The rehabilitative ideal in American penological thought and practice has suffered a severe, and perhaps fatal, crisis of faith in the past two decades. This crisis has profound implications for the future of criminal justice in this country because the rehabilitative ideal underlies our correctional system’s central institutions and practices, most notably the penitentiary, whose nineteenth-century inventors established imprisonment as the presumptive penalty for serious crime. The rehabilitative ideal also inspired the Progressive reformers at the turn of the century, who introduced probation and parole as alternatives to imprisonment for certain worthy offenders. Most recently, the same ideal generated important support for the prisoners’ rights movement.
The persistence of the rehabilitative ideal, and its ability to weather previous crises of faith, make its sudden collapse all the more surprising and unsettling. As recently as 1971, an influential report on criminal punishment referred to the “nearly unanimous support” for rehabilitation among those working in the criminal justice field. Just a few years later, such a statement would not have been possible.8 Criminal justice professionals, academics, and the public at large all became disillusioned with rehabilitation as an achievable goal, or even a desirable one.9 On the empirical front, it became the “new orthodoxy” that rehabilitation was largely unattainable and that past efforts had failed to reduce recidivism to any appreciable degree.10 On the theoretical front, academic writers and others attacked rehabilitative efforts from all sides. One school of thought condemned these efforts as nothing more than mechanisms of social control designed to oppress the powerless and to further the interests of the dominant social classes.”‘ At the opposite end of the spectrum, law-and-order advocates attacked rehabilitation for allegedly placing the interests of criminals over the more pressing need for order and social control.”Between these extremes, another influential group, wedded to notions of moral autonomy and egalitarianism, called for the adoption of a retribution-based regime of “just punishment” or “just deserts.” None of these competing views has established a new hegemony, but in combination they have established a theoretical consensus against rehabilitation-a consensus increasingly reflected in legislative enactments.
Francis Allen has identified a number of social and political reasons for the collapse of the rehabilitative ideal: the disillusionment with political and governmental institutions in the post-Vietnam and post-Watergate period; the related loss of faith in the ability of social institutions such as the family, schools, and the psychiatric profession to shape or change character; increasing disagreement about what conduct should be deemed criminal, and thus what constitutes cure or rehabilitation; and the unfavorable climate created by the widespread impression (whether accurate or not) that crime has become more and more rampant. In this article I argue that a further, and perhaps more fundamental, dynamic has been at work:the tension between the ideal of rehabilitation and a prison-centered regime of punishment. Although critics of rehabilitation have been willing to recognize that this fundamental tension exists, few have considered the reasons why this might be so, or have asked whether we have made the right choice in rejecting rehabilitation as a goal rather than questioning imprisonment as a means.
Most rehabilitative approaches to criminal punishment begin with the premise that society and the offender are irrevocably connected. Advocates view the offender as an errant, but continuing, member of the community; as such, the offender is worthy of the community’s concern and attention and is not an appropriate object for venting retributive impulses.Further, many versions of rehabilitative theory recognize that the community itself is responsible-at least in some measure-for the offender’s con-duct and that to redeem the offender is also to redeem and heal the community harmed by the offender. Imprisonment is fundamentally inconsistent with this approach because it banishes the offender from the community, both physically and psychologically, and thus exacerbates rather than ameliorates the sense of estrangement from the community that underlies the conduct of many criminal offenders. The end result is that imprisonment, even when it is being used for putatively rehabilitative ends, actually incites and encourages the very forms of criminal behavior it pro-fesses to condemn and punish.
Paradoxically, since the time of the penitentiary’s creation, advocates of rehabilitation have promoted incarceration as the primary means of achieving their goals. In so doing, they have unwittingly perpetuated criminality and violence by endorsing the psychological and physical violence visited on the imprisoned offender. It probably was inevitable that, at some point, these contradictions would undermine the vitality of the rehabilitative ideal itself.
Those who have abandoned rehabilitation do not escape the contradiction between rehabilitation and incarceration. Rather, they merely endorse more openly the objectification of the offender inherent in imprisonment and, therefore, the resulting cycle of violence and violation it produces. Rehabilitation as traditionally conceived may not work; but if our answer to this impasse is to reject rehabilitation as our goal, we have only committed ourselves to the incoherence and contradictions of our present circumstances.
In the remainder of this article, I explore these themes more fully by means of three different “stories.” Although each of these stories may appear, at first glance, unconnected to the others, my hope is that the patient reader will conclude that these stories actually tell the same basic tale by means of differing methodologies. I believe that, taken together, these stories help to illuminate the impasse we have reached in modem penological thought and, perhaps, show something about how we might move out of that impasse.
Part I uses Jack Henry Abbott’s account of life in the modem American penitentiary’8 to suggest that the use of imprisonment objectifies the offender by banishing him19 from the community. This objectification, in turn, breeds a climate of rampant fear and violence within the prison walls, which is directed as much against the minds and souls of the inmates as against their bodies.
Part II traces the history of the penitentiary from its creation in the early nineteenth century, contrasting the penitentiary’s regime of punishment with the physically bloodier, but in some ways less socially destructive, preceding regime. This historical account reveals that the rehabilitative ideal in this country, from the first, was tied to the institution of the penitentiary and its explicit organizing principles of isolation and banishment. This account also suggests that the contradictions between these principles and the ends sought by rehabilitation caused a break down in the internal controls of the prison. The result is the prison we know today–a socially-created space outside of society in which violence against both body and soul flourishes with few constraints.
The remaining parts of the article explore the larger consequences of this state of affairs for the offender and for society as a whole. In part III, I use the insights of recent feminist Freudians to examine the psychological climate created by a regime of punishment that explicitly seeks to ostracize the offender from the community, and the drastic consequences such a cli-mate has for the imprisoned offender. This story requires an exploration of the complex and iU-understood world of early childhood relationships. It focuses on the difficult, conflictual process by which the infant emerges from its initial experience of the world as a largely undifferentiated extension of itself into the bewildering world of multiplicity and relationship.The result of this process, I argue, is a fundamental condition of estrangement, or alienation, between the self and all others, which, in turn, provides the pattern for the forms of oppression and domination that exist, in greater or lesser degree, in every human society. Those subjected to such oppressive or dominating treatment suffer severe consequences. In particular, I argue that the ostracism and violence visited upon the imprisoned offender incite a reaction in kind, as the spurned offender desperately strives to force the community once again to bestow its attention and con-cern on him-the attention and concern each of us needs in order to feel integrated and whole.
Finally, part IV explores the broader social consequences of our reliance on imprisonment as the presumptive penalty for serious crime. Chief among these consequences is that law-abiding citizens who witness this scene of punishment learn to accept objectification and control of others, and even physical violence against them, as permissible responses to troublesome others. By acquiescing in the banishment and brutalization of criminal offenders, those of us outside the prison walls unwittingly participate in a downward spiral of domination and objectification that encourages violence in both criminals and ourselves. In exploring these themes, I return to the story of Jack Henry Abbott, whose experiences upon his release from prison after spending virtually his entire adult life in penal institutions testify to the predictable consequences of our current regime of punishment. I conclude by suggesting that whatever path we choose to escape from our current impasse must involve a decisive turn away from reliance on incarceration in total institutions such as the modern penitentiary.
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DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
This study uses interviews with judges to examine the role of remorse in judicial decisionmaking.