Editor’s Note: This is the second of a three-part series examining the U.S. criminal justice system. Read the first article.
By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business, American Military University
In the first part of this article series, we looked at retribution as a petty and unproductive aim for the U.S. criminal justice and penal system. In this second part, we look to the alternative theory, rehabilitation.
Rehabilitation, or rehabilitative justice, purports that the purpose of the system is to correct undesirable behavior so that convicted criminals don’t reoffend when they are released back into society. This goal seems much more worthwhile and morally defensible than retribution. The problem, however, is that at present rehabilitative justice just doesn’t work.
The Department of Justice’s Bureau of Justice Statistics (BJS) conducted a study following more than 400,000 prisoners from 30 states who were released in 2005. The study looked at recidivism rates over a nine-year period following their release. The BJS concluded that 83 percent of the released prisoners were arrested again at least once in the nine years following their release. Also, more than half of those were arrested in their first year following release. Unfortunately, this is not a new phenomenon. Recidivism in the United States has been a huge problem for decades. So the idea that the punishment we mete out deters repeat offenders is not true.
To be fair, just because rehabilitation isn’t currently working doesn’t mean that it can’t work or that it’s not a good goal for the criminal justice and penal system. We might just need to change the way we approach incarceration and punishment to improve the recidivism rate. We can look to other countries for ideas. For example, Norway currently has one of the world’s lowest recidivism rates at just 20 percent. And comparing the average Norwegian prison to the average American prison, one can see some stark differences.
Norway’s Prisons Have No Bars on Doors or Windows
Norway’s prisons have no bars on doors or windows. Prisoners are given normal living accommodations, training and responsibility to look after their own lives. They also receive basic respect from the prison staff. As Norwegian prison manager Arne Wilson told Business Insider: “If we treat people like animals when they are in prison they are likely to behave like animals. [In Norway] we pay attention to you as human beings.”
This is obviously a far cry from the cold, harsh realities of prisons in the United States. So perhaps rehabilitation could work, and most offenders could become productive, law-abiding citizens again, if only our approaches were more enlightened.
But there is another problem with rehabilitation theory. It lies with those offenders who are sentenced either to death or to life in prison without the possibility of parole. If correction of behavior to prevent future crime is the aim, how do we reconcile this with our life convictions that guarantee an offender will never be released? Efforts at behavior correction are moot if the subjects will never again make free choices about their behavior.
We might be tempted to argue that maybe some people are beyond rehabilitation. In other words, maybe some offenders are so bad, so thoroughly corrupted, that they cannot be repaired or redeemed. In those cases life sentences or executions carried out by the penal system might serve a different purpose, that of incapacitation. This is the theory that, to the extent offenders cannot be rehabilitated, the penal system functions to simply cage them and prevent them from doing any more harm to society.
It’s Worth Thinking About the Rationale of the Sentences We Issue to Convicted Criminals
And if we’re going to write off some offenders as beyond repair, then would there be any argument to keep us from executing all of them instead of issuing life sentences? Some might argue that life in prison without the possibility of release is actually a worse fate than death. But again, if we’re not interested in vengeance and punishment for punishment’s sake, then why would we ever incarcerate someone for life — at taxpayers’ expense — when we’ve decided there will never be any hope for them? I’m not actually advocating this policy, but it’s worth thinking about the rationale behind the sentences we issue to convicted criminals.
Abandoning all hope for rehabilitation becomes a very slippery ethical slope. How do we determine which offenders are beyond rehabilitation? Who decides? And can the deciders’ judgment be trusted? We might be tempted to think this work is in good hands with juries and judges in the criminal justice system, but it is estimated that between 2 and 10 percent of all criminal convictions are wrong.
That might not sound like a lot, but you’d probably feel differently if you were one of those 46,000 to 230,000 innocent people currently incarcerated in America. And for those who are given life sentences or put on death row, this injustice is immeasurable.
Indeed, one of the key reasons why we have a death row, and why offenders sentenced to death aren’t executed the moment they leave their sentencing hearings, is that there is a thorough process of appeal and review available to them. These appeals often result in exoneration and release after the fact. In fact, 165 people have been exonerated from death row in the last 50 years or so. That is 165 fathers, mothers, brothers, sisters, sons and daughters, who might have been wrongfully executed but for the intervention of the appeals process.
So how might we better address this issue and recidivism in the criminal justice and penal system? In the third and final part, we’ll look at another example of more thoughtful policy from Norway.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.