Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system.
IntroductionAs I have alluded to in past writing on this topic, the resolution is huge, in that, the topics of rehabilitation and retribution have copious amounts of literature and present what are often deep and complicated theories in support of each. On a more pragmatic level, there are numerous studies, often contradictory, which claim one or the other is effective or ineffective. Use of these studies will force the debaters to somehow convince the judge that one study should be favored over another due to being comprehensive or more recent or uses a better research methodology. There is a very real chance, if your case depends on overcoming conflicting research, the judge will dismiss the claims of both sides and judge the round on other criteria.
Affirmative ContentionsIf we assume Affirmative will not take a critical approach to the resolution the stance is fairly straightforward. Affirmative will claim rehabilitation is be valued above retribution and there are three fundamental ways to frame this position (each of which may be a major contention).
- The debater may claim rehabilitation yields a better benefit to society.
- The debater may claim rehabilitation avoids the disadvantages of retribution
- The debater may claim the values inherent in rehabilitation are superior to the values inherent in retribution.
Choosing a value and associated criteria is often difficult for debaters and perhaps part of the reason stems from the fact that debaters either do not naturally evaluate evidence in terms of traditional values or they attempt to identify values too early or too late in the case development cycle. Nevertheless, following some analysis of the position, it is possible to determine some values which are achievable through rehabilitation once we understand the theoretical or philosophical purposes of rehabilitation. I discussed this at length in my article: World of Rehabilitation. Alternatively we could choose values that are defended by virtue of the fact that rehab avoids the inherent disadvantages of retribution but I think a case is strongest when values are upheld by positive reasoning rather than negative reasoning (one more reason why Neg advocates a position rather simply refutes the Affirmative). Nevertheless, care must be exercised so as not to allow your attacks on the negative position undermine your affirmative value structure. So, with this in mind, let's look at some typical values (just a few to get you thinking):
Quality of Life
Most definitions measure the quality of life as the ability to attain happiness, not that one ever attains true happiness but one is not restrained from trying due to illness, incapacity or as the case may be, incarceration. Affirmative could consider the QoL of the criminal or society (which are both presumably enhanced under rehab theory). Applicable criteria may be reducing crime (or recidivism) if you can find the evidence, or increasing education, minimizing incapacitation, promoting family unity etc. Such citeria will always be driven by the evidence you find.
Justice defined as 'giving each her due' works on both sides of the debate and perhaps is a more natural fit for the Negative since retribution is very easily oriented toward "just deserts" or giving each her due. Nevertheless, as popular as 'giving each their due' is, there are other definitions for justice which elevate it to broader applications. Additionally, one should definitely consider the idea, as espoused by John Rawls and others, of distributive justice which is directed toward a fair distribution of societal benefits which is needs based. This is conceptualized in Rawls' idea of the Original Position and the philosophy of the Veil of Ignorance.
Morality / Governmental Legitimacy
A somewhat vague concept but one could consider the idea that one must act morally in dealing with problems and by the same token, states or legitimate governments must do the same. There is something inherently disquieting about condemning certain acts as undesirable or immoral then using similar acts to punish those who violate society's rules. This could be an interesting value for the Affirmative to pursue if the challenges of Negative carrying the argument of Kant's categorical imperative can be overcome and indeed, I think that can be done in this particular resolution.
Arguments and Grounds
In the following section I present some arguments and the grounds for supporting them. There is a wealth of evidence to be found on the web and while I have taken time to review a sizable portion, I have decided to present evidence from three or four primary sources. Nevertheless, I think you will see the evidence and arguments I have pulled from these sources are significant.
For the Affirmative, I group the arguments into three principle contentions: 1. Rehab good, 2. Retrib bad, 3. Dominance theory.
Please forgive the small font. I did it to save space.
Punishment should provide rehabilitative effects.
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.
Rehabilitation produces measurable reductions in future crime
Prisoner education can serve a variety of needs. However, one measure that is often cited as a measure of its utility is the ability to reduce recidivism rates. Perhaps the most extensive study was published in 2005 by the Institution for Higher Education Policy. The study found, in an examination of prisoner education programs in all 50 states, that the programs decreased recidivism rates among those released as well as increased their prospects for employment (Erisman & Contardo, 2005).
Over-seas studies prove rehabilitation can be effective and particularly those programs which are done outside of the confines of prison walls.
Strong claims are still made for the efficacy of rehabilitative programmes in Europe, and many argue that rehabilitative strategies were discarded prematurely in the US. The true position is that certain programmes work for some types of offender in some types of circumstance.
James McGuire, in a highly influential 1995 study, 'What Works; Reducing Reoffending', argued that certain types of treatment programmes are successful, with treatment programmes in the community being about twice as effective as those within prisons. Successful programmes are focused on the reasons why individuals offend, and those employing cognitive behavioural methodology are found to work best. But while prison-based rehabilitation programmes, like the Connect Project in Mountjoy Prison, are very necessary and worthwhile pursuing, they should not overturn the generally accepted proposition that prison itself is not rehabilitative.
Punishment for the sake of deterrence is not morally justifiable
People are deterred from actions when they refrain from carrying them out because they have an aversion to the possible consequences of those actions. Walker (1991: 15) suggests that although penologists believe that penalties do, in fact, deter, it is hard to determine whether the kind of penalty or its severity has any effect on whether a particular penalty is successful. Some question whether deterrence is morally acceptable. They argue that it is unacceptable because it is impossible to achieve, and if deterrent sentences are not successful, inflicting suffering in the name of deterrence is morally wrong.
Beyleveld (1979, cited in Hudson 1996: 23) after carrying out a comprehensive review of studies that have considered the deterrent effects of punishment concluded that,
Beyleveld (1979, cited in Hudson 1996: 23) after carrying out a comprehensive review of studies that have considered the deterrent effects of punishment concluded that,
. . . there exists no scientific basis for expecting that a general deterrence policy, which does not involve an unacceptable interference with human rights, will do anything to control the crime rate. The sort of information needed to base a morally acceptable general policy is lacking. There is some convincing evidence in some areas that some legal sanctions have exerted deterrent effects. These findings are not, however, generalizable beyond the conditions that were investigated. Given the present state of knowledge, implementing an official deterrence policy can be no more than a shot in the dark, or a political decision to pacify “public sentiment.”
The empirical evidence suggests that, generally, punishment has no individual deterrent effect (Ten 1987: 9). Walker (1991: 16) argues that evidence from research studies has established that capital punishment has no greater effect than life imprisonment. Nagin (cited in Ten 1987: 9) comments on the difficulty in distinguishing between individual deterrence and rehabilitation.
Retribution is unjust because it ignores the social factors which lead to crime
Many argue that retribution based on just deserts fails to account for the problem of just deserts in an unjust world. Just deserts theory ignores social factors like poverty, disadvantage, and discrimination, and presumes equal opportunity for all. Tonry (1994: 153) notes that most sentencing commissions in the United States will not allow judges to bring personal circumstances into account in their sentencing decisions, despite the fact that the average offender has a background that is likely to be either deeply disadvantaged or deprived.
Retribution is politically popular in the US resulting in disparate incarcerations
The problem is that once the concept of retribution becomes accepted by politicians and the public, and becomes part of the political culture, it is extremely difficult to reverse this trend. This is so even where the increased use of imprisonment has really been an exercise in retribution that has demonstrably had little to do with crime control. In the US, this phenomenon has reached immense proportions, with the onset of what Parenti has called 'Lockdown America', the privatisation of prisons leading to the generation of a massive prison industry (the 'prison industrial complex'), and the creation of the new 'supermax' prisons. In February of last year  came the news that the US prison population had reached the two million mark. Five per cent of the world's population live in America, yet its prisons hold 25% of the world's inmates. The statistics on race disparity are equally frightening. Black, Latino and Asian young people are seven times more likely to receive a prison sentence than white offenders.
Finally, I close this post with extensive quotes from Yates excellent paper which provides a detailed critical analysis of retribution theory and provides an excellent background for Dominance Theory as a critique.
Retribution entrenches negative mindsets which harm society.
I would suggest that much of the public support for harsh measures associated with the neoliberal regime and the war on crime, has been the result of legitimizing myths that situate prisoners as the perpetual “Other.” These myths include the belief that society provides a level playing field for economic advancement, and there exists a fair justice system regardless of class or race. Belief in these notions helps to justify the idea that those who are imprisoned are the worst of the worst and they are solely to blame for their predicament. Thus they are undeserving of any kind of meaningful second chance, such as emancipatory prisoner education. Neoliberal ideology fuels the myths. It legitimizes a view of human worth within a narrow construct of human capital. Through elite discourse the beliefs are disseminated throughout society in order to provide justification and widespread consent for oppressive measures.
According to Leslie Sassone (2000), schools have become little more than a weeding out process with the purpose of disciplining students to bring them up to “levels of performance that will make them docile bodies in the global capitalist system” (p. 392). But what awaits those who are unable to achieve adequate performance levels or refuse to submit to what Foucault (1995) calls a disciplining of mind and body? Through a philosophy that imparts primacy to the individual, it is easy to see the marginalized group‟s failure to thrive as a matter of just making the wrong decisions, particularly from the elites‟ perspective. Because the majority of elites are privileged with the resources to overcome obstacles, they (we) see the world from behind those rose colored glasses. Thus, when members of marginalized groups fall into poverty, the dominant group asks, why don‟t they just “pull themselves up by the bootstraps?” Individuals are subjected to the full force of society‟s wrath if the wrong kinds of choices are made. According to Richard Sparks (2003), this makes sense within the neoliberal theory of behavior, which is informed by a determinist view that individuals are a product of their upbringing. A person who is raised in a household that values the rule of law and respect for their country will be given the motivation to succeed in the market-driven society. For those who are brought up to question the way things are, there is little hope for them. Thus, it “follows that it makes little sense… to counsel, treat, coddle or blandish those who misbehave.” For them there is little that can be done, so “those who demonstrate a persistent failure to comply, must be incapacitated or effectively supervised” (Sparks, 2003, p.34).
Low-income people serve a symbolic role within the market economy, a sort of cautionary tale directed to the rest of society. “The sight of the poor keeps the non-poor at bay and in step. It thereby perpetuates their life of uncertainty. It prompts them to tolerate or bear resignedly the unstoppable „flexibilization‟ of the world and the growing precariousness of their condition” (Bauman, 2001, 17).
In societies that maintain hierarchies based upon race, class and gender, it is the marginalized groups that tend to suffer the most from social engineering gone awry. Such is the case under the neoliberal regime. In the U.S., people of color have experienced the brunt of neoliberal policies. Because Blacks and Hispanics are disproportionably represented among prisoners, families in those communities have been ravaged by the prison industrial complex. The obvious outcome of locking a parent away in prison is separation from the children. The majority of incarcerated parents live over 100 miles from their children. This distance greatly restricts the amount of contact the children have with their parents. Long-distance telephone service tends to be prohibitive for prisoners. Personal visits are problematic given the limited visitation hours. Families of prisoners usually are low-income and with only one wage-earner left, long-distance travel can be very difficult (Travis, McBride & Solomon, 2005). Children who do manage to see their parents in person, are often subjected to a traumatic atmosphere...It should come as no surprise that a majority of fathers and mothers who are imprisoned report that they have never had a personal visit from their children while serving their time. With the average sentence of incarcerated parents in federal prisons over 10 years, and 12 years in state prisons, the separation can last an entire childhood (Mumola, 2000).
Women, race and poverty are linked in the war on crime with nearly 20% of mothers in state prisons who were homeless in the year before incarceration (Mumola, 2000). Compounding these difficulties, is the signing of the 1996 Welfare Reform Act by President Clinton which put a lifetime ban upon assistance for anyone convicted of a drug-related felony (Golden, 2005). In the aftermath of the War on Drugs, mothers and fathers have been sent to prison, resulting in collateral damage that has blown apart families and their communities already weakened by poverty-inducing economic policies.
Societal outrage over perceived rising drug use and crime in the 1980s led to a so called War on Crime. This phenomenon has many of the characteristics that mark the moral panics that periodically grip society. Other examples of these kinds of events include concern over the corrupting influences of jazz in the 1930s, rock and roll in the 1950s and the hippie culture in the 1960s. Moral panics can be defined by the following attribute: They typically engulf members of society who are concerned by changes in the social order that they perceive as threatening to their way of life. Parts of these changes involve a blurring of the social mores that had previously provided guidelines for making moral choices. In addition, these moral crusades tend to dilate and constrict on a temporal plane although the length of time varies from one incident of moral panic to another. Another attribute of moral panics is the tendency of politicians, the media and other elites to seize on the event to create a means to provide resistance to the perceived threat. However, the proposed and executed actions often have no impact on the root causes of the panic (Thompson, 1998).
How the different players are perceived is often determined through the rhetoric of the gatekeepers of discourse. Goode and Ben-Yehuda (1994) call these players “moral entrepreneurs” who are appointed or more commonly, self-appointed, to the task of defining which behaviors are immoral. They also determine whether or not the perpetrators of those behaviors are immoral. These crusaders do not act as individuals, but as representatives of a faction of society with some interest in that specific behavior. A classic example would be the Prohibitionist crusaders of the early 20th century who tended to reflect and advocate the views of rural, fundamentalist Protestants who represented a relatively large portion of the population at that time (Goode & Ben-Yehuda). Of course, the grassroots fundamentalists probably would not have been successful in achieving their legislative goals without the help of politicians, the media and other elite gatekeepers of power. But are there instances where grassroots activism is bypassed and moral panics originate from the top of society‟s hierarchies? Chiricos (1996) suggests that moral panics often do not arise spontaneously from grassroots indignation over a specific crisis, but instead result from a cynical manipulation of the masses. He points specifically to the War on Crime as an example. During the 1980s and early 1990s, the U.S. witnessed an increase in the number of poor as well as a decrease in crime. Yet, at the same time there was a massive increase in the number of prisoners. Chiricos proposes that it was a change in discourse that provides the connection between the three. He further suggests that elite stakeholders, such as politicians and the media, are driven by ideology:
Moral panic keeps the vast majority of Americans – who are „doing with less so that big business can have more‟ – focused on ostensible dangers from the underclass instead of the policies and profits of the investors of capital, who are responsible not only for the growth of that underclass but the frustrations and anxieties plaguing so many Americans. (p. 121)
Critcher (2006) suggests that studying the phenomena of moral panics helps to understand the ways elite policymakers, such as the media, politicians and law enforcement work together to wield and enhance power. “If they all pull together on an issue, their power is truly awesome. Opposition will be swept aside in the urge to action, generally a law authorizing draconian new powers to deal with the problem” (p. 4). Thus the amount of power wielded can be enhanced through action directed toward the perceived problem. Goode and Ben-Yehuda (1994) call the concept that a small, but powerful group can deliberately initiate and maintain a moral panic in order to increase their power base the elite-engineered model. “Typically, this campaign is intended to divert attention away from the real problems in the society, whose solution would threaten or undermine the interests of the elite” (p.135).
Within punitive theory, those who commit crimes, no matter how slight, deserve punishment. This establishes a cautionary tale for those other members of a community who contemplate breaking from the norm. This philosophy was put into practice by New York Mayor Rudolf Guliani, who pioneered an extreme form of law enforcement characterized by the incarceration of people for petty crimes on the theory that it would have an inhibitory effect on greater offenses (Chambliss, 1999). His techniques were adopted across the nation, putting into practice the neoliberal mantra of severe consequences for minor breaches of personal responsibility. Once there was deviance, no matter how mild the mistake, there was no turning back (at least for certain segments of society).
The cumulative results of the federal policies recounted above, as well as harsh state and local criminal justice policies; are seen in America‟s extraordinarily high incarceration rates and the disenfranchisement of millions of potential voters, especially people of color. These low-income voters could be at the forefront of electoral opposition to neoliberal policies. Clearly, politicians have benefited from using rhetoric to stoke the flames of the war-on-crime.
Within the current neoliberal narrative, the rights of the individual reign supreme. As described by David Harvey (2005), “the neoliberal state should favour strong individual private property rights, the rule of law, and the institutions of freely functioning markets and free trade….The sanctity of contracts….must be protected” (Harvey, 2005, p. 64). This theory linking economic and personal freedom has its roots in economist Milton Friedman‟s work in the 1950‟s at the University of Chicago (Friedman, 1953). Yet, in practice, neoliberal policy has been detrimental to individual rights by establishing a disciplinary regime to punish those individuals who deviate from a narrowly prescribed mode of living. Positive outcomes await those who wholeheartedly embrace free market economics with its commodification of everyday life, while those who stray from the straight and narrow are subjected to harsh consequences. This regime is manifest in many areas of society, including business, the media and schools. Henry Giroux (2003) describes a: “corporatized model of education that cancels out the democratic ideals and practices of civil society by either devaluing or absorbing them within the logic of market… It also promotes institutionalized class and race-based forms of tracking and a culture of failure for those who don‟t have the cultural and academic resources” (p.79). This is a disciplinary system that lays claim to the supremacy of the individual, but in reality marginalizes groups based upon race and class.
With little apparent sympathy for those who backslide, it is not surprising that programs designed to give prisoners a second chance have suffered. As early as 1982, U.S. legislators began trying to restrict educational grants for those attending college in penal institutions. Charles Ubah (2004) suggests that the success of the Pell Grant critics had less to do with any evidence that Pell Grants are not effective in reducing recidivism, but more to do with a political climate that was negative toward any program that provided aid and comfort to criminals. Critics selectively emphasized a few studies that indicated that Pell Grants were a waste of taxpayers‟ money in reducing crime, while ignoring the preponderance of evidence that showed a correlation between prisoner education and recidivism (Ubah, 2004).
Social Dominance Theory establishes the framework for an understanding of the ways hierarchies are formed within societies. Elite members of society both establish and maintain unequal status through mythmaking. Common myths in America include the idea that individuals are entirely responsible for their fates, and the disproportionate numbers of members of a specific race or class who are poor or imprisoned is indicative entirely of individual failings and not of a societal bias against these groups. Others include the idea that education for marginalized groups should emphasize job training at the expense of higher education. These myths are buttressed through a neoliberal ideology that provides intellectual and moral justification for policies that have devastated marginalized communities. Myths are constructed through discourse among and from the elites.
For negative positions, click here.
Yates, Mark Timothy, "Congressional Debates Over Prisoner Education: A Critical Discourse Analysis" (2009). Educational Policy Studies Dissertations. Paper 39.
Criminal Justice Ethics: Theory and Practice
Cyndi Banks, 2008, chapter 5 proof copy.
The Bar Council of Ireland Law Library
Conference Papers, Crime and Punishment - Retribution or Rehabilitation
By Ivana Bacik 2001
RETRIBUTION AND REFORM
CHAD FLANDERS, 2010
(Assistant Professor of Law, Saint Louis University School of Law; J.D. 2007, Yale Law
School; Ph.D. 2004, University of Chicago (philosophy))