Theories of criminal punishment have been a long debated issue due to the implications they make about society as well as the ramifications they can have the society’s citizens. Most philosophers agree that criminals should be punished; however, the goal of that punishment is where differences arise. Some claim that the goal is retribution: those who violate the law should receive their just moral deserts. Others promote the idea of deterrence: punishing the criminal has less to do with the offender personally and more to do with sending a warning to the rest of society.
Still others say that neither of these theories have the proper objective. They argue from a practical reductivist standpoint: the goal of punishment should be reduce crime, and the most effective method to do so is to reform the offender. This is called rehabilitation theory, and it has began enjoying an increase in popularity in the recent years (Brooks 51).
Rehabilitation theory as defined by Brooks says that “punishment should aim at the reformation of offenders and assist their transition from criminal to law abiding citizen. Rehabilitation is successful where criminals come to reject crime out of choice (Brooks 51).” Imprisonment is not the solution to crime, this theory claims. Instead, offenders should be sent to a rehabilitation center where a focus on reforming them is instituted.
There are two general conceptions of rehab theory. The first is the deontological approach, which argues that every individual has moral worth and therefore society should do its best to reform criminal offenders into law abiding citizens (Brooks 51).
Although this approach has merit, the second approach is the one most supporters argue for: the consequentialist conception. Consequentalist rehabilitation theory claims that society should rehabilitate its criminals because doing so benefits everyone within that society (Brooks 51); former criminals have better prospects of reintegrating into society are less likely to reoffend, and law abiding citizens benefit by feeling safer due to a reduction in crime.
Within the consequentialist approach there are three forms of rehabilitation. The first form is therapeutic, which is based on the idea that many criminal offenders suffer from issues like drugs and alcohol dependency or mental illness, both of which can be treated with proper therapy. Supporters of this form say that these issues are generally the base cause of a person’s criminal behavior, and if these causes are removed the criminal will not continue to offend (Brooks 53).
Empirical data does support the connection between drug and mental health problems and criminality: in England and Wales, between one third to one half of new prisoners have drug problems, and some studies have found that up to ninety percent of criminals suffer from mental health issues (Brooks 53). Based on this data, the therapeutic form of rehabilitation seems to be a good one. People suffering with mental health or drug abuse are unlikely to be helped by imprisonment; it is more likely that their problem will on be exacerbated, meaning a high likelihood of reoffending upon release.
The second form of rehabilitation focuses on education and job training. Proponents of this form point out that criminals have a very high rate of unemployment and very low level of education, many barely able to read as well as an 11-year-old (Brooks 54). If offenders are given the opportunity to become educated and learn skills to increase their employability upon release, the rate of reoffending is likely to decrease. The monetary incentive to commit crime is reduced if money can be made with legitimate employment; and for those whose crimes are not financially driven more of their time will be spent working which otherwise may be been used for criminal activities. There is also the added benefit of introducing former offenders to new social circles that are less likely to be engaged in criminal activity than their previous social groups.
Critics of this second form say that if free education and job training is available for criminal offenders, this provides an incentive for people to commit crimes. Rehab becomes an easy way out for people lacking the drive to improve their employability, critics say, which not only creates a financial issue in funding these rehabs due to the high number of enrollments, but also will actually increase crime; the opposite of rehabilitation theory’s stated goal. However, this objection is not a valid one because it ignores the larger picture: a society intent on crime reduction will not only use the criminal justice system to meet that end. Education would be freely available outside of rehabilitation centers as well. There is no incentive to give up your autonomy for a free education when that same education can be received without the loss.
The third form of rehabilitation focuses on facilitating and maintaining reintegration into normal society (Brooks 54). Proponents of this form argue that successful social reintegration is vital for reducing a criminal’s likelihood to reoffend, but newly freed offenders often lack the support networks for this to occur Social workers would maintain contact after the rehabilitation, providing counseling and opportunity to find supportive social networks (Brooks 54).
A combination of the three forms of rehab would likely be the most effective in my opinion. All three have individually valid aims, but without the other two their rehabilitative effect would not be complete.
Many proponents of rehabilitation theory say that the education be given to criminals should not only be employment based but teach moral education as well. The assumption held by these supporters is that offenders lack adequate knowledge of morality- causing them to engage in immoral and illegal behavior- but if moral education is given, they will voluntarily give up the life of crime. As Brooks says, “Criminal rehabilitation is a moral reformation project. Criminals will become rehabilitated once they become satisfactorily aware of their crimes as wrongdoings (Brooks 56).” If criminals are able to understand that their behavior was morally wrong, they will not repeat it by choice; their education has caused them to create internal reasons to act lawfully, rather than external reasons such as fear of punishment.
The distinction between internal and external motivations is an important one, Jean Hampton argues:
Punishment is not intended as a way of conditioning a human being to do what society wants her to do… rather, the theory maintains that punishment is intended as a way of teaching the wrongdoer that the action she did is forbidden because it is morally wrong and should not be done for that reason. (Hampton 116)
Criminals that are motivated to act lawfully only by the fear of punishment are much more likely to reoffend; one moment of fearlessness or a slip in judgement about he likelihood of being caught, and the criminal behavior can be continued. There is nothing holding him or her back anymore.
Hampton claims that the external/internal distinction is also important because of the role of autonomy. Moral education theory, an underlying part of most conceptions of rehabilitation theory, holds that because humans are autonomous and choose our actions, we must be held accountable for them and therefore a simple external deterrent is not enough. We must internally choose not to act in an unlawful way. Since punishment is justified within this theory on the basis that it teachers internal reasons to not commit crime, it must actually teach those lessons successfully. If it does not teach those moral reasons against criminality to an autonomous individual, the punishment is not justified (Hampton 117-118).
Critics of moral education theory say that it rests on a faulty assumption: all criminal laws are morally justified and therefore any violation of these laws is immoral (Brooks 57). Problems with this assumption are obvious: not all immoral acts are illegal, nor are all illegal acts immoral. If legal moralism breaks down, moral education within rehabilitation theory does too, critics argue.
I disagree with these critics; not over the existence of the problem, but the significance of it. It may be true that attempting to reform a violator of an illegal but not immoral crime through moral education is not likely to be effective. However, the negative impact of these illegal but not immoral crimes on society is usually small. Traffic violations, open containers of alcohol, growing personal marijuana plants: none are immoral and all three are illegal, but there is negligible impact on society when one of these occurs. No rights are violated with these actions. Simple external deterrents, such as fines, would be sufficient. Most people would still not commit these violations to avoid the fine, but those that do will not be posing a great danger to society. Criminals guilty of crimes such as murder, robbery, and rape, which are both immoral and illegal do pose a threat, and will be subjected to the potentially beneficial moral education. Most major crimes, the perpetrators of which society would want reformed, can generally be agreed upon as immoral. The lesser, solely illegal laws may be morally justified (i.e. speed limit laws save lives) but they are not moral laws in of themselves. Provisions for these kinds of violations would have to be included in an applied rehabilitation theory, but the theory can still stand up against this criticism.
Another objection to legal moralism is in regards to its potential for abuse. Innocent citizens, not guilty of any crime, can be said to lack sufficient moral knowledge. Critics fear that punishing these innocent citizens could be justified by legal moralism: if punishment has a morally educative effect and reduces crime, innocent but morally lacking citizens could preemptively receive punishment to prevent future crime (Brooks 57).
However, this objection rests on a faulty assumption about the theory: that immorality alone is punished. The behavior must be both immoral and criminalized in order to receive punishment. Moral education within rehabilitation theory would not result in punishing the innocent, as a crime taking place is a necessary prerequisite for the punishment (Brooks 57).
The legal moralism within rehabilitation theory is not the only idea critics take issue with. One of the most simple criticisms whether rehabilitation theory is indeed even a theory of punishment. There is no obvious suffering for the offender during his rehabilitation as there is within, for example, a retributive theory of punishment; the criminals are not actually be punished, so how can rehabilitation theory be a theory of punishment (Brooks 56)?
This criticism is based on an two assumptions. First, that suffering is a necessary component of punishment. It is not. Brooks articulates it well, saying “Punishment is best understood as a response to crime. Theories of punishment are then theories about how best to respond to crime (Brooks 56).” Within this definition, rehab theory is clearly a theory of punishment. Second, this view assumes that criminals are being coddled in happy sunshine land while in rehab; this is not necessarily true. In reality, a criminal rehab center may or may not have equal living conditions as a prison, only with differing scheduled activities. Even if the rehabilitation center is much more pleasant than prison, the criminal has still lost some of his her or her autonomy: they cannot leave when they wish nor associate with whom they wish (Brooks 56). It is a mistake to believe rehab would be a much less negative experience than prison based only on our initial intuition regarding rehabilitation.
Our natural intuitions play a role in another issue as well; the idea of the individualization of punishments. Within rehab theory, two criminals can separately commit t he same type of crime and yet receive very different judicial treatment (Brooks 58). The rationale behind the different treatment is that each criminal differs in what will have a rehabilitative effect: one may need drug abuse therapy, while the other may simply need to be exposed and integrated into a new, law abiding social network. Intuitively this does not make sense: similar actions should call for similar punishments. This dissonance is increased even more when a criminal that has committed a gravely more serious crime than another is sentenced to a seemingly less serious rehabilitation than the latter.
Again, this individualization of punishment intuitively seems wrong. However, we must question why that is our intuition. Brooks claims that this intuition comes from the retributive theory's strong hold on society. The concept of just deserts is an appealing one: someone who has done evil should receive in return as he or she deserves, so justice can be done. However, rehabilitation theory operates with a goal in mind more practical than an abstract, undefined notion of justice. If intuitive emotions regarding justice are kept out of the discussion and focus is instead palace on what is most likely to be beneficial to society, rehab comes out on top of retributivism. The problem of individualization is not actually a problem; it only intuitively feels like one.
The final criticism I will write about draws upon a topic that has been discussed many times throughout history in regards to various topics, but is especially important in an assessment of rehabilitation theory: a person who is unreformable. The existence of someone who will never respond to rehabilitative efforts would be a major blow to the theory. Rehabilitation theory does not even take the existence of such a person into account; it is founded in the idea that anyone can be reformed. There is no room within the theory someone that cannot. If the end goal of rehabilitation can never reached, the unreformable criminal possibly should not even be punished; it would be pointless to do so as there is no educative effect of punishment that rehab theory requires. In such a case, rehabilitation theory may justify capital punishment as there is no alternative within the theory.
The idea that rehab theory may justify capital punishment is problematic because it is impossible to say with absolute certainty that someone is unreformable. The label of unreformable will be assigned according to arbitrary guidelines based on a fallible understanding of the ability to be reformed. Many offenders who were in fact reformable, but simply had not received the proper help, may put to death; and because of the lack of certainty, perhaps all offenders labeled as such were in fact reformable. Brooks claims, and I agree, that “declaring any person beyond possible rehabilitation is a judgment we should resist (Brooks 61).” With the stakes as high as they are and no real way to be certain, no one should be labeled as unreformable. It then follows that if no one is unreformable, the rehabilitation theory of punishment stands.
Despite any philosophical arguments that may argue in favor of rehab theory as the best theory of punishment, ultimately it must pass the test of reality. An idea that may sound great in theory might not fare as well in practice. Unfortunately the empirical data regarding the success of applied rehab theory is somewhat limited. However, the data we do have seems to support its effectiveness: studies have found targeted rehabilitative treatment to reduce re-convictions by five to ten percent (Brooks 59). This makes rehab treatments approximately doubly as effective as deterrent policies, if these studies are to believed (Brooks 59). More in depth research should be done in order to verify these numbers and lend more credibility to the theory's effectiveness.
I believe that the public's general lack of support for rehabilitation approaches to criminal justice, due to its perception of being soft on crime, can be changed by overwhelming evidence of effectiveness. No sane person wants to actively oppose a successful method of reducing crime and creating a safer society; they simply must be persuaded that rehabilitation is indeed the most effective theory of punishment.