Selective prosecution and incarceration is a tool used in the criminal justice system to identify those offenders who pose the greatest risk to society and impose stiff sentences on them with the goal of incapacitating them from committing future harm. Supporters argue that incarcerating habitual offenders early, even if it is for a minor offense, will reduce crime in the future. Persistent offenders, as well as offenders who present certain risk factors such as drug users, are generally the targets of selective prosecution and incarceration.
Policies that support this notion were created in response to the Philadelphia birth cohort studies. In these studies, Marvin Wolfgang and his colleagues followed a cohort of Philadelphia residents and described a group of them who were habitual offenders at high risk of offending again.
These offenders came to be known as ”career criminals” (Wolfgang, Figlio, and Sellin 1972). Policies were then created with which prosecutors, judges, legislators, and probationers could identify, prosecute, and incarcerate others who fit this ”career criminal” description.
While prosecutorial discretion influences the rigorous prosecution of certain groups of offenders, discretion among legislators, judges, and probation officers influences the selective incarceration of certain groups of offenders. The prosecutor can decide whether to file charges at all and which charges to file. More severe charges generally come with harsher penalties such as longer periods of incarceration. Thus, the prosecutors can select certain types of offenders that they feel are deserving of more serious charges and longer periods of incarceration. Judges are also important because they ultimately decide the severity of the sentence an offender receives upon conviction and have some discretion in their decisions. As such, they can selectively target particular groups of offenders with their decisions.
Legislators may also influence this process by creating sentencing guidelines for certain offenses and offenders. For example, one of the main contributors to the increased percentages of offenders incarcerated at the federal level for drug-related offenses that began in the 1980s and continues until today resulted directly from the sentencing changes at the federal level that require a mandatory five-year sentence for crimes involving five hundred grams of powder cocaine or five grams of crack cocaine (U.S. Sentencing Commission 1995). Finally, probation officers can also influence the sentencing process because they generally conduct presentence investigations and subsequent reports for the court. This report provides information on the offender and a sentencing recommendation that can greatly influence a judge’s decision.
Most scholars suggest that there are five goals of punishment: deterrence, retribution, rehabilitation, restoration, and incapacitation. Selective prosecution and incarceration seek to achieve deterrence, retribution, and, to some extent, rehabilitation, but the main goal of this strategy is incapacitation. With incapacitation, the idea is to deprive offenders of the ability to commit crimes against society, usually by detention of the offender in prison. It is not clear whether prison achieves deterrence, rehabilitation, or retribution, but what is clear is that it incapacitates offenders from future crime, at least for as long as they are incarcerated. Because most of the targets of selective incarceration are persistent offenders who have not been responsive to previous attempts to achieve other goals of punishment, incapacitation is often seen as a last resort.
Selective prosecution and incarceration are also seen as ways to ease some of the practical problems faced by the corrections system. Proponents argue that by reserving incarceration for the most serious and persistent offenders, selective incarceration can reduce overcrowding and prison costs. It also prevents the cost of prosecuting and the cost to the victim for crimes committed by ”career criminals” who would otherwise be in the normal population.
Greenwood (1982) provides some evidence that selective incarceration has the potential to be an effective strategy. Using data from almost 2,200 prison inmates in California, Texas, and Michigan incarcerated for burglary or robbery, Greenwood classified inmates into low-, medium-, and high-risk offenders based on their previous juvenile and adult arrest and drug use records and their employment histories. He demonstrates that reducing the time served by low- and medium-risk inmates and increasing the time served for high-risk inmates could simultaneously reduce both the crime rate and incarceration rate for specific crimes. This study has been criticized by a number of researchers; however, it does offer some promise that selective incarceration has the potential to reduce crime.
Although selective prosecution and incarceration may incapacitate criminals and reduce the cost of corrections, critics argue that it actually widens the net of corrections. In many cases, selective incarceration is used in addition to, not in place of, incarceration of other offenders, thus increasing the number of people in prison. There are also questions surrounding the overall efficacy of selective incarceration. Some studies reveal that selective incarceration has little or no effect on arrest rates. In fact, some suggest that there must be an extremely large increase in incarceration to achieve even a small reduction in arrest rates (Visher 1986).
A further net-widening effect occurs in the use of sentencing guidelines. Those who have committed an offense and are on probation or parole have a higher likelihood of being arrested for an offense, but are not necessarily more likely to offend than their counterparts who are not under supervision. Selective incarceration may also reduce civil liberties and rights because (1) individuals are by definition treated unequally under the law and (2) the system may unfairly target groups that are defined by characteristics that have nothing to do with future criminality (for example, prior criminal history, type of offense).
The overarching criticism of selective prosecution and incarceration, however, concerns the inability to predict future behavior in the criminal justice area. Criminal justice researchers have identified certain risk factors whose presence increases the likelihood that one will engage in criminality, but have not been able to identify any single factor that consistently and unfailingly predicts criminal behavior. Thus, the idea of incarcerating people for longer sentences based on what they might do is highly controversial.
Selective prosecution and incarceration in practice currently target repeat offenders, drug offenders, and offenders who use firearms in commission of their crimes. ”Three strikes and you’re out” laws mandate that an offender be sentenced to a long period of incarceration on a third felony offense no matter how severe the offense(s). While the proponents of this legislation argue that it will deter both the offender and society from future crime, they also argue that it will incapacitate those with proven records of criminality and incorrigibility. Policy makers have also created mandatory sentences for certain drug-related crimes (for instance, the crack/cocaine sentences mentioned earlier). Drug users and sellers face selective incarceration in the war on drugs, partly because drug use and drug distribution are often linked to other types of crime. Therefore, drug use and distribution are often used as a signal in sentencing decisions to suggest to the sentencing authority that a longer, more stringent sentence is warranted. The goal of selective incarceration and prosecution is thus not only to incapacitate drug users and sellers from committing future drug crimes, but also from committing crimes that are tied to drug use and sales. Finally, a number of legislative efforts have centered on harsher sentences for those who use firearms in commission of crime and who possess firearms when they are legally prohibited from doing so (for example, probationers, parolees). Although the evidence is still far from conclusive, a number of authors suggest that these efforts reduce firearm-related crime (National Research Council, 2005).
While the practice of selective prosecution and selective incarceration remains highly controversial, most jurisdictions use it regularly, often for widely disparate crimes and sentences. Until legislators, judges, and prosecutors are convinced that these practices do not provide greater protection for the public, it is likely that selective prosecution and incarceration will continue to be used widely throughout many jurisdictions by many of the aforementioned actors in the criminal justice system.