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August 13, 2012

"Death and Rehabilitation"

The title of this post is the title of this notable and timely new piece by Professor Meghan Ryan.  Here is the abstract:

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences.  This raises the question of whether and how rehabilitation applies in the capital context.  Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation.  Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters.  Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death spurs rehabilitation.

Courts’ and scholars’ conclusion that death is irrelevant to rehabilitation likely stems from changes in our understanding of rehabilitation.  While it was once understood as referring to an offender’s character transformation, references to rehabilitation now often focus on offenders’ direct impacts on society.  This has the effect, though, of distracting from the humanness of the worst offenders and consequently not providing them with true opportunities to transform their characters — a denial which challenges the Eighth Amendment’s focus on respecting the human dignity of the condemned.

August 13, 2012 at 10:34 AM | Permalink


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Yes, the idea that "death is irrelevant to rehabilitation" is extreme and diminishes the humanity of those on death row. It is quite possible to support the death penalty, but support some effort to "rehabilitate" the person to some degree, at the very least to allow him or her to die in the "right place."

This is a traditional thing, including the importance given to gallows confessions and so forth. It can be said in fact that dying there is necessary for rehabilitation, a means to force acceptance of the crime and just desserts. The book "A Lesson Before Dying" and said "lesson" can involve a murderer (doubt as to that label in that book) too.

"Rehabilitation" being rejected here suggests a complete, perfect view of things that is rarely present in the criminal justice system too. It is fine to oppose the death penalty since you think rehabilitation entails not executing the person. But, the word has various connotations and simply rejecting its relevance in the death penalty context is something both sides of the death penalty debate can readily reject.

Posted by: Joe | Aug 13, 2012 11:16:09 AM

"This is a traditional thing"

Verily, if you mean a bible, a visit by clergy, and the chance to repent.

Here's the most absurd change in the execution of execution: time retardation, e.g.

August 13th, 2012: "On this date in 1926, Richard Whittemore — the chieftain of a notorious armed-robbery syndicate in Prohibition New York and Maryland — was hanged at Baltimore’s Maryland Penitentiary for murdering a prison guard during an escape *the year before*…"

cf: http://news.google.com/newspapers?nid=888&dat=19260522&id =a6UwAAAAIBAJ&sjid=20wDAAAAIBAJ&pg=3234,6705243

Yeah, let's get back to tradition, i.e. the gospel then the gallows, ceart math tha.

Posted by: Adamakis | Aug 13, 2012 11:56:14 AM

A thought-provoking article indeed. However, I think it should be clarified that it is not death that has the potential to rehabilitate, but rather the death sentence itself. In this case, it is the sentence, as distinct from the punishment, that may rehabilitate. But I question whether society has an interest in the sort of personal reformations championed by Professor Ryan. Should a purpose of punishment be to turn a man’s private heart from "bad" to "good" (and under whose definition of "bad" and good")? More importantly, what does society profit through such an endeavor unless the reformed individual expresses the character change in some sort of external way? (But, to play devil’s advocate on the other hand, if “rehabilitation” does not concern itself with inner character, and is merely concerned with convincing an offender to turn her back on crime in the external sense, how is it distinct from specific deterrence?)

Certainly, however, I agree that some death row inmates can and do achieve some measure of personal reformation in the face of death. And, to the extent that the government can provide them with rehabilitative services, it should. But the (societal) benefit of a death row inmate’s rehabilitation is not that the offender achieves some sort of inner character change--the societal benefit is that the offender elects to be a “good” inmate (this is beneficial to society because prison itself is part of “society”) and perhaps even spreads utility beyond the prison walls (e.g., by writing children’s books). Much in the way that imprisonment does not fully incapacitate because prisoners are largely capable of offending in prison, the rehabilitation/specific deterrence of prisoners is a worthy goal unto itself even if they will never be released from prison. But I am unsure whether society, acting through the criminal law, should stake a claim in anyone’s inner “personal redemption” except to the extent that the redemption is externalized in a way that benefits society (and, by “society,” I include prisons as well).

Posted by: Kevin Bennardo | Aug 14, 2012 12:54:31 AM

Kevin Bennardo's comment is interesting but the bottom line still is that as a whole personal reformation can be promoted because as a whole it has an ability to help society (as a whole or the prison itself), so mere personal satisfaction isn't the point at any rate. Imprisonment in part is understood to change the dynamic there too -- if you don't want the state in some limited way to encourage you to personally reform, don't commit a crime. Once you do, government has more power to advance certain ends, including promoting personal redemption. Similarly, when you send s child to school, such a value can be promoted, it sort of being part of the American mythos and a civic value promoted there.

Posted by: Joe | Aug 14, 2012 11:18:26 AM

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