Article by Michael Vitiello
In 1972, the New York Times quoted the New York City Correction Commissioner as follows: “‘All men are redeemable. Every man can be rehabilitated, and it's up to us in the community and in the field of criminal justice to see that this is done.”’ Today, few public officials would make such a statement. Further, few corrections officials consider themselves in the business of rehabilitating offenders.
Beginning in the 1960s and culminating in the 1970s, influential judges and scholars urged the abandonment of rehabilitation as a goal of punishment. Critics focused on both the philosophical and the factual failures of rehabilitation. They challenged the underlying assumption of rehabilitation that criminals were sick and in need of treatment. They criticized the practices spawned by the model, like indeterminate sentencing that allowed incarceration as long as necessary to “cure” the offender. They urged the abandonment of parole because it led to uncertainty about an actual release date and to unfairness since parole decisions were not based on meaningful guidelines. Critics frequently cited studies of rehabilitation programs and urged that rehabilitation did not work.
In less than two decades, almost everyone involved in the criminal justice system has rejected the rehabilitative ideal, described less than twenty years ago as the predominant justification of punishment. By the mid-1980s, a major criminal law treatise concluded that “retribution . . . ‘is suddenly being seen by thinkers of all political persuasions as perhaps the strongest ground . . . upon which to base a system of punishment.”’
Critics of rehabilitation have succeeded in the legislature as well. Initially begun in the late 1970s, efforts to abandon indeterminate sentences and parole succeeded in 1984 when Congress enacted the Sentencing Reform Act, which set up a federal sentencing commission to promulgate sentencing guidelines. Similar guidelines were already in place in a number of states. Several states have even enacted laws making parole unavailable for those convicted of certain offenses, thereby lengthening the minimum sentence to be served.
This Article urges that we rethink our rejection of the rehabilitative ideal. In the first section, I review some of the major texts that led to the abandonment of the rehabilitative ideal and highlight the major arguments against the rehabilitative model. In the second section of the Article, I challenge the factual assertion that rehabilitation does not work. An emerging body of expert opinion demonstrates that the picture is more complex than portrayed by those who urged the abandonment of rehabilitation and parole. In fact, rehabilitation works in certain settings with some offenders. In the third section of the Article, I attempt to make a positive case for rehabilitation and parole. Critics of the rehabilitative model equated it with a deterministic medical model, its modern manifestation, and argued that it was inconsistent with other justifications of punishment. This Article argues that the rehabilitative model, as demonstrated by its origin in Quaker moral thought, is not synonymous with the medical model that led to its excesses. I argue that punishment and human transformation or rehabilitation are not philosophically incompatible. Critics of rehabilitation argued correctly that we imprison for social goals other than concern for the incarcerated. To recognize that we punish for purposes other than rehabilitation, however, is not to admit that rehabilitation or transformation of a prisoner is irrelevant to how long we continue to punish that person. This Article urges that we reconsider rehabilitation, not as a justification for punishment, but more modestly, as relevant to how long we punish a reformed person. Further, I conclude that leaving open the possibility for the transformation or reform of a prisoner is consistent with our most fundamental moral and religious principles.
About the Author
Michael Vitiello. Visiting Professor of Law, McGeorge School of Law; Professor of Law, Loyola (New Orleans) School of Law. B.A. Swarthmore College, 1969; J.D. University of Pennsylvania, 1974.
Citation
65 Tul. L. Rev. 1011 (1991)