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This research paper explores the relationships between rehabilitation and punishment. It begins by unpacking the different meanings of rehabilitation and some of the major criticisms that have been leveled at rehabilitation. It then goes on to examine the different meanings and purposes of punishment and where and how rehabilitation fits amongst these meanings and purposes. The paper concludes by recognizing ways in which rehabilitation can have punishing effects and by suggesting when and under what conditions punishment is rehabilitative.
The title of this research paper may seem an odd one. For many people, punishment and rehabilitation are alternatives between which we must choose, rather than potential synonyms or alternative ways of referring to similar processes. Can punishment ever be rehabilitation? Don’t rehabilitation’s supporters tend to see offending as rooted in people’s experience of social exclusion and injustice, to regard the trope of individual (criminal) responsibility (on which the legitimacy of punishment ultimately depends) as misconceived, and to stress the duty of the state somehow to fix the mess that produced crime? Punishment, at least for some rehabilitationists, seems little more than a fancy cloak to drape around the otherwise nakedly vengeful instincts of those that think (absurdly, these critics would argue) that there is something sensible, appropriate, and fair about piling hurt on hurt.
And yet, many practitioners of rehabilitation – even those sympathetic to these criticisms of punishment – hold on to a belief in the capacity of people to change themselves and their situations, to make different choices, to overcome their circumstances, and to author a different and better future. Even those who are deterministic when it came to the genesis of criminal behaviors and problems somehow seem to become believers in free will or the power of human agency (even under intense social and structural pressures) when it comes to the future prospects of people undergoing rehabilitation. Moreover, many rehabilitationists also have an acute sense of justice or injustice, reflected in their demands that the state honor its obligations to those whose adverse life experiences have proved “criminogenic.”
Readers will already have noted a number of paradoxes and possible contradictions in play here, in terms of how we conceive of individual and political responsibility for crime and other social harms and of how we understand and deliver fairness and justice and in our approaches to the righting of wrongs. To try to unravel some of these threads and make sense of these questions requires an examination of the contested and multiple meanings of these two terms – rehabilitation and punishment – before we can begin to understand at least some of the potential interrelationships between them.
Both as set of concepts and as a set of practices, rehabilitation is a “fankle.” Fankle is a Scots word that translates loosely as “tangle.” The unraveling – or at least the teasing apart – of the distinct threads of a fankle is a tiresome and time consuming job, but a necessary one, if only so that we can knot them together again properly at the end.
Most textbook discussions of rehabilitation begin with dictionary definitions. Raynor and Robinson’s (2009: 2) excellent book, for example, tells us that the Oxford English Dictionary defines rehabilitation as “the action of restoring something to a previous (proper) condition or status.” So, rehabilitation is (1) an action that (2) restores (3) for the better. Raynor and Robinson (2009: 3) also note that the OED’s supplementary definition refers to the “restoration of a disabled person, a criminal etc., to some degree of normal life by appropriate training etc.” This version adds the concepts of some (4) “normal” standard, returning to which requires (5) some form of third-party intervention.
Moving on to criminological uses of the term, Raynor and Robinson (2009) argue that, despite the frequency with which (offender) rehabilitation has been discussed in the literature (and, we might add, in policy and practice), it is rarely “unpacked” and critically examined. They provide the following example of a problematic criminological description of it:
taking away the desire to offend, is the aim of reformist or rehabilitative punishment. The objective of reform or rehabilitation is to reintegrate the offender into society after a period of punishment, and to design the content of the punishment so as to achieve this. (Hudson 2003: 26)
As Raynor and Robinson (2009) note, this statement raises a number of issues. Firstly there seem to be at least two objectives in play here: “taking away the desire to offend” (i.e., somehow changing the offender) and reintegration into society (i.e., somehow changing his or her relationship with and status in society). But how are these two objectives related? Secondly, and more directly pertinent to this research paper, it suggests two different relationships between rehabilitation and punishment; in one rehabilitation comes after punishment, and in another rehabilitation shapes (the nature of) punishment. There may be a third possibility, as suggested above in the introduction, where rehabilitation is cast as an alternative to punishment. Finally, this description elides the distinction between rehabilitation and reform; as we will see below, for others, these two ideas are distinct but related concepts.
In an effort to clarify some of these complexities, Raynor and Robinson (2009) go on to offer their own typology of perspectives on offender rehabilitation, examining the meanings and significance of correctional rehabilitation, rehabilitation and reform, reintegration and resettlement, and rehabilitation and the law.
Correctional rehabilitation, they argue, is concerned with effecting positive change in individuals. As such it is the model most commonly associated with treatment programs or other forms of offense-or offender-focused intervention. At its heart is the notion that many offenders can change for the better, given the right support. The idea of correction implies that the offender can and should be “normalized” or “resocialized” in line with commonly accepted (though rarely explicitly articulated) standards of behavior. Raynor and Robinson make the critical but often neglected point that correctional rehabilitation is a very broad church, one that allows for almost as wide a variety of theories and methodologies about how “correction” is to be achieved as there are theories about crime causation itself. That said, correctional rehabilitation, as its name suggests, tends to be preoccupied with changing offenders themselves and so is closely associated with theories and methods that explain crime and target intervention at the level of the individual.
Raynor and Robinson’s (2009) discussion of rehabilitation and reform notes that some penal theorists and historians draw a distinction between twentieth-century “rehabilitation,” which was concerned with individualistic (psychological) treatment programs to correct one’s personality (or attitudes and behaviors), and “reform” which refers to an earlier preoccupation with offering opportunities for education and contemplation in support of the reform of one’s moral character. As a form of shorthand, we might say that religion is to reform as the “psy” disciplines (psychiatry, psychology, and social work) are to rehabilitation.
The terms reintegration and resettlement (or in the USA “reentry”) may involve or be connected with correctional rehabilitation, but they also extend beyond it; in a sense, they imply its objective. If correctional rehabilitation is the journey, reintegration is the implied destination. Raynor and Robinson (2009) suggest that rehabilitation must lead to and involve restoring the ex-offender’s status as a citizen and renegotiating his or her access to its privileges and responsibilities. Whereas correctional rehabilitation dwells on the individual and the psychological, “reintegration and resettlement” signals the sociological aspects of rehabilitation; proponents of such an approach tend to have a sharper awareness of the social rather than the individual causes of crime and of the social rather than the individual issues at stake in desistance from crime. Moreover, rather than being a mode of punishment (or a method applied during punishment), this perspective tends to stress the need for rehabilitation to act as an antidote which seeks to address, compensate for, or seek to undo the adverse, usually unintended, collateral consequences of punishment itself. Rehabilitation in this vein is sometimes conceived a duty of the state that follows from its obligation to delimit punishment and to bring it to an end.
A natural (though again often neglected) corollary of the concern with reintegration and resettlement is a concern with rehabilitation and the law. Though we come to it last, the earliest use of the term rehabilitation (at least in legal or criminal justice contexts), according to Raynor and Robinson (2009), was in late seventeenth century France where it referred to the destruction or undoing of a criminal conviction and to the deletion or expunging of the criminal record. A century or so later, Cesare Beccaria (1764/ 1963) reflected a similar meaning of the term in arguing for the use of punishment as a way of “requalifying individuals as… juridical subjects.” In this sense, punishment itself was meant to be rehabilitative in settling the putative debt that offending created. Rehabilitation was thus an end of punishment in both senses of the word; it was its proper objective and its final conclusion. Rehabilitation was the restoration of citizenship, not in the de facto sociological sense discussed above but in the de jure legal sense.
Raynor and Robinson’s (2009) taxonomy helps us a great deal with unraveling “the rehabilitation fankle,” but there are one or two further strands that we need to identify before moving on to examine which meanings and versions of punishment might be consistent with which meanings and versions of rehabilitation.
Firstly, it is worth stressing that the meanings of rehabilitation are historically, culturally, and jurisdictionally conditioned. As we have already seen, the broadly correctional form of rehabilitation has been expressed in very different ways in different times and places. Two decades ago, Edgardo Rotman (1990), in a brilliant and brief introductory chapter to his book “Beyond Punishment,” summarized the history of rehabilitation as being represented in four successive models. The first two of these – the penitentiary model and the treatment model – correspond loosely to our discussion of reform and rehabilitation above. The penitentiary was seen as a place of confinement where the sinner is given the opportunity to reflect soberly on their behavior and on how to reform themselves (note “reform” rather than “rehabilitate”), perhaps with divine help. But this idea was supplanted progressively by a more scientific or medical model in which rehabilitation was understood as a form of treatment which could correct some flaw in individuals, whether physical or psychological, thus remedying the problem of their behavior.
However, in the latter half of the twentieth century, this more medical or therapeutic version of rehabilitation was, according to Rotman, itself displaced to some extent by a shift in emphasis towards a model based on social learning in which behaviors were understood as learned responses that could be unlearned. In this context, rehabilitation was recast not as a sort of quasi-medical treatment for criminality but as the reeducation of the poorly socialized. Correctional rehabilitation’s interventions may have remained individualized, but they changed to reflect new theories of crime causation and thus new forms of “treatment.” This distinction between these two versions of correctional rehabilitation (treatment vs. social learning) is important, partly because, as we will see in the next section, it was one that was and is often ignored by rehabilitation’s critics.
Criticisms Of Rehabilitation
As Bottoms (1980) notes, in a typically erudite and compelling chapter that deals with the collapse of the rehabilitative ideal, one cause of its demise was that it came to be seen as being theoretically faulty. It misconstrued the causes of crime as individual when they were coming to be understood as being principally social and structural, and it misconstrued the nature of crime, failing to recognize the ways in which crime is itself socially constructed. Moreover, rehabilitative practices had begun to be exposed as being systematically discriminatory, targeting coercive interventions on the most poor and disadvantaged people in society. Rehabilitation was also coming to be seen as being inconsistent with justice itself because judgments about liberty had come to be unduly influenced by dubious and subjective professional judgments hidden from or impenetrable to the offender. Through the development of the “psy” disciplines, experts emerged with the supposed capacity to “diagnose” what was wrong with the offender, and the offender was cast as a victim of his or her lack of insight. By implication, unless and until the offender was “corrected” by the expert, he or she could not be treated as a subject. It was argued that rehabilitation faced an associated and fundamental moral problem rooted in its attempts to (psychologically) coerce people to change. Finally, at the time when Bottoms was writing, the empirical evidence seemed to suggest that, despite its scientific pretensions, rehabilitation did not seem to work.
Powerful though it is, there are flaws in this critique. Crucially, emerging evidence about “what works?” played a vital role in challenging the last point; there is now an evidence base for rehabilitation, (McNeill, Raynor and Trotter 2010). But that evidence base, in and of itself, does not address the other four criticisms which I will label the problems of crime theory, of rehabilitation and injustice, of dubious expertise, and of coerced correction. Contemporary rehabilitation theories perhaps have more in common with a social learning or social psychological than a medicalized version of correctional rehabilitation. But, even if rehabilitation is not now based on a strictly medical model, the full force of Bottoms’ (1980) criticisms is only partly deflected, and in this short entry, these criticisms can be discussed only very briefly.
While contemporary correctional rehabilitation’s underlying crime theories avoid the pathologizing traps of individualistic positivism, they still have to engage somehow with the problem that crime is (at least in part) a social construct. We do not choose to pursue all interpersonal or social harms through criminalization; the explanandum of crime theories is itself socially conditioned. That single insight has profound consequences. It affects and infuses the normative contexts of rehabilitative work (including raising difficult questions about who and what gets selected for penal “correction” and who and what does not), and it creates a series of complex methodological quandaries about how to judge rehabilitation’s effectiveness (see McNeill 2012).
The problem of rehabilitation and injustice, or of rehabilitation’s place in or association with discriminatory justice practices, remains a challenging one, though it is hardly a criticism that applies only to rehabilitation and not to other criminal justice practices. That said, the problem for rehabilitation is not just systematic (if unintended) biases in terms of who gets selected for “correction” of which sorts and who gets defined as “incorrigible” but also a more technical problem of the extent to which rehabilitation’s resources (principally assessment tools and interventions approaches) are sufficiently sensitive to, for example, gender differences and cultural diversity. Significant though these problems are, they are problems about the proper administration of rehabilitation rather than the concept itself.
The problem of dubious expertise is only partly resolved by the development of a more robust evidence base for rehabilitation. While it is true that contemporary approaches, perhaps to varying degrees, tend to formally recognize the need to treat people as active subjects in their own rehabilitation (and not simply as the passive objects of expert intervention), there remains considerable force in critiques both of the professional power of the “psy” disciplines and, more specifically, of the increasing exercise of that power not in “treatment” or “therapeutic” decisions but in influencing decisions about justice itself, specifically in relation to sentencing or release decision making. These problems will be discussed below.
Of course, the enduring problem of coerced correction is closely related to that of dubious expertise; coercion is a problem exacerbated in systems where increasing confidence in rehabilitation’s effectiveness has coincided with the development of a “toughening up” of penal policy. One apparently minor aspect of this conjunction in England and Wales was the withdrawal of any requirement for consent to accredited program conditions within community sentences. These programs therefore involve rehabilitative treatment without consent; a development that seems to have come to pass without much critique from psychologists whose ethical standards it might seem to compromise. Though it might be said that all punishment is coercive, coercion seems to be a particular problem for correctional rehabilitation, since it seeks to change the individual rather than simply to restrain, confine, or otherwise punish him or her. That suggests a particular form of intrusion into the inner world, even the identity of the subject, in respect of which coercion raises particular moral problems.
Fortunately, Bottoms (1980) also provided some suggestions about how we might best respond to these problems. Reflecting the pessimism of the times, four of his five options imply or require a shift away from rehabilitation, at least as traditionally conceived. However, he also argued that rehabilitation could be rescued through its own correction, that is, by attending more carefully to questions of consent, by committing adequate resources to make it more likely to be effective, and by conducting our rehabilitative activities in ways which are more respectful of liberty. More specifically, the intrusions that rehabilitation imposes on the offender, he suggests, should never be greater than is merited by their offending behavior, placing rehabilitative requirements within the envelope of proportionality.
There is no space here to properly review the renaissance of rehabilitation in the 1980s and 1990s (see Raynor and Robinson 2009; Robinson 2008). However, leaving aside the better known story of the advancement of the evidence base, it is worth recalling that there was also, in the 1980s, a brief flurry of writing about new normative or philosophical approaches to rehabilitation, including Rotman’s (1990) work. The “new rehabilitationists” (see Lewis 2005), much as Bottoms suggested, proposed four principles to guide rights-based rehabilitation: the assertion of the duty of the State to provide for rehabilitation, the establishment of proportional limits on the intrusions opposed, the principle of maximizing choice and voluntarism in the process, and a commitment to using prison as a measure of last resort.
However, as Robinson (2008) has cogently argued, in policy and practice (in England and Wales at least), what emerged was not a more rights-based but a more profoundly utilitarian and correctional form of rehabilitation increasingly influenced by the preoccupation with public protection and risk reduction. Under this paradigm, probation officers were required to intervene with or treat the offender to reduce re-offending and to protect the public. What is critical about this shift in focus was that the “client” or intended beneficiary of rehabilitative work is no longer the offender. Rather probation is trying to change offenders to protect the law-abiding. The offender becomes less and less an active participant and more and more an object to be assessed through technologies applied by professionals and compulsorily engaged in structured programs and offender management processes as required elements of legal orders imposed, as already noted, irrespective of consent.
These developments in the relationship between correctional rehabilitation and those “offenders” – with whom it engages or, worse, on whom it operates – are a particularly important one. The shift from subject in to object of correctional rehabilitation implies a more coercive and utilitarian conception of rehabilitation: one which leaves the individual liberties and rights of the offender much more vulnerable and one which opens up new prospects of abuses of the “power to punish,” justified in the putative public interest. This form of rehabilitation may still be a process of intervention aimed at some public good, but returning to Raynor and Robinson’s (2009) initial definitions, the blunting both of its restorative intent and of its commitment to the offender’s interests (alongside others’ interests), as well as its willingness to impose (rather than renegotiate) “norms” on objectified offenders, represents major causes for concern.
Of course, it is impossible to make much sense of the relationships between rehabilitation and punishment just by analyzing rehabilitation – notions of punishment must be examined too. Conceptually and practically, punishment is arguably even more “fankled” than rehabilitation. In part, as Hudson’s (2003) excellent introductory text both argues and demonstrates, this is because punishment is a quintessentially interdisciplinary subject that compels and requires criminological, legal, philosophical, and sociological scrutiny, as well as raising fundamental political and practical questions.
Tonry’s (2006) commanding and authoritative overview of the purposes and functions of sentencing provides a neat framework for analyzing punishment, distinguishing between sentencing’s purposes or normative functions (i.e., its justifications), its primary functions (these being the proper distribution of punishment; the prevention of crime; and the communication of threat, censure, and of social norms), its ancillary functions (in contributing to the management of an efficient and effective justice system and in securing legitimacy and public confidence), and its latent functions (the ways in which it reflects self-interest, ideology, and partisanship and how and what it communicates informally). Though he does not explain his framework in these terms, we might suggest that, with notable exceptions, philosophers and jurists tend to study and discuss the normative functions and primary purposes of sentencing, criminologists tend to examine its ancillary functions, and sociologists tend to study its latent functions. Criminological and sociological analyses will be discussed briefly in the next section. For present purposes, it is perhaps most important to clarify firstly where rehabilitation fits amongst the normative justifications of punishment.
As Tonry (2006: 16) argues:
The overriding normative function of a sentencing system in a society committed to individual liberty, procedural fairness, and limited powers of government is to assure that individuals convicted of crimes receives the sentences that, in principle, they should
At first sight, this statement seems a little vacuous or circular – the point of doing justice is to do justice – but, at least in liberal democracies, it is vital to surface this too easily taken-for-granted assumption. If punishment involves the state in imposing harms on its citizens, then the process by which this is done must be carefully bounded and governed. But of course what is in and “out of bounds” in sentencing depends to some extent on the normative principles that govern it.
Tonry (2006) goes on to expose the enduring tensions between Kantian and utilitarian approaches to punishment. The former are essentially retrospective and concerned with the delivery of retribution or “just deserts,” in proportion to the severity of the offense and the blameworthiness of the offender. The latter are essentially prospective and concerned with the delivery of preventive effects; as we noted above, these are increasingly cast as the protection of the public and the reduction of offending and re-offending. These effects can be advanced through deterrence, incapacitation, or rehabilitation. Tonry (2006: 18) notes that there “are good reasons why no relatively philosophically pure sentencing system [on either model] exists or has been seriously proposed at a policy level.” He goes on to illustrate the practical problems of both Kantian and utilitarian approaches and reviews a range of attempts to construct credible hybrid theories. Whatever the conceptual merits of these theories however, there is no doubt that in practice hybrid systems abound, though this is not to say that these systems are clearly articulated, coherent, or defensible. One common feature of most hybrid systems is a commitment to some form of “limiting retributivism,” in which culpability sets upper limits for the severity of any punishment to be imposed. The intrusions of punishment, in other words, must never be greater than are merited by the offender’s culpability (and perhaps by the gravity of the offense).
As already noted, this limiting principle surfaced in the work of the new rehabilitationists of the 1980s and 1990s, requiring the intrusions of rehabilitation to be bounded by proportionality. Though this does represent a significant and suitable response to some of the criticisms of rehabilitation discussed above, for advocates and practitioners of rehabilitation, the direct engagement with questions of justice and deserts that it entails has often been uncomfortable. Historically, at least in some jurisdictions, probation and criminal justice social workers have often considered themselves as providers and advocates of (usually rehabilitative) alternatives to punishment, rather than as providers and advocates of alternative punishments. Somehow the notion of punishing, as opposed to supporting, supervising, treating, or helping – or even challenging and confronting – has seemed inimical to the ethos, values, and traditions of probation and social work.
More recently, a different approach to the justification of punishment has perhaps offered the prospect of resolving some of these tensions and of conceiving of punishment as rehabilitation (Duff 2005). The penal philosopher Antony Duff – whose theory of punishment as communication has been highly influential – has argued convincingly that we can and should distinguish between “constructive punishment” and “merely punitive punishment” (Duff 2003). Constructive punishment can and does involve the intentional infliction of pains, but only insofar as this is an inevitable (and intended) consequence of “bringing offenders to face up to the effects and implications of their crimes, to rehabilitate them and to secure… reparation and reconciliation” (Duff 2003: 181). Duff (2005) is not arguing for rehabilitation as moral education; to do so would infantilize offenders as well as calling into question their culpability for their crimes. Rather than restoring or correcting a deficit in the offender, moral rehabilitation aims to repair a breach in the relationships between the offender, the victim, and the community that the offense has created. Repairing the breach is principally the offender’s responsibility; the starting point is a sincere apology which represents the recognition of the wrong done and the relational breach that it has created. But in most criminal cases an oral apology – however sincere – will not be enough:
…something more is required – something that will make more forceful the apology that I owe.. .; something that will show that I am taking seriously the need to avoid such wrongs in future, and to reform myself and my conduct. Two elements of such moral rehabilitation might be, first, undertaking some burdensome task to express my apologetic repentance.. .; second, taking steps to address the causes or sources of my wrongdoing, and perhaps seeking help – whether informal or formal – in dealing with them. (Duff 2005: 19)
Duff (2005) admits that he is speaking of criminal justice as it could be, or as it should be, rather than as it is. Nonetheless, he sees in some contemporary practices at least the opportunity for this kind of penal communication and for moral rehabilitation to take place:
The burden that the offender is required to undertake, as his punishment, can be seen as constituting a formal, and forceful, apology to his victim and to the wider community. The apology has something of the quality of a public ritual rather than of a sincere expression of personal feelings, though we may hope that it will become sincere; but it serves to make clear to the offender the wrong that he has done, and for which he owes and is required to offer this apology, and to make clear to the victim our shared recognition of that wrong. Furthermore, a probation order involves, as probation officers often put it, an attempt to.. . help the offender to confront the character and implications of his crime, and to find ways of avoiding repeating it, partly by programmes that seek to address offending behavior and its causes: by undertaking such programmes the offender is also making apologetic reparation for his crime. (Duff 2005: 19)
Duff’s work also helps with a second problem, already referred to above, since he recognizes that where social injustice is implicated in the genesis of offending, the infliction of punishment (even constructive punishment) by the state is rendered morally problematic. The state itself can be seen as complicit in the offending through having failed in its prior duties to the “offender,” for example, as is so often the case, where the offender was once a child in the care of the state. For this reason, Duff suggests that probation officers or social workers should play a pivotal role in mediating between the offender and the wider polity, holding each one to account on behalf of the other. Here, Raynor and Robinson’s (2009) discussion of the relationships between reintegration, resettlement, and rehabilitation is relevant – the rehabilitation worker’s attempt to advocate for the ex-offender and to secure access (perhaps for the first time) to the full rights of citizenship acts as the counterbalance to direct work with the offender to invite and support their moral rehabilitation. This discomfiting, mediating space is one which many probation and social workers will recognize that they occupy and through which, with or without official or public support, they seek to promote social justice within criminal justice.
There are other conceptual and empirical links that could be developed here, but to which we can only briefly refer. Duff’s work also resonates with the rise of reparation or paying back as an important justification of punishment (see Robinson et al. forthcoming). Intriguingly, there is some empirical evidence that “making good” is important for many of those desisting from crime (Maruna 2001). In a sense, the relevance in this body of evidence of the concept of “generativity” – referring to the human need to make some positive contribution, often to the next generation – hints at the links between paying back and paying forward, in the sense of making something good out of a damaged and damaging past. Bazemore’s (1998) work on “earned redemption” examines more directly the tensions and synergies between reform and reparation, and the broader movement around restorative justice (Johnstone and Van Ness 2007) provides possible normative frameworks within which to further debate and develop these tensions and synergies.
When Rehabilitation Is Punishment
Before trying to reach some conclusions about the relationships between rehabilitation and punishment, it is necessary to turn the paper’s title around and explore “when rehabilitation is punishment” or perhaps to ask more directly “does rehabilitation hurt?”
Duff’s answer to the question is a qualified “yes.” There is no sincere apology and therefore no real moral rehabilitation, without at least the pain of confronting and admitting the wrong and perhaps also the incidental pains of the work required to repair the breach in relationships. But beyond this principled position, there is also a growing body of empirical scholarship which shows that rehabilitation (of the therapeutic or correctional sort) also hurts in other ways, some of which may be less productive and less defensible than the pains Duff has in mind.
There is, of course, an extensive body of scholarship, in the tradition of Gresham 1958) seminal work, on the pains of imprisonment. More recent iterations of this literature point not just to the peculiar pains of life in “supermax” conditions (King 2005) but also to the pains and harms of mass incarceration itself (Haney 2005) and to the pains and harms suffered by prisoners’ partners and families through “secondary prisonization” (Comfort 2007).
Perhaps more directly pertinent here are the pains of penal rehabilitation in its current risk-focused guise. Thus, for example, there is some evidence of burgeoning resentment amongst English prisoners towards what apparently seems to them to be the capricious and illegitimate exercise of “soft power” by prison psychologists involved in key decisions about prisoner progression or release (Crewe 2009). In similar vein, Lacombe’s (2008) ethnographic study of prison-based sex offender programs reveals the ways in which risk-based rehabilitation invites sex offenders to contort their perceptions and presentations of self in line with the requirements of the particular program or process to which they are subject. Cox’s (2012) compelling ethnographic analysis of the pains of youth imprisonment reveals a similar picture.
These pains of risk-based rehabilitation extend beyond the prison too. The traditional absence of punitive intent in probation or criminal justice social work (noted above) does not necessarily entail an absence of “penal bite,” at least if studies of those subject to community supervision are to be taken seriously. For example, researchers at the RAND Corporation in the USA found that there are intermediate sanctions which surveyed prisoners equate with prison in terms of punitiveness. For some individuals, intensive forms of probation “may actually be the more dreaded penalty” (Petersilia and Deschenes 1994: 306). More recently, Durnescu (2011) has specifically explored the “pains of probation” as experienced in Romania. Alongside deprivations of time and the other practical and financial costs of compliance, and limitations on their autonomy and privacy, probationers also reported the pain of the “forced return to the offense” and the pain of a life lived “under a constant threat.” The threat in question in Durnescu’s (2011) study was that of breach or revocation and with it further punishment, but the works referred to in the last paragraph also point to the threat of failing to persuade a probation officer, a psychologist, or some other professional that one’s “riskiness” can be and is being properly addressed and managed.
In one sense, there is little that is truly novel in this. For a prisoner of the Eastern State Penitentiary in the nineteenth century, placed in silent and solitary confinement in the hope that he or she would repent and make his or her peace with his or her Maker, the pains of penitentiary reform were doubtless profound. His or her project of “coercive soul transformation” may have been designed and delivered somewhat differently than that directed at the late-modern risk-bearing prisoner or probationer – but both are subjected to disciplinary regimes. But what may be peculiarly demanding for the late-modern penal subject is that, rather than being left to deal, before God, with his own sinfulness and redemption, he or she is compelled to display the malleability of his or her riskiness and to perform the reduction and the manageability of his or her riskiness. At least in some risk-based systems, it is the credibility of this performance which will determine progression in and release from punishment. In those circumstances, rehabilitation is both disciplinary and punishing in a particularly potent way see (Crewe 2012).
Perhaps presaging these developments, Edgardo Rotman (1994), whose work we referred to above, draws an important distinction between anthropocentric and authoritarian rehabilitation:
The authoritarian model of rehabilitation is really only a subtler version of the old repressive model, seeking compliance by means of intimidation and coercion. Rehabilitation in this sense is essentially a technical device to mould the offender and ensure conformity to a predesigned pattern of thought and behaviour.. . The anthropocentric or humanistic model of rehabilitation, on the other hand, grants primacy to the actual human being rather than metaphysical fixations or ideologies, which long served to justify the oppressive intervention of the state. Client centred and basically voluntary, such rehabilitation is conceived more as a right of the citizen than as a privilege of the state. A humanistic public policy regarding crime implies the idea of human perfectibility, which at the level of rehabilitation includes not only the offenders themselves, but also the society that bred them and the institutions and persons involved in their treatment. (Rotman 1994: 292)
This distinction, and more specifically its implication that the person engaged in rehabilitation must be treated as a moral subject and not as a material object to be manipulated or adjusted in the interests of others, seems central to many of the claims that can be made for and against rehabilitation – and to the question of its relationships with punishment.
Conclusion: When Is Punishment Rehabilitation
Returning finally to Raynor and Robinson’s (2009) discussion of rehabilitation reviewed at the outset of this research paper, it is now possible to discern four main forms or meanings of rehabilitation. In a recent paper, McNeill (2012) has called these psychological, judicial, social, and moral rehabilitation. These are the four strands of rehabilitation that must be “de-fankled” in order to analyze their interrelationships and mutual dependencies.
Psychological rehabilitation means essentially what Raynor and Robinson (2009) refer to as correctional rehabilitation: that which seeks to somehow change or restore the offender, to develop new skills or abilities, and to address and resolve deficits or problems. A better, less loaded term, might be “personal rehabilitation,” since this need not imply that any specific disciplinary perspective or set of techniques is implied in this project of personal change.
The second form of rehabilitation concerns the practical expression of Beccaria’s concern with the requalification of citizens; this is judicial rehabilitation – which raises questions of when, how, and to what extent a criminal record and the formal stigma that it represents can ever be set aside, sealed, or surpassed. Maruna (2011) has recently argued cogently that efforts to sponsor rehabilitation and reform must address the collateral consequences of conviction – mostly notably its stigmatizing and exclusionary effects – or be doomed to fail. No amount of correctional or psychological or personal rehabilitation and no amount of supporting offenders to change themselves can be sufficient to the tasks and challenges of reintegration, resettlement, and reentry, if legal and practical barriers are left in place.
But these barriers are not just legal – they are moral and social too. A solely correctional, psychological, or personal conception of rehabilitation is inadequate to the moral and social offense that crime represents. In simple terms, doing something for or to or (better) with the offender, even something that aims at somehow changing them so as to reduce future victimization, fails to engage with other key aspects of dispensing justice. Perhaps most importantly in moral terms, psychological rehabilitation offers no moral redress per se; it operates only on the individual “offender,” not on the conflict itself and not on the victim or the community. In Duff’s (2005) terms, it leaves the relational breach unrepaired. Critically, reparation – and reparative work in particular – seems capable of fulfilling this function in ways in which psychological rehabilitation in and of itself cannot, perhaps principally because reparation seems better able to convey (not least visibly) that redress is being actively provided. Though, as Duff (2005) reminds us, willingly undergoing psychological rehabilitation can convey the sincerity of the offender’s apology and of his or her desire to change, it is more typically a professionalized, private, and secretive business, and not one that is explicitly bound into a process of moral rehabilitation.
Reparation perhaps speaks to the insistence that moral demands have to be satisfied, and moral communication secured, before moral rehabilitation can be recognized (Duff 2001; 2003, 2005). In simple terms, an offender has to “pay back” or to “make good” before he or she can “trade up” to a restored social position as a citizen of good character. As Bazemore (1998) has argued, redemption needs to be earned. This is not necessarily bad news for rehabilitation; as the Scottish Prison Commission (2008, para 33) noted, “one of the best ways for offenders to pay back is by turning their lives around.” But it does mean that rehabilitation theories and practices need to engage much more explicitly than hitherto with questions of justice and reparation.
Ultimately, even where psychological or personal issues are tackled, legal requalification is confirmed, and moral debts are settled, the question of “social rehabilitation” remains. In European jurisprudence, the concept of social rehabilitation entails both the restoration of the citizen’s formal social status and the availability of the personal and social means to do so (Van Zyl Smit and Snacken 2009). But social rehabilitation can also be taken to imply something that is broader, deeper, and more subjective, specifically, the informal social recognition and acceptance of the reformed ex-offender. This, rather than the advancement of the “science” of correctional rehabilitation, is perhaps the ultimate problem for rehabilitation today in practice.
Ultimately, as Fig. 1 above illustrates, this research paper has tried to disentangle rehabilitation and instead to show how its four forms might, in fact, constitute not a Scots “fankle,” but a kind of Celtic knot; one that weaves together these four strands and reveals their interdependencies. “Constructive punishment,” to use Duff’s term, can be rehabilitative; it should be rehabilitative; it must be rehabilitative. But it can only work to prevent crime if it also works to deliver justice, and that requires attention to all four strands.
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