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Should penal rehabilitationism be revived?

Penal rehabilitationism has been in eclipse since the early 1970s.[1] Treatment efforts seemed to offer only limited hope for success.[2] Relying on treatment to decide the sentence seemed also to lead to unjust results--for example, to excessive intrusion into offenders' lives in the name of cure.[3]

Recently, however, there have been hints of an attempted revival. Some researchers claim striking new successes in treatment techniques. These successes, Ted Palmer concludes in a recent survey of treatment methods, suggest that rehabilitative intervention has gained "increased moral and philosophical legitimacy," and that it is no longer the case that rehabilitation "should be secondary to punishment...whether for short- or long-term goals."[4] Some penologists--for example, Francis Cullen and Karen Gilbert--argue that a revival of the penal treatment ethic could help lead to a gentler and more caring penal system.[5] Interestingly, such arguments sometimes come from penologists of the left[6]--who once had been so critical of treatment-based punishments.[7] There is by no means unanimity, however, even from these sources. Some researchers--for example, John Whitehead and Steven Lab in their recent survey of juvenile treatments[8]--continue to be quite pessimistic about those treatments' effects. Some writers of the left--for example, Thomas Mathiesen[9]--still strongly resist treatment as the basis for sanctioning. Nevertheless, there is enough ferment to prompt the question in our title, "Should penal rehabilitationism be revived?"

Reinstatement of a treatment ethic would raise a number of questions. How much more is known about the treatment of offenders now than was known a few years ago? How often can treatment give us answers about how severely to sentence convicted offenders? Is treatment really as humane as it is made out to be? How fair is it to base the sentence on an offender's supposed rehabilitative needs? Rehabilitationism went into eclipse some years ago partly because it could not answer those questions satisfactorily. Are better answers available today?

We approach these issues from heterogeneous viewpoints. One of us (von Hirsch) is a philosophical liberal, and has long been an advocate of the desert model.[10] The other (Maher) has a more left and feminist orientation,[11] and is skeptical of a retributive penal ethic. In our present discussion of the new rehabilitationism, we will not be assuming another articulated sentencing philosophy. What we agree on are the questions, not the answers.

Questions of Effectiveness

During the late 60s and the 70s, critics of penal treatment sometimes were tempted to assert that "nothing works." The phrase now haunts them, and confuses analysis. It implies that the main problem of treatment is that of establishing its effectiveness; and that treatment can be declared a "success" once some programs are shown to work. Both assumptions are erroneous. Even when treatments succeed, their use to decide sentencing questions raises important normative questions (discussed below). And occasional successes are not enough.

The last large-scale survey and analysis of treatments, undertaken by a panel of the National Academy of Sciences,[12] is over a decade old. It was distinctly pessimistic in its conclusions: when subjected to close scrutiny, few programs seemed to succeed in reducing offender recidivism. Since then there has been continued experimentation, and successes have been reported.[13] Some treatment advocates, such as Paul Gendreau and Robert Ross, have suggested that such findings show that rehabilitation has been "revivified."[14]

Perhaps, however, caution is in order. The extent of recent treatment successes remains very much in dispute--as witness a recent debate among researchers who have surveyed juvenile treatment programs.[15] A source of continuing difficult is that the "whys" of treatment (that is, the processes by which successes are achieved) are seldom understood.[16] Without knowing the processes by which experimental programs produce given outcomes, it is difficult to tell which features "work," and will continue to work, when programs are extended beyond experimental groups and implemented more widely.

Programs appear to have better prospects for success when they focus on selected subgroups of offenders, carefully screened for amenability.[17] Such a screening approach, however, necessarily limits the scope for rehabilitation. Perhaps this or that type of program can be shown to succeed with this or that subgroup of offenders. Treatments do not (and are not likely to) exist, however, that can be relied upon to decide sentences routinely--that can inform the judge, when confronted with the run-of-the-mill robbery, burglary, or drug offense, what the appropriate sanction should be, and can provide even a modicum of assurance that the sanction will contribute to the offender's desistance from crime. Even Palmer concedes that recent treatment surveys do not "indicate that generic types of programs have been found that consistently produce major recidivism reductions"; and that programs that have positive effects for selected offender subgroups "may have limited relevance to the remaining [offender] subtypes--those which might comprise much of the sample."[18] If treatment lacks such routine, predictable applicability, how can it serve as a principal sentencing rationale?

Success depends, also, on the resources available for implementation. The programs that succeed tend to be well-funded, well-staffed, and vigorously implemented.[19] These features are easiest to achieve when the program is tried in an experimental setting. When the same programs are carried out more widely, program quality tends to deteriorate. Even Gendreau and Ross admit that "[we are] still...absolutely amateurish at implementing ...experimentally demonstrated programs within... systems provided routinely by government."[20]

Questions of Humaneness

Some new advocates of penal rehabilitationism, such as Cullen and Gilbert, stress its humaneness. Reemphasizing treatment, they assert, is humane because it is more caring: it looks to the needs of the offender rather than seeking merely to punish or prevent.[21] Is it true that rehabilitation is concerned chiefly with meeting the offender's needs? That depends on whether one is speaking of social service or of measures aimed at preventing recidivism.

Social service is benevolent in intent, if not necessarily in actual application: The aim is to help the offender lead a less deprived life. It can sometimes be achieved by fairly modest interventions: the unskilled offender, for example, might be taught certain skills that make him better able to cope. Providing these services is, we agree, desirable,[22] although it is far from clear to what extent they reduce recidivism. The offender who is taught to read will not necessarily desist from crime as a result.

Treatment programs, however, seldom aim merely at social service. Their objective, instead, is recidivism prevention: protecting us against future depredations on the offender's part. To accomplish that crime-preventive aim, the intervention may well have to be more drastic. It will take more to get the drug-abusing robber to stop committing further robberies than to teach him/her a skill. (A recent review of current research suggests that the best indicator of successful drug treatment outcomes is length of time in treatment.)[23] To describe such strategies as intrinsically humane or caring is misleading: it confuses humanitarian concerns with treatment-as-crime-prevention.

Cullen and Gilbert admit this last point--that rehabilitation is aimed at recidivism prevention. They argue, however, that few people care much about being humane or benevolent to convicted criminals as an end in itself. Rehabilitationism, they argue, offers a more attractive reason -- a crime-preventitive one -- for decent penal policies.[24] There is something circular about this argument. It assumes that rehabilitative punishments are capable of reducing crime significantly, or at least that people will believe they are. And it assumes that treatment-oriented punishments are inherently gentle.

Are rehabilitative responses intrinsically less onerous? Not necessarily. Consider offenders convicted of crimes of intermediate or lesser gravity. A proportionate sanction for such offenses should be of no more than moderate severity.[25] What of a rehabilitative response? That would depend on how much intervention, and how long, is required to alter the offender's criminal propensities--and to succeed, the intervention may have to be quite substantial (as in the just-noted case of drug treatments).[26]

A rehabilitative ethic also tends to shift attention from the offender's actual criminal conduct to his or her lifestyle or social/moral character. For example, the cultural presumption that women are less "rational" often results in their lawbreaking being perceived as symptomatic of social (or biological) pathology. Women found guilty of relatively minor offenses thus may be subjected to substantial treatment interventions.[27] Concerns about offenders' attitudes may elicit intrusive responses aimed at "correcting" individual ways of thinking and feeling.[28]

Cullen and Gilbert, and some other new rehabilitationists, argue for a return to a treatment model, on grounds that other models (for example, desert) have led to harsh results.[29] How supportable are such claims? The severity or leniency with which a given sentencing philosophy is implemented will vary with the manner of its implementation and the criminal-justice politics of the jurisdiction involved. That legislatively mandated "deserved" penalities were harsh in California may be attributable, perhaps, to the character of criminal-justice politics in that state, and to having given the legislature the task of setting the specific penalties.[30] A similar philosophy led to different (and less harsh) results in places such as Minnesota and Oregon, where both the form of guidance and the criminal-justice politics were different.[31] Similar considerations apply also to rehabilitationism. Were California to return to a rehabilitative ethos, it is far from certain (given California's politics) how "humane" or benevolent the results would be.

Some new rehabilitationists' rejection of other models, such as desert, is based on a "socially critical" perspective: how the rationale is likely to be implemented in a society characterized by race, class, and gender inequalities.[32] Such a critique, however, cuts both ways: one also needs to consider how rehabilitationism might be implemented in such an unpropitious social setting. It is fallacious to reject desert, for example, because of how "they" might carry it out, and then urge a treatment ethic on the basis of how "we" might implement it -- that is, on the assumption of a much more supportive social system and legal culture than exists today. If rehabilitation is kinder, gentler, or better because that is how good people would implement it, then please tell us when and how, in a society such as our own, the good people take over.

While the new rehabilitationists are taking such a critical stance, they might also apply it to the rehabilitative ethic itself. Historically, the treatment ethos supported (as Michel Foucault has pointed out[33]) the expansion of official and expert power/knowledge. If penal rehabilitationism is revived, what checks are there against a further proliferation of these powers?

Questions of Fairness

Criminal punishment, by its nature, condemns. The sanction not only visits deprivation but also conveys that the conduct is wrong and the offender to blame for having committed it. This holds whatever purpose is adopted for deciding sentences. Whether the sentence is based on the seriousness of the offender's crime or on his/her need(s) for treatment, it will still imply something about the impropriety of the behavior.

The theoretical basis for the principle of proportionality of sentence is that it comports with the criminal sanction's censuring implications. Conduct that is more blameworthy--in the sense of involving greater harm or culpability--is to be punished (and thereby condemned) more severely; conduct that is less reprehensible is to be punished (and hence censured) more mildly.[34]

Treatment, however, can seldom rely on criteria relating to the blameworthiness of the conduct; whether the offender is amenable to a particular treatment depends, instead, on his/her social and personal characteristics. This creates the potential problem of fairness: one is using criminal punishment, a blame-conveying response, and yet deciding the intervention on the basis of those personal and social variables that have little to do with how reprehensible the behavior is.[35]

How serious is this problem? The answer depends, of course, on how much emphasis proportionality receives. A thoroughgoing desert conception would require the severity of the penal response to depend heavily on the degree of reprehensibleness of the conduct--thus leaving limited scope for rehabilitative considerations (except for deciding among responses of comparable severity[36]). Not everyone supports a desert model, and some new rehabilitationists say they reject it.[37] But then, it needs to be explained what role, if any, the degree of blameworthiness of the conduct should have.

One possibility would be to give proportionality a limiting role: the seriousness of the criminal conduct would set upper and lower bounds on the quantum of punishment--within which rehabilitation could be invoked to fix the sentence.[38] That kind of solution requires one to specify how much weight its desert elements should have--that is, how narrow or broad the offense-based limits on the sentence should be.[39] Here, one faces the familiar dilemma; the narrower one sets those limits, the less room there would be for treatment considerations; whereas the wider one sets the limits, the more one would need to worry about seemingly disparate or disproportionate responses.

Another possibility would be to try to dispense with notions of proportionality altogether.[40] Such a strategy, however, would pose its own difficulties. It would, first, have to be explained how it is justifiable to employ punishment--a blaming institution--without regard to the blameworthiness of the conduct.[41] Or, if one proposes to eliminate the censuring element in punishment, it needs to be explained how this may possibly be accomplished. (The juvenile justice system, for example, long purported to convey no blame, but who was fooled?) Second, the absence of significant proportionality constraints could open the way for abuses of the kind that discredited the old rehabilitation--for example, long-term, open-ended intervention against those deemed to be in special need of treatment. (One thinks of the young car thief who was confined for sixteen years at Patuxent Institution because he refused to talk to the therapists.) One might hope that we are more sophisticated now about the therapeutic value of such interventions--but is such hope enough without principled restraints upon rehabilitative responses?

Finally, one could be more ambitious and think of replacing the criminal sanction with a wholly different set of measures. Nils Christie has urged that state punishment be supplanted by communitarian responses aimed at resolution of conflicts.[42] Some feminist writers have been exploring alternative conceptions of justice.[43] These theorists are, however, aware of the scope of this undertaking: it would involve, not a change in sentencing philosophy, but a completely new set of institutions for responding to what is now termed criminal behavior. One would have to consider whether, and how, these new institutions could afford protection against excessive, or seemingly unfair, intrusions. Whatever one thinks of such suggestions (and one of us has been skeptical of Christie's[44]), they constitute a different level of argument, one that concerns basic social and institutional change. These writers are not speaking, as the new rehabilitationists are, about retaining the criminal sanction and merely giving sentencing more of a treatment emphasis.

Concluding Thoughts

In offering the foregoing criticisms of the new rehabilitationists, we are not denying that treatment might have a legitimate role in a fair system of sanctions. How large that role should be depends not only on how much is known about treatment but also on what other assumptions one makes--including those regarding proportionality.[45] Rehabilitation, however, cannot be the primary basis for deciding the sentence, nor can it be the rationale for supporting less harsh sanctions than we have today. If we want sanctions scaled down, as they surely should be, the main and explicitly stated reason for so doing should concern equity and the diminution of suffering.

The most dangerous temptation is to treat the treatment ethos as a kind of edifying fiction.[46] If we only act as though we cared--and minister treatment to offenders as a sign of our caring--a more humane penal system will emerge. No serious inquiry is needed, on this view, about the criteria for deciding what constitutes a humane penal system or about how a renewed treatment emphasis could achieve its intended effects or lead to reasonably just outcomes.

Such thinking is a recipe for failure. It is likely to cause the new treatment ethos to be rejected once its specifics (or lack of them) are subject to critical scrutiny. And it could do no more good than the old, largely hortatory treatment ethic: create a facade of treatment behind which decision makers act as they choose. Those who wish to revive penal rehabilitationism have yet to address the hard questions, including the ones we have tried to raise here.

NOTES

[1] See F. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL (1981), ch. 3.

[2] See, e.g., infra note 15.

[3] AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE (1971); A. VON HIRSCH, DOING JUSTICE (1976), ch. 15; N. MORRIS, THE FUTURE OF IMPRISONMENT (1974), ch. 1.

[4] Palmer, The Effectiveness of Intervention: Recent Trends and Current Issues, 37 CRIME & DELINQ. 330, 342 (1991).

[5] F. CULLEN & K. GILBERT, REAFFIRMING REHABILITATION (1982).

[6] B. HUDSON, JUSTICE THROUGH PUNISHMENT (1987); Carlen, Crime, Inequality, and Sentencing, in PAYING FOR CRIME(P.Carlen & D.Cook eds. 1989); see also J. BRAITHWAITE & P. PETTIT, NOT JUST DESERTS (1990), at 124-25.

[7] See, e.g., AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE (1971).

[8] See infra note 15.

[9] T. MATHIESEN, PRISON ON TRAIL (1989).

[10] A. VON HIRSCH, supra note 3; A. VON HIRSCH, PAST OR FUTURE CRIMES (1985).

[11] Maher, Criminalizing Pregnancy, 17 SOCIAL JUSTICE 111 (1990). Maher, Punishment and Welfare: Crack Cocaine and the Regulation of Mothering, 3 WOMEN & CRIM.JUSTICE [Underscore] (1991) (in press).

[12] Panel on Research on Rehabilitative Effects, Report, in THE REHABILITATION OF CRIMINAL OFFENDERS (L. Sechrest, S. White & E. Brown eds. 1979).

[13] See, e.g., Fagan, Social and Legal Policy Dimensions of Violent Juvenile Crime, 17 CRIM. JUST.& BEHAVIOR 93 (1990).

[14] Gendreau & Ross, The Revivification of Rehabilitation: Evidence from the 1980's, 4 JUST. Q. 349 (1988).

[15] Compare Lab & Whitehead, An Analysis of Juvenile Treatment, 34 CRIME & DELINQ. 60 (1988), and Lab & Whitehead, From "Nothing Works" to "The Appropriate Works," 28 CRIMINOLOGY 405 (1990), with Andrews, Zinger, Hoge, Bonta, Gendreau & Cullen, Does Correctional Treatment Work? 28 CRIMINOLOGY 369 (1990), and Andrews, Zinger, Hoge, Bonta, Gendreau & Cullen, A Human Science Approach or More Pessimism, 28 CRIMINOLOGY 419 (1990).

[16] See Fagan, supra note 13.

[17] Palmer, Treatment and the Role of Classification, 30 CRIME & DELINQ. 245 (1984); Sechrest, Classification for Treatment, in PREDICTION AND CLASSIFICATION (D. Gottfredson & M. Tonry eds. 1987); see also Palmer, supra note 4.

[18] Palmer, supra note 4, at 339.

[19] See Fagan, supra note 13.

[20] Gendreau & Ross, supra note 14, at 345.

[21] See, e.g., F. CULLEN & K. GILBERT, supra note 5, ch. 7.

[22] For discussion of social services for offenders, see A. VON HIRSCH & K. HANRAHAN, THE QUESTION OF PAROLE (1979), ch. 8.

[23] Anglin & Hser, The Treatment of Drug Offenders, in DRUGS & CRIME (J. Wilson & M. Tonry eds. 1990).

[24] F. CULLEN & K. GILBERT, supra note 5, ch. 7.

[25] von Hirsch, Wasik & Greene, Punishments in the Community and the Principles of Desert, 20 RUTGERS L.J. 595, 615-16 (1989).

[26] See supra note 23 and accompanying text.

[27] See, e.g., Pearson, Women Defendants in Magistrates' Courts, 3 BRITISH J.L. & SOCIETY 265 (1976); Philips & De Fleur, Gender Ascription and the Stereotyping of Deviants, 20 CRIMINOLOGY 431 (1982); see also C. SMART, WOMEN, CRIME AND CRIMINOLOGY (1976).

[28] For an exploration of the problem of humiliating and intrusive penalities, see von Hirsch, The Ethics of Community-Based Sanctions, 36 CRIME & DELINQ. 162, 165-73 (1990).

[29] See, e.g., F. CULLEN & K. GILBERT, supra note 5; B. HUDSON, supra note 6.

[30] von Hirsch, The Politics of "Just Deserts," 32 CANADIAN J. CRIMINOLOGY 397, 400-02 (1990).

[31] Id.; A. VON HIRSCH, K. KNAPP & M. TONRY, THE SENTENCING COMMISSION AND ITS GUIDELINES (1987), chs. 2 and 5.

[32] See, e.g., B. HUDSON, supra note 6, ch. 4.

[33] M. FOUCAULT, DISCIPLINE AND PUNISH (1977).

[34] A. VON HIRSCH, PAST OR FUTURE CRIMES (1985), chs. 3-5.

[35] Some personal or social variables--for example, facts relating to diminished capacity--do have a bearing on blame-worthiness. However, treatment programs rely on other variables that concern the offender's amenability to the program, and that seldom have such a bearing.

[36] See von Hirsch, Wasik & Greene, supra note 25, at 604.

[37] See supra notes 4 and 5.

[38] For a sketch of such a model, see N. MORRIS, MADNESS AND THE CRIMINAL LAW (1982), ch.5. For a critique, see A. VON HIRSCH, supra note 34, chs. 4, 12.

[39] A. VON HIRSCH, supra note 34, ch. 12.

[40] An attempt to develop an alternative penal theory that dispenses with desert principles is set forth in J. BRAITHWAITE & P. PETTIT, supra note 6. That theory, however, relies primarily on deterrence and incapacitation rather than treatment. In our view, the theory has manifold difficulties, discussed in von Hirsch and Ashworth, Not Not Just Deserts: A Critique of Braithwaite and Pettit, 12 OXFORD J. LEGAL STUDIES No. 1 (1992) (forthcoming).

[41] BRAITHWAITE & PETTIT, supra note 6, try to detach censure from proportionality requirements, but their arguments are unconvincing in our judgement for reasons set forth in VON HIRSCH & ASHWORTH, supra note 40.

[42] N. CHRISTIE, LIMITS TO PAIN (1981).

[43] See, e.g., Lahey, Until Women Have Told All They Have To Tell, 23 OSGOODE HALL L. REV. 519 (1985); Heidensohn, Models of Justice: Portia or Persephone?, 14 INT'L J. SOCIOLOGY OF L. 287 (1986); Howe, Social Injury Revisited: Towards a Feminist Theory of Social Justice, 15 INT'L J. SOCIOLOGY OF L. 423 (1987); West, Jurisprudence and Gender, 55 U. CHICAGO L. REV. 1 (1988); C. SMART, FEMINISM AND THE POWER OF LAW (1989); Daly, Criminal Justice Ideologies and Practices in Different Voices: Some Feminist Questions About Justice, 17 INT'L J. SOCIOLOGY OF L. 1 (1989); Smart, Law's Truth/Women's Experience, in DISSENTING OPINIONS: FEMINIST EXPLORATIONS IN LAW AND SOCIETY (R. Graycar ed. 1990).

[44] von Hirsch, Review of N. Christie, 28 CRIME & DELINQ. 315 (1982). For arguments in favor of a censuring penal response, see von Hirsch, Proportionality in the Philosophy of Punishment, 1 CRIM. L. FORUM 259, 270-79 (1990).

[45] For a limited suggested role of treatment considerations under a desert model, see von Hirsch, Wasik & Greene, supra note 25, 615-16. For a somewhat expanded role under a "mixed" model, see N. MORRIS & M. TONRY, BETWEEN PRISON AND PROBATION (1990), ch. 7. For a comparison of these models, see von Hirsch, Scaling Intermediate Punishments, in SMART SENTENCING: EXPANDING OPTIONS FOR INTERMEDIATE SANCTIONS (J. Byrne, A. Lurigio & J. Petersilia eds. 1991) (forthcoming).

[46] See Rothman, Decarcerating Prisoners and Patients, 1 CIVIL LIBERTIES REV. 8 (1973).
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Author:von Hirsch, Andrew; Maher, Lisa
Publication:Criminal Justice Ethics
Date:Jan 1, 1992
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