Rehabilitation of Offenders Instead of Punishment: Less Eligibility Argument

This essay will be looking into the ‘less – eligibility’ argument, and how society and the state have such an influence on offender rehabilitation. Also, it will be analysing and justifying the need of rehabilitation and fair distribution of resources amongst the impoverished and the offenders of a community.

It comes as no surprise to say that offenders are socially stigmatised for life, even if they truly morally re-evaluated themselves, their past actions and choices will be frowned upon by the rest of society. Therefore, it should be expected for arguments such as ‘less – eligibility’ to flourish, taking into consideration that there is already negativity and prejudice around offenders. In Bentham’s words, his less eligibility principle holds that 'saving the regard due to life, health and bodily ease, the ordinary conditions of a convict doomed to punishment' shall not be made 'more eligible than that of the poorest class of citizens in a state of innocence and liberty'. Wanting to look after those who live in seriously deprived situations – and could have easily turn to crime but chose not to – is perfectly understandable. However, if we do adopt Bentham’s principle it would mean that prison conditions would be worse than those found in the worst slums, and prisoners would be pushed to the limits of starvation, leading to inhumane conditions.

So, this leads us to the question: why are we trying to rehabilitate offenders? Why not keep everyone who shows signs of law-braking behaviour in prison? Well to answer those questions, throughout the history of rehabilitation many argued that its existence in the penal system is essential, since it has promising potential at reducing reoffending. Also, many go on to claim that through rehabilitation, we could heal damaged relationships and ensure safety in the community. According to Rotman’s argument, there is a duty to provide rehabilitation to mitigate the damages done by the punishments (i.e. imprisonment) imposed on the offender. He goes on to support the idea that we – as a society – have an obligation to offer each offender an opportunity, and the necessary resources, to reintegrate into society as a useful human being. There is this promise surrounding rehabilitation, that it’s going to have a noticeably positive impact on society, if we were to take a strength-based and a restorative approach, that focuses on the ‘positive attributions a person can make’ then we could have a positive outcome indeed, being able to turn offenders into law-abiding members of the society who will actively contribute to the general good. It could be said that it is generally accepted that social and personal circumstances are active agents that lead people to violations of the law (by making them helpless, and that they have no other choice), rehabilitative ideology makes it clear that to stop re-offending, society needs to show its support to reform programmes that will bring about a more equitable distribution of resources through a broad structural transformation of the social order. In order for offenders to achieve relational reintegration in the society, the very society that punished them, should provide them with the chance to prove themselves as productive law-abiding members of society. We should also keep in mind that, many offenders come from deprived neighbourhoods that are associated with imprisonment, high unemployment and low education. And in the words of Bobby Cummines, ‘a society that does not care is a society that you do not care about’ meaning that if the state tuns its back to those who need support, then the results will be way more tragic than expected.

Negativity surrounding rehabilitation is arguably associated with Martinson’s article, which was based on a number of studies, that led to him reaching the conclusion of “nothing works”. In his words, there is “very little reason to hope that we have in fact found a sure way of reducing recidivism through rehabilitation …psychotherapy at its best, cannot overcome or even appreciably reduce, the powerful tendency for offenders to continue in criminal behavior”. In one of its early forms, rehabilitation was delivered through the so called ‘medical model’. In this form, rehabilitation was perceived as a form of treatment which would correct some flaws in individuals. The medical model was firmly based on the positivist school of criminology which viewed offenders as passive agents, that lacked choice (regarding their actions) and their offending was consequently not their fault, indeed it was seen as the mere result of external factors outside their control. While the medical model was being applied on offenders, it was presuming that in order to stop re-offending, it would be necessary to physically restrain them or to remedy the disorder which drove them to offending in the first place. This model of treatment was criticized for being fundamentally and morally wrong. According to Balch we cannot – and should not – use the framework and knowledge on how illness works and apply it on offending; illness strikes people for no reason and unexpectedly while crime is something that people knowingly involved themselves with. In practice, this model of rehabilitation was seen as a waste of resources on attempts to find the physical causes of crime, even though there where was no real evidence supporting there would be one. Also, the treatment offenders were subjected to was often, according to Moran, dehumanizing procedure such as psychosurgery, electric shock treatment, brain washing techniques etc.

We tried and failed, and we asked again and again how are we supposed to make rehabilitation work? What is the right moralistic framework to base such a system on? Rotman shows two fundamentally different approaches. The first one being the authoritarian model, which seeks compliance through intimidation and coercion of offenders, it essentially tries to mould the offender in an attempt to ensure conformity to a predesigned pattern of thoughts and behaviour. On the other hand, he suggests a more humanistic approach to rehabilitation, the anthropocentric model. This model in client oriented and promotes voluntariness, it grants primacy to the actual human being rather than metaphysical fixations or ideologies. The two models are quite extreme, sitting at two different theoretical spheres, and in the real world it would be a lot more possible to see a healthy mixture of the two, a system that is stern with the offenders but is also understanding and willing to give a second chance. If it was to be decided for rehabilitation to be remodelled into a ‘therapeutic’ system then, unlike punishment, we would be looking into and focusing more on people’s needs, and rather than condemning them we would offer sympathetic assistance with whatever issues arose. This approach could potentially be highly beneficial, since as we have pointed out before, for most of the people going through the criminal system it would be a more of a ‘habilitation’ rather than rehabilitation process. Numerous people never had the chance to acquire social positions and build meaningful relationships, so through a ‘therapeutic’ system essential assistance could be provided to them in order to achieve something of meaning in their life.

As Faulkner points out ‘the public at large, are disposed to think of prisoners as people who have forfeited their right to citizenship’. However, many theorists are contradicting society’s views, and are pushing on the idea of rehabilitation as a right. This view holds at its basis that offenders are members of the community, and their affiliations with it need to be restored. A rights-based system, is essentially highlighting the fact that the state and the community have mutual obligations to one another, so rehabilitation is basically perceived as a right that follows the due fulfilment and completion of the lawfully imposed sentence. To quote Duff, ‘the burden that the offender is required to undertake, as his punishment, can be seen as constituting a formal, and forceful, apology to his victims and to wider community’; so considering this argument, imprisonment should be enough and society needs to be stopped from taking on a vengeful role, trying to push away convicts and seen them as high-risk individuals.

One could argue that rehabilitation is on a road of re-birth. Some provide that probation is ‘fundamentally a form of social service preventing further crime by readjustment of the culprit’. During the 50s and 60s, social workers were beginning to be seen as professionals working scientifically. We saw a shift in their work, with the emphasis moving away from utilitarian concern and towards a claim that individual needs and relationships were their primary focus. Moreover, some more current changes, that are often delivered through ‘programmes’ which are aimed at empowering and providing offenders with the resources and social skills to lead their lives lawfully. We came far enough that it should be recognisable that offenders not only need help with self-control, communication and critical thinking, but also need assistance with housing, employment and rebuilding their status as part of society. Such programmes do have the potential to provide such help. However, such opportunities should be ‘made in a social policy context which also guarantees opportunities to those who do not offend’ since everyone has a fundamental right to have their basic needs recognised and met. An example of such a programme would be the RNR – developed by McGuire & Priestly – which basically focuses on three principles: risk, need and responsivity. What it does is that it looks at the offender’s risk of re-offending, assess his criminogenic needs and targets them and finally, provides cognitive behavioural treatments.

To reach a conclusion, in order for rehabilitation to be successfully incorporated in the penal system, it would be essential to take some steps and better inform the public on the advances we are trying to make through this system, and the potential benefits it could have on society as a whole. What is also highly necessary, is the need for some new research to analyse the work carries out by the rehabilitative programmes so far. Additionally, society needs to learn to embrace more humane principles to use as guidelines of punishment. Also, we need to be showing a more compassionate and understanding attitude towards the troubles of the offenders that influenced them and drove them to crime-prone lifestyles, since even the slightest support could change their mindset for the better. Through restorative rehabilitation, we will see a change in the attempts to change behavioural patterns, as they will no longer involve the denial of or violation of autonomy. The end goal is to achieve a rehabilitative system that would be able to tackle structural inequalities and promote alternative opportunities. Moreover, it would be highly desirable for the new system to recognise offenders as citizens in need of help rather than burdensome cases to be managed. Lastly, the differentiation between offenders would be recommended, as we can no longer be using a ‘one-fits-all’ approach when it comes to rehabilitation. Since, people who offend due to social and economic deprivation need a different type of support than more high-risk offenders (e.g. Sexual and domestic abuse offenders, paedophiles etc). This differentiation process, would also lead to discussions of whether or not rehabilitation should be running along with the course of the sentence of each offender, or if it would be more desirable to be offered afterwards. Of course, such changes would be difficult to achieve, since public opinion seems to be huge obstacle to any proposals recommending anything else other than mere punishment.