For part one of this series, click here.
Recall from part two of this series, there are two principle schools of thought, the classical school of retributive punishment and the positive school which focuses more on the criminal than the crime. Most courts in the U.S. criminal justice system function in a place somewhat in the middle. Generally, judgements in criminal cases are retributive in that they assign punishment according to law but the law does allow for a certain amount of modification due to mitigating circumstances which may include such things as an examination of the mental state and past experiences of the offender, and situation surrounding the details of the offense. This evaluation may work in favor or against the offender. So it seems there is a certain amount of consideration given to the individual charged with a crime that ultimately plays a role in determining the degree of retribution but it is a little different for the thinkers of the positive school. The positive thinkers sought to understand the root causes of criminal behavior and perhaps even "cure" it and this is the mindset behind restorative justice or rehabilitation and is something I wish to explore in more detail in this analysis since obviously it is the major component of the Affirmative advocacy.
Rehabilitation ConceptSmith (undated):
"Although rehabilitation is often considered a type of punishment for criminal offenders, its objectives are therapeutic rather than punitive. While some theories of punishment claim that criminals deserve to suffer for their crimes, the rehabilitative ideal views criminal behavior more like a disease that should be treated with scientific methods available to cure the offender. Many convicts suffer from mental and physical illness, drug addiction, and limited opportunities for economic success and these problems increase the likelihood that they will engage in criminal activity. If we simply incarcerate the convict while she “pays her debt to society,” she will likely reenter it with all of the obstacles that drove her to crime still in place. She will also need to contend with additional difficulties: a criminal record will impact her employment opportunities, she will be older and still without marketable skills or education, her social relationships may have deteriorated while she was in jail, and she may have become further acclimated to criminal culture. Thus incarcerating offenders could actually make them more likely to commit offenses after they are released, and recidivism rates attest to this. A rehabilitative approach would attempt to treat the underlying cause of her transgressions so that she can return to society to become a full and productive citizen. In other words, instead of exacting revenge against criminals and making their lives worse, rehabilitation tries to help them."
Though deterrence and rehabilitation are both utilitarian theories and forward-looking in their approach to justice, deterrence is not equivalent to rehabilitation.
"Utilitarian theory argues that punishment should have reformative or rehabilitative effects on the offender (Ten 1987: 7–8). The offender is considered reformed because the result of punishment is a change in the offender’s values so that he or she will refrain from committing further offenses, now believing such conduct to be wrong. This change can be distinguished from simply abstaining from criminal acts due to the fear of being caught and punished again; this amounts to deterrence, not reformation or rehabilitation by punishment. Proponents of rehabilitation in punishment argue that punishment should be tailored to fit the offender and his or her needs, rather than fitting the offense. Underpinning this notion is the view that offenders ought to be rehabilitated or reformed so they will not reoffend, and that society ought to provide treatment to an offender. Rehabilitationist theory regards crime as the symptom of a social disease and sees the aim of rehabilitation as curing that disease through treatment (Bean 1981: 54). In essence, the rehabilitative philosophy denies any connection between guilt and punishment (p. 58)."
There are innumerable studies presenting evidence about the effectiveness of rehabilitation in preventing future crime. There can be little doubt, the Neg debater will arm themselves with evidence showing rehabilitation is a failed experiment. Of course, there is evidence to the contrary and in countries where rehab programs continue, there is empirical evidence of success although no one will claim anything near 100% success. Aff may also expect Neg will claim these programs are not applicable to U.S. justice systems. Technically, Aff should not be debating on that level. The resolution states rehabilitation should be valued above retribution. No particular rehabilitation program or theory is specified so we assume the debate centers on rehabilitation as a concept and the concept will tend to deal with the utilitarian, forward-looking idea that criminal behavior can be modified to the betterment of society and even if it is not, the change in mindset and attitudes toward offenders has a greater net benefit to society than a retributive approach to criminal justice.
The Effectiveness of Rehabilitation - Does it Matter?
"The utilitarian justification of rehabilitation as being in the interests of society as a whole has taken a number of forms in its long and influential life, but one of the most obvious and important changes is a periodic shift between what might be called a strong and weak version of the argument, or perhaps more accurately an optimistic and a guarded claim. Briefly, the strong or optimistic claim is that society as a whole benefits from dealing with offenders in such a way as to reduce their offending: rehabilitating offenders contributes to the general good. The weak or guarded claim is that although we cannot be confident in our ability to change offenders for the better, we can, at least, avoid unnecessary harm resulting from excessive or damaging penalties. This argument is often used, for example, to argue for a presumption in favour of community penalties and against custodial penalties, and often combined with the argument that even if the effects on offenders are similar, the custodial option is cheaper and so the principle of maximising general benefit applies. The choice between strong and weak forms of the argument depends largely on the state of current opinion regarding the effect of rehabilitative penalties on offenders’ behaviour: the strong form of the argument is deployed in periods of optimism about this (Mannheim’s proposals are a good example), and the weak form tends to be used in times when people are less confident about the effectiveness of rehabilitative penalties: if nothing works, cheaper is better."
This takes the debate into a very philosophical framework in which pragmatic concerns and statistics are meaningless. Nevertheless, Aff must create a world where such a framework is debatable despite the very reasonable claim by Neg that idealistic worlds are nice to visit but one should not value them over reality.
Taking the philosophic high-road and creating a world where pragmatic objections carry little weight is an intriguing possibility for skilled debaters. But not everyone can sustain such a construct so some Aff debaters, perhaps most of them, can still examine real-world scenarios where rehabilitation is not only possible but desirable and it works. I mentioned in part two of this analysis that certain limits may exist and one could debate, for example, rehabilitation as a viable method of dealing with non-violent offenders, juveniles, drug addicts or alcoholics, and so on.
A Real-World Rehabilitation
Click here for a look at the Aff Position.
Rehabilitation, Encyclopedia of Criminal Justice
Nick Smith, (undated), University of New Hampshire Department of Philosophy
Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.
Assessing Correctional Rehabilitation: Policy, Practice, and Prospects
by Francis T. Cullen and Paul Gendreau, 2000
WHY HELP OFFENDERS? ARGUMENTS FOR REHABILITATION AS A PENAL STRATEGY,
European Journal of Probation
Peter Raynor, Gwen Robinson, 2009