America’s criminal justice system: Rehabilitization or criminalization?
From: Daniel Pirkel
America's Criminal Justice System: Rehabilitation or Criminalization?
The US, prison system attempts to prevent people from committing crimes by utilizing the jurisprudential theories of incapacitation, retribution, rehabilitation, and deterrence as the primary goals of incarceration. The manner in which judges, prosecutors, wardens, and other criminal justice experts view the application of these theories of jurisprudence significantly affects the length of sentences as well as conditions of confinement. Both the incarcerated and their wards react to punishments in a variety of ways. This paper examines how the goals of incarceration interact with one another to facilitate poor living conditions and ineffective rehabilitation programs, increasing criminalization rather than preventing it. Therefore, the U.S. prison system should be overhauled by utilizing an external, independent agency to oversee the criminal justice system by reviewing case law, grievances, policies, and visiting housing units in order to implement procedural justice as well as to offer advice on how facilities can more effectively focus on rehabilitation.
Criminal justice professionals have debated about the exact goal incarceration should strive to accomplish. According to Dennis L Peck, in 1987 most criminal justice experts believed that prisons' primary purpose should be to punish people convicted of crimes. In other words, they endorsed retribution, which has been defined as "vengeance curbed by the intervention [of] someone other than the victim and by principles of proportionality and individual rights."  Retribution attempts to satisfy society's desire to punish people who break its rules and trust. The primary justification for retribution has been described as an instinct that evil people should suffer.  While attaining vengeance through the state will help some victims to heal by sending the message that justice has been accomplished, retribution directly conflicts with rehabilitation because long, arduous sentences destroy people's minds, as this paper later discusses.
Another theory of incarceration entails incapacitation, the idea that people convicted of crimes should be incarcerated in order to protect the community. However, this attribute has been used to detain people indefinitely, regardless of whether or not they are still a threat to society. Some justify long-term incapacitation based on their belief that people cannot change, but it also comes from an intuition similar to that of retribution: evil people deserve unhappiness.  Nonetheless, most endorse incapacitation as necessary to protect society, at least until an offender is rehabilitated. Anything less would be irresponsible.
In contrast to the theories of retribution and incapacitation, deterrence and rehabilitation imply that laws and policies can alter people's behavior. Deterrence comes in several forms including celerity, certainty of punishment, shaming, and severe sentences. The severity of criminal sentencing may be the most popular, as many government officials have run political campaigns on platforms that include slogans like, it is time to "get tough on crime." Then they use long sentences and onerous prison conditions in an attempt to deter potential offenders from engaging in criminal activities. However, some researchers argue that even the death penalty has been found ineffective in deterring crime.  Furthermore, "harsh prison conditions increase post-release criminal activity...."  Despite these facts, judges and legislators still endorse deterrence by sentencing people to long mandatory minimums and three strike laws. While some argue that falling crime rates over the past thirty years provide evidence that "Tough on Crime" philosophies work, high recidivism rates and today's heroin epidemic demonstrate the limited effectiveness of deterrence, retribution, and incapacitation.
Despite America's emphasis to be "tough on crime" 630,000 formerly incarcerated people return to communities each year, and 95% of all prisoners eventually return to society.  While the public hopes that these people have learned that they will not benefit from living a life of crime, recidivism rates typically range from 50-70% within three years of release.  Obviously, this is unacceptable. Therefore, the most reasonable course of action is to significantly alter the focus of the criminal justice system to the only other option: rehabilitation. Linda A. Mooney states that "[r]ehabilitation assumes that criminal behavior is caused by sociological, psychological, and/or biological forces rather than being solely a product of free will. If such forces can be identified, the necessary change can be instituted."  Even so, we do not have to deny free will in order to affirm rehabilitation. People commit crimes for a variety of reasons, including passion, poverty, emotional immaturity, greed, lust, and mental illness. However, some people commit crimes simply because they have rejected society's principles. Rehabilitation programs attempt to address these issues by showing criminals that there are better ways to live while also giving them the tools necessary to overcome their addictions and bad habits.
Despite the logic behind rehabilitation programs, their efficacy has been debated. Rehabilitation took a backseat to other forms of punishment in 1974 after Robert Martinson wrote an article stating that there is "little reason to hope that we have in fact found a sure way to reduce recidivism through rehabilitation."  While Martinson seemed to base this belief on reliable evidence, many researchers, including Martinson himself, have contradicted his view.  Gerald G. Gaes of the College of Criminology and Criminal Justice at Florida State University asserts that education is "a cost-effective solution to reducing reoffending and improving public safety. The effect of education on recidivism has been well demonstrated, and even small reductions in reoffending can have a significant impact when spread across large numbers of participants.  Education programs more than pay for themselves, as research reveals that they reduce recidivism rates by 20-49%.
Nonetheless, many types of education programs remain controversial, as people do not feel that it is fair for convicted felons to earn a free post-secondary education while incarcerated when people in the free world have to pay for it. In fact, some prison staff undermine the programs by making disrespectful comments and refusing to provide time and space for classes; this results in prisoners withdrawing from productive activities.  In Michigan, it is up to the school's principal whether or not they will proctor a prisoner's college exam for courses that he already paid for.  Prison authorities hinder rehabilitation through many mechanisms.
Despite the criticisms of the different aspects of criminal punishment, most agree that all are necessary. However, they interfere with one another. For example, emphasizing retribution and deterrence results in sentences much longer than necessary for rehabilitation. Some argue that sentences should be kept to less than five years to attain the maximum amount of effectiveness of rehabilitation.  Furthermore, long-term incarceration has been found to be detrimental to people's mental health. In his research paper, "Understanding the Effects of Wrongful Imprisonment," Adrian T. Grounds studied 18 men who had served significant amounts of time for crimes they did not commit. These men displayed "psychiatric morbidity as well as problems adjusting psychologically and socially" to everyday life.  Although many of the symptoms may be the result of being found guilty of a crime that they did not commit, evidence suggests that many of the issues the men dealt with seemed to be directly attributed to long-term detention.  For example, they lost life opportunities, were separated from families, and were dislocated in time and social context from their peers.  More significantly, many of the men displayed symptoms of Post-Traumatic Stress Disorder (PTSD) and became hostile towards the world in general.  The problems these men experienced could be directly related to their incarceration, as most of the subjects did not have a history of psychological issues before entering the prison, and some even led highly successful lives.  The most fascinating aspect of these findings is that the clinical research up until the time of this research paper "indicated that people do not suffer psychological deterioration as a result of long term incarceration."  Intuition alone should alert us to potential issues that people deal with after being separated from normal society for decades.
While the quantity of time people spend incarcerated is important, quality should not be overlooked, as some prison environments parallel warlike conditions. According to Grounds' research, some of his subjects displayed PTSD symptoms, which may have been a result of the violence they saw while incarcerated.  Many prisoners live under the constant threat of assault and stress from living in dirty and loud environments. These conditions are created partly by society's desire to punish criminals, as it justifies prison authorities' willful negligence and disrespectful attitudes toward their wards.
However, retributive policies are not in society's best interest. Research demonstrates that poor living conditions breed hostility, facilitate violence, and create environments that promote antisocial behavior.  For example, Ronald Akers determined that closed, punitive prison environments are more likely to create autocratic leaders who manipulate others to engage in negative behavior.  Poor living conditions also demonstrate the authorities' disregard for their wards welfare, which the wards interpret as a sign of contempt and rejection of their humanity. This makes the wards sensitive to the slightest bit of disrespect, thus creating a "culture of honor," where people are encouraged to respond to insults with aggression.  This culture may also develop as a defensive mechanism, as those who do not defend themselves against verbal abuse are perceived to be weak, increasing the chances that other prisoners will take advantage of them by directly assaulting or robbing them.
Prisons are not merely violent places because of the people in them, but because the system naturally encourages conflict. For example, Zimbardo's Prison Experiment demonstrated that the natural power dynamic between guards and prisoners creates antagonism.  When 21 students from the University of Stanford pretended to be prison guards and prisoners, they had to stop the study after six days because the "prison guards" were forcing the "inmates"" to clean toilets with their bare hands and smashing food into their faces.  While most prisoner-guard interactions are not so extreme, this example shows that the imbalance of power can create huge issues in the absence of proper mediation.
While prisons naturally create an "us vs. them" mentality, poor living conditions magnify the problem. When people are deprived of basic necessities, they blame the authorities. As conditions deteriorate, tension increases, which increase the chance that prisoners retaliate by either taking out their frustration on one another, or directly against staff. Rather than attempting to resolve tense situations, some administrators have taken a page out of America's policy on not negotiating with terrorists by refusing to compromise with their wards. This position has directly led to riots. In April of 2016, approximately 1,000 prisoners at Kinross Correctional Facility protested their living conditions by standing on the blacktop for 30 minutes during yard time. Overcrowding, poor food quality and quantity, lack of jobs, and other productive activities were among the primary grievances. While Warden Duncan McLaren promised the block representatives that their complaints would be addressed, little changed in the following five months. Therefore, the prisoners rioted in September 10, 2016, resulting in the destruction of prison property and minor injuries. 
While most prison conflicts are not nearly as dramatic, the monotony, shame, and anxiety of living in hostile environments takes a toll on people. Many prison housing units are essentially large gymnasiums with beds. This leads to constant conflict. Some people stay up all night creating noise while others need to work in the morning. Over time, stress creates confrontation, eventually leading to violence. This may be why overcrowding has been shown to correlate with higher rates of behavioral problems as well as physical and mental health issues.  Sunny Schwartz, a legal assistant who became an attorney, labeled some penitentiaries as "monster factories."  When people leave prisons, they take their anger, bad habits, and mental illnesses with them, accounting for high recidivism rates.
Aside from poor prison conditions, recidivism rates are high because the criminal justice system fails to systematically apply scientific knowledge to institutions.  For example, many modern reformatories attempt to regulate every action of its wards through force, or the threat of force. In turn, people resist conforming because of psychological reactance.  When authorities attempt to severely restrict human conduct through threats, people want to naturally refuse based on emotion alone. For example, a study in 1976 by Pennebaker and Sanders found that people were more likely to write graffiti on bathroom walls if a posted sign demanded people to desist from this activity as opposed to politely requesting the same action.  Such rules also place correctional officers in precarious positions, as they see disobedience from prisoners as a sign of disrespect to their authority. Therefore, many officers attempt to dominate situations, which often escalates conflicts.  This cycle plays itself out day after day, which creates constant frustration and encourages prisoners to disengage and seek the solitude of their rooms. These habits do not translate well to normal society. Recognizing psychological reactance helps us to understand why unnecessary rules create conflicts between staff and prisoners.
Since the theories of retribution, incapacitation and deterrence create rigorous rules, poor living conditions, and high recidivism rates, the entire prison should be systematically scrutinized to determine how it should focus on the only effective attribute of sentencing: rehabilitation. Independent agencies should review prison policies, hear grievances, and obtain advice from prisoners on how the facilities can be improved. As it currently stands, wardens are the single most influential determiner of prison conditions.  They determine how stringent the rules should be, how much scrutiny the guards' behavior receives, the availability of rehabilitation and recreational activities for prisoners, and whether or not basic necessities are distributed within the facility in a timely fashion. While some government agencies inspect penitentiaries to determine whether or not they meet bare minimum standards, government officials are reluctant to hold others in the same profession accountable. Furthermore, prison conditions need to be better than what is guaranteed by the U.S. Constitution in order to move beyond incapacitation and retribution and to facilitate rehabilitation. Below are some recommendations for how the system can be improved.
Criminal justice experts need to offer prisoners incentives and opportunities to behave in a responsible manner. Mass incarceration gathers together criminal minds without directing them towards reform through rehabilitation programs. As Peck argues, "deviant behavior... is learned through normal socialization processes."  Prisons need to counteract this by offering plenty of opportunities for prisoners to participate in programs like vocational trades and college, which will provide positive interactions with law abiding people, both prisoners and civilians.
The legislature can also improve prison conditions by instituting time reductions in exchange for positive behavior. According to Dora Schriro, good time encourages prisoners to engage in pro-social behavior, such as remaining misconduct free and participating in rehabilitation programs.  People need motivation as well as the opportunity to change their behavior. As Gershoff argues, reinforcement more effectively changes behavior than does punishment.  Everyone knows that we catch more flies with honey than with vinegar.
Legislators should examine case law and legislation that regulate incarcerated people's ability to file and win lawsuits, as the current state of the appellate court system is shameful. As it stands now, stringent rules related to procedural default allow courts to dismiss most cases without addressing the merits of the petitioner's claims. For example, a district court accidentally sent Timothy Berg's order regarding his denial to the wrong address. Rather than taking responsibility for the error, the court penalized petitioner Berg by considering his subsequent motion to be jurisdictionally deficient on account of his failure to file if within the 14-day deadline of the date that the previous order was sent out.  Other criminal defendants are unable to obtain a fair hearing on account of the convoluted nature of case law as well as their poverty and lack of education. To prevent these injustices from occurring, courts should be required to examine the record in the most favorable light in response to petitioner's claims, even looking for claims that are not raised, before dismissing the case. Furthermore, an independent agency should examine case law to help lawmakers create legislation that provides protection and procedural justice to vulnerable people. For example, some states have eliminated contact visits for prisoners and their families to reduce staff payroll as well as potential contraband. However, parent-child visitation has been shown to reduce recidivism rates and improve social outcomes for children, including decreased likelihood that they will not continue the cycle of crime.  Therefore, contact visits should be made a constitutional right.
In order to improve prisons, inmates and officers need to be trained to deal with the unique stresses of prison. While ! was in Quarantine in 2003, the inadequate extent of the training I received was simply watching a 1930's instructional video on how to avoid rape while in prison. Rape prevention videos should not be the only resource afforded to prisoners. The facility that displayed this video deprived incoming prisoners of any books (e.g. Bible) for typically two weeks. In addition, they could not have any social interaction with other prisoners outside of the one hour allotted for recreation per day.
While opportunities for recreation increase at other facilities, prisoners are not required or even encouraged to take rehabilitation classes until they are within three years of their earliest release date (ERD). Prisoners should receive training on how to deal with their psychological issues as well as the unique stresses of prison from day one. However, budget constraints make this difficult, as most of the money is being used to warehouse a larger population than necessary on account of America's war on drugs and reliance on jurisprudential theories that have been shown to be ineffective. An independent agency could help find ways to safely reduce costs while improving the prison system's effectiveness at what should be its primary purpose; rehabilitation.
By emphasizing retribution, deterrence, and incapacitation, prisons create people who are unfit to deal with everyday life. As shown above, long term incarceration has been proven to be psychologically detrimental to human beings.  The U.S. prison system fails to systematically employ procedures that psychologists have demonstrated to be effective in reducing crime because of its refusal to focus on the potential of rehabilitation. Therefore, an agency should be created to investigate and address this situation. The theories of retribution, deterrence, and incapacitation have created an inefficient prison system that fails to rehabilitate offenders while eating up tax dollars that could be used for schools, police, and social justice initiatives. Rather than rejecting people, society is better off helping them. People commit crimes when they do not have the minimum necessities of life, including mental health support. When the most disadvantaged people in our society are lifted up, everyone wins.
Akers, Ronald L 1977. "Type of Leadership in Prison: A Structural Approach to Testing the Functional and Importation Models." The Sociological Quarterly (Taylor & Francis, Ltd.) 378-383.
Allen, Amy. 2007, ""Justice and Reconciliation: The Death of the Prison?"." Human Studies (Springer) 30 (4): 311-321.
Boudin, Chesa. Winter 2011. Children of Incarcerated Parents: The Child's Constitutional Right to the Family Relationship. Vol. 101. Northwestern University School of Law.
Drago, Francesco, Roberto Galbiati & Pietro Vertova. 2011. "Prison Conditions and Recidivism." American Law and Economics Review (Oxford University Press) 13 (1): 103-130.
Esperian, John H. 2010, "The Effect of Prison Education Programs on Recidivism," Journal of Correctional Education (Correctional Education Association) 61 (4): 316-334, 323.
Grounds, Adrian T, 2005. "Understanding the Effects of Wrongful imprisonment." Crime and Justice, Vol. 32 (The University of Chicago Press) 1-58.
La Vigne, Nancy, Elizabeth Davies, and Diana Brazzell. 2008. Broken Bonds Understanding and Addressing the Needs of Children with Incarcerated Parents. Urban Institute Justice Policy Center.
Lagemann, Ellen Condliffe. 2016. Liberating Minds- The Case for College in Prison. New York: The New Press.
Leon-Guerrero, Anna. 2014. Social Problems, 4th Ed. Thousand Oaks, California: SAGE Publications, Inc,
Mooney, Linda A., David Knox & Caroline Schacht. 2015, Understanding Social Problems. Vol. 9th ed.
Norman H. Sedgley, Charles E, Scott, Nancy A. Williams and Frederick W. Derrick. July 2010. "Prison’s Dilemma: Do Education and Jobs Programmes Affect Recidivism?" Economica, New Series, Vol. 77, No, 307 (Wiley on behalf of The London School of Economics and Political Science andThe Suntory and Toyota International Centres for Economics and Related Disciplines) pp, 497-517.
Oleson, J. C. 2002, "The Punitive Coma," California Law Review 90 (3): 829-901, 840.
Peck, Dennis. 1987. "Rehabilitation and Behaviorism Future Prospects." International Social Science Review (Pi Gamma IVIu, international Honor Society in Social Sciences) 62 (1): 28-39.
1983. People v. Turner, 123 Mich, App. 548.
Rogers, Katherin A. 2007. "Retribution, Forgiveness, and the Character Creation Theory of Punishment," Social Theory and Practice (Florida State University Department of Philosophy) 33 (1): 75-103.
Schriro, Dora, 2009. "Is Good Time a Good Idea? A Practitioner's Perspective." Federal Sentencing Reporter (University of California Press on behalf of the Vera institute of Justice) 21 (3): 179-181.
Schulhofer, Stephen J., Tom R. Tyler and Aziz Z. Huq, 2011. "American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative," Journal of Criminal Law and Procedure (Northwestern University School} 101 (2): pg, 335-374,
Stangor, Charles, 828, Introduction to Psychology. Saylor.
Upton, Candace L. 2009, "Virtue Ethics and Moral Psychology: The Situationism Debate." The Journal of Ethics (Springer) 13 (2/3): 103-115.
 Peck, Dennis L (1987). "Rehabilitation and Behaviorism Future Prospects." International Social Science Review, Vol. 62, No. 1 (Pi Gamma Mu, International Honor Society in Social Sciences). 28-39, 28.
 Allen, Amy. (2007). Citing Martha Minow, "Justice and Reconciliation: The Death of the Prison?" Human Studies, Vol. 30, No. 4 (Springer). 311-321, 318.
 Rogers, Katherin A. (2007). "Retribution, Forgiveness, and the Character Creation Theory of Punishment," Social Theory and Practice, Vol. 33, No. 1 (Florida State University Department of Philosophy). 75-103, 78.
 ibid., 78.
 Drago, Francesco, Roberto Galbiati A Pietro Vertova. (2011). "Prison Conditions and Recidivism." American Law and Economics Review, Vol, 13, No. 1 (Oxford University Press). 103-130, 103.
 Guerrero-Leon, Anna, (2014). Social Problems 4th ed. (SAGE Publications, inc.). 359.
 Sedgley, Norman H., Charles E. Scott, Nancy A. Williams & Frederick W. Derrick. (2010) "Prison's Dilemma: Do Education and Jobs Programmes Affect Recidivism?" Economica, New Series, Vol. 77, No. 307 (Wiley on behalf of The London School of
Economics and Political Science and The Suntory and Toyota International Centres for Economics and Related Disciplines). 497- 517, 497.
 Esperian, John H. (2010). "The Effect of Prison Education Programs on Recidivism," Journal of Correctional Education (1974-), Vol. 61, No. 4 (Correctional Education Association). 316-334, 323.
 Mooney, Linda A., David Knox & Caroline Schacht. (2015). Understanding Social Problems 9th ed. 129. (Cengage Learning). (Emphasis added).
 Peck, "Rehabilitation" at 31, quoting Robert Martinson. (1974). "What Works? - Questions and Answers about Prison Reform," Public Interest. 22-54.
 Oleson, J. C. (2002). "The Punitive Coma." California Law Review, Vol. 90, No. 3 (California Law Review, Inc.). 829-901, 840.
 Esperian, 332.
 Ibid., 323.
 Lagemann, Ellen Condliffe (2018). Liberating Minds- The Case for College in Prison. (New York: The New Press), 126-7.
 Michigan Department of Corrections Policy Directive 05.02.119
 People v. Turner, 123 Mich. App. 548. (1983).
 Grounds, Adrian T. (2005). "Understanding the Effects of Wrongful Imprisonment." Crime and Justice, Vol. 32 (The University of Chicago Press). 1-58, 2.
 Ibid., 3.
 Ibid., 3.
 Ibid., 15. Peck, 36.
 Grounds, 21.
 Ibid., 4.
 Ibid. 24.
 Esperian, 322, Grounds, 15. Peck, 36.
 Akers, Ronald L (1977). "Type of Leadership in Prison; A Structural Approach to Testing the Functional and Importation Models." The Sociological Quarterly, Vol. 18, No. 3 (Taylor & Francis, Ltd.). 378-383, 383.
 Stangor, Charles (N.d.). Introduction to Psychology. (Saylor). 828.
 Upton, Candace L. (2009), "Virtue Ethics and Mora! Psychology: The Situationism Debate." The Journal of Ethics, Vol. 13, No. 2/3, Virtue Ethics and Mora! Psychology: The Situationism Debate (Springer). 103-115,105-106.
 Ibid., 106.
 The prisoner that was interviewed for this story will remain anonymous to protect his identity.
 Oleson, 850.
 Esperian, 323
 Peck, 36.
 Stangor, 839.
 Stangor, 839.
 Schulhofer, Stephen J., Tom R. Tyler & Aziz Z. HUG, (2011). "American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative," The Journal of Criminal Law and Criminology (1973-), Vol. 101, No. 2 (Northwestern University School of Law). 335-374, 344.
 Lagemann, 63.
 Pg. 31
 Schriro, Dora, (February 2009) "Is Good Time a Good Idea? A Practitioner's Perspective." Federal Sentencing Reporter, Vol. 21, No. 3, ABA Roundtable on "Second Look” Sentencing Reforms, (University of California Press on behalf of the Vera Institute of Justice,), 179-181.
 Intro to Psychology textbook, pg. 378.
 Berg v. Metrish, 2015 U.S. Dist. LEXIS 173020; The Time limits of Fed. R. App. P. 4(a) are "mandatory and jurisdictional" Browder v. Dept, of Corr., 434 U.S. 257, 264 (1978). However, courts are supposed to balance potential inequities. See Vencor Hosps v. Std. Life, 279 F. 3d 1306,1309 (11th Cir. 2002), and Bowles v. Russell, 551 U.S. 205, 214 (2007)
 Boudin, Chesa. Winter 2011. Children of incarcerated Parents: The Child’s Constitutional Right to the Family Relationship. Vol. 101. Northwestern University School of Law, 83. See also Broken Bonds Understanding and Addressing the Needs of Children with incarcerated Parents by La Vigne, Nancy, Elizabeth Davies, and Diana Brazzell, (Urban Institute Justice Policy Center, 2008).
 Esperian, 322. Grounds, 15. Peck, 36.
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