The criminal justice system comprises many distinct stages, including arrest, prosecution, trial, sentencing, and punishment (quite often in the form of imprisonment). As will become clear, it is in the last two of these many stages that the debate over rehabilitation and retribution is of special significance. Rehabilitation is the idea of ‘curing’ an offender of his or her criminal tendencies, of changing their habits, their outlook and possibly even personality, so as to make them less inclined to commit crimes in the future. It seeks to prevent a person from re-offending by taking away the desire to offend. This is very different from the idea of ‘deterrence’ (which is the idea of making him afraid to offend, though he may still desire to), and the idea of ‘incapacitation’ (which is the idea of taking away his physical power to offend, though he may still desire to and be unafraid to). These three utilitarian ideas are in turn very different from the idea of ‘retribution’ – which is not primarily about reducing re-offending. The retributive idea is that punishment should be determined chiefly (possibly even only) by the seriousness of the crime itself, and not by consequential factors, such as whether the punishment is enough to scare (i.e. deter) the rest of society. It is a very serious mistake to think that the retributive ideal in the criminal justice system is about vengeance, retaliation or payback. Rather, it is an extremely sophisticated idea that often forms the basis of, and arguably is even the leading indication of, a developed sentencing system. The term ‘retribution’ is therefore unfortunate because its everyday meaning connotes ‘revenge’; it is better described as ‘desert’, ‘just deserts’ or ‘proportionality’ theory. The debate between rehabilitation and ‘retribution’ involves two broad questions: ideologically, which is the more satisfactory justification for punishment; and practically, which can serve as a more useful guide for sentences and other agents in the criminal justice system?
It is the most valuable ideological justification for punishment, for it alone promotes the humanizing belief in the notion that offenders can be saved and not simply punished. The rehabilitative ideal alone conveys the message that the state has an obligation to help those who fall short of the standards of behavior it has set. These people are often those with the greatest social disadvantages that have constrained them to a life in crime in the first place.
Desert (retributive) theory, on the other hand, sees punishment as an end in itself, in other words, punishment for punishment’s sake. This has no place in any enlightened society.
Rehabilitative ideal does not ignore society and the victim. In fact it is because it places such great value on their rights that it tries so hard to change the offender and prevent his re-offending. By seeking to reducing re-offending and to reduce crime, it seeks constructively to promote society’s right to safety, and to protect individuals from the victimization of crime.
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.
Punishment, in other words, may be justified by the aim of achieving ‘justice’ and ‘desert’, and not by the aim of rehabilitation.
To say that some offenders need help to be rehabilitated is to accept the idea that circumstances can constrain, if not compel, and lead to criminality; it admits that we can help unfortunate persons who have been overcome by their circumstance. It rejects the idea that individuals, regardless of their position in the social order, exercise equal freedom in deciding whether to commit a crime, and should be punished equally according to their offense, irrespective of their social backgrounds. Policies that ignore these realities foster hardships that will fall primarily and disproportionately on the already disadvantaged, and deepen the resentment that many inmates find difficult to suppress upon their release back into such a society.
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. Retribution alone best recognizes 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 recognizes that persons are indeed fundamentally capable of moral deliberation, no matter what their personal circumstances are.