Why is incapacitation controversial when courts try to identify people likely to commit future violent crimes?

In the context of penology, the use of incapacitation to prevent future crimes is controversial primarily because it is inherently difficult to identify with certainty which individuals will commit future violent acts.1

While criminological prediction studies use statistics and case histories to estimate the probability of recidivism, these methods can never be conclusive. Because these predictions only indicate likelihoods rather than certainties, relying on them to justify lengthy incarceration raises significant ethical concerns regarding the fairness of punishing individuals for crimes they have not yet committed.21

Furthermore, this approach is difficult to reconcile with the principle of equal retribution, which suggests that punishment should be proportional to the offense already committed rather than based on speculative future conduct. The tension between protecting public safety and upholding the fundamental right to be judged on one's actions—rather than on statistical probabilities—remains a central debate in the justice system.12