Colin McCallin March 15, 2019

As criminal defense attorneys we think so much about the front end of the justice system—the settlement of cases in court—that we might sometimes neglect to consider what comes after a conviction. But it is in the post-sentencing stages of a criminal proceeding that the full weight of the matter reveals itself, not just for the person convicted but for the society in which he or she must continue to live. For as long as humans have organized themselves in groups, the debate how to treat those who violate rules has gone on, almost always revolving around two strategies: punishment and rehabilitation.

Should We Punish Criminals?

If taken to an extreme neither of these strategies seems feasible. Suppose that, devoting ourselves unreservedly to the doctrine of punishing criminals, we begin inflicting the death penalty for every crime.  On the one hand, with this policy we achieve a zero percent recidivism rate, since no one has the chance to commit more than one offense, and the fear of such severe retribution perhaps causes crime rates to fall. On the other hand, people are now put to death for every conviction you can imagine, and some of those people are in fact innocent. Unless we amend the appeal process for capital punishment, the machinery of justice breaks down as we feed into it untold thousands of cases requiring a degree of rigor formerly reserved for the most serious. If we do amend the appeal process for increased efficiency, more mistakes are made, and more innocent people die by order of the state. People cease to trust their government, riots break out, productivity declines, chocolate milk becomes harder to find, etc. Not a pleasant prospect.

Should We Rehabilitate Them?

If, however, we resolve to manage crime by rehabilitation alone, we face different problems. Unwavering therapeutic compassion in criminal justice might well lead to outcomes better than those we achieve now, but it would also require more resources than we are likely able to array and more impartiality, frankly, than we are likely capable of. Suppose that, instead of submitting to anything unpleasant, convicts underwent only therapies tailored to their circumstances—healing emotional wounds, learning coping techniques, building skills in work they find meaningful, exercising, meditating, walking in the sunshine, eating healthy food, etc.—and only after as much time as necessary re-entered the world as happy, peaceful citizens. Wouldn’t that be nice? Yes, it would, and for many reasons it is impossible. How would we fund such a program? What would we do with people who refuse to comply with treatment plans? What about the subgroup of criminals who, contemptuous of our leniency, reoffend over and over? Moreover, someone putting his or her life back together after being victimized in a terrible crime is unlikely to find it just for a court to send the perpetrator to what is essentially an extended spa retreat, even if that creates a net benefit for society. Responding to crime, whether we like it or not, seems to require punitive measures of one kind or another.

The Bottom Line

As we say in so many posts on this blog, the best way forward with this issue is probably somewhere between extremes. Punishing without rehabilitating will not achieve what we want; rehabilitating without punishing is an unrealistic goal. The real substance of the matter, then, is how we balance those two contrasting principles—how much to punish, and how much to rehabilitate. The debate, undoubtedly, will go on.