Rehabilitation

As "deconstructionists" often remind us, important meanings are embedded in the words we select and voice; what we call things, in short, reveals our values and ideologies. It is instructive, then, that in the United States our history is not sprinkled with terms like "punishment institutions" and the "Ministry of Justice." Instead, a look to the past uncovers words such as the "penitentiary," "reformatory," "correctional institution," and "Department of Rehabilitation and Correction." This language shows an important feature of the response that the U.S. system of control has made to criminals across time: there has been, at least in the ideal, a belief that state interventions with offenders should be transforming, turning the wayward into the lawabiding. The question of how such rehabilitation should be achieved, however, has varied across time. Although dividing history into periods truncates reality and leaves out many details of the story, it is useful to see correctional rehabilitation as having three separate eras that can be distinguished by the way in which reformers believed offenders should be transformed. We review these below, and then discuss a fourth period in which rehabilitation came under unprecedented attack.

Reform by regimen: the penitentiary. Although various types of institutions had previously existed, the United States is generally credited with—or blamed for, depending on one's perspective!—the invention of the state-administered, modern prison system (Barnes; Eriksson; McKelvey). Before the 1820s and 1830s, prisons as we think of them today did not exist. Local counties operated jails, but these facilities often had the architecture of a house (with the jailer and his family living on the premises) and were used to detain offenders awaiting trial or punishment. Offenders were typically fined, publicly embarrassed by being placed in the pillory, whipped, banished, or executed, but they were not incarcerated for the purpose of punishment or reform. Indeed, the notion that locking up offenders could serve a larger purpose would have struck colonial Americans as odd (Barnes).

By the 1820s, however, ideas about criminals and what to do with them had changed. As David Rothman (1971) points out, Americans increasingly came to view crime as a product of the "social disorder" that was gripping their communities—communities that were growing larger and more diverse. People did not fully relinquish their religious views and the tendency to equate crime with sin, but they were increasingly persuaded that families and communities were less able to impart the moral fiber needed to resist the criminal temptations that now seemed widespread. Importantly, attributions of crime causation make certain responses to offenders appear more "sensible." Simply put, if social disorder was at the root of the crime problem, then the solution to crime was to place the wayward in an orderly environment.

Such environments, however, had to be created. With idealistic visions of stable colonial communities still fresh in mind, reformers argued that such orderly environments should be based on a clear set of principles—ones they believed reigned a generation or two before: obedience to authority, religion, hard work, and separation from all criminal influences. Bordered by high, thick walls, prisons—or what they tellingly called "penitentiaries"—would provide the ideal setting for this utopian community. The obvious problem, of course, was how to stop offenders from commingling and contaminating one another when they were being concentrated into a "society of captives." In Pennsylvania, reformers solved this problem through the "solitary system," placing offenders in a single cell under what amounted to perpetual solitary confinement. In New York, a "congregate system" was favored in which inmates would sleep alone but eat, work, and attend religious services en masse. Inmate-to-inmate contact was ostensibly prevented through the rule of absolute silence; those who dared to speak were harshly dealt with through the whip.

Advocates of the "solitary" and "congregate" designs engaged in a bitter feud over which approach should be the blueprint for the American penitentiary. From today's vantage point, such disputes might seem excessive, given that the principles underlying each model were identical. But for the 1820s reformers, the details were what mattered. For they were convinced that if they could perfect the daily regimen of the penitentiary—if they could create that orderly community they believed could have amazing curative powers—they could reform inmates and thus rid their society of recidivists. It was, they held, the day in and day out routines that would break the will of offenders and open them up to a spiritual renewal that would prove transforming.

In retrospect, we would deem enforced solitary confinement and silence for years on end cruel and unusual punishment; such practices would be virtually unthinkable by today's standards. Further, some commentators have questioned the motives of these early reformers, noting that under the guise of "benevolence" they applied their disciplinary techniques mainly to the poor, not to those of their own class (see, e.g., Foucault). Still, we should be careful not to be too smug in hindsight. The founders of the penitentiary—whatever their errors in judgment and inability to move beyond their class interests—genuinely believed that they were ushering in a reform that would sweep away the barbarous and demonstrably ineffective punishments of the past. They also were able to rise above feelings of vengeance—feelings that often rear their head today—to articulate an ideal that remained vibrant for the next two centuries: that the reformation of lawbreakers is a worthy goal to undertake (McKelvey).

Reform by individualized treatment: the new penology and beyond. Notions of how best to rehabilitate offenders are dynamic, not static. Three decades or so after the penitentiary was initiated, the idea that the internal design and daily regimen of the prison would have transforming powers could no longer be sustained. In the aftermath of the Civil War, prisons began to fill to the brim, rendering obsolete any hopes of bunking inmates in solitary confinement and of maintaining total silence. Beyond such practical limitations, observers believed the penitentiary's blueprint had a fatal flaw: no matter what offenders did while in prison, they were released when their sentence expired. What self-interest, they wondered, did inmates have to better themselves while under lock and key? It was clear that the earlier theory of reforming offenders was bankrupt.

In 1870, the leading correctional leaders and thinkers—they were often the same in those days—met in Cincinnati to consider this state of affairs at the National Congress on Penitentiary and Reformatory Discipline. One possibility was to declare that prisons were not instruments of rehabilitation and/or that offenders were not changeable. After all, with social Darwinism and biological theories of crime available, they could have agreed with other commentators that the immigrant masses now behind bars were a "dangerous class." In this scenario, they could have argued that the best use of prisons was to employ them to incapacitate the innately wicked. But they did not. Instead, their belief in rehabilitation remained unshakable. In the face of failure and with prisons in crisis, they affirmed that "the supreme aim of prison discipline is the reformation of criminals, not the infliction of vindictive suffering" (Wines, p. 541).

For many of the Congress's participants, prison administration remained a sacred enterprise. Their Christian ideals prompted them to believe that saving offenders was within their mission; they also were convinced that of "all reformatory agencies, religion is first in importance, because most potent in its action upon the human heart and life" (Wines, p. 542). But proclaiming the power of faith to change lives was not novel. Some other ideas had to emerge to excite correctional leaders—to move them to devise and embrace a "new penology."

As mentioned above, members of the Congress believed they had detected the fatal flaw in the penitentiary design: the use of "determinate" sentences—that is, prison terms whose lengths were determined or specified by judges before an inmate entered prison. Such a system, they argued, provided no incentive for offenders to better themselves. In contrast, the "indeterminate" sentence meant that the date of an inmate's release from prison would be unknown to him or her upon entering an institution. Release would now be contingent on the inmate showing correctional officials that he or she was reformed, something that could only be assessed during the course of the offender's incarceration. With freedom thus hanging in the balance, the system would be arranged to maximize the inmate's commitment to change. As Congress declared, the "prisoner's destiny should be placed, measurably, in his own hands.... A regulated self-interest must be brought into play, and made constantly operative" (Wines, p. 541).

Many other features of the Congress's "new penology" were so forward-looking that they would not be foreign to current-day penal discussions of correctional reform. Thus, the Congress favored the "progressive classification of prisoners"; the use of "rewards, more than punishments"; "special training" in order "to make a good prison or reformatory officers"; access to "education" and "industrial training"; and efforts to reintegrate offenders into society "by providing them with work and encouraging them to redeem their character and regain their lost position in society" (Wines, pp. 541–544).

Pregnant in this set of principles was the conclusion that rehabilitation should be individualized. This idea, however, was expressed more clearly and forcefully closer to the turn of the century. At this time, the Congress's "new penology" was being elaborated by the emerging insights from the nascent social sciences of psychology and sociology. These disciplines brought a secular perspective to the enterprise of reforming offenders. They suggested that it was possible to study the causes of crime scientifically. For any given offender, however, the causes were likely to be multifaceted and found in a unique combination. Two people might commit the same crime—for example, robbery—but the reasons for their acts could be widely divergent (e.g., emotional problems as opposed to exposure to gang influences). Once this premise was accepted, it led logically to the conclusion that successful rehabilitation depended on treating offenders on a case-by-case basis. A single treatment would not fit all lawbreakers because, again, they were all different. Instead, interventions had to be individualized (Rothman, 1980).

What kind of system should be set up to deliver individualized rehabilitation? Above all, individualization required that criminal justice officials have the discretion to fit correctional interventions to the offender and not base it on the offense. Indeterminate sentencing, of course, was essential because it meant that inmates would be released from prison only when they had been cured of their criminal propensities. To determine who should be released and when, a parole board would be necessary. The idea of parole in turn mandated that released offenders be supervised in the community by parole officers whose task it was to counsel parolees and, when necessary, to return to prison offenders who failed to go straight.

Reformers, however, also argued that incarceration was not the appropriate intervention for all lawbreakers; many could be rehabilitated in the community. This belief led to the creation of probation, a practice in which probation officers would both help and police offenders released to their supervision. These officers, moreover, would assist judges in deciding who to imprison and who to place in the community by amassing information on each offender. This portrait was compiled in a "presentence report" that would detail not just the offender's criminal history but also his or her employment record, family background, and personal characteristics.

Because juveniles differed from adults, it also made sense to create a separate juvenile court. This special court most fully embodied the ideals of individualized treatment. Wayward youths were not to be punished by the state, but rather "saved" from a life in crime (Platt). The court would act as a "kindly parent" who would, in essence, step in and help not only youths already involved in illegal acts but also those at risk for a criminal life. The jurisdiction of the juvenile court thus was not limited to youths who had committed a crime. Instead, the court claimed jurisdiction over youths who engaged in deviant acts seen as precursors to crime (i.e., status offenses such as truancy, running away from home, and sexual promiscuity) and over those who were neglected or abused by their parents.

The paradigm of individualized treatment offered a persuasive rationale for reform. This proposal offered to improve the lives of offenders and to protect society by curing criminals who could be cured and by locking up those whose criminality proved intractable. Science and religion, moreover, meshed together to suggest that offenders could be transformed and that mere vengeance would be counterproductive. But in advancing a seemingly enlightened correctional agenda, advocates remained blind to the potential dangers of individualized treatment. First, they assumed that judges and correctional officials would have the expertise to administer this new system—such as knowing what caused an individual's criminality and knowing what intervention would work to effect the offender's reform. Second, they assumed that the officials' discretion would be exercised to advance the cause of rehabilitation. They did not consider that the unfettered discretion given to judges and officials might be abused or used mainly to control, not help, offenders. These problems would later play a role in undermining the legitimacy of individualized treatment, but for the moment they either did not come to mind or were dismissed as naysaying.

Persuasive paradigms do not always translate into concrete policy reforms. By 1900, however, the United States had entered the Progressive Era, which came to be called the "age of reform" because of the diverse social and governmental reforms undertaken in this time span. Thus, at a particularly receptive historical juncture, the "new penology" ideas—ideas that had been embellished since the Cincinnati Congress—presented a clear blueprint for renovating the correctional system. The time was ripe for individualized treatment to be implemented. As is well known, the first juvenile court was initiated in 1899 in Cook County, Illinois. Two decades or so later, all but three states had a special court for hearing juvenile cases, and every state permitted probation for youths. For adults, two-thirds of the states had begun probation and forty-four states had initiated parole. Meanwhile, in little over twenty years, the number of states that allowed indeterminate sentencing had risen from five to thirty-seven (Cullen and Gilbert; Rothman, 1980).

Reform by corrections. By the end of the Progressive Era, then, the notion of individualized treatment had emerged as the dominant correctional philosophy and the basic contours of the modern correctional system—probation, parole, juvenile justice, and all the policies and practices they entail—were in place. As Rothman (1980) painfully details, the ideals of effective rehabilitation were infrequently realized. Shortages of knowledge, trained staff, resources, and institutional commitment often resulted in treatment that was poorly delivered or absent altogether. Still, confidence abounded that rehabilitation was possible and, with sufficient support, could be effective.

This continuing commitment to rehabilitation was embodied in a third period of reform that spanned, roughly, the 1950s to the late 1960s. During this time, prisons were relabeled "correctional institutions," with the name corrections suggesting that the core task of working with offenders was to change or "correct" them. Corresponding to this new vocabulary, a range of treatment programs was introduced into institutions. These included, for example, individual and group counseling, therapeutic milieus, behavioral modification, vocational training, work release, furloughs, and college education (Cullen and Gendreau; Rotman). Especially in the 1960s, "community corrections" became fashionable, as a movement emerged to "reintegrate" inmates into society through halfway houses and other community-based treatment programs. Reflecting the tenor of the times, the Task Force on Corrections, part of a presidential commission studying the nations crime problem, asserted in 1967 that the "ultimate goal of corrections under any theory is to make the community safer by reducing the incidence of crime. Rehabilitation of offenders to prevent their return to crime is in general the most promising way to achieve this end"(p. 16).

Reform rejected: the attack on rehabilitation. The apparent invincibility of rehabilitation as the dominant correctional philosophy was shattered in less than a decade. Treatment programs did not suddenly disappear, and faith in rehabilitation did not vanish. Even so, a sea change in thinking occurred seemingly over-night and policy changes followed close behind. Suddenly it became fashionable to be against "state enforced therapy." Beginning in the mid-1970s, states began to question indeterminate sentencing and call for sentencing in which judicial and parole board discretion was eliminated or, in the least, curtailed. About thirty states still retain some form of indeterminate sentencing, but this is down from a time when every state had this practice. Further, over the last quarter of the twentieth century, every state passed mandatory sentences, "truth-in-sentencing" laws, "threestrikes-and-you're-out" laws, or similar legislation aimed at deterring and/or incapacitating lawbreakers (Tonry). Meanwhile, state and federal prison populations ballooned from 200,000 in the early 1970s to over 1.36 million in 2000 (and to about 2 million counting offenders in local jails). Within the community, the treatment paradigm was challenged by programs that sought not to "correct" offenders but to "intensively supervise," "electronically monitor," or otherwise control them. Even the juvenile justice system did not escape the diminished confidence in rehabilitation. By the end of the 1990s, seventeen states had changed the legal purpose of the juvenile court to de-emphasize rehabilitation, and virtually every state had passed laws to make their juvenile justice systems harsher (Feld; Snyder and Sickmund).

Major shifts in correctional thinking are usually a product of changes in the larger society that prompt citizens to reconsider beliefs they had not previously questioned. The mid-1960s to the mid-1970s was a decade of enormous social turbulence. This period was marked by the civil rights movement, urban riots, the Vietnam War and accompanying protests, the shootings at Kent State University and Attica Correctional Facility, Watergate and related political scandals, and escalating crime rates. As the central state agency for controlling crime and disorder, the criminal justice system—including its correctional component—came under careful scrutiny. It was often seen as part of the problem—as doing too much, too little, or the wrong thing.

For conservatives, the reigning chaos in society was an occasion to call for "law and order." To them, it was apparent that the correctional system was teaching that "crime pays." Under the guise of rehabilitation, criminals were being coddled; judges were putting dangerous offenders on probation; and parole boards were releasing predators prematurely from prison. We needed to toughen sentences—make them longer and determinate—in order to deter the calculators and incapacitate the wicked.

For liberals, however, rehabilitation was not the source of leniency but of injustice and coercion. The prevailing events contained the important lesson that government officials could not be trusted—whether to advance civil rights, be truthful about why the nation was at war, act with integrity while in political office, or rehabilitate the wayward. In this context, judges and correctional officials were redefined as "state agents of social control" whose motives were suspect. Thus, judges were now portrayed as purveyors of unequal justice, using their discretion not to wisely individualize treatments but to hand out harsher sentences to poor and minority defendants. Similarly, correctional officials were accused of using the threat of indeterminate incarceration not to achieve the noble goal of offender reform but to compel offenders to comply obediently with institutional rules that had little to do with their treatment; maintaining prison order thus displaced rehabilitation as the real goal of indeterminate terms. In the liberal critics' minds, it was time to forfeit rehabilitation and embrace a "justice model" that would limit incarceration to short sentences and would grant offenders an array of legal rights to protect them against the ugly power of the state (Cullen and Gilbert). Notions of "doing good" were relinquished and replaced with the hope of creating a correctional system that would "do no harm."

Thus, both liberals and conservatives opposed rehabilitation, albeit for different reasons: conservatives because they thought it victimized society, and liberals because they thought it victimized offenders. These two groups also agreed that the discretion of correctional officials should be eviscerated and determinacy in sentencing implemented. They both embraced the punishment of offenders. They parted company, however, on how harsh those sanctions should be. Given the "get tough" policies that have reigned in recent times, it is clear that the conservative alternative to rehabilitation prevailed most often and in most jurisdictions (Cullen and Gilbert; Griset).

The story about the attack on rehabilitation has one additional chapter to be told. In 1974, Robert Martinson published an essay in which he reviewed 231 studies evaluating the effectiveness of correctional treatment programs between 1945 and 1967 (see also Lipton, Martinson, and Wilks). Based on this assessment, Martinson concluded that "With few and isolated exceptions, the rehabilitative efforts that have been undertaken so far have had no appreciative effect on recidivism" (p. 25). This rather technical conclusion might have been open to different interpretations—for example, that treatment programs were being implemented incorrectly or that inappropriate interventions were being used. But Martinson then proceeded to ask a more provocative question: "Do all these studies lead irrevocably to the conclusion that nothing works, that we haven't the faintest clue about how to rehabilitate offenders and reduce recidivism?" (p. 48, emphasis added). He stopped short of claiming that "nothing works," but it did not take a deconstructionist to deduce that this was the message he was conveying.

Researchers make many bold assertions, but most are forgotten or subjected to critical scrutiny; neither occurred in Martinson's case: his research immediately received national attention among academics and the media, and his findings were accepted by most observers as obviously true. A few scholars rose up in opposition, such as Ted Palmer, who demonstrated that nearly half of the treatment programs reviewed by Martinson actually reduced recidivism. But given the tenor of the times, people were ready to hear Martinson's "nothing works" message and unprepared to question empirical findings that reinforced what they already believed. With scientific findings on their side, they now could declare that "rehabilitation was dead."