Debate: Rehabilitation vs retribution

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Should the criminal justice system focus more on rehabilitation than retribution?

Background and context

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Justice: Is rehabilitation a more just objective than retribution?

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Yes

• Rehabilitation is the more humanizing and dignified objective. It is the most valuable ideological justification for punishment, for it alone promotes the humanising belief in the notion that offenders can be saved and not simply punished. The rehabilitative ideal alone conveys the message that the state has an obligation to help those who fall short of the standards of behaviour it has set. These people are often those with the greatest social disadvantages that have constrained them to a life in crime in the first place.

• Punishment for punishment's sake (desert) is wrong in a decent society. Desert (retributive) theory, on the other hand, sees punishment as an end in itself, in other words, punishment for punishment’s sake. This has no place in any enlightened society.

• Retributive justice replaces the interests of society with ideology. Rehabilitative ideal does not ignore society and the victim. In fact it is because it places such great value on their rights that it tries so hard to change the offender and prevent his reoffending. By seeking to reducing reoffending and to reduce crime, it seeks constructively to promote society’s right to safety, and to protect individuals from the victimisation of crime.

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No

• Punishment signals clearly that certain conduct is wrong. The purpose of punishment is to show disapproval for the offender’s wrongdoing, and to clearly condemn his criminal actions. This is why we punish; we punish to censure (retribution), we do not punish merely to help a person change for the better (rehabilitation). We still have to punish a robber or a murderer, even if he is truly sorry and even if he would really, really never offend again and even if we could somehow tell that for certain. This is because justice, and not rehabilitation, makes sense as the justification for punishment. Why is justice and censure (‘retribution’) so important? Because unless the criminal justice system responds to persons who have violated society’s rules by communicating, through punishment, the censure of that offending conduct, the system will fail to show society that it takes its own rules (and the breach of them) seriously.

• Punishment acknowledges to victims that they have been wronged. Punishment, in other words, may be justified by the aim of achieving ‘justice’ and ‘desert’, and not by the aim of rehabilitation.

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Circumstances: Does rehabilitative justice better account for circumstances of offender?

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Yes

• Rehabilitation acknowledges the reality of social inequity. To say that some offenders need help to be rehabilitated is to accept the idea that circumstances can constrain, if not compel, and lead to criminality; it admits that we can help unfortunate persons who have been overcome by their circumstance. It rejects the idea that individuals, regardless of their position in the social order, exercise equal freedom in deciding whether to commit a crime, and should be punished equally according to their offence, irrespective of their social backgrounds. Policies that ignore these realities foster hardships that will fall primarily and disproportionately on the already disadvantaged, and deepen the resentment that many inmates find difficult to suppress upon their release back into such a society.

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No

• Crime is not a product of circumstances; punishment fosters accountability. Crime is not pathology, it is not the product of circumstance, and it is certainly not the product of coincidence. It is the result of choices made by the individual, and therefore the justice system must condemn those choices when they violate society’s rules. To say otherwise (i.e. to say that criminals are merely the product of their unfortunate circumstances) would be an insult to ideas of free will, human autonomy and individual choice – it would be to deny the possibility of human actors making good decisions in the face of hardship. Retributivism alone best recognises the offender’s status as a moral agent, by asking that he take responsibility for what he has done, rather than to make excuses for it. It appeals to an inherent sense of right and wrong, and in this way is the most respectful to humanity because it recognises that persons are indeed fundamentally capable of moral deliberation, no matter what their personal circumstances are.

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Argument #3

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Yes

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Which is a better basis for determining sentencing? As a guide to the sentencing decisions of judges, having rehabilitation as a goal provides the most flexible and sensible direction. With rehabilitation as a guide sentencers can give a penitent offender, or an offender who has learnt from his mistakes (i.e. a self-rehabilitated offender), the chance to receive a lighter sentence. On the other hand it can give offenders a different or tougher sentence to help them reform, if they are less likely to reform. Retribution, by contrast, merely advocates “an eye for an eye, a tooth for a tooth”. This simplistic notion of vengeance is primitive if not barbaric, and should not be encouraged in society.

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No

Which is a better basis for determining sentencing? Retributivism advocates that more serious crimes should be punished more seriously, because the more severe the violation of our rules, the greater the censure that is needed. It means that if X, a pickpocket, would get punishment A, then Y, a robber who uses force and then rapes his victim should get a proportionately more severe punishment, punishment B. The idea is ‘proportionality’, not ‘equivalence’ – nobody is suggesting we should rob Y and then rape him to “pay him back”. It is thus very different from the idea of an “an eye for an eye”. What matters is merely that more serious crimes are treated proportionately more seriously. Punishment A may one month’s probation while B may be 10 years imprisonment. By contrast, under a rehabilitative model where the goal was the reformation of the offender, the pickpocket may well get 10 years imprisonment if he looks like he is not going to reform, while the robber-rapist may get one month’s probation if he is repentant – a result that is surely ridiculous. When it comes to deciding the quantum of punishment, proportionality (retributivism) is the only consistent and fair approach.

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Argument #4

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Yes

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Does rehabilitation actually work? If we could find a medicine that would ‘cure’ some offenders so they would never offend again, would we really not want it? Even if it only worked for some people, is that not still worthwhile? It is no different with rehabilitative programs – we should certainly support them if they can be shown to work. And indeed, the most recent studies show that they do. Such programs include cognitive-behavioural programs (say, trying to get a violent offender to think and react differently to potential ‘trigger’ situations), pro-social modelling programmes, and some sex-offender treatment programs. The most credible research (done by a technique called meta-analysis) demonstrates that the net effect of treatment is, on average, a positive reduction of overall recidivism (reoffending) rates of between 10% and 12%, which would promote a reduction in crime that is, by penological standards, massive [see resources below]

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No

Does rehabilitation actually work? While some rehabilitative programmes work with some offenders (those who would probably change by themselves anyway), most do not. Many programs cannot overcome, or even appreciably reduce, the powerful tendency for offenders to continue in criminal behaviour. They simply do not work. ‘Rehabilitation’ is therefore a false promise – and the danger with such an illusory and impossible goal is that it is used as a front to justify keeping offenders locked up for longer than they deserve and sometimes even indefinitely (‘if we keep him here longer maybe he might change’). We cannot justify passing any heavier or more onerous a sentence on a person in the name of “rehabilitation” if “rehabilitation” does not work. The question “does it work?” must be joined by a second question: “even if it does work, how can you tell, with each individual offender, when it has worked?” This provides further problems with subscribing to the rehabilitative ideal, argued below.

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Deterrence: Does prison as punishment not really have a deterrent effect?

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Yes

• The threat of punishment in prison does not deter crime Stuart Henry, Ph.D.., Professor and Chair of Interdisciplinary Studies, College of Urban, Labor and Metropolitan Affairs, Wayne State University. "On the Effectiveness of Prison as Punishment". Paper presented at the Conference: Incarceration Nation: The Warehousing of America’s Poor. October 24, 2003 - "One might conclude that those incarcerated are less likely to be rational, cost-benefit calculators. Indeed, a look at incarcerated offenders criminal history supports exactly this point. Data shows that the national re-arrest rate is 63%, although can be as high as 84% for juveniles (Open Society, 1997) but that 76% of the state prison population has a previous criminal history of prior convictions. The data for 1997 shows that almost half of those with prior convictions are for violent offenses. Importantly, 59% of recidivists have more than two previous convictions and 43% have more than 3 convictions. Clearly, the threat of prison as punishment did not work for the majority of these offenders. This picture of the deterrence effect of prison as punishment is further undermined when examining the kinds of crimes that those in state prison have committed."

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No

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Argument #5

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Yes

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Imprisonment: A special consideration. Rehabilitation is not only important when the court is deciding on the sentence. It is also important when it comes to actually carrying out the punishment. This is perhaps the clearest with sentences of imprisonment. The role of the criminal justice system does not end with the pronouncement of a sentence – for what is to happen to the offender while he is serving his time in prison? Surely we should be trying to help him change: we should provide him with meaningful skills training, with behavioural-treatment programs, with counselling and so on. In other words, we should be trying to rehabilitate him while he is in imprison (since he is going to be there anyway), instead of just thinking that the job is done. This rehabilitation also plays a role in determining the content of punishment and the shape that it takes.

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No

Imprisonment: A special consideration The goal of “rehabilitation” is at its most dangerous when it is applied in the context of actually carrying out the punishment of imprisonment; that is, when it is used as a criteria for release decisions. For how can any prison staff, parole officer or even psychologist ever tell that a person “has reformed” or “probably will not offend again”? Evidence has shown that such vast discretion given to treatment staff, guided only by the grand ideal of “rehabilitation”, has systematically produced unfair, incorrect and even racially discriminatory results. Indeed, on what basis can they make any fair, sensible decision? The sad answer is that, since one can never tell if an offender is “cured”, having “rehabilitation” as the goal forces the decision to be made be based on statistical ‘risk factors’ like whether the person belongs to a racial group that is statistically likely to reoffend, or whether the person belongs to an economic underclass that makes him statistically likely to reoffend. Of course all this does is to double-penalise the offender for something he cannot help, such as his race or his poverty. It also leads to what is sometimes called “back-end sentencing”: the offender is sentenced once in court, but in reality he is sentenced again out-of-court – because the final date of his release depends entirely on parole officers or prison staff.

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Pro/con resources

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Yes

• "Taxpayers: Fund Rehabilitation, Not Prison". Join Together. January 23, 2008
• Stuart Henry, Ph.D.., Professor and Chair of Interdisciplinary Studies, College of Urban, Labor and Metropolitan Affairs, Wayne State University. "On the Effectiveness of Prison as Punishment". Paper presented at the Conference: Incarceration Nation: The Warehousing of America’s Poor. October 24, 2003
• Thomas Ash. "Can Punishment Be Justified?". Big Issues Ground.
• Daniel Williams. "Prisoner Rehabilitation, Italian Style. Inmates Become Jailhouse Vintners, Poets and Actors". Washington Post Foreign Service. March 14, 2005

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No

• This section needs con articles. See the getting started tutorial to learn how to do this.

External links

• New South Wales Law Reform Commission site
• Australian Institute of Criminology
• UK Home Office site on rehabilitation
• UK site on crime reduction generally
• US Sentencing Commission
• Helping prisoners prepare to rejoin the community
• Principled Sentencing : von Hirsh
• Understanding Justice : Barbara Hudson
• Criminal Justice : Davis, Croall and Tyrer
• Sentencing & Criminal Justice : Andrew Ashworth
• Sentencing Law and Practice : Walker and Padfield
• Sentencing & the Penal System : Hardy and Hoffmann