IntroductionThis resolution has been debated several times in recent years with slightly different wording (2003 - NFL Nationals - Resolved: rehabilitation ought to be valued above punishment in the U.S. criminal justice system.) Very clearly, we will be debating which of two specific approaches to dealing with convicts has the greatest value. Before we can establish which approach should be valued over the other, we may need to understand the goal we are trying to achieve through the criminal justice system. So if we determine the goal is reducing crime, we will examine whether rehabilitation or retribution is better at reducing crime. But...that is one level of establishing value. Whichever action better serves the purpose should be valued. However, there may be added value which can be brought out which gives advantages or disadvantages to one side or the other which extend beyond the basic purpose of reducing crime and these are fair game in this debate.
According to Merriam Webster, we can define rehabilitate (verb) as to restore to a former capacity or state. An alternative meaning is bring to a condition of useful and constructive activity. This latter definition, I think, is important since it may be easier to understand the goal of criminal rehabilitation is more about making someone a useful member of society rather than restoring them to some undefined former state. "Rehabilitation" is the noun form of rehabilitate, meaning it is a program or system of methods, procedures, practices, whatever, which carry out the act of rehabilitating. There is much to be said about this and so we will deal with it later in this analysis.
Merriam-Webster, used to express obligation, advisability, natural expectation or logical consequence. This is a word which should be very familiar to Lincoln-Douglas debaters. There are several ways to spin the definition of ought depending on the sources used and intention of the case. Some will claim ought means obligation others will claim it carries a meaning suggesting "strongly advised". The difference lies in how the debater applies the meaning with respect to the values being supported. We shall also explore this more deeply when we look at specific advocacies.
to be valued above
Following through the Merriam-Webster definitions, we find that something valued (adjective) has value so is something that has relative worth, utility, or importance. It means something which is deemed valuable, meaning "having desirable or esteemed characteristics". In the context of this resolution, it is clear the framers wish to compare two approaches to executing criminal justice for convicts and affirm that one is to be deemed more useful, important, or of greater utility that the other in serving some purpose.
Merriam-Webster, recompense; to give something to by way of compensation (as for a service rendered or damage incurred); to pay for; to return in kind. Retribution in this context is simply "pay back" for crime and means one must pay their "debt to society" by giving up rights such as freedom, property ownership, or even life as a way of compensating for the harms committed. It also may be described as the concept of an "eye for an eye". Retribution, which is not the same as revenge, will be discussed more fully in a later installment of this analysis.
United States criminal justice system
The criminal justice system is the collection of laws, courts and prisons which has the purpose of reducing harms to society arising from behavior which violates the rights of others within the society. (my definition.) A crime is any act which is contrary to public law and is punishable by the governing authority. Harms can arise in two ways. There are some acts which are considered harmful or dangerous to society mainly because they violate the rights of others. There are some harms which arise from failure to carry out deeds or obligations which are considered beneficial to society, such as the duty to pay taxes which are used for the benefit of all members of the society. I think the wording of this resolution would have been better had it stated, criminal justice system in the United States, rather than United States criminal justice system. There are many criminal justice systems within the United States and each has its own jurisdiction and laws which it upholds. Local and state government laws vary from locale to locale, whereas, federal laws apply to the whole of the United States. As worded, this resolution seems to imply we should focus only upon federal justice but I think that would an unnecessary restriction for this debate so my interpretation of the resolution carries a broader, more generalized context while adhering to the westernized, U.S.-centric concepts of criminal justice.
Interpretation of the ResolutionBased on the above definitions we can offer a preliminary interpretation of the resolution as, programs which make or restore individuals as useful members of society should be considered more desirable than programs which punish individuals in the U.S. system for mitigating crimes. It seems to be a cumbersome definition to say the least because the dictionary definitions given above do not properly convey the intent of the resolution since the meaning of words like rehabilitation, retribution, and criminal justice require more than a simple paragraph to explain. The justice system should place higher value on rehabilitation than retribution. We may consider both probably have intrinsic value, but the affirmative claims rehabilitation has the greater intrinsic value or perhaps offers the greater return to society in terms of value. In my interpretation, I have provided a purpose, mitigating crime, as a standard for measurement but there is no such purpose explicitly stated in the wording of the resolution. In order to evaluate one against the other, there must a common standard such as reduced crime rates, lower recidivism, lower cost, etc. Therefore, it seems reasonable to assume, a common standard can be derived from the goals and purposes of criminal justice.
As seen in the preceding section, the dictionary definitions leave us with a nebulous understanding of how to interpret the resolution and without a good interpretation it is difficult to decide how to affirm or negate the resolution. Part of the interpretation is determining how to measure the relative value of rehabilitation versus retribution and it seems reasonable to conclude, we can not do that without first understanding the purpose of the criminal justice system. In the forward to a paper commissioned by the Bureau of Justice Statistics of Princeton University, Lawrence Greenfeld writes:
The Purpose of the Criminal Justice System
"Efficiency, effectiveness, and fairness are central goals for the administration of criminal justice in the United States. Efficiency means economically applying available resources to accomplish statutory goals as well as to improve public safety. Effectiveness refers to carrying out justice system activities with proper regard for equity, proportionality, constitutional protections afforded defendants and convicted offenders, and public safety. Assuring equal treatment and handling of like offenders and giving equal weight to legally relevant factors in sentencing represent the types of concerns generally expressed about the fairness of the criminal justice system."
The guarding of public safety seems to be a core objective of the criminal justice system and insofar as defendants are considered members of the public until their guilt or innocence is determined, one aspect of public safety may lie in guarding the public from abuses of the justice system itself and insuring, as best as possible, the innocent are not wrongly convicted. So while the goal of public safety is an over-arching concern, there is the additional requirement to deal properly with those who are convicted such as ensuring the rights they do retain are protected and to a greater degree to ensure their handling serves the greater interest of protecting society.
From the previously quoted paper, Charles Logan explains:
"Justice is the quality of treating individuals according to their rights and in ways that they deserve to be treated by virtue of relevant conduct. Criminal justice is rights respecting treatment that is deserved by virtue of criminal conduct.
This definition of justice is rights-based, rather than utilitarian or consequentialist. A rights-based theory of justice gives a central role to punishment as a morally necessary response to the violation of rights. To believe in rights is to believe in duties; those are alternative statements of the same concept. To believe in duties is to accept, implicitly but of logical necessity, the corollary of punishment. When we say that people have a duty to refrain from violating the rights of others, we are saying that there must be some sanction if they fail to meet that duty. Duties are given meaning by the consequences that attach to their nonfulfillment. Thus, the meaning of a duty, like that of any other norm, must be socially constructed through the attachment of sanctions to behavior. A norm (a rule, a law, a duty, a right) that had no sanction attached to its violation would be empty and without meaning.
Justice by this definition is backward-looking. It requires that we treat people according to what they have done, not what they (or others!) might do in the future as a result of how we treat them now. Justice requires that all persons, including offenders, be treated as autonomous and responsible actors and as ends in themselves, not as means to social ends. Finally, a rights-based theory sees justice as a process, an ongoing property of criminal sanctioning as it occurs, not as an expected outcome. Criminal justice is thus a value in itself and not merely useful as a means to some other end. Sanctioning that is evaluated as to its justice or injustice may, in addition, be evaluated in terms of its consequences for other values, such as freedom, order, happiness, wealth, or welfare, but those are separate concerns. This means that questions about the effectiveness or efficiency of the criminal justice system in achieving various “goals” or “purposes” should be kept separate from, and secondary to, an evaluation of the performance of the justice system in its most basic mission: doing justice.
But John Dilulio offers a broader delineation of the cross-purposes of criminal justice from a societal point of view:
"Americans have long been ambivalent about the purposes of criminal justice. Among other things, they have wanted a criminal justice system that apprehends and visits harm upon the guilty (punishment); makes offenders more virtuous, or at least more law abiding (rehabilitation); dissuades would-be offenders from criminal pursuits (deterrence); protects innocent citizens from being victimized by convicted criminals (incapacitation); and enables most criminals to return as productive citizens to the bosom of the free community (reintegration). They have wanted the system to achieve these contradictory public goals without violating the public conscience (humane treatment), jeopardizing the public law (constitutional rights), emptying the public purse (cost containment), or weakening the tradition of State and local public administration (federalism)."
Narrowing the PurposeSo where does the foregoing leave us? I think we can safely view rehabilitation and retribution as methods of dealing with individuals who have entered the criminal justice as convicts (those fairly and properly convicted of violating public law). Therefore, it seems there will be little to gain from researching the fairness or necessity of law and its interpretation by the judiciary in conducting trials. We can assume those who stand convicted for the purpose of this debate are fairly and justifiably found guilty of breaking the law. (Of course, there will be those debaters who seek to indict the entire system of criminal justice and its obvious dehumanization and coercion but we can discuss these things later.) Therefore, we must now focus on the relevant criteria which determines how we can measure the value of rehabilitation and retribution as a means to a end or in more abstract determinants which uphold broader values which extend beyond the purview of our ordinary understanding of criminal justice.
In the next part of this analysis, I will try to provide additional background information and then refine the discussion to specific positions for the Affirmative and Negative.
For more on retribution click here.
A few references:
http://www.griffith.edu.au/__data/assets/pdf_file/0010/300988/Chapter-17,-Aims-of-Criminal-Justice-updated-22-April-11-for-webposting.pdf (U.K. and Australian related but useful for some general information)
For more Lincoln-Douglas topics and discussion, click here.