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BP had an infamously problematic safety culture.


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They were unsuccessful. This was not done for the purpose of incapacitation, although it had an incapacitative effect.

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BP was actually forced to sell this property because of a wholly separate institutional problem — Deep Water Horizon. But since that plant has been sold to a competitor, most of those safety problems have been resolved and the plant has become significantly safer. But that is a cheaper solution and a more effective solution.

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Rehabilitation has gained traction for corporate crime at the expense of incapacitation even though you argue that incapacitation is a more realistic alternative. What role did corporate power have in placing corporate wrongdoing outside of this incapacitation framework?

We should be very careful about criminalizing and punishing corporations. You have this worry that any sanction you impose is going to lead to a corporate death penalty.

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And on the other side of things, you have the story of rehabilitation. It fits well with the use of deferred and non prosecution agreements by federal prosecutors. Of course, a company is going to agree to a deal that says — all parties have agreed to a deal that will make his company a better company going forward.

At the same time, concerns related to any incapacitative sanctions have been dramatically overblown. The corporate bar has driven the corporate criminal system into this deferred and non prosecution practice and away from guilty pleas.


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  • Would a shift from rehabilitation to incapacitation lead to a shift back to corporate criminal pleas? A big motivating force in the move to prosecution agreements were these existential threats posed by these handful of collateral consequences.

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    Can you see the Business Roundtable, the CATO Institute, the corporate lobbies getting behind a project to rehabilitate retribution and incapacitation for corporate criminals? Then there are issues of diminishing returns with age, offender replacement in relation to offences meeting a demand e.

    It has been estimated that, in , The marginal benefits of imprisonment decline with age and once most of the high rate offenders have been confined. A study applying a mathematical model estimating the effects of incarceration has corroborated this point by finding that crime levels are quite insensitive to the size of the prison population Greene, The most cost effective method of incapacitation would involve the allocation of prison resources more selectively, through the early identification of the most active offender group-- selective incapacitation.

    Selective incapacitation, however, has drawn fierce criticism on both ethical and pragmatic grounds. From an ethical standpoint, sentencing exclusively according to risk is said to violate fundamental legal principles by allocating punishment on the basis of expected future behaviour Dershowitz, , undermines proportionality in sentencing Capune, , and would likely be applied disproportionately to various social groups e.

    Selective incapacitation

    Practically speaking, the prediction enterprise is essentially unable to identify high-rate career offenders prospectively in advance Petersilia, ; Greenberg and Larkin, Also, studies attempting to predict offender risk tend to have false positive rates i. Furthemore, it is believed that many high-rate offenders are already incapacitated under existing sentencing practices, thereby limiting the potential gains under a selective incapacitation policy Beres and Griffith, ; Nagin, In any event, MMS tend to adopt a collective rather than selective incapacitation approach, as they are usually triggered by specific or repeat offences, rather than offender-specific risk-related attributes.

    Finite prison space has implications for both incapacitation and deterrent effects.