Recidivism, Incapacitation, and Criminal Sentencing Policy

Criminal sentencing policy has moved into the spotlight over the last two decades, as determinate sentencing and greater democratic oversight have brought new scrutiny to the question of how we punish. Much of the focus has been on two facts: first, that the United States incarcerates a relatively large percentage of its population, and second, that sentences are relatively long when compared with other liberal democracies.

There are a many reasons for this, but one that is often overlooked is the impact of recidivism. Although reliable statistics are hard to find, it appears that the recidivist rate is quite high among those who are released from incarceration, perhaps as high as 50%. This high number brings with it the attendant social costs, but also reflects a partial failure of some of the justifications for punishment. As a result, incapacitation and retributive notions may dominate our thinking about punishment, with predictable results.

This essay looks at the data on recidivism. It tries to show how these rates undermine our assumptions about specific deterrence and rehabilitation, how they might influence our thinking about general deterrence, and how they fuel the desire for increased incapacitation. The essay suggests that the passion for equal treatment among those who commit the same crime, a prominent goal of the Sentencing Guidelines, may have helped ensure longer sentences.