Punishment or Rehabilitation?

Should the main purpose of prison be to punish or to rehabilitate the offender?

In modern societies, prisons are more important than they have ever been throughout history. In almost every country in the western world, prison sentences have become a synonym of punishment, while other types of punishment have been progressively abandoned. However, is prison as punishment ever justified? And to what end? And should prisons aim at the sole punishment of offenders, or should they aim instead at reforming the prisoner? I will commence by analysing the motifs that can justify sending people to prison, thus taking their freedom away. Secondly I will discuss two theories of criminal justice which conceive prison sentences as a way to punish offenders. Finally, I will consider the view of those who believe that the primary aim of prisons should instead be the rehabilitation of prisoners. I shall conclude by giving my personal opinion on what role prisons should perform in modern societies.

How can we justify sending people to prison? What gives the State the right to take people’s freedom away? Let us begin by imagining a society that does not punish people who offend other people. Actions such as killing, raping or stealing would not be met with any resistance from the State. People would be forced to live in a situation where they would have to defend themselves, without being able to expect any help coming from the State. In other words, they would have to guarantee their own safety against possible offenders. In this situation, offenders would likely organise themselves in gangs, in order to prey on defenceless victims with enhanced efficiency. This would convince people to unite in groups in order to defend themselves from the gangs, thus creating a situation of perpetual civil war. The situation here described bears great resemblance to the State of Nature described by Thomas Hobbes in his work “The Leviathan”. Hobbes argued that in such a State of Nature people would live under constant danger and fear, and life “would be solitary, poor, nasty, brutish and short”. (Hobbes, 1660, chapter XIII) In such a state no cooperation between individuals could possibly be achieved because people would live under constant fear of each other. In order to avoid civil war and prompt individuals to cooperate it is thus necessary to provide the State with coercive means, so that it can punish individuals who offend others. Therefore, the justification of the institution of punishment is that if the State was not allowed to punish individuals when they committed crimes, it would otherwise be impossible to prevent people from systematically offending other people. Consequently, the only way to establish order in a society is to create laws that punish individuals when they offend other individuals.

This justification of punishment directs us to towards what might be called the deterrence point of view in regard to crime and punishment. According to this view, the only way to prevent individuals from offending other individuals is to let them know that if they resort to crime, they will be caught and they will be punished accordingly. The only way to effectively stop them from committing crimes is to convince them that the consequences of committing a crime are far greater than the possible gains they could achieve by committing the crime.

From a deterrence point of view, imprisonment is not substantially different than any other kinds of punishment. The important thing is that the punishment is always an undesirable consequence which is designed to deter criminals, may that be a prison sentence, a death penalty or a fine.

It is my opinion that the deterrence point of view is by far the strongest justification of punishment and also that deterring criminals is the most important function of any system of criminal law. The foundations of any peaceful society can be found in its system of criminal law, particularly in its ability to deter people from committing crimes. However, it would be a mistake to underestimate the appeal of the retributivist view on punishment. In fact, one of the oldest know legal codes, the Sumerian, was based on the well-known rule of “an eye for an eye, a tooth for a tooth”. While deterrent theories are consequentialist because they justify punishment on the basis of the desirability of its consequences, retributivism conceives the punishment of a person as an end in itself, and is therefore considered to be a deontological theory of punishment. (Matravers, 2000)

Consequentialist and Deontological theories are the two main theories of punishment. They differ substantially, and they seek to justify punishment in very different ways. As a result, the two theories also conceive substantially different system of application of the institution of punishment. As we have seen, consequentialism will justify punishing on the basis of the results that arise from the punishment of criminals. As a consequence, punishment is seen as a deterrent for crime. Retributivism, on the other hand, will justify punishment by claiming that there is a universal moral obligation to punish people who commit evil acts. Consequently, punishment is not regarded as a way to stop crime, but rather as a moral obligation. (Ten, 1991)

I consider that unlike the deterrent position, it is not so easy to justify a retributionist position, because it is not based on practical reasons, but rather on controversial philosophical considerations. Justifying imprisonment or any other kinds of punishment from a retributionist perspective is not an easy task because any justification has to rely on a universal notion of justice, according to which there is a universal need to repay evil with evil. However, is there any real proof that such a thing exists? Is there any proof that a universal justice exists, by which we should punish every offence with a proportional punishment?

And even if such a thing existed, why should only the State have the authority to apply that punishment? Why not any individual, considering that justice is a universal concept that applies to us all and not to the State in particular? Who or what gave the State the exclusive authority to punish evil people? In fact, the concept that a criminal must be punished according to what he has done has no stronger arguments supporting it than the personal feelings of those who defend this view. In that sense, retribution is not very different from revenge. Both are based on the notion that someone that commits an act of evil must receive in exchange a punishment that matches the evil act which he committed. The only real difference between revenge and retribution is that the first is taken by the interested party and the second is imparted by an impartial court of justice. Normally this is considered to be a very important difference, and those who think that way tend to believe that revenge is wrong and retribution is right. Personally, although I understand the difference between both, I cannot understand how that difference between them makes revenge wrong and retribution right. After all, both aim at the same thing, to pay evil with evil. I believe that a justification of punishment, based on the concept of universal justice cannot be sustained. No State in the world can claim to be the representative of a universal justice, since such a concept is only an invention of men, and even if it existed, its representation would descend on every individual and not only on the State in particular.

Furthermore, if we decide to adopt a retributivist view, imprisonment must be regarded as an undesirable consequence, the same way as in the deterrence position. However, proportionality plays a key role in retributivist systems, since punishments are supposed to be proportional to the crimes committed. So, if we want to adopt a pure retributivist view, any imprisonment sentence would be as bad as the crime it is a punishment for. This constitutes a problem, since retributivists find themselves in a position where they have to quantify the evilness of the crimes committed, and try to match it in the number of years of imprisonment and the living conditions in prisons. Obviously, such a task is extremely hard, if not impossible.

In the last century, a concurrent general theory of criminal justice has gained considerable popularity. This view replaces the institution of punishment by the implementation of programs which aim at the rehabilitation of offenders. The rehabilitation point of view is extremely different from both the retributionist and the deterrence perspectives. One of the most significant differences is that from a rehabilitationist perspective a prison sentence is not seen as an undesirable consequence, but rather a way to reform the criminal. As a result, a rehabilitationist system will look very different from criminal systems which are based on the deterrence of crime or on the retribution of offences.

In a rehabilitationist criminal system, sentences are designed with the rehabilitation of criminals in mind. Thus, sentences such as the death penalty, corporal punishments and fines are excluded and replaced by other forms of punishment, especially prison sentences. But even the conception of prison is substantially different for punishment-driven theories and rehabilitation-driven theories. Punishment-driven theories view prisons as a way to punish offenders, to make them suffer. On the other hand, rehabilitationists regard prisons as a place where criminals can be converted into law-abiding citizens.

But is it even possible to successfully rehabilitate someone? And if it is, how do we transform a criminal into a law-abiding citizen?

What seems rather clear is that, thus far, no country in the world has successfully developed a successful rehabilitationist criminal system. In fact, in most countries, prisons work almost as “criminal workshops” where spending time in prison is likely to make someone much more dangerous to society than he was before going to prison. It seems clear that, in order for rehabilitation to work, a different approach to the penitentiary system would be required. Although, in theory, it should be possible to rehabilitate criminals, a whole penitentiary system should be designed with that specific purpose in mind in order for it to work. The current model of prisons will never be able to provide the rehabilitation of criminals, since it is primarily designed to punish criminals, and not to reform them.

The challenge for rehabilitationism is to create a system that can successfully transform thieves, murderers, thugs and rapists into peaceful citizens. But even disposing of unlimited resources, would that be possible at all? And even if it was possible, would it be desirable to adopt rehabilitation as the general aim of an entire system of criminal law? After all, the choice to pursue the rehabilitation of criminals would represent a dramatic shift from the customary punishment-based systems of criminal justice. It is worth quoting H.L. A. Hart on this topic:

“Reform can only have a place within a system of punishment as an exploitation of the opportunities presented by the conviction or compulsory detention of offenders. It is not an alternative General Justifying Aim of the practice of punishment but something the pursuit of which within a system of punishment qualifies or displaces altogether recourse to principles of justice or proportion in determining the amount of punishment. This is where both Reform and individualized punishment have run counter to the customary morality of punishment.” (Hart, 1968, p.26)

Hart thus highlights a certain incompatibility of punishment and reform, and particularly the contradictory nature of retributivism and rehabilitationism. Hence, even if it was possible to rehabilitate offenders in some cases, to rely on treatment to decide the sentences of offenders inevitably leads to unjust sentences from a retributivist perspective. (von Hirsch, 1992)

However there are others and arguably much more powerful reasons why a penal system based on reform instead of punishment is not a viable option. Specifically, the lack of power of deterrence is a crucial weaknesses of any system based on reform. If people knew they would not be punished if they committed a crime, wouldn’t that encourage possible offenders and thus precipitate society into chaos? The necessity to avoid a constant state of anarchy is precisely what makes the existence of a criminal law system vital for any society. Yet, if a criminal system is not able to deter possible criminals from acting, would it serve society in a sufficient way? The answer to that question is, I believe, no. As Hart pointed out (1968), reform can only be executed after the crime is committed, and this means that its use is restricted to the prevention of crime by compulsive criminals. Allow me to cite Hart once more:

“Society is divisible at any moment into two classes (i) those who have actually broken a given law and (ii) those who have not yet broken it but may. To take Reform as the dominant objective would be to forgo the hope of influencing the second and – in relation to the more serious offences – numerically much greater class. We should thus subordinate the prevention of first offences to the prevention of recidivism.” (Hart, 1968, p.27)

Even if we unwisely decided to ignore the aforementioned flaw of reform-oriented theories of criminal justice, there is still another reason why a theory of that type could not be successfully implemented. The implementation of a system of criminal justice destined at the rehabilitation of criminals rather than their punishment would simply be too costly. The resources to maintain such a system are unavailable to most, if not all, states in the world. This might not be a weighty objection on the theoretical domain, but in the real world, the degree to which a system may actually be implemented using the available resources, is as important as the moral validity of any theory. In this context, it is a great disadvantage that systems directed at the rehabilitation of criminals are hopelessly impractical.

Finally, there are a number of cases where the rehabilitation of criminals is impossible because of the very nature of the crime or the criminal. It is possible to argue, with greater or less success that rehabilitation measures can be applied to many criminals. However, there are some particular cases where rehabilitation is condemned to fail or simply does not make sense at all. For instance, how do you rehabilitate a murderer? After all, there are numerous motivations that can lead someone to commit a murder, and each case is different from the next. In many cases the murderer is not even, in normal circumstances, a danger to society and doesn’t necessarily need to be rehabilitated. In other cases, like in the cases of serial killers or chronic murderers, it is very unlikely that any kind of rehabilitation program will be enough to prevent them from killing more people in the future. A similar argument could be used for rapists. Many rapists are citizens who are not usually considered as a threat to society, but who commit rape once under particular circumstances. Others are serial rapists who probably could not be transformed into law-abiding citizens even after several years of rehabilitation, and in any case it would be too risky to return them to society without any restraints.

Some very interesting conclusions can be taken from the previous analysis. Rehabilitationism is an interesting point of view, and has some positive aspects. But its lack of deterrent power constitutes its most serious flaw. It is also important to remember that any serious program of rehabilitation requires a considerable amount of resources, substantially more elevated than the resources needed to maintain a retributionist or deterrent system of criminal law.

Should the main purpose of prison be to punish or to rehabilitate the offender? If we choose to say that prisons should be a form of punishment, then we would be adopting a position based on deterrence or retribution. If we answered that the main objective of prisons should be the rehabilitation of prisoners that would distinguish us as rehabilitationists.

I have previously argued that rehabilitationism has some advantages, but that it is not acceptable as a general system of criminal law. It lacks a vital quality, deterrent power, which ultimately makes it an unsustainable model. Nevertheless, in some cases, adopting measures directed at the rehabilitation of criminals can actually be positive. In some cases, to punish someone would ultimately do more bad than good, and in those cases rehabilitation could work as a feasible alternative. However, as a dominant model for penitentiary systems in modern societies, rehabilitationism is inadequate.

So we are left the remaining alternative: punishment. The ultimate justification for taking someone’s freedom varies from retributionists to those who believe that the principal aim of criminal laws is deterrence. Retributionists base their justification of punishment on the concept of universal justice. I have argued that this position is not sustainable, since there are no objective arguments that can sustain this position. On the other hand, a theory of crime and punishment based on the necessity to deter against crime provides a much more compelling and solid justification of punishment, regardless of the form of punishment chosen. Since prisons are the standard form of punishment in most if not all western countries, privation of freedom by the State can be justified on the basis of the absolute necessity to use punishment as a deterrent against criminal actions.

Bibliography:

HART, H. L. A. 1968. Punishment and Responsability, Oxford, Clarendon Press.

HIRSCH, A. V. 1992. Should Penal Rehabilitationism be Revived? Criminal Justice Ethics, 11.

HOBBES, T. 1660. The Leviathan.

MATRAVERS, M. 2000. Justice and Punishment: The Rationale of Coercion, Oxford; New York, Oxford University Press.

TEN, C. L. 1991. Crime and Punishment. In: SINGER, P. (ed.) A Companion to Ethics. Oxford; Malden: Blackwell.