judges were discriminating on the basis of extra-legal factors such as race and class (Dow 1981; Frankel 1972; Petersilia and Turner 1987).

Though the rehabilitation model had been discredited in the eyes of many policymakers, the problem of recidivism continued to concern crime control advocates, especially after studies revealed that a small number of chronic offenders committed a grossly disproportionate amount of crime. For example, an analysis of a juvenile birth cohort revealed that 18 percent of the recidivating delinquents committed 51 percent of the total crime reported (Wolfgang, Figlio, and Sellin 1972, 247). Similarly, the Rand Corporation also found that 10 percent of active burglars committed more than 230 burglaries each per year (Greenwood and Abrahamse 1982, xiii). Another study tracking parolees revealed that approximately 5 percent of the prisoners had been charged with 45 or more offenses before and after their release from prison and 26 percent had been charged with at least 20 offenses (Beck and Shipley 1989). Still another agency reported that while out on parole for an average of 13 months, a group of 156,000 offenders committed at least 6,800 murders, 5,500 rapes, 8,800 assaults, and 22,500 robberies (Cohen 1995).

Embracing lengthier pre-determined sentences, lawmakers tried to mitigate the effect of recidivism by using the resources of the penal system to hinder the offender�s ability to commit further crimes. The decision to use an incapacitative strategy to combat recidivism, however, produced another dilemma. Policymakers were asked to distinguish between a general theory of incapacitation, which stipulated long sentences for all repeat offenders, and selective incapacitation, which utilized longer sentences only for those offenders who had the highest risk of reoffending. Although �the best predictors of future criminal behavior appear to be measures of prior criminal behavior� (Gottfredson and Gottfredson 1986, 271), giving all repeat offenders lengthy prison sentences is problematic, especially if offenses are relatively minor and prison resources are scarce. Additionally, the use of collective or general incapacitation concerned theorists who favor a �just deserts� approach to punishment because it escalates the scale of imprisonment beyond what the offender deserves (Von Hirsch 1987).

In contrast, the theory of selective incapacitation proposed that the more likely the prisoner is to re-offend, the longer he should be incarcerated (Greenwood and Abrahamse 1982; Von Hirsch 1987). Studies attempting to predict which offenders are most likely to recidivate have pointed to statistically significant predictors such as juvenile convictions and recent drug use. Other variables including convictions with multiple counts, prior prison terms, and prior felony convictions were evaluated in the prediction models, but were not found to be significant (Greenwood and Abrahamse 1982). More recent empirical studies have demonstrated that the best predictors of future behavior are measures of prior criminal behavior (Gottfredson and Gottfredson 1986). Demographic variables, such as low socioeconomic status, unstable family structure, and early antisocial behavior, have also been statistically correlated with the propensity to re-offend (Farrington 1987). Drug offenders have high rates of criminal activity (Wish and Johnson 1986) as do younger offenders between the ages of 17 and 22 (Tonry 1996, 139).

While mathematical models have been able to identify variables that correlate with recidivism, prediction models continue to carry unacceptably high error rates. Of particular concern are false-positive errors which classify as recidivists those offenders not likely to re-offend, needlessly exposing them to longer periods of incarceration (Gottfredson and Gottfredson 1986). Unfortunately for theorists, the false-�positive error rate, in excess of 50 percent in some studies, remains an insurmountable obstacle to implementation (Farrington 1987; Von Hirsch 1987).

Through fluctuating support for various forms of incapacitation one principle has remained constant: discretion by prosecutors and judges in sentencing decisions should be limited. Although discretionary authority exists throughout our system of government (Davis 1969), legislators have focused its reform efforts on the criminal justice system partially because of the negative connotations derived from its long-time association with arbitrariness and prejudice under rehabilitation, and partially because discretion within the system is so pervasive. As noted by one author, �what we call the criminal justice �system� is nothing more than a sum total of a series of discretionary decisions by innumerable officials� (Walker 1993, 4).

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