Punishment vs. Rehabilitation

Theories regarding Punishment and Rehabilitation have evolved with the civilization of man. There was a time in history when the rights of the accused were not considered when rendering punishments.

Rehabilitation for offenders was unheard of. ( Katz & Walker,2008) noted “A tradition of vigilantism persisted well into the twentieth century and represented some of the worst aspects of American criminal justice. People just killed others whom they did not like, or mobs would drive them out of town. The lynching of African Americans was used to maintain the system of racial segregation in the South”. An offender was totally without rights and at the mercy of only his accusers.

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Man has evolved from an uncivilized “eye for an eye” type of punishment system, where the accused had no rights and rehabilitation was retributive, into a civilized society where punishment and rehabilitation are secondary to the basic rights of the accused. Before punishment or rehabilitation can be dictated, the rights of the accused must first be considered. These rights are spelled out in the United States

  • Amendment I- The right to freedom of speech, religion and to peaceably assemble.
  • Amendment II- The right of the people to keep and bear arms.
  • Amendment III- No Soldier shall, in time of peace be kept in any house, without the consent of the Owner, or in time of war, but in a manner to be prescribed by law.
  • Amendment IV- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Amendment V- No person shall be held to answer for a capital, or otherwise infamous crime, unless indicted by the Grand Jury. No person shall be tried for the same crime twice (Double Jeopardy), nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation.
  • Amendment VI- In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where the crime was committed, and to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to obtain witnesses in his favor, and to have the assistance of counsel for his defense.
  • Amendment VII- The right of a trial by jury, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States.
  • Amendment VIII- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • Amendment IX- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Amendment X- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Bill of Rights is a Constitutional procedural guideline that specifically dictates to the courts the rights of the accused and must be of primary consideration when administering Punishment and or Rehabilitation. There are some schools of thought that believe The Bill of Rights limits the discretion of judges, and forces them to have to depend on case law when rendering punishments.

Many victims of crime feel as if their rights are overshadowed by the rights of the accused in The Bill of Rights under the due process (Amendment V) and freedom to be free from cruel and unusual punishment and excessive bail (Amendment VIII). It was not until recently that a victim’s rights were recognized as having any important role in the criminal proceedings. Victims were sometimes forced to remain outside the courtroom. Victims and their families were largely ignored and treated as inconveniences. This treatment caused many victims to feel neglected and re-victimized by the court system.

On October 30th, 2004, President Bush signed into law, The Crime Victims’ Rights Act to guarantee rights to victims of federal crime. These rights include, to be reasonably protected from the accused offender and to receive reasonable and timely notice of all public proceedings involving the crime. (Feinstein, D. , 2004 )

In Furman vs. Georgia, 408 U. S. 238 (1972), Justice Brenan wrote “There are then four principles by which we may determine whether a particular punishment is ‘cruel and unusual’ :  The “essential predicate” is that a punishment may not, by its severity, be degrading to human dignity”, especially torture. “A severe punishment that is obviously inflicted in wholly arbitrary fashion”.  “A severe punishment that is clearly and totally rejected throughout society”.  “A severe punishment that is patently unnecessary”.

There have been many instances of State injustices that have occurred by the infliction of cruel and unusual punishment upon citizens. The Power of the courts is not wholly arbitrary as its discretion is regulated by the law. The Bill of Rights assures due process in every phase of a legal proceeding and it also prevents the abuse of power and authority. Punishment vs. Rehabilitation has become a Social Science in its’ own right.

There are many relative theories, substantiated and non-substantiated for both Punishment and Rehabilitation. Punishment and Rehabilitation are two of the four objectives of the criminal justice system, the other two being deterrence and incapacitation. Society expects the criminal justice system to punish and rehabilitate persons who commit crime. In the United States, the primary goal to be achieved for those who break the law is punishment. There are many arguments amongst theorists on the approach that works best. Some think punishment is the best approach to crime, others think rehabilitation works best.

The effectiveness of punishment and rehabilitation is being analyzed continuously from a perspective that notes the effects on both victims and offenders. The financial and social impacts on society are also being studied. “The Classical School of Criminology proposes that punishment is used to create deterrence and the Positive School of Criminology uses the practice of rehabilitation to reduce recidivism”. (Larrabee , 2006, p. 1) Deterrence is one of the primary goals in the criminal justice system. Deterrence is further broken down as specific deterrence and general deterrence.

Specific deterrence is intended to instill fear in the offender to keep them from engaging in future crime. General deterrence is based on punishing offenders to instill fear in or teach societal lessons by showing the consequences of crime. Punishment is based on the idea that it will deter persons from committing or repeating criminal acts. Incapacitation is the most common form of punishment, however research demonstrates that recidivism amongst convicted felons following release from prison is as high as sixty three percent and that most prison inmates had arrest records and convictions prior to their current offense. Bureau of Justice Statistics, 2006)

Punishment through incarceration is a temporary fix to crime while the offender is confined. Some critics argue that rehabilitation is a more permanent fix in deterring crime. Rehabilitation in conjunction with community supervision is seen to have a more lasting effect on offenders. This can only be accomplished if the offender is willing to do his/her part by gaining academic or trade skills to help them re-adapt to society.

There are also programs to help the offender find employment and to aid them in re-developing a sense of belonging in the community. Therapy programs are an integral part of the rehabilitation process. Drug therapy programs are required for offenders who are struggling with chemical dependency problems, and psychological counseling is available for those offenders with mental issues stemming from some type of abuse. A good rehabilitation program helps to promote positive changes in the offender’s attitude or resources so that crime is no longer desired nor a necessity.

When the courts allow probation, it allows the offender to remain self-supporting and accountable to society through paying taxes as opposed to using tax payer dollars to house them in correctional facilities. Probation also affords the opportunity for the offender to pay restitution to those whom he has victimized. (Larrabee , K . , 2006) According to (Lamance , K. , 2009) there are four types of probation:

  • Unsupervised Probation- This type of probation is used for low level crimes such as shoplifting. The offender has to obey the orders of the court. The life of the offender is not greatly affected by this type of probation.
  • Supervised Probation-The offender is required to periodically check in with their probation officer. According to the offender and the circumstances of his crime, this can be a weekly visit in person or a monthly phone call. It is imperative that the offender keep these appointments for missed appointments can lead to revocation of parole.
  • Community Control Probation- This is a more strict form of probation. The offender’s whereabouts are constantly monitored. House arrest is a common form of community control.
  • Crime Specific Probation- This is used for sex offenders; the offender must follow a treatment program and is under strict surveillance.

According to the (BJS Sourcebook of Criminal Justice Statistics), more than seventy percent of society believes that incapacitation is the only sure way to prevent future crimes and more than three fourths believe that the courts are too easy on criminals. Public opinion supports the increased use of prisons to give criminals just desserts. The victims and or their families suffer emotional stress when they feel the offender does not receive the appropriate sentence.

Financial strains can be felt when restitution is not implemented. The impact of incarceration on offenders has many effects on their psychological well being. The strain of being separated from their families can result in severe depression. Supporters of rehabilitation vs. punishment argue that sentencing an offender to incarceration destroys the family structure by contributing to single parenting. They believe that punishment causes social isolation, stigmatism and economic and employment challenges.

Rehabilitation through community supervision is thought to eliminate many of these challenges, namely the economic and employment factor. Probation gives offenders the opportunity to remain a part of the familial structure and to continue working or to find closely supervised employment (Larrabee, 2006). “The social impacts of punishment and rehabilitation factors in the increasing costs of building and maintaining correctional facilities, the disruption of the family structure, and the fears associated with releasing criminals into the community.

Societal views have a significant impact on the criminal justice system; the theory that criminals should receive their “just desserts” plays a major role in the courts. The basis for mandatory sentencing practices stems from a political and societal philosophy of “Getting tough on crime”. Political campaigns have become involved in the push towards mandatory sentencing in response to public appeal. The constructions of new correctional facilities are relative to societal impact on punishment vs. rehabilitation. It has been reported that to house, clothe, feed, and supervise a prisoner for one year cost thirty thousand dollars.

This amount does not include other cost such as construction and other associated expenses. Several rehabilitation programs have been introduced to not only deter crime, but to help with the constantly rising costs associated with punishment. The privatization of corrections is flourishing with programs such as Halfway Houses which are located in the community and ran by residential staff. They typically offer drug and alcohol treatment and are most often operated by private organizations under contract with the state.

Other programs such as Shock Incarceration attempt to shock offenders out of criminal behavior by subjecting them to short periods (90-180days) of intense drills , hard work and character building exercises. This program is also referred to as boot camp. Shock Probation is probation granted after a short period of incarceration. The idea being that a short sharp shock incarceration may avoid “the prisonization effects” that longer prison sentences entail and also cause the offender to realize how undesirable incarceration really is.

Restorative Justice is a form of rehabilitation in which the offender pays the victim, apologizes to all persons affected by the crime, and repairs the damages done to the victim (i. e. fixing property that was damaged during the crime. The victim has to take specific steps not to engage in criminal behaviors again. A program that is proving to be very successful and gaining widespread support is the ISP Program ( Intensive Supervised Probation). This program is for non-violent convicts that don’t meet the requirements for routine probation. The results from the New Jersey ISP program are very encouraging.

The ISP program is ran by the Administrative office of the courts. It has been in operation since 1983 and can handle 500 convicts. If an inmate wants to be considered for this program, he must apply before his second month of incarceration. Each applicant must develop his own personal plan for success in the program. His plan must include a description of his/her problem(s), and available community resources and contacts that will support him. The applicant must have a sponsor with whom he lives with during the early months of the program and who will support him in the desired objectives of the program.

The applicant must also list others in the community in whom he can turn to for help; this is considered his network team. Once the ISP plan is set, the plan goes before a screening board comprised of the ISP Director, correctional staff and community representatives. If the ISP plan is accepted, it is then brought before a panel of 3 re-sentencing Judges. If accepted the applicant will receive a ninety day placement in the ISP Program. The placement is renewable after ninety days. Each ISP applicant must serve a minimum of one year in the program, including time on parole after release.

During this time, the applicant is on a bench warrant status (meaning the applicant is subject to immediate arrest upon violation). The results for this program as of 2006 show an eleven percent reconviction rate for ISP graduates as opposed to fifty percent for State inmates. The greatest benefits of the program are that rather than 36,357 dollars that are spent yearly for incarceration of one inmate, ISP cost 9,472 dollars, saving the State over twenty five thousand dollars yearly per convict.

The offender pays taxes, earns a living and pays the cost of electronic monitoring, fines, fees and other obligations. There data supports the fact that ISP participants do better after discharge than other prison inmates. The success rates for parolees who successfully completed their term was forty five percent in 2005. Some of the reasons cited for failure of parole are: 1. Parole is supposed to be a reward for successful rehabilitation in prison, yet the environment in prisons do not constitute an atmosphere that is conducive to rehabilitation. 2.

The criteria used by parole boards for deciding who to parole is constantly plagued by questions about the validity of their practices. There is an aura of mystery surrounding the perceived arbitrary nature of parole decision making. The parole process is subject to political manipulation and the power of lobbyist. Many jurisdictions no longer advocate discretionary releases by the parole board, but have opted for release dates determined at the time of sentencing (determinant sentencing)” (Criminal Justice. An Introduction, 5th Edition, Chapter 14).

In closing, the history of punishment and rehabilitation continues to evolve as society and the nature of crime along with many relative variables become increasingly more complex. Theorists continue to search for remedies to punishment and rehabilitation issues within the confines of a prison system which is overcrowded and fiscally challenged. The remedies must address the rights of victims and societal concerns while assuring the rights of due process for the accused. Punishment and rehabilitation are major parts of the criminal justice system and will be effective in controlling crime.

Punishment and rehabilitation are two separate entities, yet each one is inherently dependant upon the other. Punishment and rehabilitation is a collaborative effort between two separate objectives that meet in the middle to establish a proactive plan of success for the greater good of victims, society and the accused.


  1. Adler, F. and Gerhard, O. Criminal Justice, An Introduction. 5th Edition Ch. 14, 2009
  2. Bureau of Justice Statistics, (2006) The Bill of Rights. Retrieved from http://www. archives. gov/exhibits/chartersbill_ of_rights_transcript. tml
  3. Feinstein, D. National Victims Rights Constitutional Amendment booklet . Retrieved 2004, from http://feinstein. senate. gov/booklets/VR
  4. Book. pdf.. Katz, C. M and Walker, S. The Police in America, An Introduction. 6th Edition 2008
  5. Lamance, K. (2009) What types of Probation are there? Retrieved from http://. legalmatch. com/lawlibrary/article/what_ types_ of_ probation_are_there_html
  6. Larabee, A. K. (2006) Punishment vs. .Rehabilitation in the Criminal Justice System. Retrieved from http://www. ndci. org/courtfacts. htm

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