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Report No. 262

D. Incapacitation

4.4.1 The theory of incapacitation advocates dealing with offenders in such a way that they are not in a position to re-offend.303 It is generally used as a justification to impose longer sentences on repeat offenders,304 "dangerous" criminals and "career criminals."305 Capital punishment is the most extreme form of incapacitation, since it implies taking the life of the offender to ensure that he/she does not reoffend. A person is sentenced to death using the incapacitation rationale if it is determined that his/her existence causes an unreasonable threat to society.306

303 Andrew Ashworth, Sentencing And Criminal Justice, 80 (4th ed. 2005)

304 See: Christy A. Visher, Incapacitation and Crime Control: Does a "Lock 'Em Up" Strategy Reduce Crime? 4 JUST. Q. 513, 539 (1987).

305 Christy A. Visher, Incapacitation and Crime Control: Does a "Lock 'Em Up" Strategy Reduce Crime? 4 Just. Q. 513, 539 (1987).

306 Harvey D. Ellis, Jr., Commentary: Constitutional Law: The Death Penalty: A Critique of The Philosophical Bases Held To Satisfy The Eight Amendment Requirements For Its Justification, 34 Okla. L. Rev. 567, 609.

4.4.2 To be able to use the incapacitation rationale, it is essential that the sentencing court make an assessment of "dangerousness" of the offender and the possibility that the person is likely to reoffend.

4.4.3 The primary objection to executing a person on grounds of incapacitation is the predictability problem. Theorists have argued that it is virtually impossible to be able to predict if the convicted offender is likely to reoffend.307 Any exercise to predict recidivism will always be over-inclusive and "identify false positives."308 Such act of prediction is itself an arbitrary exercise, which adds to the already existing arbitrariness in imposition of the death penalty.309

Further, incapacitation involves punishing a person severely for something that she has not done ye.- that is, for something that the person may or may not do in the future, an outcome which is not just.310 Long perfectly sums up the issue of "risk of future dangerousness" by not executing a "dangerous" person when he state.- "such may simply be an inevitable risk of living in a free, albeit imperfect, democratic society."311

307 Sara F. Werboff, Halting the Sudden Descent into Brutality How Kennedy v. Louisiana Presents a More Restrained Death Penalty Jurisprudence, 14 Lewis & Clark L. Rev. 1601, 1639 (2010).

308 James R. Acker, New York's Proposed Death Penalty Legislation: Constitutional and Policy Perspectives, 54 Alb. L. Rev. 515, 572 (1989-1990).

309 Donald L. Beschle, What's Guilt (or Deterrence) Got To Do With It? The Death Penalty, Ritual, and Mimetic Violence,38 WM. & MARY L. REV. 487, 502 (1996).

310 34 Okla. L. Rev. 567, 610

311 62 UMKC. L. Rev. 107, 170 (1993).

4.4.4 Another argument that can be made against executing an individual on grounds of incapacitation is that it completely negates the possibility of reform, which remains an important penological consideration in India.312

312 See part on Reformation below.

4.5.5 In the cases of persons already incarcerated, the possibility of reoffending is confined to situations where convicts kill other convicts, or jail officials when in prison.313 In the Indian context, the mandatory death penalty that existed for such a situation was held unconstitutional in Mithu v. State of Punjab, (1983) 2 SCC 277. The Supreme Court also notes statistics in the United States with respect to convicted murder convicts reoffending.

It observed that although there is no study in this regard in India, it is fair to assume that the incidence of murders by people convicted of murder was minimal. See: (1983) 2 SCC 277, 292. The sentencing court will have to apply the 'rarest of rare case' analysis to determine whether death is the appropriate sentence. A person, even in such a situation, cannot be executed in India on grounds only of incapacitation.

313 Donald L. Beschle, What's Guilt (or Deterrence) Got To Do With It? The Death Penalty, Ritual, and Mimetic Violence, 38 Wm. & Mary L. Rev. 487, 502 (1996).

4.4.6 The death penalty is an excessive punishment when used for the purposes of incapacitation,315 since the incapacitation function can be achieved by life imprisonment, as much as execution. 38 Wm. & Mary L. Rev. 487, 502 (1996). This was also articulated by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 311 (White, J. concurring). The convicted offender, being in custody, does not get the opportunity to reoffend. See: Furman v. Georgia, 408 U.S. 238 (1972). Thus, it is clear that incapacitation cannot be used as a justification for the death penalty, but may be a valid justification for life imprisonment.

315 14 Lewis & Clark L. Rev. 1601, 1639 (2010).

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