequent crimes committed by released
defendants. In predicting whether a defendant will recidivate, the
problem of false positives is widely regarded as especially serious, for
many of the same reasons that it has been regarded in our society as
better to release nine offenders than to convict one innocent person.
A tempting alternative is to reject prediction altogether; obviously, if
we do not predict, then no errors of prediction are possible. A flaw in this
logic is that, whether we like it or not-indeed, even if we tried to forbid
it-criminal justice decisions are now, and surely always will be, based on
predictions, and imperfect ones, at that. Attempts to discourage
prediction in sentencing may in fact produce the worst of both worlds:
the deceit of predictive sentencing disguised as something more tasteful,
and inferior prediction as well. If we are to reserve at least some prison
and jail space for the most criminally active offenders, then the prediction
of criminal activity is an inescapable task. Is selective incapacitation truly
an effective and appropriate proposal, an ―idea whose time has come,or
is it a proposal that carries with it a potential for injustice?
1. Suppose the number of dangerous criminals that would be imprisoned under selective incapacitation but otherwise set free is greater than the number of harmless criminals who would be set free under selective incapacitation but otherwise imprisoned. How would this information be relevant to the passage?
A. It weakens the claim that the goal of selective incapacitation is to protect the community.
B. It strengthens the claim that there are more violent than non-violent criminals.
C. It weakens the claim that selective incapacitation would not increase prison populations.
D. It strengthens the claim that white-collar criminals unfairly receive shorter sentences.
E. It is of no relevance to the passage
2. The author‘s statement that selective incapacitation may "end up permitting harmful people from the middle class to evade a sanction that less privileged offenders cannot" assumes that:
A. there are more offenders in the lower-class than in the middle-class.
B. the dangerous repeat offenders are lower-class and not middle-class.
C. harmful middle-class people can use their money to avoid prison.
D. lower-class offenders do not deserve to suffer incarceration.
E. the rich do not ever commit crimes
3. Based on the passage, which of the following would most likely be cited by an opponent of statistical prediction as the reason that prediction should be abandoned?
A. The possibility of letting a dangerous criminal loose is too great.
B. The possibility of imprisoning a man who should be allowed to go free is too great.
C. The court makes more accurate decisions when statistics is employed.
D. Dangerousness has yet to be adequately defined as a legal concept.
E. Statistics is an inexact science