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Principles of sentencing - rehabilitation
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Home > Lecture notes >  English Legal System >  Sentencing - principles >  Principles of sentencing - rehabilitation 

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Rehabilitation

Rehabilitation must be good?

Few would dissent from the proposition that it would be in everyone's interests if offenders could be rehabilitated.

 

If most offenders became reformed individuals who were less inclined to commit further crimes, a huge step towards the overall objective of crime reduction would have been achieved.

 

But while there is general agreement that rehabilitation is a desirable by-product of punishment, controversy arises when it is asserted that rehabilitation is one of the main purposes of the institution of punishment.

 

Modern trends in reforming criminals.

Over the past century our criminal justice system has become more concerned with the rehabilitation and welfare of convicted offenders.

 

Many reforms to the prison system have been instituted, with increasing emphasis being placed on training and educational programmes within prisons so that employment prospects on release will be enhanced.

 

More significant, however, has been the recognition that imprisonment necessarily involves the isolation of the offender from the realities of social life which can hardly be conducive to the rehabilitation process.

 

Prisoners tend to become institutionalised and dependent on a system that relieves them of the responsibility of having to control their own destiny.

 

If, on the other hand, offenders could be kept in society and forced (with help) to deal with the real world while being encouraged to understand and assume responsibility, rehabilitation could be more easily achieved.

 

To reflect this latter philosophy various non-custodial sentences have been introduced into English law, particularly probation and community service orders.

 

Individualised sentences.

With rehabilitative sentencing emphasis is placed on the offender; he is regarded as 'sick' and in need of a cure. Like a doctor prescribing medicine, the sentencer must impose that sentence predicted to be most effective in making the offender better.

 

This leads to 'individualisation' of sentencing. Punishment is made to fit the offender and not the crime. With less emphasis being placed on the crime committed, the result is that two offenders committing similar crimes can receive very different sentences if their 'needs' are not the same.

 

Does rehabilitation work?

While such ideas have a certain humanitarian appeal, the fact remains that it is almost impossible to justify rehabilitation as a purpose of punishment.

 

There are several reasons for this.
First, we know very little of the causes of crime and so have limited knowledge of how to change people's behaviour and eliminate their propensity to commit crime.

The result is that efforts to tailor the sentence to fit the offender are almost inevitably doomed to failure. Martinson (1974) concluded that rehabilitative sentencing simply does not work; the type of sentence given to an offender made no difference to the likelihood of his being re-convicted.

 

While this is now widely recognised as a gross exaggeration (even Martinson (1976) partially retracted his earlier sweeping conclusions), the fact remains that it is extremely difficult to assess accurately the rehabilitative effect of any given sentence and the research to date has been inconclusive as to the efficacy of such sentencing.

 

However, one thing seems certain: the overall picture painted by penologists is so pessimistic that one could never be justified in claiming that it was legitimate to sentence offenders primarily for the purpose of reforming them.

 

"Forcibly remaking man"

Rehabilitative sentencing can also be attacked on other grounds.

 

Eliminating a person's propensity to commit crime involves altering his personality so that he no longer wants to commit crime.

 

Is one entitled to use any means to achieve this result - even drugs, aversion and electric shock therapy or psychosurgery? And for how long is one entitled to continue such 'treatment'?

 

These questions raise the fundamental human rights issues of whether we have the moral right to change a person's personality without his consent.

 

The commission of a crime does not deprive one of all basic human rights so that one can be treated as an experimental guinea pig. As Morris and Hawkins (1977) have asserted: 'We must stay out of the business of forcibly remaking man.'

 

Rehabilitation sentencing leads to disparity in sentencing.

The final nail in the coffin of the rehabilitative ideal occurred when research began to reveal the extent to which rehabilitation was leading to sentencing disparity.

 

People committing broadly similar crimes were receiving vastly different sentences - under the guise of individualised sentencing.

 

In the United States, particularly, concern over the extent of such sentencing disparity, coupled with the publication of research indicating that rehabilitative sentencing was not effective, led to the swift and sudden demise of the rehabilitative ideal and its replacement by the notion that one must sentence people according to what they deserve.

 

 Humane approach

For all these reasons it seems clear that one is not justified in punishing in order to accomplish rehabilitative objectives.

 

But that is not to say that rehabilitation is of no consequence. Indeed, one of the dangers of minimising its importance is that it could induce those managing the criminal justice system, particularly those involved in executing sentences such as prison warders, to become more punitive-minded, or even vindictive, in their approach to their work.

 

A civilised and humane society cannot afford to ignore the importance of rehabilitating offenders. What this means is that while one might be punishing for other reasons such as deterrence or incapacitation, rehabilitation must remain a desirable collateral objective.

When espoused as a purpose of punishment, rehabilitation becomes vulnerable and in danger of being jettisoned if found to be ineffective.

 

But if clearly understood as a desirable by-product or collateral purpose, the rehabilitative ideal becomes immune from attack on grounds of inefficacy.

 

Put crudely: it doesn't matter if we are successful in reforming people because that is not the object of the exercise - but in trying to achieve our main objectives we should at least try to rehabilitate offenders (subject to any human rights constraints). This is the humane course of action and any success would be of immense additional advantage.

 

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