Why Rehabilitation Deserves a Bigger Place in Sentencing

Sentencing has four traditional goals, and for decades the United States has leaned heavily on the first three. It is time to give the fourth, rehabilitation, real weight again:

• Retribution: punishing someone because they deserve it.
• Deterrence: discouraging the person, and others, from committing crimes.
• Incapacitation: keeping the person away from the public.
• Rehabilitation: helping the person change so they do not commit crimes again.

The cost of "lock 'em up"

When this article was first written, a 2018 Center for American Progress report gave these numbers:

• About 2.2 million people were held in U.S. prisons and jails, about a 500% increase over 40 years.
• More than 70 million Americans had a criminal record.
• Black and Latino people made up about 30% of the U.S. population but nearly 60% of people in prison.
• The incarceration rate for Black men was more than six times the rate for white men, and more than 2.5 times the rate for Hispanic men.
• The U.S. spent more than $80 billion a year on prisons and jails.

How we got here

Many people grew up with a "lock 'em up and throw away the key" view of crime. In the 1970s and 1980s, longer prison terms became the main tool leaders used to fight crime. The country was fed up with crime and criminals, and getting even (retribution) became society's main goal.

Sentencing Theories

Popular culture shifted too. In the 1950s and 1960s, Perry Mason and Atticus Finch in To Kill a Mockingbird stood up for people unfairly accused by a powerful government. In the 1970s and 1980s, the stories changed to focus on stopping people who were getting away with crime. By the late 1980s and 1990s, shows like Law & Order had viewers cheering for the government to punish people who tried to, quite literally, get away with murder. In a small way, pop culture reflected society's changing values.

We are now well into the 21st century, and the numbers above paint a grim picture of decades of very harsh sentences. Harsh sentences may have deterred a small percentage of would-be criminals. In the author's view, though, the costs have been far too heavy, and a sentence does not end when a person walks out of prison.

A real-world example

Consider a young man who was a first-time, nonviolent drug offender in 1996. He pleaded guilty and was sentenced to 10 years, 40 months of which was mandatory. In prison, he was not allowed to continue his education or take other chances to grow. He was left in a cage for more than three years.

When he got out, he faced an automatic suspension of his driver's license, permanent loss of his right to vote, and barriers to school and work that felt impossible to overcome, along with the lasting stigma of a record.

A conviction can bring "collateral consequences," meaning penalties beyond the sentence itself, such as:

• Being shut out of some jobs.
• Trouble getting an education.
• Trouble getting public benefits.
• Losing the right to vote or serve on a jury.
• Trouble finding housing.

Is the tide turning?

There are strong signs of change. Now that mass incarceration is widely seen as the wrong path, the idea of rehabilitation is, quite literally, being rehabilitated. Many states have lowered or ended some mandatory minimums. In December 2018, Congress passed the First Step Act (Pub. L. 115-391), which expanded prison programs and created earned time credits for completing them.

Before the 1970s and 1980s, rehabilitation was a guiding principle for judges trying to make the punishment fit the crime. Those ideas are getting fresh attention from criminal justice scholars. Even pop culture has shifted again: a show like Orange Is the New Black helped a whole generation of viewers relate to people in prison, people not so different from themselves.

One limit to know: federal judges cannot impose a longer prison sentence just so a person can get treatment or training. See 18 U.S.C. § 3582(a) and Tapia v. United States, 564 U.S. 319 (2011). Rehabilitation matters, but prison is not treated as the way to achieve it.

Rehabilitation still counts at sentencing in a practical way. Proof of real change, such as treatment, steady work, schooling, or community support, can help persuade a judge to impose a shorter sentence or an alternative to prison under 18 U.S.C. § 3553(a). Start collecting those records early.

A year before his death, Dr. Martin Luther King Jr. called for a "revolution of values." Our justice system could use one too. When people do wrong, punishment should follow. But banishing people for good by "locking 'em up and throwing away the key" is neither fair nor reasonable. Once a person has paid their debt to society, they have the right to rejoin it and have an equal chance to live their best life. Let's hope that is where we are headed.

Additional Reading

Center for American Progress: "A Revolution of Values in the U.S. Criminal Justice System"

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.