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June 17, 2011

"Can imprisonment rehabilitate?"

The title of this post is the title of this terrific post at Grits for Breakfast asking some of the bigger and broader questions implicated by the narrow ruling by the Supreme Court yesterday in Tapia.  Here are excerpts of this post, which ends with questions on which I would also like to hear reader comments:

Kagan [in here opinion for the Court in Tapia] identified the four stated purposes of criminal sentences — retribution, deterrence, incapacitation, and rehabilitation - but explained that federal law does not allow all of them to be considered in crafting different types of sentences.  For example, not only may rehabilitation not be considered when ordering imprisonment, but "retribution" may not be considered when ordering community supervision.  Kagan found especially "illuminating ... a statutory silence — the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs."

The opinion does not impact state courts, interpreting only a federal criminal statute, but this same issue comes up frequently in the context of drug courts, which in Texas may require longer-than-usual incarceration stints in secure lockups known as "community corrections" facilities as a condition of probation for up to two years to facilitate rehabilitation.  For that matter, the statute authorizing drug courts explicitly allows "a court [to] use other drug awareness or drug and alcohol driving awareness programs to treat persons convicted of drug or alcohol related offenses."

So while the federal statute explicitly excludes rehabilitation as a goal of incarceration on the grounds that locking someone up is "not an appropriate means of promoting correction and rehabilitation," Texas law specifically contemplates imprisonment in a secure facility in pursuit of rehabilitative goals.

The Catch-22 for Texas' stance comes in cases like Tapia's where a defendant is recommended for a treatment program but there are lengthy delays because of a shortage of treatment capacity  (Tapia, despite the court's recommendation, never actually entered the federal RDAP program).  Another version of that phenomenon: Texas' parole board frequently extends prisoners' time they're incarcerated because they've not completed this or that treatment program, even when the reason they didn't complete it is a lengthy waiting list for services, not anything the prisoner did or didn't do.  That's been an issue most particularly in DWI cases, but at various times that observation would also apply to drug treatment, sex-offender treatment, and other rehabilitative programs.

Should rehabilitation goals be considered in sentencing someone to prison?  While Kagan finds ample backing to say federal law "precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation," it's an open question — one on which I'd like to hear Grits readers' opinions — whether that's the right policy.

It's also interesting to me, though understandable, that drug treatment in a secure facility is equated in this opinion with pure "imprisonment" with no rehabilitative goals.  In Texas political debates and even in the statutes, treatment in a secure facility is considered a separate beast from straight up imprisonment — an "alternative to incarceration," in the parlance.  But the offender is still locked up while receiving treatment.  What do you think?  Is this a distinction without a difference?

Recent related posts on the Tapia ruling:

June 17, 2011 at 11:18 AM | Permalink


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Sentences have two, tandem OBJECTIVES; namely, they are to (1) hold the offender accountable and (2) control that person’s risk of committing another offense. Deterrence and retribution are STRATEGIES for holding the offender accountable. The extent to which an offender is held accountable does not change once established. Incapacitation and rehabilitation are STRATEGIES for controlling the offender’s risk. A person’s risk of committing another offense is likely to change. At the time of sentencing, no one can say how dangerous a person will be at a particular point in the future.

The most restrictive level of restraint that is needed to accomplish either of these OBJECTIVES should control at any given point in time.

Unfortunately, Section 3551 is poorly written. It does not explicitly distinguish between sentencing OBJECTIVES, STRATEGIES and TACTICS, all of which are said to be the “purposes” of sentencing. In other words, this Section mixes apples and oranges. Again, rehabilitation is one STRATEGY for controlling an offender’s risk; another is incapacitation. Rehabilitation is not an OBJECTIIVE.

Apparently Tapia recognizes these distinctions; unfortunately it does not make them explicit.

Posted by: Tom McGee | Jun 17, 2011 1:22:24 PM

Let's clarify one imoportant point - Ms. Tapia did not participate in the 500 hour (RDAP) program in federal prison because she refused to do so, not because there wasn't a slot available for her.

Posted by: anon | Jun 17, 2011 3:04:21 PM

My name is Joe Patituce, a criminal defense attorney near Cleveland, Ohio. I stumbled across your blog today while looking for a new legal blog to read. I also believe as a student I read your materials!

Back to the point I was shocked to see the wording of this decision by SCOTUS. While I once was a prosecutor, I would have never thought I would read that the Supreme Court felt that imprisonment was of no rehabilitation benefit. I think this is quite a radical shift in how prison is going to be viewed in the legal community.

I appreciate the article you wrote above.


Joseph C. Patituce
Patituce & Associates, LLC

Posted by: joe patituce | Jun 17, 2011 3:43:06 PM

Prison may have rehabilitative effects in a collateral way, only. There is no evidence to support its use for that prupose in any primary way. I hate to agree with the SC.

1) Robert Downey failed many rehabs. Found fae down in LA skid row. Judge says, enough. Sends him to jail for months. As a side benefit, his brain has a chance to recover from its cravings. Leaves prison after serving his punishment time. Make two Ironman movies, Sherlock Holmes, is seen back with his wife.

2) Prison provides supervision and structure. The criminal with antisocial personality or impulsivity will benefit, and thrive, find religion, educaiton, reconcile with family, run a prison newspaper.

3) Aging is the sole proven factor in reduction of criminality. Detention in prison as the criminal ages will result in rehabilitation.

Posted by: Supremacy Claus | Jun 18, 2011 7:09:46 AM

Why does it matter that it is a distinction without a difference?

Posted by: anon2 | Jun 19, 2011 6:51:33 PM

It makes a difference because otherwise you miss the point.

Posted by: Tom McGee | Jun 20, 2011 12:16:23 AM

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