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Debate: Rehabilitation vs retribution

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Should the justice system focus on rehabilitation over retribution?

Background and context

The criminal justice system comprises many distinct stages, including arrest, prosecution, trial, sentencing, and punishment (quite often in the form of imprisonment). As will become clear, it is in the last two of these many stages that the debate over rehabilitation and retribution is of special significance.
Rehabilitation is the idea of ‘curing’ an offender of his or her criminal tendencies, of changing their habits, their outlook and possibly even personality, so as to make them less inclined to commit crimes in the future. It seeks to prevent a person from re-offending by taking away the desire to offend. This is very different from the idea of ‘deterrence’ (which is the idea of making him afraid to offend, though he may still desire to), and the idea of ‘incapacitation’ (which is the idea of taking away his physical power to offend, though he may still desire to and be unafraid to). These three utilitarian ideas are in turn very different from the idea of ‘retribution’ – which is not primarily about reducing re-offending. The retributive idea is that punishment should be determined chiefly (possibly even only) by the seriousness of the crime itself, and not by consequential factors, such as whether the punishment is enough to scare (i.e. deter) the rest of society. It is a very serious mistake to think that the retributive ideal in the criminal justice system is about vengeance, retaliation or payback. Rather, it is an extremely sophisticated idea that often forms the basis of, and arguably is even the leading indication of, a developed sentencing system. The term ‘retribution’ is therefore unfortunate because its everyday meaning connotes ‘revenge’; it is better described as ‘desert’, ‘just deserts’ or ‘proportionality’ theory. The debate between rehabilitation and ‘retribution’ involves two broad questions: ideologically, which is the more satisfactory justification for punishment; and practically, which can serve as a more useful guide for sentences and other agents in the criminal justice system?

Contents

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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 humanizing 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 behavior 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 re-offending. By seeking to reducing re-offending and to reduce crime, it seeks constructively to promote society’s right to safety, and to protect individuals from the victimization 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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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 offense, 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. Retribution alone best recognizes 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 recognizes that persons are indeed fundamentally capable of moral deliberation, no matter what their personal circumstances are.


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Which is a better basis for determining sentencing?

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Yes

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 sentences can give a penitent offender, or an offender who has learned 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

Retribution 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 (retribution) is the only consistent and fair approach.

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Does rehabilitation actually work?

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Yes

  • Studies show rehabilitation programs are effective. 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-behavioral programs (say, trying to get a violent offender to think and react differently to potential ‘trigger’ situations), pro-social modeling programs, 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 (re-offending) rates of between 10% and 12%, which would promote a reduction in crime.
  • Prison as punishment does not effectively deter criminals. 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, 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

  • Rehabilition programs are not reliable enough. While some rehabilitative programs 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 behavior. 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.
  • It is too hard to tell if rehabilitation has "worked." 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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Pro/con resources

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Yes


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No


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