Rehabilitation vs Retribution

Which is a better general justifying aim for punishment?

A sanction should not merely be helpful – it should treat the offending conduct as wrong. The purpose of punishment is to show disapproval for the offender’s wrongdoing, and to clearly condemn his criminal actions. This is why we punish; we punish to censure (retribution), we do not punish merely to help a person change for the better (rehabilitation). We still have to punish a robber or a murderer, even if he is truly sorry and even if he would really, really never offend again and even if we could somehow tell that for certain. This is because justice, and not rehabilitation, makes sense as the justification for punishment.

Why is justice and censure (‘retribution’) so important? Because unless the criminal justice system responds to persons who have violated society’s rules by communicating, through punishment, the censure of that offending conduct, the system will fail to show society that it takes its own rules (and the breach of them) seriously. There are other important reasons as well: such as to convey to victims the acknowledgement that they have been wronged. Punishment, in other words, may be justified by the aim of achieving ‘justice’ and ‘desert’, and not by the aim of rehabilitation.

Which approach has greater regard for the offender?

Crime is not pathology, it is not the product of circumstance, and it is certainly not the product of coincidence. It is the result of choices made by the individual, and therefore the justice system must condemn those choices when they violate society’s rules. To say otherwise (i.e. to say that criminals are merely the product of their unfortunate circumstances) would be an insult to ideas of free will, human autonomy and individual choice – it would be to deny the possibility of human actors making good decisions in the face of hardship.

Retributivism alone best recognises the offender’s status as a moral agent, by asking that he take responsibility for what he has done, rather than to make excuses for it. It appeals to an inherent sense of right and wrong, and in this way is the most respectful to humanity because it recognises that persons are indeed fundamentally capable of moral deliberation, no matter what their personal circumstances are.

Which is a better basis for determining sentencing?

Retributivism advocates that more serious crimes should be punished more seriously, because the more severe the violation of our rules, the greater the censure that is needed. It means that if X, a pickpocket, would get punishment A, then Y, a robber who uses force and then rapes his victim should get a proportionately more severe punishment, punishment B. The idea is ‘proportionality’, not ‘equivalence’ – nobody is suggesting we should rob Y and then rape him to “pay him back”. It is thus very different from the idea of an “an eye for an eye”. What matters is merely that more serious crimes are treated proportionately more seriously. Punishment A may one month’s probation while B may be 10 years imprisonment.

By contrast, under a rehabilitative model where the goal was the reformation of the offender, the pickpocket may well get 10 years imprisonment if he looks like he is not going to reform, while the robber-rapist may get one month’s probation if he is repentant – a result that is surely ridiculous. When it comes to deciding the quantum of punishment, proportionality (retributivism) is the only consistent and fair approach.

Does rehabilitation actually work?

While some rehabilitative programmes work with some offenders (those who would probably change by themselves anyway), most do not. Many programs cannot overcome, or even appreciably reduce, the powerful tendency for offenders to continue in criminal behaviour. They simply do not work. ‘Rehabilitation’ is therefore a false promise – and the danger with such an illusory and impossible goal is that it is used as a front to justify keeping offenders locked up for longer than they deserve and sometimes even indefinitely (‘if we keep him here longer maybe he might change’). We cannot justify passing any heavier or more onerous a sentence on a person in the name of “rehabilitation” if “rehabilitation” does not work.

The question “does it work?” must be joined by a second question: “even if it does work, how can you tell, with each individual offender, when it has worked?” This provides further problems with subscribing to the rehabilitative ideal, argued below.

Imprisonment: A special consideration

The goal of “rehabilitation” is at its most dangerous when it is applied in the context of actually carrying out the punishment of imprisonment; that is, when it is used as a criteria for release decisions. For how can any prison staff, parole officer or even psychologist ever tell that a person “has reformed” or “probably will not offend again”? Evidence has shown that such vast discretion given to treatment staff, guided only by the grand ideal of “rehabilitation”, has systematically produced unfair, incorrect and even racially discriminatory results. Indeed, on what basis can they make any fair, sensible decision? The sad answer is that, since one can never tell if an offender is “cured”, having “rehabilitation” as the goal forces the decision to be made be based on statistical ‘risk factors’ like whether the person belongs to a racial group that is statistically likely to reoffend, or whether the person belongs to an economic underclass that makes him statistically likely to reoffend. Of course all this does is to double-penalise the offender for something he cannot help, such as his race or his poverty. It also leads to what is sometimes called “back-end sentencing”: the offender is sentenced once in court, but in reality he is sentenced again out-of-court – because the final date of his release depends entirely on parole officers or prison staff.