Rehabilitation and Discretion

Opportunistic crime could be prevented by target hardening the environment, not by altering the offender's nature. Both rehabilita­tion and prevention instead focused on the character of the criminal.

When did the state adopt a rehabilitative ambition? Foucault located this sea change in the late eighteenth century with the aspir- ingly all-powerful absolutist state and then the French Revolution. Yet ambitions to change, not just to chastise, offenders have long been with us. Shame punishments in ancient China aimed at moral improvement or “self-renewal.” The Greeks, like the Chinese, ban­ished criminals to improve them and allowed their return once they were purified by absence. Plato suggested rehabilitating the impi­ous by isolating them in prisons far from home.²⁰⁸ Once the Roman Empire Christianized in the fourth century, it persecuted heretics in part to convert them. Augustine, as we have seen, insisted on the duty to convert otherwise damned heretics.²⁰⁹ Saul the perse­cutor of Christians became Paul the apostle. God wants sinners to repent, not die, as Wazo, bishop of Liege, preached in the early elev­enth century.²¹⁰ Inspired by Aquinas, the interrogators of medieval heretics insisted that their willful errors were reversible.

As Foucault pointed out, rehabilitative outcomes were expected from prisons when they were first constructed on a large scale in the early nineteenth century. Finely parsed techniques of solitary confine­ment were meant to mold inmates' souls. The very words used for pris­ons indicated the ambition: houses of correction and penitentiaries—the latter derived from penitence, or the guilt and remorse that medieval inquisitors sought from heretics. Sixteenth- and seventeenth-century

European states already sought to rehabilitate vagrants and the idle, prostitutes, unmarried mothers, street urchins, and the like.²¹³ But conversely, already by the mid-nineteenth century, as prisons grew overcrowded, rehabilitative ambitions faded quickly.

In the twentieth century, however, rehabilitation was rehabilitated. Indeterminate and individualized sentencing attempted to rope pris­oners into their own improvement.²¹⁴ Nonfixed sentences allowed authorities to reward good behavior and punish bad. Inmates remained inside for times that depended less on how they had offended than on their subsequent behavior. As reformers in 1870 put it, the prisoner would be redeemed “through his own exer­tions” or not at all.²¹⁵ In the 1880s, the German reformer Franz von Liszt argued for the virtues of preventing future harm by sentenc­ing according to the danger the convicted posed, not the offense they had committed or the punishment they might deserve. Sen­tences had to be individualized and discretionary, tied to behavioral outcomes, and not just an arbitrary duration. Failing to change, prisoners would have to remain inside. Incapacitation was the nec­essary corollary of unsuccessful rehabilitation.²¹⁶ Pushed to its logi­cal extreme, indefinite and discretionary sentencing assumed that being incarcerated was the normal condition, release exceptional.

Parole and probation implemented this approach. Release was contingent on prisoners behaving themselves. For preventive rea­sons, one prisoner might be kept in jail for longer than another, despite their having committed the same crime. Institutionalizing indeterminate sentencing through parole and probation started in the early nineteenth century, first in colonial Australia, then in the United States, shortening the sentences of well-behaved inmates. At midcentury, US states experimented with good-time credits for juveniles in reform schools and by the 1890s for adults. By the 1920s, most US prisons had indeterminate sentencing or parole.²¹⁷ Germany followed suit in 1935, but Britain not until the 1960s.²¹⁸

Rehabilitation remained penal orthodoxy through the 1970s, before losing ground to neoretributionist reforms. Especially in the US and Britain during the 1960s and 1970s as crime increased, the response was harsh and retributive. Prison sentences were length­ened, jails were filled, and public shaming was once again used punitively. Rehabilitation was declared a largely bankrupt ideal, giving way to just-deserts punishment, and penal ambitions were limited to incapacitating offenders. Victims clamored for retribu­tion, grabbing the spotlight from offenders and the state's hopes of resocializing them. Certain victims (of rape and domestic violence, for example) managed to turn retribution into an appealing goal even for the Left, which was normally resistant to what counted as a conservative cause.²¹⁹

Sparked by rising crime rates in the 1960s as well as by shocking individual cases of savage acts committed by offenders on parole, retributionism certainly had a conservative slant, but it was encour­aged also from the Left by reformers worried by the discriminatory potential of individualized punishments. The Right insisted on harsh determinate sanctions for brutal crimes. The Left rediscovered the Enlightenment egalitarianism of a clear moral bookkeeping that specified the consequences of transgression, not permitting class or status to differentiate punishments, imposing no demands of behavioral conformity beyond serving the sentence, and allow­ing sovereign citizens to make their decisions accordingly.

This punitive turn was taken especially in the English-speaking world, whereas Europe retained more of the rehabilitative ideal. So did this turn upend Foucault's theory that the authorities' concern to mold their subjects' interiors was a permanent sea change and not just a secular oscillation?²²⁴ The shift to determinate sentencing may have undercut early release, but the same retributive current also introduced civil commitment and other means of individualiz­ing and extending sentences. Sex offenders were often kept inside if it was feared they would recommit. In Britain, offenders were some­times sentenced to life with periodic review even for small crimes in cases of past sexual offenses or mental derangement. In Germany, Sicherungsverwahrung (preventive detention) allowed the authori­ties to keep prisoners deemed dangerous locked up beyond their sentences. In Italy, “security measures” achieved much the same.²²⁵ In most nations, the mentally ill could be institutionalized for as long as deemed advisable. The decline of indeterminate sentenc­ing made such measures necessary, permitting authorities to adjust prison terms to prisoners' attitudes and progress.²²⁶ In other words, individualized sentencing actually continued despite neoretribu­tivist reforms, but it was now harnessed to more, not less, puni­tive ends.

Whatever its oscillating fortunes, rehabilitation required individ­ualized punishments. Reforming offenders meant taking account of their specific circumstances. Rehabilitation was in effect resocializa­tion or socialization come too late. The state undertook late in life what family, school, church, and community had evidently failed at. Not surprisingly, it was work done by the psy-sciences and their practitioners: psychologists, psychiatrists, therapists, social work­ers.²²⁷ As we have seen, individualized sentences undermined the Enlightenment ideals of predictable and standardized punishments for specified offenses that treated all citizens equally, allowing them to know and anticipate the consequences of their actions. When the United States began experimenting with individualized sen­tencing in the late nineteenth century, the French regarded its inde­terminacy as cruel and unusual.²²⁸ Many critics today agree, noting that ethnic and class prejudice condemns minorities and the poor to disproportionately harsh sentences.²²⁹ But cookie-cutter pun­ishments, although abstractly fair, also ignored particulars of the offender who was to be rehabilitated.

The Enlightenment reformers had advocated consistency and equality before the law, but treating all who had committed the same offense in the same way could also be unfair. A theft prompted by necessity and one committed on a lark did not merit the same punishment—nor did perhaps a first offense and a repeat by a prac­ticed thief. Were the law not just to react blindly but punish accord­ing to offenders' guilt and chances of resocialization, then it had to discriminate, treating superficially similar acts according to their varied motives, background, and context.

How did the authorities know whether someone had been reha­bilitated? As with sin, at stake was the congruence between inner state and outer act. The worth of human beings depended, John Stuart Mill argued, not only on what they did but also on what manner of people they were who did it.²³⁰ Rehabilitating criminals, the state was in the business of producing good humans. Remorse was often demanded. Juries, judges, and parole boards looked for it. Convicts prepared to turn over new leaves were well advised to make a show of it.²³¹ Inmates who convinced their keepers of a change of heart were rewarded. When some proved to have gamed

the system, offending again after release, the communal feeling of betrayal helps explain the backlash against probation in the 1970s. But, short of knowing interior states, the only outward measure of inner conformity was recidivism. If the state could not produce morally good former convicts, then perhaps it could at least turn out ones who did not run afoul of the law again.