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Foundation Briefs Advanced Level January/February Brief Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system. January/February 2013 Table of Contents Table of Contents Table of Contents .................................................................................................................................................... 1 The Structure of a Foundation Brief ................................................................................................................... 9 Definitions............................................................................................................................................................. 10 Topic Analysis ...................................................................................................................................................... 11 The Goals of Criminal Justice .......................................................................................................................... 14 The goals of criminal justice are not limited to ensuring “justice” – they include security, peace, the right to freedom, and compensating victims. .................................................................................................... 14 Aff Evidence ......................................................................................................................................................... 15 What is rehabilitative justice? ........................................................................................................................... 16 A rehabilitative approach does not necessarily require a system-overhaul. Rather, simply ameliorating the prison environment counts as rehabilitative justice. 2 ........................................................................ 16 Rehabilitation and incarceration are not mutually exclusive. ................................................................... 16 Rehabilitation is conceptually distinct from other aspects of punishment. .............................................. 17 Rehabilitation is the best approach for the individual offender ........................................................................ 18 Rehabilitation allows offenders to have a second chance at rejoining & contributing to society and increases trust in the legal system ............................................................................................................. 18 A retributive approach, unlike a rehabilitative one, restricts social re-integration and disproportionately punishes offenders. ................................................................................................................................... 18 Whether or not rehabilitation provides a benefit for society and is effective is a secondary consideration. Rather, the fact that it is a right of the individual must come first. .......................................................... 18 Rehabilitation is not unfair by nature of its individualistic approach to justice. ...................................... 20 Using a rehabilitative approach is the only way to provide a benign environment for inmates. .............. 20 Rehabilitation and Deterrence .......................................................................................................................... 21 Rehabilitation and Deterrence are mutually inclusive by definition. ....................................................... 21 Rehabilitation is needed to prevent future crimes..................................................................................... 21 The Rehabilitative Approach is Feasible .......................................................................................................... 22 A rehabilitative approach can manifest as existing prisons acting as social centers for alternative responses to crime. .................................................................................................................................... 22 foundationbriefs.com Page 1 of 113 January/February 2013 Table of Contents A rehabilitative approach does not create more precarious prison environments as some suggest. Rather, it fosters discipline by giving offenders a common goal to work towards. .............................................. 22 Contrary to some beliefs, the rehabilitative approach works well on serious offenders, as demonstrated by several meta-analyses........................................................................................................................... 23 The rehabilitative approach, in comparison to the retributive one, attracts more correctional workers, making the overall process more feasible and the environment more benign. ......................................... 24 The Government’s Obligation to Rehabilitate .................................................................................................. 25 The existence of parole contracts demonstrates that the government has an obligation to provide rehabilitation for offenders. ...................................................................................................................... 25 Because the state assumes responsibility for the well-being of inmates when they incarcerate them, rehabilitation is a primary obligation. ....................................................................................................... 25 When the government refuses to consider rehabilitative models, they ultimately victimize their own citizens. ..................................................................................................................................................... 26 The ICCPR (ratified by the US in 1992) requires it to promote rehabilitation (explicitly in the case of juveniles). .................................................................................................................................................. 26 Any political society that values voluntary participation must focus on enhancing the ability of its members to consent to its authority .......................................................................................................... 27 Offenders have a right to rehabilitation following from the state’s right to punish ................................. 28 The rehabilitative approach is effective ............................................................................................................ 29 Meta-analyses prove that putting offenders in prison and denying them rehabilitation increases recidivism rates. ........................................................................................................................................ 29 Rehabilitation approach has been successful in the past. ......................................................................... 29 Delancey Street is a proves that rehabilitation works. .............................................................................. 30 Rehabilitation programs dramatically reduce behavioral difficulty – the UK provides a good case study. ................................................................................................................................................................... 31 Rehabilitation programs dramatically reduce reoffending and social costs – the UK provides a good case study. ......................................................................................................................................................... 31 Reeducation programs significantly reduce recidivism, especially in the case of the least educated inmates – a study of the Texas prison system confirms............................................................................ 32 Rehabilitation programs substantially reduce recidivism – a meta-study provides the insight. .............. 33 Rehabilitation programs substantially reduce social costs – a meta-study provides the insight. ............ 34 Retribution punishes the wrong groups ............................................................................................................ 35 Retribution often punishes families and children for minor crimes committed by parents. ..................... 35 foundationbriefs.com Page 2 of 113 January/February 2013 Table of Contents Retribution is a bad investment ........................................................................................................................ 36 Retribution creates more prisoners that cost the state money, money that could be used to prevent crime or recidivism. ............................................................................................................................................ 36 Consequentialism requires identifiable social goods to justify punishment. ............................................ 36 While retribution may work in theory, it fails in implementation. ........................................................... 37 Rehabilitation proves to be more cost-effective. ...................................................................................... 37 Empirically, the retributive approach does not reduce recidivism. .......................................................... 38 Retribution as a means to victim satisfaction is misplaced .............................................................................. 39 Human desire for punishment does not justify retribution, especially when it spurs recidivism. ............ 39 Forgiveness is an essential ethic for the community to adopt when it comes to crime. ........................... 40 Punishing offenders doesn’t provide any authentic benefits for the victims. ........................................... 40 Victims overwhelmingly do not weigh the punishment of the offender as their primary concern. ......... 41 Tag: Retributive approaches leave the parties directly involved in litigation feeling wronged. .............. 41 Rehabilitation restores state’s obligations under social contract ...................................................................... 42 Impoverished criminals do not have access to society’s benefits. ............................................................ 42 The impoverished are more likely to be both criminal offenders and victims. ........................................ 42 Retribution restores balance to the social contract. .................................................................................. 42 Rehabilitation, by virtue of upholding the social contract, garners more respect for the legitimacy of the law. ............................................................................................................................................................ 43 Rehabilitation benefits the community ............................................................................................................. 44 The rehabilitative process educates the community about the criminal, the victim, and itself. ............... 44 Rehabilitation results in more useful members of society. ....................................................................... 44 There are general goods derived from valuing rehabilitation over retribution. ........................................ 45 Rehabilitation is a more democratic and scientific way of maintaining social order. .............................. 45 Crime is the product of individuals becoming worn down as they struggle to grapple with their environments – restoring their ability to take control of the situation is in the interests of society. ........ 46 Rehabilitation is the approach most consistent with our basic intuitions ......................................................... 47 Humans are naturally inclined to have unconditional love for fellow beings while, at times, hating their actions. ...................................................................................................................................................... 47 The fact that there are varying degrees of culpability based on circumstance in court trials means that rehabilitation is a necessary component of the justice system. ................................................................. 48 foundationbriefs.com Page 3 of 113 January/February 2013 Table of Contents Multisystemic Therapy ..................................................................................................................................... 49 A legitimate option for rehabilitative treatment is Multisystemic Therapy, or MST. The background. . 49 MST adheres to the principles of rehabilitation. ....................................................................................... 50 MST has unique positive features. ............................................................................................................ 51 Retributive punishment fails to be proportional ............................................................................................... 52 Reasoning behind the need for proportionality under retributive punishment. ........................................ 52 Switching from fines to prison, and changing the length of prison sentence, does not properly adjust for proportionality........................................................................................................................................... 52 Long prison sentences do not affect the happiness of criminals, whereas any amount of prison time damages long-term prospects for criminals. ............................................................................................. 53 Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society. ...................................................................................................................................................... 53 Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society. ...................................................................................................................................................... 54 Retribution unfairly punishes beyond prison time ............................................................................................ 55 Prison, regardless of sentence length, is linked to increased chronic disease. .......................................... 55 Prison prevents reintegration and damages long-term economic prospects of criminals. ........................ 55 Prison damages family relationships. ....................................................................................................... 56 Retribution does not effectively punish criminals ............................................................................................ 57 Prisoners quickly adapt to prison. ............................................................................................................. 57 Retribution is unnecessarily subjective. .................................................................................................... 58 Treatment programs oriented towards retribution fail to reduce recidivism and are unnecessary for deterrence. ................................................................................................................................................. 59 Treatment programs oriented towards retribution empirically fail to lower recidivism in any significant way. ........................................................................................................................................................... 60 Retribution causes unnecessary suffering ......................................................................................................... 61 Retribution imposes suffering on a criminal that serves no morally legitimate purpose. ......................... 61 Offenders are also victims ................................................................................................................................ 62 Crime is a result of environmental factors and justice for offender is served through rehabilitation....... 62 Character is largely a matter of environmental influences. ...................................................................... 63 Crime is a race issue. ................................................................................................................................ 63 foundationbriefs.com Page 4 of 113 January/February 2013 Table of Contents Retribution causes more harm than good ......................................................................................................... 64 Imprisonment and focus on retribution leads to more crime in the long-term. ........................................ 64 Retribution is ineffective .................................................................................................................................. 65 There must be more than philosophical justifications (such as the argument of just deserts) in order to justify retributive practices. ...................................................................................................................... 65 Making a community of criminals come together is conducive for a more developed culture of crime. 65 Neg Evidence ........................................................................................................................................................ 66 What is Retributive Justice? ............................................................................................................................. 67 An overview of Retributive Justice........................................................................................................... 67 Just desert is the objective of retribution. ................................................................................................. 67 A clarification on Retributive Justice. ...................................................................................................... 68 Retributive justice is an appeal to moral outrage as a way to respond to the actions of offenders. ......... 68 Retribution is the best approach for the individual offender ............................................................................ 69 Using a retributive model is the only way to respect the value of individual choices, because it allows us to recognize culpability and hence, agency. ............................................................................................. 69 The retributive model is the most optimal choice to respect the offender and treat them as an end as it recognizes their autonomy, culpability and right to do wrong. ................................................................ 69 Retributive justice’s advantages over revenge.................................................................................................. 70 Retribution removes the desire for personal revenge; revenge has disadvantages. .................................. 70 Retribution is distinct from revenge. ........................................................................................................ 70 Immanuel Kant & Retributive Justice .............................................................................................................. 71 States are limited by the categorical imperative to inflict punishment because it is deserved, not because it will promote the good of civil society. .................................................................................................. 71 Kant’s basis for proportionality/how to punish. ....................................................................................... 72 Idea of “Just Deserts” as a moral justification for Retribution. ................................................................ 72 Retributive systems are reciprocal in limiting the agency of the criminal to match the harm to society . 73 Retribution fundamental to criminal justice system ......................................................................................... 74 The nature of criminal justice as a system of rules demands that it must be retributive. ......................... 74 Intuition and Retribution ................................................................................................................................... 75 There is some intuitive grounding in our desire to seek retribution. ........................................................ 75 foundationbriefs.com Page 5 of 113 January/February 2013 Table of Contents Rehabilitation unfairly treats offenders differently .......................................................................................... 76 Because rehabilitation is on a case-by-case basis, and because the criminal justice system cannot accurately judge these cases, offenders are unfairly treated differently. .................................................. 76 There are practical issues with the individualistic approach of rehabilitation. ......................................... 77 The rehabilitative approach is inherently biased against minorities and low socio-economic status offenders who may need more rehabilitation............................................................................................ 78 Rehabilitation makes a criminal’s sentence structurally arbitrary by making it conditional on the indeterminate judgment of experts............................................................................................................ 78 The juvenile court offers an empirical example of the arbitrariness contained within the rehabilitative approach. ................................................................................................................................................... 79 The message of a retributive approach ............................................................................................................. 80 Retribution is necessary to create ethical norms about right and wrong. ................................................. 80 Criminal acts are more than just material crimes, they have an expressive dimension. ........................... 80 Only retribution can restore the expressive wrong of criminal acts. ........................................................ 81 Retribution is necessary to express censure and restore the moral damage of crime. .............................. 81 Retribution restores balance to the social contract. .................................................................................. 82 Retribution restores the equilibrium of benefits to be enjoyed by members of society. .......................... 82 Since people generally seek retribution, any other strategy used to deal with offenders fosters contempt between the people and the law. ............................................................................................................... 83 We must be retributive or otherwise we will signal to the offender that they have won. ......................... 83 Acknowledging deserts is essential to upholding the way our societies function. ................................... 84 Punishing offenders is key to indirectly rewarding law-abiders. .............................................................. 84 From an ethical standpoint, without a system of just deserts, morality loses its reward so people lose reasons to follow it. ................................................................................................................................... 85 Punishment resets the scales of justice by recognizing that law-abiders had to make an effort to avoid breaching laws. ......................................................................................................................................... 85 Offenders know what they’re doing when they commit crimes, thus, to recognize their agency, we must hold them accountable for their actions. ................................................................................................... 86 Retributive punishments are past-oriented and seek to allocate moral blame to the offender. ................ 86 The retributive approach treats punishment as a question of accountability and sees offenders as accepting social law. ................................................................................................................................. 87 Censure is a conceptual component of punishment and one that retribution fulfills ................................ 87 foundationbriefs.com Page 6 of 113 January/February 2013 Table of Contents Failing to penalize an offender infringes on social rules in principally the same way that the offender infringed them. .......................................................................................................................................... 88 Retribution is necessary to compensate society for the unfair advantage that the offender gains by committing a crime. .................................................................................................................................. 88 Retribution Necessary For Victims................................................................................................................... 89 Restoration requires retribution in order to be fully restorative. .............................................................. 89 Without retribution, the power is taken away from the people, because they issue their response to offenses via punishment ............................................................................................................................ 89 Crimes Are Public Acts .................................................................................................................................... 90 Crimes victimize entire communities. ...................................................................................................... 90 Crimes are public wrongs against the community as a whole. ................................................................. 90 Retribution is the approach most consistent with our intuitions ....................................................................... 91 It’s been empirically proven that humans almost always resort to retribution when given a choice. ...... 91 People inherently value retribution over deterrence, so whether or not retribution is effective in deterring crime is irrelevant. .................................................................................................................................... 92 The desire to punish is a natural human instinct. ...................................................................................... 92 Restorative Justice ............................................................................................................................................ 93 Restorative justice is conceptually distinct from retribution or rehabilitation. ......................................... 93 Restorative justice is a system distinct from classic retributive justice. ................................................... 93 Restorative justice is a complex system focusing on reconciliation. ........................................................ 94 Restorative justice is essential to accomplishing the broader goals of criminal justice ........................... 95 Restorative justice is compatible with the state’s punitive authority. ....................................................... 95 A restorative approach is better for victim health and satisfaction. .......................................................... 96 A restorative approach is better for offender consent and understanding. ............................................... 96 A restorative approach significantly reduces reoffending compared to traditional criminal justice. ....... 97 A restorative approach dramatically enhances public security. ................................................................ 97 Rehabilitation is ineffective .............................................................................................................................. 98 Rehabilitation fails as a deterrence measure. ............................................................................................ 98 The success of rehabilitation must be proven outside of recidivism rates. ............................................... 98 The positive effects of rehabilitation on deterrence and safety are empirically ineffective while incurring great social costs. ...................................................................................................................................... 99 foundationbriefs.com Page 7 of 113 January/February 2013 Table of Contents Aff Counters........................................................................................................................................................ 100 Rehabilitation does account for the victim ..................................................................................................... 101 Process of rehabilitation will give the victim her place back at the rightful moral position. ................. 101 The often-discussed civil liberties-based problems with a rehabilitative approach could be easily avoided if rehabilitation were officially recognized as a sentence. ...................................................................... 102 In reality, rehabilitation can be refused—offenders just need to be offered the opportunity to partake in it. Therefore, potential associated harms are voluntarily assumed. ........................................................ 102 Rehabilitative process still includes punishment ............................................................................................ 103 Punishment can be defined in ways that are included in the rehabilitative process. .............................. 103 Neg Counters ...................................................................................................................................................... 104 Social status of criminal not important ........................................................................................................... 105 Natural duties render social obligation to a violent criminal irrelevant.................................................. 105 Proportionality of suffering not central to retribution .................................................................................... 106 The punishment is the concern for justice, not whatever subsequent suffering an individual criminal perceives. ................................................................................................................................................ 106 The exact proportionality of punishment is less of a concern than the message it sends. ...................... 106 Moral criticisms of Utilitarianism................................................................................................................... 107 Utilitarianism as a justification for rehabilitation is not moral. .............................................................. 107 Cases ................................................................................................................................................................... 108 Aff Case .......................................................................................................................................................... 109 Contention One: Retribution fails to uphold proportionality of punishment. ............................................. 109 Contention Two: Rehabilitation holds the community together. ................................................................ 109 Contention Three: Punishment for the sake of punishment is unjust. ........................................................ 110 Neg Case ......................................................................................................................................................... 111 foundationbriefs.com Page 8 of 113 January/February 2013 Definitions The Structure of a Foundation Brief Topic Analysis This is a general reflection on the resolution. It will provide to you an impression of the topic at hand, challenges you will face while debating, and a picture of where we see the debate headed. Framework Often times, the most important part of the debate is to actually win before the debate begins. With this section, we will set you up for such a feat. With unique analysis on how to lay the conditions for victory, you will be guaranteed to begin battle already with an advantage. Strategy Sections Foundation Briefs is committed to making sure you understand the evidence provided to you. We will never simply throw quotes at you and hope you can understand what we are trying to imply. That is where the Strategy Section comes in. At the beginning of all major sections (i.e. the section in the brief regarding alQaeda) there will appear a small section of original Foundation Briefs analysis to tell you how we see the evidence being used, what rhetoric will please the judge and which counterarguments to be prepared for. Important note: Webpages and online articles that are long and continuous will always be cited as page one (1) foundationbriefs.com Page 9 of 113 January/February 2013 Topic Analysis One Definitions Rehabilitation Smith, Nick. Encyclopedia of Criminal Justice. “Punishment intended to reform a convict so that she can lead a productive life free from crime.” Merriam-Webster Online Dictionary 1 a : to restore to a former capacity : reinstate b : to restore to good repute : reestablish the good name of 2 a : to restore to a former state (as of efficiency, good management, or solvency) <rehabilitate slum areas> b : to restore or bring to a condition of health or useful and constructive activity Ought Oxford Dictionaries, Online used to indicate duty or correctness Valued Oxford Dictionaries, Online consider (someone or something) to be important or beneficial; have a high opinion of Retribution See negative section “What is Retributive Justice?” foundationbriefs.com Page 10 of 113 January/February 2013 Topic Analysis Topic Analysis Sammi Cannold Rehabilitation ought to be valued above retribution in the United States criminal justice system. My reaction to this topic, which I believe was similar to many others’, was “haven’t we done this before?” If public health vs. criminal justice as Nov/Dec 2010 wasn’t enough on the rehab versus retribution debate, wasn’t Jan/Feb 2012? I suppose not. Consequently, the challenge with this topic for you now becomes going beyond the debates on rehab versus retribution that people have been having for the past two years. But how? General Framework Suggestions Because the bulk of the contention level arguments will have been made before, being nuanced on this topic rests heavily on the framework debate. The use of ought in the wording of the resolution provides a direct link to moral obligations and hence, arguments that stem from that. So, a few interpretations of that obligation… 1. It is agent neutral. Because the resolution does not clarify who ought to be valuing rehabilitation above retribution, it’s logical to assume that the obligation is simply one we all have. This position allows for some of the more philosophical frameworks that stem from agent neutrality. For example, debaters should look at and consider practical reason, veil of ignorance, contractarianism and contractualism frameworks. Additionally, epistemological (from the study of knowledge), ontological (from the study of what is) and metaethical (the study of ethical properties) arguments can be made to deepen frameworks as they provide foundations for what we all share (from which we can draw normative implications). 2. It belongs to the government. Since the government is the only one who can actually make decisions in legislation that would value rehabilitation over retribution (or vice versa), it would be logical to view the obligation from their standpoint. Therefore, you might want to consider frameworks that stem from that obligation. One such example might be a social contract framework in which you explain that people give up rights to the government in exchange for protection, which requires the government to protect them foundationbriefs.com Page 11 of 113 January/February 2013 Topic Analysis either via rehabilitation or retribution. On the other hand, you could also ground a government-based strategy in constitutional or international law by arguing that the government’s primary obligation is to uphold such statutes and they dictate that rehabilitation should be valued over retribution (or vice versa). Core Affirmative Arguments Rehabilitation is best for the offender. If the ultimate goal of the criminal justice system is to help the offender, then rehabilitation is quite intuitively the best option for a few reasons. Firstly, the rehabilitative approach prepares offenders to re-enter society as productive contributing members (notice the link to helping the community there as well). Similarly, many argue that using the retributive approach creates brutish prison environments for offenders, while rehabilitation has them working towards a common goal of social reintegration. Further, many argue that the retributive system is inappropriately disproportionate in terms of its responses to crimes and thus unfairly punishes criminals. And finally, rehabilitation seems to be the best approach to stop the cycles of lifetimes of crime for these offenders. Rehabilitation is best for the community. While the above arguments can all be applied to this overarching one as offenders are also community members, there are additional community benefits to the rehabilitative approach. Firstly, several studies have shown retribution to be consistently ineffective in reducing recidivism rates (Cullen & Gendreau, 2000; Cullen, 2000; Burton, 1994), which means that rehabilitation clearly provides more of an overall benefit for society. Secondly, rehabilitation is often considered more consistent with our intuitive beliefs and desires, especially because it is seen as curing social ills as opposed to simply punishing people for them. A specific approach. One potentially strategic position on this topic is to write a plan that specifies a certain empirically successful rehabilitation program. Multisystemic Therapy (for MST), for example, has been shown to have quite positive results in rehabilitating offenders and reducing their rates of recidivism. Defending such a plan gives you the evidence advantage. As a word of warning though, debaters who went to several tournaments on the Jan/Feb 2012 topic most likely have responses to the MST program, but the majority of evidence tends to be in favor of its success. Core Negative Arguments Retribution is necessary to send the right message. If offenders are let off the hook and put into what some see as cushy rehabilitation programs after committing crimes, it’s unlikely that they’re going to learn from their mistakes. Moreover, the government sends the message that it is okay with such legal violations without severe punishments for severe offenses. Such a norm decreases the strength of the law in all aspects as people see it as foundationbriefs.com Page 12 of 113 January/February 2013 Topic Analysis something for which consequences will not be enforced. Furthermore, from an ethical standpoint, failing to punish offenders for morally reprehensible actions creates moral norms that such offenses are morally valid. And finally, a more nuanced form of this argument (as fleshed out in the NC at the end of this brief) is one in which you argue that retribution is necessary to recognize the agency of offenders. In other words, if we fail to punish criminals for their crimes, we fail to recognize that they made the autonomous decision to commit them. Retribution is effective. Because the retributive approach is harsher, it disincentivizes reoffenses since offenders know what’s coming for them. If the rehabilitative approach provides offenders with a benign environment in which they are fed, educated and socialized, it is likely that many will want to be back in that sort of situation and so, will reoffend. While this argument is fairly intuitive, I think it is also fairly strategic, especially in front of more lay judges who require simpler, more logical forms of argumentation. The retributive approach is necessary to satisfy the community. When most offenders commit crimes, they are doing so against members of the community. Even if they are not directly harming people via murder, violence, rape, etc., they are still breaking an agreed upon contract that they have with other members of the community not to violate the law. This argument takes a stronger form in a few ways. Firstly, you can make the argument that humans are inherently retributive. We have value systems that require a give and take in the sense that we know that if we do action X it will yield result Y. As soon as one person breaks that cycle and we fail to punish them, we effectively fail to recognize all those who have been following the sanctions the law lays out. Further, criminals pose an enormous threat to communities because they have shown they are capable of causing destruction and harm. If we fail to punish them appropriately, then we also fail to quell community concerns and can even create chaotic environments in which people mistrust the government thanks to their failure to protect them. foundationbriefs.com Page 13 of 113 January/February 2013 Topic Analysis The Goals of Criminal Justice The goals of criminal justice are not limited to ensuring “justice” – they include security, peace, the right to freedom, and compensating victims. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 I agree with the criminal lawyer Katalin Ligeti that criminal law and its institutions should not operate for the accomplishment of a “higher justice quality” but rather, for an actual objective. These institutions should aim at ensuring security and peace among people or restoring it when necessary. Therefore, she believes that the function of criminal law is not merely the achievement of “justice.” In order to restore social peace, criminal law must above all reinforce the rights of freedom violated by a criminal offence. However, Ligeti thinks that compensation should also be provided for victims who have been violated in their rights. Criminal justice should serve justice for those involved in the conflict, whether the offenders or the victims, so that the norm itself and its moral contents are strengthened. Furthermore, it should, at the same time, within the framework of the rule of law, fulfill its preventive objectives, or at least to contribute to the prevention of the emergence of similar conflicts and the possibility of becoming a repeat offender or victim. foundationbriefs.com Page 14 of 113 Aff Evidence foundationbriefs.com Page 15 of 113 January/February 2013 Aff: What is rehabilitation? What is rehabilitative justice? A rehabilitative approach does not necessarily require a system-overhaul. Rather, simply ameliorating the prison environment counts as rehabilitative justice. 2 Halleck, Seymour L. and White, Ann D. (1997). Is Rehabilitation Dead? Crime and Delinquency (October, 1997). Imprisonment is more than merely punishment; it is immersion in a different kind of life. It is unlikely that anyone can leave a prison with exactly the same attitudes, emotions, and responses that characterized him before he went in. At least some of what the offender learned in prison is likely to affect his subsequent behavior. To the extent that we seek control of the contingencies that influence learning in prison, we are knowingly or unknowingly involved in efforts to change the offender. We can change him in a way that we think is good or bad for him and good or bad for the rest of us. Whenever we do anything to an offender that we believe will result in behavior that is favorable to his own needs or the needs of society, we are involved in rehabilitation. Rehabilitation and incarceration are not mutually exclusive. Lipsey, Mark W. and Cullen, Francis T. (2007). The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews. Annual Review of Law and Social Science (3). Rehabilitation treatment is distinguished from correctional sanctions by the centrality of interactions with the offenders aimed at motivating, guiding, and supporting constructive change in whatever characteristics or circumstances engender their criminal behavior or subvert their pro-social behavior. It is typically provided in conjunction with some form of sanction (e.g., incarceration or probation) but is not defined by that sanction and, in principle, could be delivered without any accompanying sanction. Cognitive-behavioral therapy, for instance, involves exercises and instruction designed to alter the dysfunctional thinking patterns exhibited by many offenders [e.g., a focus on dominance in interpersonal relationships, feelings of entitlement, self-justification, displacement of blame, and unrealistic expectations about the consequences of antisocial behavior (Walters 1990)]. foundationbriefs.com Page 16 of 113 January/February 2013 Aff: What is rehabilitation? Rehabilitation is conceptually distinct from other aspects of punishment. Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Utilitarian theory argues that punishment should have reformative or rehabilitative effects on the offender (Ten 1987: 7–8). The offender is considered reformed because the result of punishment is a change in the offender’s values so that he or she will refrain from committing further offenses, now believing such conduct to be wrong. This change can be distinguished from simply abstaining from criminal acts due to the fear of being caught and punished again; this amounts to deterrence, not reformation or rehabilitation by punishment. Proponents of rehabilitation in punishment argue that punishment should be tailored to fit the offender and his or her needs, rather than fitting the offense. Underpinning this notion is the view that offenders ought to be rehabilitated or reformed so they will not reoffend, and that society ought to provide treatment to an offender. Rehabilitationist theory regards crime as the symptom of a social disease and sees the aim of rehabilitation as curing that disease through treatment (Bean 1981: 54). In essence, the rehabilitative philosophy denies any connection between guilt and punishment (p. 58). foundationbriefs.com Page 17 of 113 January/February 2013 Aff: Best for Individual Offender Rehabilitation is the best approach for the individual offender Rehabilitation allows offenders to have a second chance at rejoining & contributing to society and increases trust in the legal system Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). The humanistic model of rehabilitation affirms the concept of prison inmates as possessors of rights. This legal status generates feeling of self-worth and trust in the legal system and favors the possibility of self-command and responsible action within society. The conception ultimately leads rehabilitative efforts toward the paradigm of the inmate as a full-fledged citizen. The prisoners’ legal status reinforces the their eventual participation in the shaping and governing of society. Thus prisoners’ rights can be qualified, using Ely’s terminology, as representation-reinforcing. This continuum of rights culminates in the right to rehabilitation, which can be formulated as the right to an opportunity to return to society with an improved change of being a useful citizen and staying out of prison. This right requires not only education and therapy, but also a nondestructive prison environment and, when possible, less-restrictive alternatives to incarceration. The right to rehabilitation is consistent with the drive towards the full restoration of the civil and political rights of citizenship after release. A retributive approach, unlike a rehabilitative one, restricts social re-integration and disproportionately punishes offenders. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). The denial of rehabilitation and the consequent lack of concern for the future life of the offender amounts to a passive and indifferent acceptance of the inevitable deterioration brought about by the institution. Imprisonment itself jeopardizes other rights different from those forfeited through the commission of a crime and the consequent criminal punishment. Moreover, a large majority of inmates are socially handicapped offenders who need basic support in the areas of education, job-training and fundamental social learning. Their social handicap is considerably aggravated by the stigma of a criminal record, requiring additional efforts from the social agencies to support the arduous process of social reintegration. Whether or not rehabilitation provides a benefit for society and is effective is a secondary foundationbriefs.com Page 18 of 113 January/February 2013 Aff: Best for Individual Offender consideration. Rather, the fact that it is a right of the individual must come first. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). A theoretical inquiry into the relevance of rehabilitative effectiveness should consider rehabilitation from two perspectives: as a right of the offender and as a governmental interest. The traditional one-sided view of rehabilitation as a governmental instrument to attain social goals led to an overemphasis on the question of its effectiveness. This view was associated with an authoritarian notion of rehabilitation in which society is the only acting force and individuals, lacking any initiative, are mere passive recipients of such action. Like deterrence or incapacitation, rehabilitation was regarded as a social policy dictated without consideration for the offenders personal life. The real difference between specific deterrence and rehabilitation lies in the means by which the ends are achieved. Enhancing the human potentialities of the offender is a specific feature of rehabilitation, whereas the punitive approach relies on fear or the aversion of pain. The rights model, in contrast, views rehabilitation from the perspective of the offender without losing sight of the societal impact of rehabilitation. Where rehabilitation is conceived as a right, effectiveness becomes a secondary consideration and no longer encroaches upon other priorities related to the needs of individual offenders and to the requirements of their actual socio-psychological improvement. According to the rights model, learning activities, dialogue, social interaction and psychotherapy are provided without calculating their likelihood of ultimate success or guaranteeing their effectiveness. foundationbriefs.com Page 19 of 113 January/February 2013 Aff: Best for Individual Offender Rehabilitation is not unfair by nature of its individualistic approach to justice. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. Mannheim clearly perceived some problems in relation to traditional ideas of fairness: “It is no use denying that, in its practical consequences, individualization of treatment, that dominating principle of modern penology, is bound to clash with the traditional requirements of justice as understood by the man in the street” (Mannheim, 1946, p. 228). However, the claims of modernity were not to be denied by such oldfashioned prejudices: a partial solution to the problem lies in the working out of really scientific principles of individualization which will make it possible at least roughly to reestablish the rule of equal treatment of equals. . . As soon as these new principles become known and accepted, beyond a small circle of experts, by the community at large, individualization will no longer be suspected as injustice (pp. 228-9). This would most appropriately be used as a block against the arguments made about the unfair nature of rehabilitation. The card is explaining that individualistic approach does not necessarily mean that it is unfair, but is giving equal treatment to those who are of equal status or circumstance. Using a rehabilitative approach is the only way to provide a benign environment for inmates. Halleck, Seymour L. and White, Ann D. (1997). Is Rehabilitation Dead? Crime and Delinquency (October, 1997). Is it possible to create a benign environment without trying to rehabilitate offenders? Probably not. It is not easy to control the daily activities of large groups of people. A society of captives will usually make demands that will require the captors to become more repressive to retain control. Though crimes of excessive punishment are sometimes committed in its name, rehabilitation is usually based on a humane concern for the needs of the individual offender, and, in turn, belief in it exerts a powerful moderating effect upon inmates, their captors, and the public. foundationbriefs.com Page 20 of 113 January/February 2013 Aff: Deterrence Rehabilitation and Deterrence Rehabilitation and Deterrence are mutually inclusive by definition. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). Rehabilitation does not oppose the measure of deterrence inherent in legal punishment. It strives only to maintain punishment within its legal limits, counteracting its unwarranted consequences. There is thus no basis for proposing deterrence policies as a novel substitute for rehabilitation, for deterrence has always been the essence of criminal law. A right to rehabilitation does not contradict the deterrent effect of criminal sanctions as long as they do not exceed the limits marked by the due process of law. Indeed, a basic function of rehabilitation is to prevent and counteract such abuses. Rehabilitation is needed to prevent future crimes. “Race, Ethnicity, and the Criminal Justice System.” American Sociological Association. (2007) The adverse effects of removing such large numbers of individuals from communities are particularly acute in minority communities with high concentrations of poverty to which most prisoners return. The large numbers of incarcerated youth and adults returning to inner-city black communities raise the possibility of undermining and disrupting families, social networks, and other community structures (the informal, less coercive institutions of social control)—thus raising the possibility of increasing rates of crime in the future (58; 83; 73). foundationbriefs.com Page 21 of 113 January/February 2013 Aff: Rehabilitation Feasible The Rehabilitative Approach is Feasible A rehabilitative approach can manifest as existing prisons acting as social centers for alternative responses to crime. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). Traditionally, rehabilitation has been considered one of the purposes of imprisonment on the mistaken assumption that incarceration itself could be rehabilitative. This fallacy arose from a mis-application of the notion of monastic penance to the first penitentiaries. However, the identification of imprisonment with rehabilitation survived this failure. This distortion continued to the crisis of rehabilitative policies in the 1970s. But rehabilitation is still tied up with imprisonment in another sense: the harms of imprisonment demand a counteractive rehabilitative action. Accordingly, modern rehabilitation has become either a force counteractive to imprisonment or a constructive search for an alternative social reaction to crime. It attempts not only to transform the desocializing prison environment buy also to replace, as far as possible, institutional confinement with noncustodial alternatives. A rehabilitative approach does not create more precarious prison environments as some suggest. Rather, it fosters discipline by giving offenders a common goal to work towards. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). Some may fear that recognizing rehabilitation as a constitutional right will mean less surveillance of institutionalized offenders, with harmful results. True, rehabilitation introduces into the prison educational and treatment staff often unconcerned with the questions of custody, but the development of trust in incarcerated human beings within a rehabilitation-oriented institution warrants a relaxing of custodial standards. The libertycentered notion of rehabilitation implied in the rights model is clearly detached from the disciplinary goals of the institution. Rehabilitative efforts can thus no longer be perverted through their use as manipulative devices. This clear distinction between rehabilitation and discipline does not deny the importance of order and security in correctional institutions. Further, discipline problems would most likely diminish in a rehabilitation-centered institution where staff and inmates are devoted to a meaningful goal. Discipline is maintained even when the foundationbriefs.com Page 22 of 113 January/February 2013 Aff: Rehabilitation Feasible development of trust between inmates and custodians leads to the granting of different forms of furloughs and work release. Another possible objection is that a right to rehabilitation may impose unreasonable budgetary pressures on taxpayers. Federal court rulings have held that monetary considerations are insufficient to override constitutional demands.54 Moreover, the reduced cost of appointing correctional officers and nonprofessional staff in rehabilitation-oriented activities should be considered,55 as well as the long-term potential gains derived from the reduction of recidivism. Contrary to some beliefs, the rehabilitative approach works well on serious offenders, as demonstrated by several meta-analyses. Cullen, F. and Gendreau, P. (2000). Assessing Correctional Rehabilitation: Policy, Pracitce, and Prospects. Criminal Justice 2000, (3). Although rehabilitation appears to have a consistent effect in reducing recidi- vism, a skeptic might wonder whether these programs only work with low-risk, relatively petty offenders—the “less hardened” cases (Lipsey and Wilson 1998). If so, then the programs might be effective, but only in decreasing con- duct that, while a nuisance, is not exceedingly consequential. But this does not appear to be the case. The main debate in this area is not over whether treat- ment interventions can diminish the criminality of high-risk, serious offenders, but rather whether they can be equally effective with lower risk offenders. Some meta-analyses suggest that rehabilitation works more effectively when it targets high-risk offenders, while others indicate that the effect size of inter- ventions is not moderated by risk levels (Andrews et al. 1990; Losel 1995; Redondo, SanchezMeca, and Garrido 1999). Regardless, the research clearly shows that serious offenders are not beyond the reach of correctional treatment. Lipsey and Wilson (1998) furnish the most convincing support of this conclu- sion in their meta-analysis of 200 studies that evaluated the effects of inter- vention on serious juvenile offenders. They report that across all studies, the difference in recidivism between the treatment and control groups was 6 percentage points (the equivalent of 44 percent for the treatment group versus 50 percent for the control group). This reduction “represents a 12 percent decrease in recidivism (6/50)” (p. 318) foundationbriefs.com Page 23 of 113 January/February 2013 Aff: Rehabilitation Feasible The rehabilitative approach, in comparison to the retributive one, attracts more correctional workers, making the overall process more feasible and the environment more benign. Halleck, Seymour L. and White, Ann D. (1997). Is Rehabilitation Dead? Crime and Delinquency (October, 1997). What kind of person would want to work in an institution devoted primarily to benign warehousing? Correctional workers, too, must have hope and sense of usefulness. No one wants to be his brother’s keeper unless he is convinced that the process of keeping will be helpful. Our correctional system already has too many lethargic, bureaucratically insensitive, and even sadistic employees. A warehousing philosophy attracts more of them and reduces the possibility of creating a benign environment. foundationbriefs.com Page 24 of 113 January/February 2013 Aff: Government’s Obligation The Government’s Obligation to Rehabilitate The existence of parole contracts demonstrates that the government has an obligation to provide rehabilitation for offenders. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). Another possible source of a rehabilitative obligation on the part of the state is parole contracts, in which the inmate and parole authority agree upon a release date on the condition that the inmate completes certain obligations including rehabilitation programs. Cullen and Gilbert point out that the very existence of a contract system puts pressure on correctional officers to improve treatment services,262 and they advocate mandatory contracts obligating the state to rehabilitate.263 "Mutual agreement programs" have proliferated in state prison and parole systems and are also being applied in probation programs.264 These comprise a variety of negotiations in which correctional authorities commit themselves to provide the rehabilitative resources that allow inmates to fulfill the conditions of their release.265 Because the state assumes responsibility for the well-being of inmates when they incarcerate them, rehabilitation is a primary obligation. Rotman, E. (1986). Do Criminal Offenders Have a Constitutional Right to Rehabilitation? The Journal of Criminal Law and Criminality, 77 (4). A third source of the duty to rehabilitate springs from the very fact that the state imprisons individuals. Imprisonment in America today is an intrinsically dangerous situation. It demands from the state a positive action to avert potential harm to prisoners' mental, social and physical health. In some cases imprisonment amounts to placing inmates in closed environments where they are exposed to unlawful trade in and use of hard narcotics.266 In others the harm may be a permanent deterioration of the personality or a dramatic loss in social capacity and skills. In all cases imprisonment creates a situation of need that the prisoners alone, deprived of their liberty by state action, cannot handle. In creating a dangerous situation, the state has assumed not only a duty of care but an obligation to prevent specific harms connected with such situations. An atmosphere of imminent danger to physical well-being and of acute reversion of human development not only infringes upon constitutional provisions but creates, whenever an identifiable harm can be deter- mined, the possibility of civil and even criminal liabilities. foundationbriefs.com Page 25 of 113 January/February 2013 Aff: Government’s Obligation When the government refuses to consider rehabilitative models, they ultimately victimize their own citizens. Cullen, F. and Gendreau, P. (2000). Assessing Correctional Rehabilitation: Policy, Pracitce, and Prospects. Criminal Justice 2000, (3). First, as Van Voorhis (1987) reminds us, there is a “high cost to ignoring rehabilitation.” Beyond whatever prevention of crime that may accrue from the incapacitation and general deterrence—an issue that is both complex and debatable (see, e.g., Currie 1998; MacKenzie 1998; Nagin 1998) – there is no evidence that punitive correctional programs either reduce recidivism or produce other positive gains for offenders (e.g., institutional adjustment, development of human capital). In contrast, our “best bet” for reducing recidivism and improving the lives of those processed through the correctional system is to involve them in rehabilitation programs that have therapeutic integrity. This approach is not simply a matter of “doing good” for offenders but also of protecting public safety. Put in other terms, rehabilitation is a potentially important strategy for reducing recidivism and thus for preventing the victimization of citizens. The failure to pursue correctional treatment is tantamount to turning a blind eye to those among us whose victimization could have been avoided. The ICCPR (ratified by the US in 1992) requires it to promote rehabilitation (explicitly in the case of juveniles). Source: Levesque, 1996. Levesque, Roger. “Future Visions of Juvenile Justice: Lessons from International and Comparative Law.” Creighton Law Review. 1996. Quals: Assistant Professor of Criminal Justice, Indiana University. Despite the long history of the notion of children's rights, the incorporation of children's rights into the juvenile justice system is a recent development. It was not until 1966, with the adoption of the International Covenant on Civil and Political Rights ("International Covenant"), that juveniles' rights in judicial proceedings made their first formal appearance. The International Covenant urged states to separate juvenile offenders from their adult counterparts, speedily adjudicate claims, adopt different trial procedures for juveniles, consider the juvenile's age, and promote rehabilitation. Although the protections afforded by the International Covenant are limited, these protections are still considerably revolutionary. At a minimum, all nations that ratify the International Covenant must treat some juveniles differently from adults. In addition, ratifying nations must move toward implementing a separate juvenile justice system that includes rehabilitation. Despite demonstrating the differing needs of youth from adults, the International Covenant essentially allows individual nation states the authority to determine the nature of the separate system and its requisite procedures. This could be used as evidence that the US has promised to an international entity to emphasize rehabilitation in a significant part of its criminal justice system, which could mean in a deontological system of ethics that it ought to do so. foundationbriefs.com Page 26 of 113 January/February 2013 Aff: Government’s Obligation Any political society that values voluntary participation must focus on enhancing the ability of its members to consent to its authority Source: Simmons, 2009. Simmons, John. “Justifications and Legitimacy.” 2009. The suggestion here seems to be that the ideal of a fully voluntary society should of course guide us, but the (regrettable) facts of political life force us to accept instead nonvoluntarist standards of legitimacy which appeal only to (what Nagel calls) "quasivoluntariness". There is, however, something disingenuous about this suggestion.51 For if the ideal of the fully voluntary political society were in any way regulative for them [they], Rawls (et al) would be interested in restructuring political societies so as to make the choice of membership (or non-membership) as voluntary at least as circumstances would permit. And there are many non-utopian possibilities available for doing this, such as offering various classes of citizenship (and "resident non-citizen") options, training and support to make emigration and resettlement a more realistic option, programs to disseminate relevant information, a more formalized choice process, and so on.52 Advocating and pursuing such changes only makes sense, of course, if one has a genuine commitment to political voluntarism. Few of the most prominent contemporary political philosophers, however, have shown any interest in such matters, suggesting that any allegiance they might feel to the voluntarist ideal is at best half-hearted. This could be used to argue that the USCJ should emphasize rehabilitation because it restores criminals to a position in which they can meaningfully consent to the laws that govern their lives once their punishment is completed foundationbriefs.com Page 27 of 113 January/February 2013 Aff: Government’s Obligation Offenders have a right to rehabilitation following from the state’s right to punish Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Nowadays, rehabilitationists contend that their rationale for punishment is the only one that combines crime reduction with respect for an offender’s rights. According to this view, although capital punishment and long terms of imprisonment may deter and will certainly incapacitate, rehabilitation can be accomplished only if criminals re-enter society; consequently extreme punishments should be ruled out. Rotman (1994: 286) for example, argues in favor of a “right’s oriented rehabilitation,” which accepts the offender’s liability to receive punishment but claims a corresponding right on his or her part to “return to society with a better chance of being a useful citizen and staying out of prison.” This perspective is often termed “state-obligated rehabilitation,” and contends that if the state assumes the right to punish, it should ensure that no more harm is inflicted than was intended when the sentence was pronounced. That is, the intent of the prison sentence is deprivation of liberty and not loss of family ties or employability (Gallo and Ruggiero 1991). Rotman (1994), for one, argues that a failure to provide rehabilitation amounts to cruel and unusual punishment. Carlen (1994) and Matthews (1989) argue that states are entitled to punish offenders because offenders act out of choice. However, they suggest that the offenders’ choices are often limited because of circumstances and social conditions like poverty and inequality, which might lead people into crime. Therefore, Hudson (1996: 66) claims, the state should recognize that it plays a part in causing crime and should recognize its role toward crime prevention by providing rehabilitation to assist the offender in not committing further crime. The offender, on his or her part, has a corresponding obligation to take part in rehabilitation programs offered by the state. In this view, rehabilitation may be seen as an alternative to punishment rather than as something to be achieved through the means of punishment. As Carlen (1994: 329) contends, a purely punitive approach to sentencing does little to decrease crime and serves only to increase the prison population. foundationbriefs.com Page 28 of 113 January/February 2013 Aff: Rehabilitation Effective The rehabilitative approach is effective Meta-analyses prove that putting offenders in prison and denying them rehabilitation increases recidivism rates. Slobogin, C. and Fondacaro, M. (2009). Juvenile Justice: The Fourth Option. Iowa Law Review (95). Three preliminary points about interventions designed to reduce juvenile offending are crucial. First, researchers overwhelmingly find that imprisonment is less effective at reducing recidivism than most alternative programs. Lipsey and Cullen’s recent comprehensive meta-review of the empirical studies concluded that incarceration actually tends to increase recidivism rather than reduce it. 98 Along the same lines, these researchers concluded that “interventions that embodied ‘therapeutic’ philosophies, such as counseling and skills training, were more effective than those based on strategies of control or coercion—surveillance, deterrence, and discipline.”99 These findings make sense if offending is in some non-trivial respect due to context; if so, coercive interventions that take place in detention are not likely to address root causes of crime or generalize to the “real world” facing offenders once they are released. Rehabilitation approach has been successful in the past. “The California Prison and Rehabilitation.” Ethics of Development in a Global Environment. Stanford University Numerous studies have been published documenting the positive results from education and drug treatment programs undertaken within the prison system. With regards to education, it has been shown to be extremely effective in preventing prisoner release and returns to jail. Wilmington (Ohio) College reports that recidivism rates for inmates who took degrees through their programs in two Ohio prisons were 18% versus a state average of 40%.~ A Boston University program tracked inmates in its program over a 25-year period and found that for those who earned BU degrees while in prison, recidivism rates dropped to less than 5 percent, compared with the 65% national rate. Therefore, one may conclude that the education programs are working - prisoners are taking these skills into the real world and applying them successfully. Drug treatment programs have also had profound effects on recidivism rates. Arizona has been the first state to divert all of is non-violent drug offenders into probation and treatment instead of prison. Arizona reported that of 2,622 people on probation diverted into treatment, 77.5% have since tested free of drugs, a rate that is significantly higher than that for offenders on probation in most other states. And 77.1 % of drug users on probation, who are expect to help pay for treatment, made at least one payment.7 This has cut down on the "revolving door" phenomenon. Prisoners are cleaning up and staying outside of prison post sentencing. foundationbriefs.com Page 29 of 113 January/February 2013 Aff: Rehabilitation Effective Delancey Street is a proves that rehabilitation works. The California Prison and Rehabilitation.” Ethics of Development in a Global Environment. Stanford University Delancey Street offers a number of programs designed for effective rehabilitation. The first is skill training where residents are offered the ability to choose a set of skills they wish to pursue in addition to fulfilling their high school equivalency requirement. These skills can be acquired in mechanics, typing, data processing, cooking, as well as others. Residents are also able to develop interpersonal skills. On the grounds themselves, residents can play basketball or other sport, attend regular "outings" and barbecues. The idea is to help the residents interact, develop friendships and become more open about their situation. At the end of the first year, residents attend marathon sessions called "dissipations" to help them get rid of the tremendous guilt over what they did in the past. Finally, residents are involved in volunteer community or social work with other residents who are engaged in a wide variety of projects from helping the elderly to working with young people in poor neighborhoods. The most interesting aspect of Delancey Street is its ability to remain self-funded. The organization operates a number of businesses that are used to pay resident wages and maintain the housing project. Delancey Street operates a restaurant, a moving business, a print shop, a Christmas tree retail service and other businesses that earn over $10 million a year nationwide and net close to $3 million. Everything from the building, to the doors to the furniture is either built, purchased or donated costing the taxpayers nothing. One testament to the foundation's ability to strive on its own is the complex built in San Francisco. The building, because it was constructed almost entirely by the residents, cost only $15 million to build, despite an assessed value of over $30 million. The 370,000 square foot property contains 177 apartments, along with meeting rooms, a movie theater, a swimming pool and space for new and existing businesses. The results of the Delancey Street program have been tremendous. Over 80% of the residents stay in the program for the full two years, the majority stay 4 years. In the history of the program there has never been an act of violence or criminal behavior and the success in rehabilitating drug addicts has been outstanding. Graduates of the program have become up-standing members of society. By any measure, graduates of Delancey Street by their numbers and successes have far exceeded any expectations that were set and it remains a testament to the idea that rehabilitation of felons is attainable. foundationbriefs.com Page 30 of 113 January/February 2013 Aff: Rehabilitation Effective Rehabilitation programs dramatically reduce behavioral difficulty – the UK provides a good case study. De Bois, 2011. De Bois, Nick. “Retribution and Rehabilitation: A Modern Conservative Justice Policy.” Dale & Co. 2011. At the first point of contact we need to focus on effective engagement where problems arise, and this early intervention approach has rightly been highlighted by Iain Duncan Smith as one that “could turn out to be the smartest decision local and national government ever made”. In this area, the organisation Chance UK has been incredibly successful in producing substantial reductions in youth crime through simple and effective mentoring programmes. An independent report by Goldsmiths University into the organisation found that 98% of the children they worked with showed reductions in levels of behavioural difficulty, a staggering level of productivity. Rehabilitation programs dramatically reduce reoffending and social costs – the UK provides a good case study. Source: De Bois, 2011. De Bois, Nick. “Retribution and Rehabilitation: A Modern Conservative Justice Policy.” Dale & Co. 2011. The St. Giles Trust are another organisation that effectively manage the transition from prison to society, with innovative projects such as ‘Through the Gates’, in which they meet offenders at the end of their custodial sentence and support them for a short period in resolving issues such as housing, employment and drug & alcohol addiction. An independent report by Frontier Economics found that the ‘Through the Gates’ project reduced re-offending by 40% and that for every £1 invested in it, £10 was saved by the taxpayer in direct criminal justice costs. It would be madness for central Government to pretend it could mirror these results itself. foundationbriefs.com Page 31 of 113 January/February 2013 Aff: Rehabilitation Effective Reeducation programs significantly reduce recidivism, especially in the case of the least educated inmates – a study of the Texas prison system confirms. Burton, 1994. Burton, Velmer. “A Large-Scale Multidimensional Test Of The Effect Of Prison Education Programs On Offenders’ Behavior.” The Prison Journal. 1994. Source: A study examining prison behavior and post-release recidivism of over 14,000 inmates released from Texas prisons from 1991 to 1992. http://tpj.sagepub.com/content/74/4/433 Two major findings emerged from our analysis; we believe that they are relevant for discussions of correctional educational policy and for consideration in further research. First, the data show that inmates at the lowest levels of educational achievement benefit most (as indicated by lower recidivism rates) from participation in academic programs. Second, some minimum level of program exposure or involvement is necessary if differences in outcomes are to materialize. When these two factors are combined, the data suggest that the recidivism rate can be reduced by about one-third if extensive services are targeted at inmates at the lowest level of educational achievement. This is not to suggest that other inmates cannot benefit; in fact, evidence suggests that recidivism is reduced through the 12th grade. Yet, if one is looking for the greatest return on programming investment, the payoff is clearly greatest for inmates at the low end of the educational spectrum. foundationbriefs.com Page 32 of 113 January/February 2013 Aff: Rehabilitation Effective Rehabilitation programs substantially reduce recidivism – a meta-study provides the insight. Source: Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf Lipsey and Wilson (1998) furnish the most convincing support of this conclusion in their meta-analysis of 200 studies that evaluated the effects of intervention on serious juvenile offenders. They report that across all studies, the difference in recidivism between the treatment and control groups was 6 percentage points (the equivalent of 44 percent for the treatment group versus 50 percent for the control group). This reduction “represents a 12 percent decrease in recidivism (6/50)” (p. 318). As with meta-analyses of all offenders, however, the heterogeneity around this mean was considerable. While some programs did not affect or even increased recidivism, the most successful interventions had a difference between treatment and control groups of more than 20 percentage points. These results held for samples of youths who were institutionalized and in the community and held for samples of more serious youthful offenders under supervision in the community. They also were sustained when the effect sizes for interventions were adjusted for methodological differences in studies. Finally, Lipsey and Wilson (1998) note that, with a few exceptions, the roster of effective and ineffective treatments appears similar to what meta-analysis of studies reveals for offenders in general. Programs thus tend to have effects that occur, with some variation, across offender populations. foundationbriefs.com Page 33 of 113 January/February 2013 Aff: Rehabilitation Effective Rehabilitation programs substantially reduce social costs – a meta-study provides the insight. Source: Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf In short, when lumped together, interventions reduced criminal involvement; and when the “best programs” were singled out, the crime savings were substantial. According to Lipsey and Wilson (1998, 338), the reduction in recidivism is “an accomplishment of considerable practical value in terms of the expense and social damage associated with the delinquent behavior of these juveniles.” In this regard, Cohen (1998) has calculated the cost-effectiveness of “saving a high-risk youth.” Such cost-benefit analyses are based on imprecise estimates of the rate of criminal participation by such youths (the so-called “lambda”) and on assessments not only of property loss and lost wages but the more amorphous category of pain and suffering. Still, Cohen presents a thoughtful analysis that takes into account various values—higher and lower—for the components in the equation used to calculate what society is spared economically when a youth is diverted from a life in crime. The most noteworthy finding is that the tipping point for an intervention to be cost effective is remarkably low. The average high-risk youth will cost society an estimated $1.7 to $2.3 million. Depending on when the intervention takes place (how early) and what it costs, a treatment program can “pay for itself” with a success rate in the range of 1 to 5 percent (see also Aos et al. 1999; Greenwood et al. 1996; Lipsey 1984). Although not directly comparable, it is perhaps instructive nonetheless that medical treatments that reduce potentially serious illness by 3 to 5 percent are considered very cost effective (Hunt 1997; Rosnow and Rosenthal 1993). foundationbriefs.com Page 34 of 113 January/February 2013 Aff: Retribution punishes wrong groups Retribution punishes the wrong groups Retribution often punishes families and children for minor crimes committed by parents. Kim Gilhuly, “Sunday Dialogue: How We Punish Crime,” The New York Times, December 2, 2012. Web. (1) Perhaps the most harmful result of needlessly incarcerating low-risk, nonviolent offenders is what it does to families, especially children. More than one-third of children with a parent in prison drop out of school. Youth whose parents go to prison are seven times more likely to be convicted of a crime as adults. But data can't measure the pain of families torn apart by harsh sentences that are ineffective, unhealthy and unfair. As the now-grown daughter of a former prisoner said in a focus group on funding for prison alternatives in Wisconsin: ''When my mother was sentenced to prison, I was sentenced to be without my mother.'' Offenses linked to drug and alcohol abuse account for 80 percent of the growth in Wisconsin's prison population since 1996. Most of these people need treatment, not punishment. Prison doesn't treat their problems, doesn't make communities safer and rips apart innocent families whose wounds may not heal for generations. foundationbriefs.com Page 35 of 113 January/February 2013 Aff: Retribution bad investment Retribution is a bad investment Retribution creates more prisoners that cost the state money, money that could be used to prevent crime or recidivism. Marc Mauer, “Sunday Dialogue: How We Punish Crime,” The New York Times, December 2, 2012. Web. (1) Most of these people have been convicted of serious crimes, but excessively lengthy prison terms preclude the possibility of individual change. The 18-year-old who is the getaway driver for a friend's armed robbery of a drugstore will not necessarily be a threat to public safety 10 years later, yet will often be turned down by a parole board owing to the nature of the crime. Aside from arguments of justice and compassion, the implications of such sentences for public safety and fiscal policy are significant. There is little evidence that lengthy prison sentences have a substantial impact on crime, but they place enormous strains on federal and state budgets. With finite resources, we can either keep thousands of individuals in prison long after their prospects of recidivism decline or use those funds to address the needs of young people in disadvantaged communities who are at risk of becoming involved in crime. The wise choice should be obvious. Consequentialism requires identifiable social goods to justify punishment. Duff, Antony. “Legal Punishment” Stanford Encyclopedia of Philosophy. 2008. Accessed 12/10/12. http://plato.stanford.edu/entries/legal-punishment/ A consequentialist must justify punishment (if she is to justify it at all) as a cost-effective means to certain independently identifiable goods. Whatever account she gives of the final good or goods at which all action ultimately aims, the most plausible immediate good that a system of punishment can bring is the prevention of crime: a rational consequentialist system of law will define as criminal only conduct that is in some way harmful; in preventing crime we will thus be preventing the harms that crime causes; and punishment can prevent crime by incapacitating, or deterring, or reforming potential offenders. (There are of course other goods that a system of punishment can bring: it can reassure those who fear crime that the state is taking steps to protect them—though this is a good that, in a well-informed society, will be achieved only insofar as the more immediate preventive goods are achieved; it can also bring satisfaction to those who want to see wrongdoers suffer—though to show that to be a genuine good we would need to show that it involves something more than mere revenge, which would be to make sense of some version of retributivism.) foundationbriefs.com Page 36 of 113 January/February 2013 Aff: Retribution bad investment While retribution may work in theory, it fails in implementation. Cahill, Michael T. (2008). Retributive Justice in the Real World. Washington University Law Review (85). By contrast, retributivism, which adopts a backward-looking perspective focusing on the moral duty to punish past wrongdoing, is a justificatory theory, but seemingly not a prescriptive one.8 It offers retribution as a justifying ideal but does not explain how legal institutions are supposed to make retribution real.9 To the extent retributivism offers guidance about its own operation in practice, it speaks only to the content of criminal law rules, and not to their implementation.10 Retributive principles may identify what the law should criminalize,11 and might even say something about the proper idealized level of punishment for those crimes relative to each other.12 As to matters of application, however, retributivists tend to focus only on the resolution of individual (often hypothetical) cases where an offender’s behavior is known or stipulated.13 Rehabilitation proves to be more cost-effective. “The California Prison and Rehabilitation.” Ethics of Development in a Global Environment. Stanford University How do these programs pay off? First, it pays in reduced recidivism rates. A report from the Center on Crime, Communities and Culture states that education is the key to keeping offenders from returning to jail and they write that it is very inexpensive compared to lengthy incarceration. In New York, it costs $25,000 to incarcerate a prisoner for one year; educating a prisoner for one year costs only $2,500. Educating inmates adds only 10% to the costs and could potentially save the state millions of dollars in the future by preventing recidivism. In addition to saving money on prison stays, there are additional benefits as well of the individual obtaining work: contributed tax money, contributing to the general economy, etc. A recent study by the Arizona Supreme Court showed that the state saved $2.5 million in its first year of operation and predicted greater savings going forward. It costs $16 a day to subject someone on probation to intensive supervision, including drug treatment and counseling, compared with $50 a day to keep an inmate in prison. foundationbriefs.com Page 37 of 113 January/February 2013 Aff: Retribution bad investment Empirically, the retributive approach does not reduce recidivism. Lipsey, Mark W. and Cullen, Francis T. (2007). The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews. Annual Review of Law and Social Science (3). A second area of research has examined the impact of prison sentences on recidivism. As Levitt (2002, p. 443) noted, “it is critical to the deterrence hypothesis that longer prison sentences be associated with reductions in crime.” However, the results are not supportive of the view that incarceration dissuades offenders from reoffending after they are released. Sampson & Laub’s (1993) longitudinal study using the Gluecks’ Bostonarea data showed that imprisonment increased recidivism by weakening social bonds (e.g., decreased job stability). Using a matched sample of felony offenders in California, Petersilia et al. (1986) found that those sent to prison had higher recidivism rates than those placed on probation. More recently, Spohn & Holleran (2002) found a similar result fora sample from Jackson County, Missouri. Studies from Canada (Smith 2006) and the Netherlands (Nieuwbeerta et al. 2006) also show a criminogenic effect of imprisonment. As might be anticipated, none of the metaanalyses of studies of this sort (summarized in Table 1) found mean recidivism reductions for correctional confinement. The two meta-analyses that found essentially zero effects focused on boot camps, which feature relatively short-term custodial care. Those summarizing studies of incarceration compared with community supervision, or longer prison terms compared with shorter ones, all found that the average effect was increased recidivism. foundationbriefs.com Page 38 of 113 January/February 2013 Aff: Victim emotions misplaced Retribution as a means to victim satisfaction is misplaced Human desire for punishment does not justify retribution, especially when it spurs recidivism. Sperling, Hal. "Retribution a Failed Strategy in Cutting Crime." The Australian. 4 June 2010. Web. (1) I believe people would prefer improving community safety to exacting retribution, particularly as retribution is much more expensive than more effective ways of dealing with crime. I am speaking of the ordinary run of crime, not the minority of really bad cases for which imprisonment for life, or for a very long time, is necessary to protect the community. Some people want heavier sentences. Victims and the families of victims are often vocal. No penalty would be sufficient to satisfy them. That is understandable, but what would policy based on that lead to? Then there are those who demand retribution. They also are vocal and tend to be noticed. Retribution runs deep in human nature but that does not mean it is a worthy sentiment. Pride and avarice run deep too. Two wrongs don't make a right. Imprison X for harming Y and what have you achieved if all you get out of it is retribution? The satisfaction of retributive sentiment, yes, but X, on the stats, will be apprehended for another jailable offence within two years or so of their release. Their imprisonment will have done very little, if anything, to make the community safer. foundationbriefs.com Page 39 of 113 January/February 2013 Aff: Victim emotions misplaced Forgiveness is an essential ethic for the community to adopt when it comes to crime. Witvliet, Charlotte V. O. et al. (2007). Retributive justice, restorative justice, and forgiveness: An experimental psychophysiology analysis. Journal of Experimental Social Psychology (44). Recent reviews have assessed relationships among unforgiveness, forgiveness, and health (Harris & Thoresen, 2005; Worthington & Scherer, 2004). In setting a research agenda, Worthington and Scherer (2004) offered four test- able propositions that the current experiment addresses. First, unforgiveness is stressful. Second, a variety of coping mechanisms can reduce unforgiveness. For example, one could take the problem-focused approach of seeking to establish justice. If this were effective, it would narrow the theoretical injustice gap and thereby reduce the stress of unforgiveness. Third, emotion-focused coping via granting forgiveness can reduce the stress of unforgiveness. Fourth, because stress is linked to health, forgiveness is likely also related to health. Worthington and Scherer (2004) view forgiveness as an emotion-focused coping strategy that is associated with calmer physiological reactivity and recovery patterns than unforgiveness (Lawler et al., 2003; Witvliet et al., 2001). This analysis could be particularly useful in describing how the rehabilitative approach is healthiest for the community. That said, it needs to be accompanied by additional analysis or evidence explaining that the rehabilitative method, unlike the retributive one, allows for the forgiveness Witvliet is referring to. Punishing offenders doesn’t provide any authentic benefits for the victims. Witvliet, Charlotte V. O. et al. (2007). Retributive justice, restorative justice, and forgiveness: An experimental psychophysiology analysis. Journal of Experimental Social Psychology (44). Because punishment of offenders meets justice demands, this outcome should help to reduce the injustice gap, and hence unforgiveness. Victims may believe that seeing offenders punished will bring satisfaction and relief. How- ever, retributive justice approaches focus only on the issue of just deserts for offenders; they do not try to compensate offended parties or to help meet their emotional needs. Retributive approaches are also unlikely to directly pro- mote prosocial responses or reconciliation. We therefore predicted that in terms of reducing unforgiveness and phys- iological indicators of negative and aroused emotion, retributive justice would be more effective than no justice, but less effective than restorative justice. foundationbriefs.com Page 40 of 113 January/February 2013 Aff: Victim emotions misplaced Victims overwhelmingly do not weigh the punishment of the offender as their primary concern. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 These scholars state that research confirms these punitive needs of the victim and the public. This is of course not surprising in a society in which punishing offences is presented as the evident and unique possible response to crime. It is not evident that most victims would maintain their choice of punishment if they were offered a realistic restorative process which would provide them with a full opportunity to express their emotions and to seek constructive solutions. A New Zealand research found that the punishment of the offender was only a primary wish of 4% of victims (Maxwell and Morris 1996). We found only one out of 45 such victims (Vanfraechem 2003). Tag: Retributive approaches leave the parties directly involved in litigation feeling wronged. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 The transformation of revenge into retributivism has, however, reduced or even eliminated the emotional dimension. “Justice” is reduced to general concepts and procedures, equal to all citizens. It is formalised, and transforms experienced events into general terms, understandable and controllable for all (or their lawyers). Emotions do not fit into this transformation. Moreover, the retribution theory focuses more on the public dimension of the crime. As a result, justice may be done in the eyes of the professionals, but the direct parties are very often left frustrated, with feelings of injustice. foundationbriefs.com Page 41 of 113 January/February 2013 Aff: Social Contract Rehabilitation restores state’s obligations under social contract Impoverished criminals do not have access to society’s benefits. Green, Stuart. Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders. Rep. Rutgers Law School, Jan. 2010. Web. (1) Criminological studies consistently indicate that a disproportionate percentage of crimes in our society – both violent and non-violent -- are committed by those who are poor and socially disadvantaged. If we assume that at least some of the disadvantaged who commit crimes are disadvantaged because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment. The impoverished are more likely to be both criminal offenders and victims. Green, Stuart. Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders. Rep. Rutgers Law School, Jan. 2010. Web. (3) Why should criminal law theorists be concerned with the problem of poverty and other forms of disadvantage, whatever their source? One reason is that the poor account for a disproportionately high percentage of crime victims. According to U.S. Department of Justice figures, during 2007 the annual rate of victimization for all crimes, both violent and non-violent, per 1,000 persons with incomes of less than $7,500 was 64.6, compared to 45.9 for persons with incomes between $7,500 and 14,999, and 14.6 for persons with incomes over $50,000. Thus, the deeper the recession and the higher the rate of poverty, the greater the number of people likely to be victims of crime and the more harmful such crime is likely to be. Retribution restores balance to the social contract. Green, Stuart. Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders. Rep. Rutgers Law School, Jan. 2010. Web. (12-13) Antony Duff has offered yet another approach to the problem of imposing criminal sanctions on the severely impoverished and politically excluded. Duff is interested in what he calls the “preconditions” of punishment, the conditions that must be satisfied before a defendant can be tried at all (as opposed to the conditions that must be satisfied before he can be justly convicted). He argues that one precondition of criminal punishment is that the agent be bound by the laws under which she is to be tried and punished. Under this approach, people are bound by the law only when they are treated as a responsible part of the community. Duff then considers the case of an offender who has been excluded from the community whose law she has violated. There are three ways in which this exclusion might take place: First, she is “excluded from foundationbriefs.com Page 42 of 113 January/February 2013 Aff: Social Contract participation in the political life of the community, having no real chance to make [her voice] heard in those fora in which the laws and policies under which” she must live are decided. Second, she has been “excluded from a fair share in, or a fair opportunity to acquire, the economic and material benefits that others enjoy.” And, third, she has been denied by the state and her fellow citizens the “respect and concern due” her as a citizen. In each such case, he says, “there is reason to doubt whether [the precondition of being bound by law] is adequately satisfied.” He is careful to explain that those who have been systematically excluded or unjustly disadvantaged are not necessarily justified or excused in their criminal acts. Rather, his argument is that such actors cannot properly be “called to account.” In effect, he is arguing that such a case is non-justiciable. Duff’s approach differs markedly from the first three considered. Unlike the necessity approach, there is no claim that the impoverished offender’s act is justified. Unlike the RSB excuse approach, there is no claim that the defendant’s act should be excused. And, unlike the broken social contract approach, there is no claim that a citizen is relieved of his obligation to obey the law. Indeed, what is striking about Duff’s account is his lack of concern with the moral status of the offender one way or the other. Rather, his focus is on the moral status of society in judging the offender (12-13) Many of those who commit crimes are impoverished; they lack access to adequate resources that would otherwise give them the ability to fully function in society. By valuing rehabilitative justice over retributive justice, the obligations of the social contract can be upheld by both parties (the criminal and society). The society recognizes that it was unjust to prevent, or fail to adequately provide, resources to the criminal like education, social mobility, etc. and therefore uses rehabilitation to integrate the criminal back into society. The criminal, through rehabilitation, could right his past wrongs and prepare for a life of law-abiding behavior. Rehabilitation, by virtue of upholding the social contract, garners more respect for the legitimacy of the law. Raynor, Peter, and Gwen Robinson. "Why Help Offenders?Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. The basic argument is that people are more likely to comply with the law if they regard its demands as legitimate, and that they are more likely to do this if the law is administered and enforced with a high degree of procedural justice: for example, courtesy, objectivity, respect for rights, preparedness to listen to the views of those over whom authority is exercised, and in particular fairness and evenhandedness. It is not too fanciful to suggest that a criminal justice system which offers help to those who need it may be seen as fairer and consequently more legitimate in its demands. This adds another normative argument in favour of rehabilitation as a component in criminal justice and, if legitimacy promotes improved compliance, another instrumental argument as well. foundationbriefs.com Page 43 of 113 January/February 2013 Aff: Rehabilitation & community Rehabilitation benefits the community The rehabilitative process educates the community about the criminal, the victim, and itself. Waldman, Ellen. "Healing Hearts or Righting Wrongs?: A Meditation on the Goals of “Restorative Justice”." Hamline Journal of Public Law & Policy 25.2 (2004). Web. (361) In restorative processes, the community itself has a significant role to play, both as a secondary victim of the crime, and as an entity with responsibilities to the offender and victim to ameliorate those conditions that encourage crime and violence.12 Identifying the community as a primary stakeholder and participant in the victim-offender encounter is thought to serve a number of functions. First, it reveals to the community the deficits in the offender’s social environment that may have contributed to the crime and that require change to deter recidivism. Second, it educates the community about the victim’s needs and the community supports or resources that should be enlisted to meet them. Lastly, it reaffirms the existence of community and encourages individuals to define their self-interest broadly to include harmonious relations within and between heterogeneous social groups. Rehabilitation results in more useful members of society. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. The aim, firmly in the Utilitarian tradition, is a penal system which will have the best effects for society as a whole. The transformation of offenders into decent and useful members of the community by the most efficient means, whether that involves reducing the reach of the criminal law or changing the behaviour of offenders, is a project in the best Utilitarian tradition, which always attempted to apply clear principles to the practical business of social administration (Bentham, 1823). It also offers a clear justification for rehabilitative efforts: they are undertaken in the interests of society as a whole, to maximise the availability of ‘decent and useful members of the community’ (Mannheim, 1946, p. 62) for the collective task of social reconstruction. foundationbriefs.com Page 44 of 113 January/February 2013 Aff: Rehabilitation & community There are general goods derived from valuing rehabilitation over retribution. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. Briefly, the strong or optimistic claim is that society as a whole benefits from dealing with offenders in such a way as to reduce their offending: rehabilitating offenders contributes to the general good. The weak or guarded claim is that although we cannot be confident in our ability to change offenders for the better, we can, at least, avoid unnecessary harm resulting from excessive or damaging penalties. Rehabilitation is a more democratic and scientific way of maintaining social order. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. A good example is provided by the work of Herman Mannheim, a refugee from Nazi Germany who brought his experience of German jurisprudence and continental criminology with him to Britain and, in turn, became one of the pioneers of British criminology (Hood, 2004). In one of his books, ‘Criminology and Social Reconstruction’ published in 1946, he sets out a programme for the development of the criminal justice and penal systems in the ‘reconstructed’ post-war societies. Along with a chapter on making the administration of criminal justice ‘more democratic’, he provides a set of recommendations for making it ‘more scientific’. The means to be used in delivering the new ‘scientific’ criminal justice were, primarily, new ‘expert’ inputs into the sentencing and management of offenders. ‘Experts’ (psychiatrists and psychologists) should advise the Court before sentence, and a ‘Treatment Tribunal’ should be set up. foundationbriefs.com Page 45 of 113 January/February 2013 Aff: Rehabilitation & community Crime is the product of individuals becoming worn down as they struggle to grapple with their environments – restoring their ability to take control of the situation is in the interests of society. Menninger, 2007. Menninger, Karl. The Crime of Punishment. Web. Behavior scientists today agree in the view that the individual attempts continuously to make an adaptation to the environment. Sometimes the individual seems to conquer his environment, at least in part; sometimes the environment seems to win. Most of the time one can speak of neither winning nor losing, but of cooperating with more or less satisfaction and minimal pain for both. This cooperation has to reach a tolerable point for both parties so that a "vital balance," as I have called it, can be maintained. If the environment gets "kicked around" too much, it will react; and, if the individual becomes pressed upon too heavily, he will react. He will struggle, he will strive, he will make concessions, he will make little retreats. These retreats and the other evidences of this struggle are called symptoms, if anyone notices them. Mr. X, we say, seems very nervous recently. His wife might tell us he is sleepless and distressed. Mr. Y is known to be using increased amounts of alcohol, and Mr. Z just gave up his job without any apparent reason. These symptoms can be more and more severe, because from this point of view delirium and delusions go right along with divorce and drunkenness. They are all signs of a losing struggle. One can think of this as brain disease if one wishes to; one can call it mental illness, and give the illness a name. But this is not a brain disease, nor is it mental illness. One should view it in the broader perspective of demoralization or partial disorganization in a perennial adaptation struggle. This latter view point seeks to find where the pressure is too great and where it can be lifted. What forces are driving adversely? Some men can be driven to drink, some to crime; some even to suicide. We are all driven to some extent, and we all have some resources to withstand the drives and take control of the situation. What happens to those who cannot? And, more important, what can be done to restore or strengthen their counteracting capacities? We seek these answers not out of sheer mercy but from a realization that what is happening to "him" affects us all foundationbriefs.com Page 46 of 113 January/February 2013 Aff: Rehabilitation & basic institutions Rehabilitation is the approach most consistent with our basic intuitions Humans are naturally inclined to have unconditional love for fellow beings while, at times, hating their actions. Pilllsbury, Samuel H. (1989) Emotional Justice: Moralizing the Passions of Criminal Punishment. Cornell Law Review 44 (655). Because man's basic worth depends upon his the capacity to make moral choices, it follows that the exercise of morality is important. If the exercise of morality is important, it [and] must have consequences. Both agape and respect for persons suggest, therefore, that bad moral choices should be punished and good choices rewarded. To put this valuing in emotional terms, we should hate bad choices and love good ones. This need not contradict the first principle of caring for all persons because we can still care for them as persons while hating their bad choices. As St. Augustine wrote, the moral person "ought to cherish towards evil men a perfect hatred, so that he shall neither hate the man because of his vice, nor love the vice because of the man, but hate the vice and love the man."'' In retributive punishment, therefore, it should be appropriate-and sufficient-for the sentencer to hate the criminal deed. While the sentencer retains that agapic duty to care for the offender as another fellow human, that sort of caring appears irrelevant to the particular issue of the amount of punishment deserved. While, to paraphrase St. Augustine, the sentencer should love the offender but hate the offense, the law of punishment concerns only the latter of these obligations. Or so it would appear. The human reality of punishment decision is that the two obligations are closely related. Translating moral duties into emotional terms is not a mere exchange of words; it also involves confronting the way moral and nonmoral factors intertwine in real-life judgments of desert. Within the framework of retributive punishment, the agapic obligation is narrowly defined. In the official (i.e. nonpersonal) context of a punishment decision the sentencer's obligation is to care about (love the good, hate the bad in) the offender's choice to offend and to evaluate the choice as conscientiously as possible. Instead of valuing what the offender might become, the valuing is of what the offender was. It means denouncing the evil in the offender's choice and caring for the good that was in the offender, even if it was good overwhelmed by evil. I refer to this obligation as moral caring in order to distinguish it from the broader, first-order principle of agape. Moral caring means caring for the good in an offender rather than caring for the good of him. It means caring for the way in which the offender has exercised his moral capacities in the past, rather than how he might become a more moral person in the future. Within a retributive framework, moral caring means caring about the past exercise of moral choice; it ignores the offender's potential future choices. This argument could be very strategic so long as its fleshed out in terms of its rehabilitative implications. In other words, analysis should be added explaining why the rehabilitative approach provides the foundationbriefs.com Page 47 of 113 January/February 2013 Aff: Rehabilitation & basic institutions unconditional love (or agape) Pillsbury refers to by handling the offender for who they are as an individual as opposed to for their offense. The fact that there are varying degrees of culpability based on circumstance in court trials means that rehabilitation is a necessary component of the justice system. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. Consider the impoverished single parent who makes a false statement to support a benefit claim when her children do not have enough to eat. Is she as blameworthy as the wealthy businessman who makes a false statement to secure some financial advantage simply to satisfy greed? It has been suggested that in order to recognize these differences of circumstances, opportunities and power, just deserts approaches to sentencing should allow a ‘hardship defence’ which partly or wholly mitigates the penalty (Hudson, 1999). This would also be relevant to people who offend 12because they are threatened or coerced by others who then benefit from the proceeds. What is relevant to the current discussion is that a recognition of hardship and of unequal opportunities to avoid crime suggests not simply mitigation of the penalty, but also that a State which seeks to guarantee a minimum acceptable standard of living and level of welfare to its citizens is obliged to offer to offenders the support and assistance which could make avoidance of crime a more realistic prospect. This approach to justifying rehabilitation has become known as ‘state-obligated’ rehabilitation (Cullen and Gilbert, 1982; Rotman, 1990; Carlen, 1994; Lewis, 2005), and rests on a version of social contract theory: the moral legitimacy of the State’s demand that people refrain from offending is maintained if the State fulfils its duty to ensure that people’s basic needs are met. We assign different levels of culpability for a crime based on the different circumstances in which the crime was committed. This is the case because sentences are most often adjusting by the judge according to the individual crime at hand. The argument here is that if we recognize this to be the case, then it is unfair to leave out rehabilitation because crimes are a socioeconomic issue that arise as a result of the state's failure to provide the basic needs of the people. foundationbriefs.com Page 48 of 113 January/February 2013 Aff: Multisystemic Therapy Multisystemic Therapy A legitimate option for rehabilitative treatment is Multisystemic Therapy, or MST. The background. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf Meta-analyses are an invaluable resource in identifying the factors that are associated with successful rehabilitation programs. Even so, it must be remembered that meta-analysis is a statistical technique. This approach provides direction as to what features of interventions enable them to reduce recidivism and have other positive outcomes. Even so, this “direction” or guidance as to what works is not the same as identifying concrete programs that actually have worked in the real world. A special challenge, therefore, is to uncover programs that have proven to be effective in reducing recidivism, preferably in diverse locations. That is, we need “model programs” that can be “copied” successfully. It is beyond the scope of this essay to supply a lengthy catalog of such programs (see, however, Cullen and Applegate 1997; Gendreau 1996b, 119–120; Gendreau and Goggin 1996, 40; Ross, Antonowicz, and Dhaliwal 1995; Ross and Gendreau 1980), but we will focus briefly on one program whose prospects seem especially promising: Multisystemic Therapy (MST). Developed by Scott Henggeler and associates (see, e.g., Henggeler 1997, 1999; Henggeler et al. 1998), MST has been implemented in 25 locations in the United States and Canada. It has been shown to produce marked reductions in recidivism and in other problem behaviors among “serious anti-social youths” (see, e.g., Borduin et al. 1995; Brown et al. 1999; Henggeler 1997; Henggeler et al. 1997; Henggeler, Pickrel, and Brondino forthcoming; Schoenwald, Brown, and Henggeler 1999; Schoenwald, Ward et al. 1999). In addition, MST has proved to be cost effective. In one estimate, the yearly cost per juvenile was $4,000 versus a cost of $12,000 for the “usual” criminal justice sanctioning for serious delinquents (Henggeler 1999). Although transporting the intervention to other sites has been challenging (Henggeler et al. 1997), MST has achieved reductions in recidivism and has been cost effective in various locations and with various populations of troubled youths (Aos et al. 1999). foundationbriefs.com Page 49 of 113 January/February 2013 Aff: Multisystemic Therapy MST adheres to the principles of rehabilitation. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf Although developed independently of the Canadian school of effective correctional intervention (see again Andrews and Bonta 1998; Gendreau 1996b), MST conforms closely to the core principles of effective treatment. It would thus clearly be identified as an “appropriate” treatment by Andrews et al. (1990; see also Andrews, Dowden, and Gendreau 1999). First, MST is rooted in social psychological theory and is empirically based. Second, it addresses the “need principle” by targeting for change the individual, family, school, and peer factors that underlie antisocial conduct. The selection of these factors is based on “causal modelling studies of delinquency and substance abuse” (Henggeler 1999, 2). It focuses on “changing the known determinants of youths’ antisocial behavior” (Schoenwald, Brown, and Henggeler 1999, 3). Third, MST conforms to the “risk principle” by focusing primarily on high-risk youths. Fourth, this approach meets the “general responsivity principle” by employing behavioral treatment modalities. “MST interventions,” observe Schoenwald and colleagues (1999, 5), “integrate techniques from those pragmatic and problem-focused child psychotherapy approaches that have at least some empirical support, including pragmatic family therapies (e.g., strategic, structural, behavioral family systems approaches), cognitive-behavioral techniques, and behavioral parent training.” MST also attempts, as much as possible, to individualize interventions and thus be “specifically responsive” to youths in treatment. Further, MST is consistent with the principle that for interventions to be effective, they must have therapeutic integrity and be intensive. MST thus provides counselors with 5 days of initial training, “booster” training sessions, constant supervision and support, and weekly 1-hour consultations with MST “experts” (Schoenwald, Brown, and Henggeler 1999). Similarly, services are delivered to offenders and their families for a period of 3 to 5 months. Contact is daily at first, and counselors are available for intervention 24 hours a day, 7 days a week. The success of MST is instructive. Given the extent to which this program conforms to the principles of effective intervention, it can be seen as a field test of the principles’ validity. In short, MST provides added confirmation that “appropriate” treatments are our “best bet” for reducing recidivism among serious offenders. foundationbriefs.com Page 50 of 113 January/February 2013 Aff: Multisystemic Therapy MST has unique positive features. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf The principles of effective intervention are broadly stated and can encompass a variety of treatment programs. Accordingly, it is useful to learn about the unique features of MST that may also contribute to its success. In fact, it is these more specific factors that may be useful to replicate in the delivery of other intervention strategies. Three “unique features” warrant consideration (for more detail on MST, see Henggeler et al. 1998; Schoenwald, Brown, and Henggeler 1999). First, MST is not based on an intrapsychic view of human behavior that believes that antisocial conduct is altered merely by probing an individual’s personality orientation. Instead, its approach is social-ecological in the sense that it views individuals as enmeshed in multiple systems, including the family, peer group, school, and community. Interventions thus must be “multisystemic,” targeting for change criminogenic aspects of the individual and the contexts in which he or she is situated. In practical terms, this means intervening not only with an antisocial youth but also with how parents supervise and otherwise interact with the youth, steering the youth into prosocial peer-group interactions, and working with schools to enhance the youth’s educational and vocational skills. This approach involves defining a broad set of goals to be reached in a given intervention (e.g., improve parental supervision, decrease truancy). In turn, intermediary goals (e.g., teach a parent how to supervise, monitor a youth’s school attendance each morning) are identified that, if systematically and sequentially attacked, will allow the broader goals, including the reduction of the youth’s recidivism, to be attained (Henggeler et al. 1998; Schoenwald, Brown, and Henggeler 1999). The goals and strategies to achieve these goals are constantly monitored and, if necessary, revised. Second, MST provides intensive services within the home and community; its goal is to avoid placing youths in institutions. To accomplish this goal, an intervention team made up of one doctoral-level supervisor and three to four master’s-level therapists is employed. Each therapist carries a caseload of 4 to 6 youths/families; the group supervises 50 cases yearly. The advantage of the group approach is that it facilitates supervision (which is conducted mainly in a group meeting) and creates a pool of resources—knowledge, specialized skills, time available—to help intervene with cases that would not be available to a therapist who was a sole practitioner (Schoenwald, Brown, and Henggeler 1999). Third, MST provides therapists with considerable support (e.g., training, supervision, resources) but also holds therapists accountable for the results of their efforts. As Henggeler (1999, 4) notes, “MST does not follow the ‘train and hope’ approach to mental health services.” MST thus is based on the dual considerations that therapists must be given the knowledge and resources to be successful and know that the failure to intervene effectively may mean that the therapist should, as Henggeler (p. 8) puts it, “consider another line of work.” More generally, MST is assiduous in its fidelity to treatment integrity, which cannot be ensured in the absence of therapists’ support and accountability. foundationbriefs.com Page 51 of 113 January/February 2013 Aff: Retribution not proportional Retributive punishment fails to be proportional Reasoning behind the need for proportionality under retributive punishment. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (32-33) Most scholars today do not deem punishment justified solely by its capacity to increase overall welfare. Instead, they focus at least in part on the idea that a criminal deserves to be punished. This retributive principle is for some the entire justification of punishment and for others a supplement to or a limitation on the pursuit of utilitarian objectives. For a retributivist of any stripe, it is of core importance to understand the actual amount of harm that punishment inflicts. The retributive theory supplanted utilitarianism principally by emphasizing that it is unacceptable to punish the innocent or to punish excessively the guilty, even if doing so would increase utility. A cornerstone of retributivism is thus that the state may impose suffering only on those who deserve it (criminal offenders) and only in an amount that they deserve (proportional to the severity of their wrongdoing). For most retributivists, imposing deserved punishment is not only permissible but also required. Imposing too much harm for a minor crime is unacceptable under the theory, as is imposing too little harm for a major crime. It would be wrong, on the retributivist account, to allow a murderer to go unpunished or to give him an insufficiently severe punishment (such as a small fine). Therefore, retribution can be implemented only via a spectrum of punishments that impose varying degrees of harm. The level of harm must be adjusted to accord with the offender’s desert. Switching from fines to prison, and changing the length of prison sentence, does not properly adjust for proportionality. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (36) Let us assume, purely for purposes of illustration, that a fine of $100 is the deserved punishment for a certain instance of petty theft, and that a prison term of five years is the deserved punishment for a certain instance of assault with a deadly weapon. By “deserved punishment,” we mean that those sentences would impose the amount of harm deemed morally appropriate in each case by the retributive theory. How would the state deal with crimes whose severity falls in between those two? A larger fine will not impose much more harm than the $100 fine, and a shorter prison term will not impose much less harm than the five-year term. And how would a state respond to a crime far more severe than the assault with a deadly weapon? No matter how long an incarceration it hands down, that sentence will not differ sufficiently from the five-year sentence (in terms of harm imposed) to reflect the difference in deserved punishment. foundationbriefs.com Page 52 of 113 January/February 2013 Aff: Retribution not proportional Long prison sentences do not affect the happiness of criminals, whereas any amount of prison time damages long-term prospects for criminals. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (3) These results differ dramatically from the standard assumptions that underlie both penal policy and philosophical scholarship on punishment. All major accounts of punishment place a high value on proportionality: more serious crimes warrant more severe punishment, either to effect greater deterrence, to repay the offender adequately for her misdeeds, to express the appropriate level of societal condemnation, or some combination thereof. But owing to the ways in which people do and do not adapt to various hardships, our current methods of punishment are too blunt for proportional punishments to be fashioned. Contrary to expectations, adjusting the size of a fine or the length of a prison sentence does not meaningfully adjust the amount of unhappiness that is ultimately experienced by the offender. Paying more money or staying in prison for a longer period are highly susceptible to adaptation. As a result, virtually any fine imposes only fleeting harm. On the other hand, virtually any term of imprisonment imposes large and lasting harm by causing disease, unemployment, and loss of social connection; but longer prison terms do not diminish happiness much more than do shorter ones. It is therefore impossible to tailor a punishment to fit the severity of a crime, given the penal options available. Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (13) Although being in prison seems to produce only limited hedonic deficits for inmates, it is becoming increasingly clear that having been in prison, for any length of time, has severe, long-lasting effects on postincarceration well-being. Researchers have discovered that any amount of incarceration creates a significantly higher likelihood that ex-inmates will suffer a variety of health, economic, and social harms that will prove extremely difficult to adapt to. foundationbriefs.com Page 53 of 113 January/February 2013 Aff: Retribution not proportional Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (35-36) The first point is simply that if “punishment should be graded in proportion to desert,” then in order to deliver the deserved punishment, the state needs to be able to adjust the amount of imposed harm to fit the severity of the crime. To do that, it relies on the mechanism of increasing or decreasing the amount of a fine or the length of a stay in prison. But as discussed above, such adjustments do not do well in tracking adjustments in the amount of harm felt by the offender. Although an offender will expect a larger fine or a longer incarceration to decrease her happiness far more severely than a smaller fine or a shorter incarceration, her expectation will mistakenly ignore her own adaptive skills. Even more so than utilitarianism and expressive theories of punishment, which place at least some importance on the amount of harm that a given punishment is perceived to impose, pure retributivism concerns itself with the amount of harm actually imposed. Its distinctive feature is the principle that to punish criminal behavior is inherently right.141 If it is not possible to punish the right amount, then it is not possible for justice to be done. Pure retributivism thus requires a rethinking of the types of punishment that are currently employed. Those types create the illusion of a spectrum of available harms while in fact offering, more or less, only two. A fine, however large, constitutes only a small diminution of an offender’s happiness. And an incarceration, however brief, constitutes a large diminution of such happiness. People adapt so thoroughly to economic losses, and their happiness depends so little on their wealth, that fines of varying sizes do not change much the well-being of those on whom they are imposed. Similarly, people adapt surprisingly well to prison, so staying in prison longer does not decrease happiness as much as one would expect. This is all the more true because any prison term dramatically decreases happiness after prison. Thus, getting out of prison earlier is less valuable than it would appear, both because prison itself is less bad than expected (due to adaptation) and because the alternative of post-prison life is worse than expected. foundationbriefs.com Page 54 of 113 January/February 2013 Aff: Retribution unfair punishment Retribution unfairly punishes beyond prison time Prison, regardless of sentence length, is linked to increased chronic disease. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (14) Using data from the National Longitudinal Survey of Youth, Michael Massoglia has found that ex-inmates have a much higher likelihood of reporting health problems associated with stress and communicable diseases in the years following incarceration.68 They are more than twice as likely to report hepatitis C infections, HIV/AIDS, tuberculosis, and urinary tract infections.69 Moreover, they report substantially higher levels of chronic headaches, sleeping problems, dizziness, and heart problems.70 Considering the high incidence of prison sexual violence71 and the many stressors associated with post-prison life, 72 these results should not be surprising. What is surprising, however, is evidence from Massoglia and others that the incidence and severity of these health problems are unrelated to sentence length.73 Thus, any contact with the prison system, no matter how brief, exposes offenders to worse postincarceration health outcomes. Prison prevents reintegration and damages long-term economic prospects of criminals. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (15) Felony imprisonment results in social stigma, the erosion of job skills, and disqualification from stable government and union jobs.75 Accordingly, former prisoners experience lower wages, slower wage growth, and, importantly, greater unemployment. According to Bruce Western, their average annual number of weeks worked dropped from 35 before imprisonment to 23 after,76 and they tended to have much shorter job tenure.77 Additionally, imprisonment was related to poor employment continuity for many years after release.78 After release, offenders are typically shunted into secondary labor markets with little job security, little opportunity for advancement, and miniscule earnings.79 foundationbriefs.com Page 55 of 113 January/February 2013 Aff: Retribution unfair punishment Prison damages family relationships. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (15-16) Recent research also reveals that ex-inmates are more likely to experience substantial disruptions in their postincarceration family and social lives.80 Imprisonment makes communication with family and friends difficult and cohabitation with spouses and children impossible.81 Moreover, imprisonment likely hinders community integration, trust, and intimacy.82 Accordingly, men who have spent time in prison are less likely to get married than similar men who have not, and they are more than twice as likely to get divorced than their neverincarcerated peers. foundationbriefs.com Page 56 of 113 January/February 2013 Aff: Punishment adaptation Retribution does not effectively punish criminals Prisoners quickly adapt to prison. Bronsteen, John, Christopher Buccafusco, and Jonathan Masur. "Happiness and Punishment." University of Chicago Law School. JOHN M. OLIN LAW & ECONOMICS WORKING PAPER NO. 424 (2008). Web. (12-13) This evidence for adaptation to prison has been bolstered by longitudinal studies tracking inmates across prison terms.57 One such study surveyed a group of prisoners regularly over six years. As in the cross-sectional studies, the researchers found that prisoners interviewed in their first month of incarceration showed high levels of depression and anxiety, but, within a few months, the prisoners’ selfreported mental health had improved substantially.58 Moreover, inmates’ reports of their well-being also rose.59 In interviews conducted during their first month in prison, inmates reported a mean quality of life (QoL) score of 32.2 out of 100, with more than twothirds reporting their QoL below the midpoint of the scale.60 After six months in prison, inmates’ QoL reports rose to 38.3, and six years into their sentences, inmates had improved to 42.0, with most reporting their QoL above the scale’s midpoint.61 From these studies a pattern of hedonic response to imprisonment emerges. Initial entry into the prison environment triggers significant psychological distress and low levels of wellbeing. Within weeks, however, inmates develop coping mechanisms that enable them to adjust to the situation and improve their wellbeing. 62 After this initial adjustment period, offenders maintain relatively constant levels of happiness throughout the remainder of their terms.63 Thus, the “pains of imprisonment”64 are felt immediately, with diminishing hedonic penalties over the remainder of the sentence You will need to extend this argument beyond just saying that the current system of punishment is ineffective. Instead, you must claim that retribution itself will never work due to the human psychology. Therefore, we should pursue the more effective rehabilitative approach. foundationbriefs.com Page 57 of 113 January/February 2013 Aff: Punishment adaptation Retribution is unnecessarily subjective. Van Prooijen, Jan-Willem and Lam, Jerome. (2007). Retributive justice and social categorizations: The perceived fairness of punishment depends on intergroup status. European Journal of Social Psychology (37). In human society, it is an almost inescapable fact of life that people occasionally are confronted with criminal offenders. Many encounters with offenders are from an observer perspective, either directly (e.g., when watching an offense being committed) or indirectly (e.g., through media such as newspapers, TV, and internet). Observing an offense typically produces strong moral reactions, which are reflected in a subjective desire that the offender receives appropriate punishment. These punitive responses are studied in the social psychology of retributive justice, defined as lay people’s perceptions of what constitutes fair punishment (Hogan & Emler, 1981; Miller & Vidmar, 1981). People’s retributive justice judgments are sensitive to numerous social factors that are directly connected to the offense, such as mitigating circumstances, expressions of remorse, and attributions of blame (e.g., Bradfield & Aquino, 1999; Carlsmith, Darley, & Robinson, 2002; Gold & Weiner, 2000). Besides these offense-specific factors, however, retributive justice judgments are also sensitive to social factors that are relatively less offense-specific. Notably, it has been suggested that social categorizations (i.e., whether or not the observer and the offender belong to the same or a different social group) have the potential to influence retributive justice judgments (e.g., Kerr, Hymes, Anderson, & Weathers, 1995; Van Prooijen, 2006). An illustration of this idea can be found in a chapter by Vidmar (2002), who described numerous anecdotal incidents where people responded more punitively to ingroup than outgroup offenders. One example that he describes in his chapter is how people reacted to members of a Catholic religious order in the Mt. Cashel Orphanage, Newfoundland, Canada. These Catholic members had sexually abused young boys that were under their care. In Newfoundland society, where Catholics and Protestants both are salient religious groups, Catholics expressed a much stronger desire for severe punishment than Protestants. foundationbriefs.com Page 58 of 113 January/February 2013 Aff: Punishment adaptation Treatment programs oriented towards retribution fail to reduce recidivism and are unnecessary for deterrence. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf First, there has been a longstanding debate over whether the prison experience is a deterrent or, in fact, provides a “school of crime” (Bonta and Gendreau 1990, 1991; Murray and Cox 1979). The empirical research on this issue is complex and fairly limited (see Lipton, Martinson, and Wilks 1975). It is instructive, however, that a recent meta-analysis conducted by Gendreau, Goggin, and Cullen (1999) questions whether prison can be considered a “treatment” that reduces recidivism. Their investigation indicates that even when the risk level of offenders is taken into account, those sent to prison have a higher rate of recidivism than those given community sanctions. Further, it appears that longer prison sentences are associated with greater criminal involvement, with offenders in the “more imprisonment” category having a recidivism rate 3 percentage points higher than those in the “less imprisonment” category. These results, of course, are inconsistent with the thesis of specific deterrence. Second, meta-analyses are consistent in showing that deterrence-oriented interventions are ineffective. Most meta-analyses include a limited number of evaluations of punishment-oriented programs as part of the sample of studies they assess. These programs fall into the category of “inappropriate” interventions according to the principles of effective treatment. The results are clear: They do not work to reduce recidivism. For example, in Lipsey’s (1992, 124) meta-analysis, deterrence programs heightened recidivism 12 percentage points. In Lipsey and Wilson’s (1998, 332) study of programs for serious, violent youths, deterrence programs heightened recidivism 3 percentage points. In Andrews et al. (1990, 382), sanctioning interventions without human service treatment increased recidivism 7 percentage points; in a followup to this study, the increase was found to be 2 percent (Andrews and Bonta 1998, 270; Andrews, Dowden, and Gendreau 1999). Again, there is no evidence that punishment-oriented “treatment” programs specifically deter or otherwise reform offenders (see also MacKenzie 1998). Third, the intermediate sanctions movement of the 1980s and beyond was undertaken mainly as a means of reducing prison crowding by punishing offenders in the community. As one noted advocate of these sanctions commented, “we are in the business of increasing the heat on probationers . . . satisfying the public’s demand for just punishment. . . . Criminals must be punished for their misdeeds” (Erwin 1986, 17). The main conduit for these sanctions was “intensive supervision probation (or parole)”—commonly referred to as “ISPs.” By watching offenders closely and presumably increasing the certainty that misdeeds would be detected, offenders were to be specifically deterred from offending. ISPs also often involved other means of detection, especially random drug testing but also electronic monitoring and house arrest. Restitution to victims was commonly part of a community-based sanction. “Boot camps,” also called “shock incarceration,” became fashionable as well. foundationbriefs.com Page 59 of 113 January/February 2013 Aff: Punishment adaptation Treatment programs oriented towards retribution empirically fail to lower recidivism in any significant way. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf How well did these types of programs work? With isolated exceptions, they did not fare well. There is some evidence that intermediate sanctions that included treatment achieved some reductions in recidivism (Gendreau, Cullen, and Bonta 1994). But aside from this glimmer of optimism, the research did not show that purely punitive intermediate sanctions diminished recidivism rates. Thus, the best experimental and quasi-experimental studies revealed that these programs had virtually no influence on recidivism (see, e.g., Petersilia and Turner 1993; MacKenzie and Shaw 1993). Narrative reviews, some of which were quite extensive, reached the same conclusion (Cullen, Wright, and Applegate 1996; Fulton et al. 1997; Gendreau et al. 1993; Gendreau and Ross 1987; MacKenzie 1998). Relying on retribution to achieve “correctional treatment” is unlikely to work – a metaanalysis confirms. Cullen, 2000. Cullen, Francis. “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects.” Criminal Justice 2000 – Volume 3: Policies, Processes, and Decisions of the Criminal Justice System. 2000. http://learn.uci.edu/media/SP06/99015/Assess%20Rehab%20Cullen%2003d.pdf More recently, Gendreau, Goggin, and Fulton (2000) conducted a thorough meta-analysis of 88 comparisons of ISP-type programs with control groups that received “lesser or no sanction.” Only restitution was associated with a decrease in recidivism (4 percentage points) with a comparison with controls. Two sanctions, ISP and drug testing, had no effect on recidivism. Scared straight and electronic monitoring produced a 5-percentage and 7-percentage point increase in recidivism, respectively. Subsequently, Gendreau et al. (1999) have expanded the database to include 150 comparisons involving 56,602 offenders. The overall effect size for all types of intermediate sanctions was found to be 0 percent. Together, these results reveal that relying on punishment to achieve “correctional treatment” is unlikely to work and thus is an imprudent investment of resources. foundationbriefs.com Page 60 of 113 January/February 2013 Aff: Retribution suffering Retribution causes unnecessary suffering Retribution imposes suffering on a criminal that serves no morally legitimate purpose. Blandshard, “Retribution Revisited,” in PHILOSOPHICAL PERSPECTIVES ON PUNISHMENT 59, 64 (1968). "I doubt whether retributive punishment, meaning the infliction of suffering on a man simply by reason of his guilt, is ever justifiable." This [retributive] theory falls short . . . first and most obviously in its commitment to pointless suffering. . . . [Suffering is an intrinsic evil, and we have the right to ask of anyone who imposes it what good he expects to come by it and how he intends to justify its price. Does he impose it to reform the sufferer? The retributivist says, No, that is not what retribution is for. Does he impose it then to protect the public through a preventive threat? No, that again would be falling back on consequences. Why then does he impose it? Simply because wickedness deserves suffering. How does he know that? Answer: It is self-evident. Now to anyone inclined, as I am, to hold as self-evident the view that you should produce the largest attainable good, this view that you should add another evil to one which already exists, is not only not self-evident; it seems to conflict with one that is. foundationbriefs.com Page 61 of 113 January/February 2013 Aff: Environmental factors Offenders are also victims Crime is a result of environmental factors and justice for offender is served through rehabilitation. “Race, Ethnicity, and the Criminal Justice System.” American Sociological Association. (2007) Explanations of racial disparities in offending have centered on biological, cultural (e.g., culture of poverty, deviant subcultures), inequality/deprivation, and structural explanations. Studies focusing on deprivation, for example, stress the importance of factors such as persistent racial inequality and concentrated poverty that cause frustration among youth leading to their delinquency and potential aggression (7).6 Research studies also focus on the very different communities in which blacks and whites live, and emphasize contextual factors that explain race-crime differences. Communities that are racially segregated and have high concentrations of poverty and unemployment (or marginal employment), population change and turnover, family disruption, and extreme social isolation (e.g., few kinship and intergenerational links, unsupervised teenage peer groups, minimal levels of organizational participation) experience higher levels of crime and violence (e.g., 89; 42). Massey demonstrates how rising black poverty and high levels of racial segregation have interacted to concentrate poverty geographically and to create the social conditions leading to the crime waves experienced in the U.S. over recent decades (61). Other researchers have documented how discriminatory housing policies and practices have reinforced racial segregation, thus increasing and concentrating disadvantage for blacks, but not whites (77). Peterson and Krivo show how the adverse social conditions created by concentrated disadvantage resulting from segregation have a strong effect on black but not white homicides. foundationbriefs.com Page 62 of 113 January/February 2013 Aff: Environmental factors Character is largely a matter of environmental influences. Rachels, James, and Stuart Rachels. "The Case Against Free Will." Problems from Philosophy. New York, NY: McGraw-Hill, 2012. 94-108. Print. In the study [at Princeton], the theology students first filled out forms giving information about themselves, including information about their ethical and religious beliefs. Then half of the students were told to prepare a lecture on ethics, and half were told to prepare a lecture on job opportunities. All the students were told to go to another building to give their lectures. Some were told they needed to hurry, while others were told they had plenty of time. It had been arranged that on their way to the other building they would pass by someone slumped in a doorway, obviously in distress. Would they stop to help? Some stopped and some did not. But it turned out that their ethical and religious views had nothing to do with it, nor did it matter whether they had ethics or job opportunities on their minds all that mattered was whether they thought they had time to stop. This small change in circumstances determined who would be heroic and who would be heartless. Therefore, we cannot simply make punishment a goal in the criminal justice system. Committing a crime is most often a matter of what circumstance one is in. Thus, rehabilitation would be the most effective method of administering justice and preventing future crime. Crime is a race issue. “Race, Ethnicity, and the Criminal Justice System.” American Sociological Association. (2007) Minorities were 60 percent of all inmates in U.S. prisons in 2004 (black inmates were an estimated 41 percent of all inmates, whites were 34 percent and Hispanics, 19 percent). Are minorities inherently more immoral than whites? Are they worse people? No. So how can we make sense of this disproportionate representation of minorities in jails? This proves that crime is a race issue and that this calls for a more complex approach to the problem that mere retributive practices and admonishment for bad behavior. foundationbriefs.com Page 63 of 113 January/February 2013 Aff: Retribution more harm than good Retribution causes more harm than good Imprisonment and focus on retribution leads to more crime in the long-term. Benson, Etienne. “Rehabilitate or punish?.” American Psychological Association. Vol. 34, No.7 (2003). Pp. 46 Finally, researchers have demonstrated the power of the prison environment to shape behavior, often to the detriment of both prisoners and prison workers. The Stanford Prison Experiment, which Haney co-authored in 1973 with Stanford University psychologist and APA Past-president Philip G. Zimbardo, PhD, is one example. It showed that psychologically healthy individuals could become sadistic or depressed when placed in a prison-like environment. More recently, Haney has been studying so-called "supermax" prisons--high-security units in which prisoners spend as many as 23 hours per day in solitary confinement for years at a time. Haney's research has shown that many prisoners in supermax units experience extremely high levels of anxiety and other negative emotions. When released--often without any "decompression" period in lower-security facilities--they have few of the social or occupational skills necessary to succeed in the outside world. Nonetheless, supermax facilities have become increasingly common over the past five to ten years. "This is what prison systems do under emergency circumstances--they move to punitive social control mechanisms," explains Haney. "[But] it's a very short-term solution, and one that may do more long-term damage both to the system and to the individuals than it solves." foundationbriefs.com Page 64 of 113 January/February 2013 Aff: Retribution ineffective Retribution is ineffective There must be more than philosophical justifications (such as the argument of just deserts) in order to justify retributive practices. “Imprisonment and Reoffending” by Daniel Nagin, Francis Cullen, Cheryl Jonson. University of Chicago, 2009 Imprisonment is costly, exacts an economic and psychological toll on family members of the incarcerated, particularly children, and raises issues of social justice due to its differential impact on minority members and communities. Thus, beyond being an instrument for meting out just deserts, prison’s justification must rest heavily on its demonstrated capacity to protect the social order. Understanding the effects of incarceration on reoffending is thus a key consideration in formulating correctional policy. If the negative relies on topicality and denies that they need to give empirical evidence and there are a lot of empirical evidence in support of the affirmative, this is the card to use in order to prove why more empirical evidence is crucial to this debate. (This is based on the idea that there are more cards out there showing lower recidivism rates for a rehabilitation approach rather than a retributive approach. Making a community of criminals come together is conducive for a more developed culture of crime. “Imprisonment and Reoffending” by Daniel Nagin, Francis Cullen, Cheryl Jonson. University of Chicago, 2009 The key insight is that regardless of the precise mechanism, prisons are marked by the presence of cultural values supportive of crime that can be transmitted through daily interactions. It is thus a social learning environment in which criminal orientations are potentially reinforced. Consistent with social learning theory (Akers 1998), it can be expected that a custodial sentence will intensify a commitment to a life in crime. foundationbriefs.com Page 65 of 113 Neg Evidence foundationbriefs.com Page 66 of 113 January/February 2013 Neg: What is Retributive Justice? What is Retributive Justice? An overview of Retributive Justice Waldman, Ellen. "Healing Hearts or Righting Wrongs?: A Meditation on the Goals of “Restorative Justice”." Hamline Journal of Public Law & Policy 25.2 (2004). Web. (357-358) Theories of retributive justice focus, above all, on according criminal offenders their “just desserts.” Offender punishment sets right the moral equilibrium knocked akimbo by the offender’s violation of social norms. Retributive justice theory conceives of crime primarily as a breach of society’s system of mutual restraint whereby citizens renounce the freedom to trespass on the rights of others in return for the assurance that their own rights to physical and material security will be protected. According to this theory, criminals wrongfully appropriate the benefit of personal security while failing to adhere to the burden ofselfrestraint. State sanction punishes this wrongful appropriation and thus restores the natural balance of benefits and burdens imposed by the criminal justice system.5 While retributive justice conceives of crime primarily as an offense against the state, it nonetheless maintains that meting out offender punishment addresses victim needs in two important ways. First, offender punishment satisfies the victim’s anger and desire for vengeance. Retributive justice accepts the victim’s (and the community’s) blood lust as a justifiable expression of human outrage and believes such vengeful emotions are morally worthy of placation.6 Second, offender punishment erases the message of victim contempt encoded in the offender’s crime. Crime, according to retributivists, expresses the offender’s presumed superiority over the victim. The offender’s criminal act says to the victim, “you and your rights are insignificant; they are subordinate to my needs.” Punishment reverses this message. Public censure and offender deprivation resurrects the victim as a community member of equal status whose pain warrants the ignition of society’s punitive machinery.7 The expressive power of punishment, according to the retributivist story, speaks, not simply to the victim, but also to the community. Offender punishment, so the theory goes, affirms the boundaries between acceptable and unacceptable conduct, reestablishes the primacy of societal restraints, and strengthens social solidarity. Indeed, in the international sphere, calls for war crime prosecutions are often grounded in the transformative potential of a criminal trial in bringing the rule of law and norms of accountability to regions previously characterized by lawlessness and impunity. Just desert is the objective of retribution. Mary Sigler, Just Deserts, Prison Rape, and the Pleasing Fiction of Guideline Sentencing , 38 ARIZ . ST . L.J. 561, 563 (2006) Although a retributivist will welcome the positive consequences that punishment may incidentally yield — for example, crime prevention or character reformation — they are not part of the justification for punishment. Thus, a ‘retributivist punishes because, and only because, the offender deserves it.’” foundationbriefs.com Page 67 of 113 January/February 2013 Neg: What is Retributive Justice? A clarification on Retributive Justice. Gray, David. "Punishment as Suffering." Vanderbilt Law Review 63.6 (2010). Web. (1657) Retributivists use “punishment” in a precise way, referring to background theories of crime, criminal agency, and justice. Pain and suffering under these theories may be an incidental effect of punishment, but punishment is neither justified nor measured by its capacity to produce pain and suffering.187 This may strike subjectivist critics and some readers as odd. That confusion is no doubt due in part to the fact that retributivism often is confused with baser sentiments of vengeance,188 what Susan Jacoby has called “Wild Justice.”189 While there certainly are some blustery law-and-order types who share this view—and angry calls for revenge frequently do dominate public conversations about punishment in the face of horrific crimes—the explicit task of retributivism as a theory of justice is to resist slavery to emotions like anger and bloodlust in favor of cool reason.190 Retributivism is defined by the proposition that punishment can be imposed only if, and only to the extent, it is deserved Retributive justice is an appeal to moral outrage as a way to respond to the actions of offenders. The critical variable for retribution, then, is the moral outrage generated by the crime. More serious crimes deserve more serious punishments. At the same time, though, factors that mitigate or exacerbate the morality of the action also come into play. Thus, holding the severity of the crime constant—say, theft of $100—one would punish less severely if the money was needed to feed a starving child, and more severely if the money was needed to create the world’s largest margarita. Similarly, any circumstance that mitigates responsibility for the action would also mitigate the moral severity of the offense. Thus, negligent actions ought to be punished less severely than intentional actions, and unforeseeable harms ought to be punished less severely than foreseeable harms. In short, a theory of retributive justice will be concerned with those factors that increase or decrease the moral outrage that the action generates. The theory is focused solely upon the action and seeks to balance moral magnitude of the offense with the punishment. Those who cry, ‘‘let the punishment fit the crime’’ are probably operating from a retributive stance. Similarly, the biblical decree of ‘‘an eye for an eye’’ reflects retributive imperative that crimes and punishments ought to be commensurate. Modern views of retributive justice seek pro- portionality rather than absolute parity. Thus, more serious crimes receive more serious punishments, but the punishments, on average, could be either more or less severe than the offense. This card can be used strategically if paired with arguments about how people are generally morally outraged by crimes and so, retribution is necessary. Moral outrage is an intense opinion expressed by the community about the ethical value of an action. foundationbriefs.com Page 68 of 113 January/February 2013 Neg: Best approach for individual Retribution is the best approach for the individual offender Using a retributive model is the only way to respect the value of individual choices, because it allows us to recognize culpability and hence, agency. Arenella, P. (1992). Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability. UCLA Law Review, (39). What are those benefits? H. L. A. Hart has argued that the law's conduct-responsibility requirement maximizes the utility of individual choice within a coercive legal framework. This fair attribution requirement serves to reassure the law-abiding members of the community that their individual choices will be respected and valued n41 because they know that serious criminal liability and punishment will be limited to those actors who could have acted otherwise and who appear to be at fault for what they have done. In addition, demonstrating that the criminal was at fault for conduct that he could have avoided committing fosters the deterrent value of the law's most efficient sanction: moral stigma. Imposing moral censure when the public believes that the individual could not have avoided the violation undermines the censure's deterrent efficacy. In short, the conductattribution model of "moral" responsibility constitutes a "disguised" method of enhancing social utility. The retributive model is the most optimal choice to respect the offender and treat them as an end as it recognizes their autonomy, culpability and right to do wrong. Arenella, P. (1992). Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability. UCLA Law Review, (39). "Just desert" retributivists offer deontological justifications for what they perceive as a necessary conceptual link between justifi- able punishment and moral desert. Justice requires that individuals be rewarded and punished on the basis of what they deserve. It is "right" to give people what they deserve, and the "good" of this practice is that justice is being done regardless of whether blaming the deserving wrongdoer generates desirable social consequences. Some retributivists derive this principle of distributive justice from Kant's categorical imperative that moral agents be treated as "ends" in themselves before they can be treated as a "means" of promoting others' objectives.46 Blaming a deserving wrongdoer treats him as an end because we are respecting and responding ap- propriately to his autonomous choice to do wrong. foundationbriefs.com Page 69 of 113 January/February 2013 Neg: Advantages over revenge Retributive justice’s advantages over revenge Retribution removes the desire for personal revenge; revenge has disadvantages. Markel, Dan, and Chad Flanders. "Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice." California Law Review 98.3 (2010). Web. (941-942) Contrary to various courts and commentators,' 30 we can see how retributive justice, especially once accounted for in its institutional form, might usefully be contrasted with revenge-at least as an ideal type. '3 To begin with, what induces retributive punishment is an offense against the legal order. Therefore, where the law runs out, so must retribution. By contrast, revenge (and perhaps also other conceptions of what we call "comprehensive" retributivism) may address slights, injuries, insults, or nonlegal wrongs. Nozick identified five other distinctions between retribution and revenge: (a) retribution ends cycles of violence, but revenge fosters them; (b) retribution limits punishment so that it is in proportion to the wrongdoing, whereas revenge is not necessarily limited by this principle; (c) the state administers retribution impartially, while revenge is often personal; (d) retributivists seek equal application of the law, whereas the avenger is not attached to such a principle; and (e) retribution is cool and unemotional, while revenge (often) has a particular emotional tone of taking pleasure in the suffering of another.' 32 There are a few other important distinctions. Retributivism, on our view, always seeks to attach the punishment to the offender directly, because it is the offender who makes the claims the state seeks to reject, whereas revenge may target an offender's relatives or allies.'33 Our account of retributivism, distinct from revenge or some forms of comprehensive retributivism, is uninterested in making the offender experience unvariegated suffering, that is, negative experiences as such;' 34 it instead seeks to communicate certain ideas through the state's power to coerce the offender Retribution is distinct from revenge. Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Retributive theories of punishment argue that punishment should be imposed for past crimes and that it should be appropriate to the nature of the crime committed; that is, the severity of the punishment should be commensurate with the seriousness of the crime. Sometimes, retributive punishment is confused with notions of revenge. Critics of retributionist theories of punishment argue that retribution is basically nothing more than vengeance. However, Nozick argues that there is a clear distinction between the two because “retribution is done for a wrong, while revenge may be done for an injury or harm or slight and need not be a wrong” (1981: 366). He also points out that whereas retribution sets a limit for the amount of punishment according to the seriousness of the wrong, no limit need be set for revenge. In this sense, therefore, revenge is personal whereas the person dispensing retributive punishment may well have no personal tie to the victim. As Nozick points out, “revenge involves a particular emotional tone, pleasure in the suffering of another” (1981: 367). A further distinction between the two is that retribution in the form of punishment is inflicted only on the offender, but revenge may be carried out on an innocent person, perhaps a relative of the perpetrator. foundationbriefs.com Page 70 of 113 January/February 2013 Neg: Immanuel Kant Immanuel Kant & Retributive Justice States are limited by the categorical imperative to inflict punishment because it is deserved, not because it will promote the good of civil society. Gray, David. "Punishment as Suffering." Vanderbilt Law Review 63.6 (2010). Web. (16611663) A maxim is “[a] rule that the agent himself makes his principle [of action] on subjective grounds.”212 It is the postulate that describes the action without reference to either the goals that action might serve or instrumental considerations of effect and efficiency.213 Kant allows that different agents may have different maxims for actions which appear identical when observed from the outside.214 However, for normative purposes, the question is always whether the maxim of an agent’s act may be made universal law. The resolution is found in a simple thought experiment. Agents considering a particular action must ask themselves whether the maxim of their action can be universalized without contradiction. Therefore, the categorical imperative is a crucible, testing the logical purity of a maxim in the fires of generality where internal contradictions are revealed. If a maxim fails the test, it is the moral duty of the agent to refrain from acting upon it. Examples are always helpful in understanding what Kant is on about here. Let us consider theft. An agent considering whether or not to take the property of another must first consider the maxim of his action. Recall that maxims are abstracted from instrumental goals and rationalizations. So, where the question is one of moral duty, the use to which an agent proposes to put the property is irrelevant, as are other reasons he might have for stealing. The essence of theft, and therefore its maxim, is taking the property of another. To determine whether that maxim is consistent with the moral law, the agent must ask whether the maxim “I take that which is not mine” may be generalized and made a universal rule of action without contradiction. Quite obviously, the answer is “no.” Were all agents to act upon the maxim “I take that which is not mine,” then the concept of mine and thine upon which the maxim of theft is predicated would disappear. Theft is therefore wrong because it contradicts the principal of ownership internal to and presupposed by the very concept of theft itself.215 Because the maxim of theft cannot be made universal law without contradiction, agents have a duty not to steal. Ideally, agents will respect their duties as determined by the categorical imperative and embrace right action as an ethical matter.216 Kant is no Pollyanna, however. He recognizes that humans are a “race of devils,” and therefore require as a condition of justice an external authority that can propagate and enforce the commands of moral duty in the form of law.217 States, like agents, are subject to the commands of the categorical imperative.218 Consequently, states may enact and enforce only those laws that are consistent with the freedom of all and which respect the autonomy of subjects as citizens.219 That constraint forbids the use of punishment to effect or “promote some other good for the criminal himself or for civil society”220 because to do so would contradict the concept of autonomy upon which society as a collection of free agents is constructed.221 Rather, punishment can only be imposed “because [the agent] has committed a crime,” that is, because it is deserved. foundationbriefs.com Page 71 of 113 January/February 2013 Neg: Immanuel Kant Kant’s basis for proportionality/how to punish. Gray, David. "Punishment as Suffering." Vanderbilt Law Review 63.6 (2010). Web. (16611663-1664) Just punishment demands no more and no less than expiation of the contradiction posed by the criminal and his crime. “Accordingly, whatever undeserved evil you inflict upon another within the people, that you inflict upon yourself. If you insult him, you insult yourself; if you steal from him, you steal from yourself; if you strike him, you strike yourself; if you kill him, you kill yourself.”225 This has the veneer of simple revenge as “an eye-foran-eye,” but Kant provides additional, crucial, clarification, writing “But what does it mean to say, ‘If you steal from someone, you steal from yourself?’ Whoever steals makes the property of everyone else insecure and therefore deprives himself (by the principle of retribution) of security in any possible property.”226 This is the standard of justice for Kantian retributivists: the logical contradiction posed by an offense under law must be carried to its natural end and resolved for society by imposing the consequences of that contradiction on the offender. Punishment that provides this resolution is just because the offender is made to bear the logical consequences of his offense. Punishment other than what is necessary in light of the crime is unjust, either because it fails to right the needle or because it goes too far. It is critical, however, that punishment is measured and determined by objective standards. The goal of punishment is most definitely not to cause some quantum of subjective suffering.227 Neither is the amount or degree of suffering experienced subjectively by an offender the measure of punishment.228 Rather, punishment is the objectively determined, logical consequence of a crime imposed upon an offender by the state. Idea of “Just Deserts” as a moral justification for Retribution. Raynor, Peter, and Gwen Robinson. "Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. Kant’s argument (1965) that because people are moral beings capable of choice, they must not be treated simply as instruments of other people’s purposes. Sentencing directed purely to social goals seemed also to neglect individual human agency in other ways: recognizing people as moral agents implied recognizing desert and censure as elements in sentencing. This argument was advanced both in a religious moralistic form (people had a right to punishment which recognized their moral responsibility and offered opportunities for atonement – see Lewis, 1971) and a secular liberal form, which argued that justice in sentencing involved looking backwards to assess what the offence deserved (essentially a moral assessment) rather than looking forward to the possible prevention of future offences (American Friends Service Committee, 1971; Von Hirsch, 1976). There is more to it than getting to social good. The primary goal of the criminal justice system is to administer justice and it cannot do so without first assigning responsibility for the crime that was committed. Retribution and assigning of sentences is the only way to recognize that responsibility and protecting the sanctity of the law and the promise made by those individuals who are part of the society in which the law is enforced. foundationbriefs.com Page 72 of 113 January/February 2013 Neg: Immanuel Kant Retributive systems are reciprocal in limiting the agency of the criminal to match the harm to society Ripstein, 2009. Ripstein, Arthur. “Kant on Law and Politics.” 2009. Quals: Professor at the University of Toronto Law School. Public right also contains Kant's discussion of the criminal law and the right of the sovereign to punish and grant clemency. That discussion has received a disproportionate amount of attention from commentators, despite the fact that Kant makes it clear that punishment is the prerogative of the sovereign, and not the case of coercion that is central to right. Nonetheless, his discussion of punishment is striking, because he introduces, seemingly out of nowhere, the retributive principle that a wrong should be visited back upon a wrongdoer. This is not the place to develop Kant's account of punishment in the detail it deserves. I will remark only that it, too, is said to "follow" from the idea of a social contract. Crimes must have a different remedy than civil wrongs do, in order to preclude the possibility that someone could claim an entitlement to wrong another person and simply pay damages. The criminal law does not make such behavior empirically impossible, but it does make it impossible for someone to do so as a matter of right. Punishment takes the form of retribution because the state must preclude such wrongs, and the only means at its disposal are coercive ones, since it can shape only external conduct. The insufficiency of civil damages is part of the problem, so the further coercive response takes the form of making and carrying out threats. The state must be prepared to punish any crime if it occurs, and the quantum of punishment for any particular crime must not be out of proportion to the punishments for other crimes. Kant concludes that the wrong itself provides the appropriate measure of punishment: the state must threaten to use the same type of force against the criminal that the criminal has used for his own purposes. Crime is not prohibited because of the ends the criminal sets, but because of the means he uses to get them. Kant argues that the illicit means that the criminal uses in pursuit of his purposes provide the measure of his penalty. A greater or lesser punishment would treat the criminal as a mere means in pursuit of social purposes, whether protective or philanthropic. Threatening to visit the crime back on the criminal is consistent with his independence. He is treated as he chooses to treat others. foundationbriefs.com Page 73 of 113 January/February 2013 Neg: Nature of criminal justice Retribution fundamental to criminal justice system The nature of criminal justice as a system of rules demands that it must be retributive. Rawls, 1955. Rawls, John. “Two Concepts of Rules.” The Philosophical Review. 1955. One might say, however, that the utilitarian view is more fundamental since it applies to a more fundamental office, for the judge carries out the legislator's will so far as he can determine it. Once the legislator decides to have laws and to assign penalties for their violation (as things are there must be both the law and the penalty) an institution is set up which involves a retributive conception of particular cases. It is part of the concept of the criminal law as a system of rules that the application and enforcement of these rules in particular cases should be justifiable by arguments of a retributive character. The decision whether or not to use law rather than some other mechanism of social control, and the decision as to what laws to have and what penalties to assign, may be settled by utilitarian arguments; but if one decides to have laws then one has decided on something whose working in particular cases is retributive in form. foundationbriefs.com Page 74 of 113 January/February 2013 Neg: Intuition & Retribution Intuition and Retribution There is some intuitive grounding in our desire to seek retribution. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 There is, indeed, a common intuition that “the balance” should be restored. It would simply be unjust if we let the offenders get away or if we left the victims alone with their losses and grievances. “Something” must happen. We want the material, mental and social victimisation to be recognized and wiped out. An intuitive moral balance has to be taken seriously, because reciprocity is a basso continuo in our social life. But as imposing intentionally hard treatment on persons is an intrinsically unethical act, other possibilities to restore this intuitive moral balance must be explored thoroughly. This is exactly what restorative justice does. foundationbriefs.com Page 75 of 113 January/February 2013 Neg: Rehab treats differently Rehabilitation unfairly treats offenders differently Because rehabilitation is on a case-by-case basis, and because the criminal justice system cannot accurately judge these cases, offenders are unfairly treated differently. Gardner, Martin. "THE RENAISSANCE OF RETRIBUTION-AN EXAMINATION OF DOING JUSTICE." Wisconsin Law Review (1976). Web. (786) The treatment rationale is also attacked as being ineffective29 and as an excuse for violating the demand of justice that like cases be treated alike. One burglar may be confined for a substantial prison term because he is felt to be in need of prison-based treatment while another burglar, committing the same crime under the same circumstances, is set free because he is thought likely to respond to community-based treatment. Incarceration because of predicted dangerousness is unsatisfactory because the ability to make accurate predictions does not exist and the tendency to over-predict results in many non-dangerous offenders being deprived of their liberty for longer periods than they would have been if prediction had not influenced the sentence. 8 Indeterminate sentencing and its resultant disparity in dispositions of offenders allows for injustice; like cases may often be treated differently. 32 Courts and other criminal justice agencies tend to utilize their discretion to deal with their own management problems irrespective of the purported aims of punishment. 3 Finally, indeterminate sentencing creates a situation of misery for inmates who are forced to suffer through the uncertainty of not knowing the time of their release. foundationbriefs.com Page 76 of 113 January/February 2013 Neg: Rehab treats differently There are practical issues with the individualistic approach of rehabilitation. Wright, Erik Olin. "The Rehabilitative Prison Model." The Politics of punishment: a critical analysis of prisons in America. New York: Harper & Row, 1973. 43-51. Print One of the canons of the “correctional” prison is the indeterminate sentence. In such a system, when a man is sentenced for a crime, the judge does not seta a fixed sentence, but rather a sentence with a maximum and minimum term. A prisoner with an indeterminate sentence is ostensibly released when he is “rehabilitated: rather than when he has served some pre-established fixed term. The punishment—or rather, the “correction”— is designed to fit the criminal rather than the crime. If the indeterminate sentence system were in fact completely indeterminate, all prison terms would have a life imprisonment maximum and a zero minimum. As it is, in California first-degree robbery and first-degree burglary both have 5 years to life sentences; second-degree robbery, 1 year to life; forgery, 6 months to 14 years; assault with a deadly weapon, 1 to 15 years; possession of marijuana, 1 to 10 years; rape, 3 years to life; and so on. Only about 7 percent of inmates who are released from California prisons are discharged at the expiration of their maximum sentences; the rest are released on parole. How will we be able to rely on such a system with no standard basis? If the focus of the criminal justice system is shifted to a rehabilitative approach, we will always run into problems of subjectivity and a lack of consistency that ultimately makes it harder to rely on the institution as one that is legitimate and fair. foundationbriefs.com Page 77 of 113 January/February 2013 Neg: Rehab treats differently The rehabilitative approach is inherently biased against minorities and low socio-economic status offenders who may need more rehabilitation. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) The American criminal justice system has largely been shaped by the rehabilitationist ideal, in theory if not in fact. The widespread use of indefinite sentencing, the parole system, and the like, are manifestations of this. But the rehabilitationist character of the system has implications that are frequently misunderstood. Often, for example, critics point out that an affluent white offender is likely to serve less time in prison than a black kid from the ghetto, even if they have committed the same crime (say, a drug-related crime); and this is attributed to racism. Racism no doubt has something to do with it. But it should not be overlooked that the prevailing rehabilitationist ideology also contributes decisively to such outcomes. When the offender is well-educated, psychologically balanced, and has a good job, there’s not much for a rehabilitationist system to do with him. He may as well be given an early release. But a surly, uneducated kid with no job skills is another matter—he is just the sort of person for whom the system is designed. Rehabilitation makes a criminal’s sentence structurally arbitrary by making it conditional on the indeterminate judgment of experts. Lewis, 1953. Lewis, C.S. “The Humanitarian Theory of Punishment.” God and the Dock: Essays on Theology and Ethics. 1953. The Humanitarian theory, then, removes sentences from the hands of jurists whom the public conscience is entitled to criticize and places them in the hands of technical experts whose special sciences do not even employ such categories as rights or justice. It might be argued that since this transference results from an abandonment of the old idea of punishment, and, therefore, of all vindictive motives, it will be safe to leave our criminals in such hands. I will not pause to comment on the simple-minded view of fallen human nature which such a belief implies. Let us rather remember that the ‘cure’ of criminals is to be compulsory; and let us then watch how the theory actually works in the mind or the Humanitarian. The immediate starting point of this article was a letter I read in one of our Leftist weeklies. The author was pleading that a certain sin, now treated by our laws as a crime, should henceforward be treated as a disease. And he complained that under the present system the offender, after a term in gaol, was simply let out to return to his original environment where he would probably relapse. What he complained of was not the shutting up but the letting out. On his remedial view of punishment the offender should, of course, be detained until he was cured. And or course the official straighteners are the only people who can say when that is. The first result of the Humanitarian theory is, therefore, to substitute for a definite sentence (reflecting to some extent the community’s moral judgment on the degree of ill-desert involved) an indefinite sentence terminable only by the word of those experts—and they are not experts in moral theology nor even in the Law of Nature—who inflict it. Which of us, if he stood in the dock, would not prefer to be tried by the old system? foundationbriefs.com Page 78 of 113 January/February 2013 Neg: Rehab treats differently The juvenile court offers an empirical example of the arbitrariness contained within the rehabilitative approach. Field, 1998. Field, Barry. “Abolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy Source: The Journal of Criminal Law and Criminology.” The Journal of Criminal Law & Criminology. 1998. Quite apart from its unsuitability as a social welfare agency, the individualized justice of a rehabilitative juvenile court fosters lawlessness and thus detracts from its utility as a court of law as well. Despite statutes and rules, juvenile court judges make discretionary decisions effectively unconstrained by the rule of law. If judges intervene to meet each child's "real needs," then every case is unique and decisional rules or objective criteria cannot constrain clinical intuitions. The idea of treatment necessarily entails individual differentiation, indeterminacy, a rejection of proportionality, and a disregard of normative valuations of the seriousness of behavior. But, if judges possess neither practical scientific bases by which to classify youths for treatment nor demonstrably effective programs to prescribe for them, then the exercise of "sound discretion" simply constitutes a euphemism for idiosyncratic judicial subjectivity. Racial, gender, geo- graphic, and socioeconomic disparities constitute almost inevitable corollaries of a treatment ideology that lacks a scientific foundation. At the least, judges will sentence youths differently based on extraneous personal characteristics for which they bear no responsibility. At the worst, judges will impose haphazard, unequal, and discriminatory punishment on similarly situated offenders without effective procedural or appellate checks. foundationbriefs.com Page 79 of 113 January/February 2013 Neg: Message of retributive approach The message of a retributive approach Retribution is necessary to create ethical norms about right and wrong. Arenella, P. (1992). Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability. UCLA Law Review, (39). To paraphrase Strawson, part of the explanation for why the criminal law has linked legal to moral blame lies in how both our private and public blaming practices express as well as exploit our moral attitudes and values.4 9 The notion of moral responsibility conveys a fundamental theme in our moral culture concerning the connection between blame, responsibility, and punishment.50 Our legal blaming practices respect this moral responsibility principle in part because it reflects what Strawson described as our "participant- reactive" (p-r) attitudes of resentment and blame: "human reactions to the good or ill will or indifference of others towards us, as displayed in their attitudes and actions."...These flaws in his account suggest that the primary value of his model is that it provides an interpretive guide to alternative mean- ings of our moral culpability judgements. Both our moral and legal blaming practices can be treated as social interpretive activities in which we construct accounts about the normative significance of human activity. Viewed from this perspective, questions about the meanings of moral culpability judgments and the purposes they serve are, at least in part, interpretive questions. Criminal acts are more than just material crimes, they have an expressive dimension. Garvey, Steven P. “Restorative Justice, Punishment, Atonement.” Utah Law Review No. 1, 303-317, 306-307. But when my car is stolen, my house burned down, or my person assaulted through the intentional or reckless action of another, I suffer more than just material harm. Someone who engages in such conduct says something about his value or wroth compared to mine. He says, in effect “I’m better than you. Your rights are subordinate and secondary to my interests, and I’m free to run roughshod over them as I wish.” Crimes therefore convey a message of insult or contempt for their victims and criminal wrongdoers thus display an excessive pride of hubris in themselves. This expressive or moral injury is what constitutes the wrong of a crime, and the wrong of a crime is what makes it a crime. foundationbriefs.com Page 80 of 113 January/February 2013 Neg: Message of retributive approach Only retribution can restore the expressive wrong of criminal acts. Garvey, Steven P. “Restorative Justice, Punishment, Atonement.” Utah Law Review No. 1, 303-317, 306-307. Here is where the distinction between harm and wrongs comes into play. Restorative justice theorists claim that one of restorativism’s goals is to repair the damage suffered by the victim as a result of the crime. But while restitution can repair the material harm (if any) caused by a crime, it cannot and does not fix the wrong. If the offender who stole my car returns it, or buys me a new one, the material injury I’ve suffered is repaired as far as it can be. But the message of insult or contempt the offender communicated through his conduct—the wrong he did to me—remains. Retribution is necessary to express censure and restore the moral damage of crime. Garvey, Steven P. “Restorative Justice, Punishment, Atonement.” Utah Law Review No. 1, 303-317, 306-307. So how can that wrong be repaired? The answer, of course, is through punishment, which restorativists steadfastly reject. Like the offender’s crime itself, punishment has both a material dimension and an expressive one. Punishment is usually understood as a hardship or burden intentionally imposed on an offender for the violation of an authoritative rule. This hardship or burden is the material or tangible dimension of punishment: the offender must, for example, give money to the state in the form of a fine or suffer restrictions on his liberty in the form of probation or imprisonment. But what makes a fine different from a tax, prison different from military bootcamp, is that punishment is intended to convey a particular message.. Punishment, unlike taxes or bootcamp, is intended to convey censure or condemnation of the offender’s wrongful action. Moreover, the censure of condemnation associated with punishment proclaims to the world—to the victim, to the offender, and to the community as a whole—the message of superiority implicit or explicit in the offender’s crime is a false message. The expressive dimension of punishment broadcasts a true moral message to counteract and annul the false moral message broadcast through the offender’s wrongful conduct. Punishment therefore humbles the wrongdoer and vindicates the victim. Without punishment the wrong the victim suffered would go unrepaired, and the victim would remain less than fully restored. Consequently, the victim’s full restoration, far from being incompatible with punishment and retribution, actually ends up requiring it. foundationbriefs.com Page 81 of 113 January/February 2013 Neg: Message of retributive approach Retribution restores balance to the social contract. Green, Stuart. Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders. Rep. Rutgers Law School, Jan. 2010. Web. (10) The first is to assert, or intuit, that our legal system exists within a social contract. Under such a contract, citizens agree (or would agree in a hypothetical original position34) to abide by the rules of the system in return for the security and predictability that such rules bring. Since war and disorder threaten to make everyone’s life nasty, brutish, and short (in Hobbes’ memorable phrase), it is reasonable from each person’s self-interested standpoint to accept the authority of a sovereign ruler who will enforce rules, protect property, and make life generally safe. As Jeffrie Murphy has put it, “since he [the citizen] derives and voluntarily accepts benefits from their operation, he owes his own obedience as a debt to his fellow-citizens for their sacrifices in maintaining them.”35 Second, when people fail to abide by the rules of the system, when they accept the benefits that the system brings without reciprocating, they gain an unfair advantage. Criminal punishment is said to be a means of restoring the equilibrium of benefits and burdens by taking from the individual what he owes.36 If a citizen “chooses not to sacrifice by exercising selfrestraint and obedience, this is,” again in Murphy’s language, “tantamount to his choosing to sacrifice in another way -- namely, by paying the prescribed penalty.”37 In other words, part of the social contract consists of citizens’ agreeing to be punished if he breaks the rules. Retribution restores the equilibrium of benefits to be enjoyed by members of society. Gardner, Martin. "THE RENAISSANCE OF RETRIBUTION-AN EXAMINATION OF DOING JUSTICE." Wisconsin Law Review (1976). Web. (796-797) Offenders are to be punished according to their deserts and in proportion to the seriousness of their crimes. Punishment is justified because it is deserved. Not only is punishment of the guilty permissible, it is required if justice is to be done.' 01 Doing Justice provides an account of deserved punishment relying heavily on Kantian notions of fair dealing among free individuals.' 02 When someone violates a law he gains an unfair advantage over the law-abiding members of society who have constrained themselves to abide within the law. The offender is thus unjustly enriched because he has benefitted from the forebearance of others in not interfering with his rights. Punishment of the offender imposes a counter-balancing disadvantage which restores the "equilibrium."'0° After undergoing his punishment the offender ceases to be at an advantage over his nonoffending fellows. 0 Punishment is the appropriate remedy to impose upon violators of the law because it expresses public reprobation towards the offender. 0 5 Because he has done moral wrong, the offender deserves to be blamed. The sanction of punishment thus disallows unjust enrichment while censuring the blameworthy. foundationbriefs.com Page 82 of 113 January/February 2013 Neg: Message of retributive approach Since people generally seek retribution, any other strategy used to deal with offenders fosters contempt between the people and the law. Carlsmith, Kevin M. and Darley, John M. Psychological Aspects of Retributive Justice. Advances in Experimental Social Psychology (40). The empirical results of this research have clear policy implications. Converg- ing evidence suggests that the formal U.S. justice system is becoming increas- ingly utilitarian in nature, but that citizen intuitions about justice continue to track retributive principles. The resulting divide leads people to lose respect for the law, which means that they do not rely on the law’s guidance in ambiguous situations where the morally correct behavior is unclear. These are the dangers to society from having justice policies based jointly on the contradictory prin- ciples of retribution and utility, and we lay out an argument for enacting public policies more exclusively based on retributive principles of justice. We must be retributive or otherwise we will signal to the offender that they have won. Fletcher, George P. (1999). The Place of Victims in the Theory of Retribution. Buffalo Criminal Law Review, (3, 1). Yet there is another way of thinking about crime that does not, so far as I can tell, entail an invasion of the suspect's freedom of privacy. A criminal act establishes a particular relationship with the victim. The criminal gains a form of dominance that continues after the crime has supposedly occurred. This feature of criminal aggression, the principle of dominance, provides the clue, I argued some time ago, to understanding the puzzling crime of blackmail.3 The difference between acceptable exchanges and blackmail consists primarily in the leverage the blackmailer gains over his prey: As soon as the prey agrees once to paying hush money, the blackmailer can demand more in the future. Other crimes of violence bear a resemblance to blackmail. In the aftermath of rape, victims often fear a return of the rapist; victims of burglary have reason to feel insecure in their homes. Implicit in the threat of recurrence is the offender's unjustified dominance over the victim. The function of arrest, trial, and punishment is to overcome this dominance and reestablish the equality of victim and offender. foundationbriefs.com Page 83 of 113 January/February 2013 Neg: Message of retributive approach Acknowledging deserts is essential to upholding the way our societies function. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) First, acknowledging deserts is a way of granting people the power to determine their own fortunes. Because we live together in mutually cooperative societies, how each of us fares depends not only on what we do but on what others do as well. If we are to flourish, we need to obtain their good treatment. A system of understandings in which desert is acknowledged gives us a way of doing that. Thus, if you want to be promoted, you may earn it by working hard at your job; and if you want others to treat you decently, you can treat them decently. Absent this, what are we to do? We might imagine a system in which the only way for a person to ensure good treatment by others is somehow to coerce that treatment from them—Worker might try threatening his employer. Or we might imagine that good treatment always comes as charity—Worker might simply hope the employer will be nice to him. But the practice of acknowledging deserts is different. The practice of acknowledging deserts gives people control over whether others will treat them well or badly, by saying to them: if you behave well, you will be entitled to good treatment from others because you will have earned it. Without this control people would be in an important sense impotent, less able to affect how others will treat them and dependent on coercion or charity for any good treatment they might receive. Just deserts theory dictates that people should receive “what they deserve” in response to the actions they take. So wrongdoers should get what they deserve in a negative sense, but the ethic also applies to those who have done good things. In essence, I should be rewarded for my good deeds, but if we fail to punish bad deeds, the entire system falls through. Punishing offenders is key to indirectly rewarding law-abiders. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) I believe this is the deepest reason why desert is important, but there are others. A second reason is connected with the egalitarian idea that social burdens and benefits should be equally distributed. In working harder, Worker had to forgo benefits that Slacker was able to enjoy. While Worker was spending his time working, Slacker was able to do things that Worker might have liked to do but was unable to do. (This, of course, will be typical of any situation in which one person chooses to expend time and effort on a disagreeable task, while another person—faced with the same choice—opts for a more enjoyable alternative.) This suggests a simple argument for rewarding the harder worker: other things being equal, burdens and benefits should be distributed equally. Slacker has had a benefit (more leisure time) that Worker has not had, while Worker has had a burden (more work) that Slacker has not had. Giving Worker a benefit now (the promotion) may therefore be seen as nothing more than righting the balance. Contrary to superficial appearances, then, giving Worker the promotion does not make their respective situations less equal. On the contrary, it alters the situation in the direction of greater equality. This is a reason why even egalitarians might favor treating people according to their deserts. foundationbriefs.com Page 84 of 113 January/February 2013 Neg: Message of retributive approach From an ethical standpoint, without a system of just deserts, morality loses its reward so people lose reasons to follow it. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) To these reasons a third may be added. Morality includes (some would say it consists in) how we choose to treat other people in our myriad interactions with them. But if reciprocity could not be expected, the morality of treating others well would come to occupy a less important place in people’s lives. In a system that respects deserts, someone who treats others well may expect to be treated well in return, while someone who treats others badly cannot. If this aspect of moral life were eliminated, morality would have no reward, and immorality would have no bad consequences; so there would be less reason for one to be concerned with it. If people were perfectly benevolent, of course, such incentives would not be needed. But for imperfectly benevolent beings such as ourselves the acknowledgment of deserts provides the reason for being moral that is required for the whole system to be effective. Punishment resets the scales of justice by recognizing that law-abiders had to make an effort to avoid breaching laws. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) As we have seen, acknowledging deserts is part of a moral system that allows people, by their own behavior, to determine how others will respond to them. Those who treat others well elicit good treatment in return, while those who treat others badly provoke ill treatment in return. That is why, when a criminal is punished, it may be said that “He brought it on himself.” The argument concerning equality is also commonly invoked when punishment is at issue. There are costs associated with law-abidance. Law-abiding people have accepted a burden—inconvenient constraints on their conduct—which the lawbreaker has not accepted. Meanwhile the lawbreaker has had benefits denied to others (presumably, his illegal conduct was undertaken because there was profit of some kind in it for him). Punishment corrects things in the direction of greater equality. That is why it is commonly said that crime “upsets the scales of justice” and that punishing wrongdoers “restores the balance.” foundationbriefs.com Page 85 of 113 January/February 2013 Neg: Message of retributive approach Offenders know what they’re doing when they commit crimes, thus, to recognize their agency, we must hold them accountable for their actions. Siegel, Larry. J. (2009) Criminology, Tenth Edition. Criminals such as Johnny Ray Gasca carefully plan their criminal activities. They buy equipment, try to avoid detection, plot to sell their illegally gotten gains, and then attempt to squirrel their criminal profits in some hidden bank account. Their calculated actions suggest that the decision to commit crime can involve rational and detailed planning and decision making designed to maximize personal gain and avoid capture and punishment. Some criminologists go as far as suggesting the source of all criminal violations- committing a robbery, selling drugs, attacking a rival or filing a false tax return- rests upon rational decision making. Such a decision may be based on a variety of personal reasons, including greed, revenge, need, anger, lust, jealously, thrill-seeking or vanity. But the final decision to commit a crime is only made after the potential offender carefully weighs the potential benefits and consequences of their planned action and decides that the benefits of crime are greater than its consequences. Retributive punishments are past-oriented and seek to allocate moral blame to the offender. Source: Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Theories that set the goal of punishment as the prevention of future crime (deterrence) are usually referred to as utilitarian because they are derived from utilitarian philosophy. Pastoriented theories (theories that focus on the past actions of the offender) are referred to as retributivist because they seek retribution from offenders for their crimes. The retributivist conception of punishment includes the notion that the purpose of punishment is to allocate moral blame to the offender for the crime and that his or her future conduct is not a proper concern for deciding punishment (Hudson 1996: 3). Theories of deterrence, retribution, just deserts, rehabilitation, and incapacitation as well as the idea of restorative justice will be considered in this chapter. Each of these theories tries to establish a basis for punishment as a response to the question “why punish?” foundationbriefs.com Page 86 of 113 January/February 2013 Neg: Message of retributive approach The retributive approach treats punishment as a question of accountability and sees offenders as accepting social law. Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Retribution is the theory that punishment is justified because it is deserved. Systems of retribution for crime have long existed, with the best known being the lex talionis of Biblical times, calling for “an eye for an eye, a tooth for a tooth, and a life for a life” (Hudson 1996: 38). Retributionists claim a moral link between punishment and guilt, and see punishment as a question of responsibility or accountability (Bean 1981: 14–15). Once society has decided upon a set of legal rules, the retributivist sees those rules as representing and reflecting the moral order. Society’s acceptance of legal rules means that the retributivist accepts the rules, whatever they may be; accepts that the rule makers are justified in their rule making; and claims that those who make the rules provide the moral climate under which others must live. Accordingly, retributivists cannot question the legitimacy of rules. They argue that retribution operates on a consensus model of society where the community, acting through a legal system of rules, acts “rightly,” and the criminal acts “wrongly” (Bean 1981: 17). It follows that the retributivist position makes no allowance for social change or social conditions, looking instead only to crime. Raising the issue of the social causes of crime or questioning the effectiveness of punishment are irrelevant considerations to a retributivist. Censure is a conceptual component of punishment and one that retribution fulfills Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Censure is also an important component in retributivist thinking. For example, Andrew von Hirsch, the leading theorist on just deserts sentencing, writes: “. . . desert and punishment can rest on a much simpler idea, used in everyday discourse: the idea of censure . . . Punishment connotes censure. Penalties should comport with the seriousness of crimes so that the reprobation on the offender through his penalty fairly reflects the blameworthiness of his conduct.” (in Walker 1991: 78) For von Hirsch (1994: 120–121), censure is simply holding someone accountable for his or her conduct and involves conveying the message to the perpetrator that he or she has willfully injured someone and faces the disapproval of society for that reason. foundationbriefs.com Page 87 of 113 January/February 2013 Neg: Message of retributive approach Failing to penalize an offender infringes on social rules in principally the same way that the offender infringed them. Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Philosophers such as Duff (in Walker 1991: 79) see the main benefit of punishment as the effect on the offender. They argue that punishment has the effect of restoring the offender to the community in the same way that penance restores a penitent to the communion of the church. Nozick sees retributive punishment as a message from those whose values are assumed to be correct and normative to someone whose act or omission has displayed incorrect and non-normative values (in Walker 1991: 81). Walker (1991: 81) explains that “man is a rulemaking animal,” and that rules and notions of rules are acquired during childhood. Rules, in the form of transactions involving promises, establish codes of normative conduct including “penalizing rules” that specify action to be taken against those who infringe the rules (Garfinkel in Walker 1991: 84–85). It follows that failing to penalize an offender for infringing the rules would itself be an infringement of those rules; thus, an unpunished infringement would create two infringements. Retribution is necessary to compensate society for the unfair advantage that the offender gains by committing a crime. Banks, 2008. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 2008. Another theory that attempts to justify punishment as a retributive act is that an offender should be viewed as a person who has taken an unfair advantage of others in society by committing a crime, and that imposing punishment restores fairness (Ten 1987: 5). Philosophers such as Herbert Morris, John Finnis, and Jeffrie Murphy subscribe to the unfair advantage theory. For example, Morris argues that the effect of criminal law is to confer benefits on society, because others are not permitted to interfere with areas of an individual’s life since certain acts are proscribed and prohibited. In order to gain the benefits of noninterference, individuals must exercise selfrestraint and not engage in acts that infringe the protected areas of the lives of others (in Ten 1987: 53). It follows that when a person violates the law but continues to enjoy its benefits, he or she takes an unfair advantage of others who follow the law. Punishment, it is argued, is therefore justified because it removes this unfair advantage and restores the balance of benefits and burdens disturbed by the criminal activity. foundationbriefs.com Page 88 of 113 January/February 2013 Neg: Necessary for victims Retribution Necessary For Victims Restoration requires retribution in order to be fully restorative. Garvey, Steven P. “Restorative Justice, Punishment, Atonement.” Utah Law Review No. 1, 303-317, 306-307. But the victim, so I argue, cannot really be restored without punishment. Restorativism can hold otherwise only because it misconceives the nature of criminal wrongdoing. This confusion in turn leads proponents of restorative justice to think that measures like community service and restitution can alone suffice to repair the damage caused by crime, or at any rate at least, that punishment is unnecessary. But inasmuch as the injury caused by crime can, as I argue, be fully repaired only through punishment, these restorative remedies are bound to be inadequate. They are bound to leave the victim unrestored. Without retribution, the power is taken away from the people, because they issue their response to offenses via punishment Darley, John M. (2001) Citizens’ Sense of Justice and the Legal System. Current Directions in Psychological Science (10, 10). When an actor commits a wrong action, citizens have perceptions of the kind of responsibility the actor incurs, the degree to which the act was mitigated or justified, and the appropriate punishment for the actor. The legislatively man- dated law of criminal courts, statutes, and criminal codes deals with the same issues. Experimental evidence shows that there are important discrepancies between the principles that people and legal codes use to assign responsibility. That is, the moral retributive-justice principles that people use are sometimes in conflict with the directions in which modern code drafters are taking criminal law. These discrepancies may cause citizens to feel alienated from authority, and to re- duce their voluntary compliance with legal codes. foundationbriefs.com Page 89 of 113 January/February 2013 Neg: Crimes public acts Crimes Are Public Acts Crimes victimize entire communities. Garvey, Steven P. “Restorative Justice, Punishment, Atonement.” Utah Law Review No. 1, 303-317, 306-307. We tend by default to think of the victim of a crime as the identifiable person, assuming one exists, who directly suffers the moral and material injury of the crime, But insofar as those who form the relevant community of which the victim is a member identify with the victim and with one another, and this constitute a community in an appropriately deep sense, those community members can also be understood as victims. Similarly, when the crime involves no identifiable victim, but consists, for example, in conduct that risks causing harm to another, the offender shows contempt, not so much for anyone in particular, but for the law itself, which forbids such conduct. While the rest of us play by the rules, the offender behaves as if he is above them, free to do as he wishes. Crimes are public wrongs against the community as a whole. Duff, Antony. “Legal Punishment” Stanford Encyclopedia of Philosophy. 2008. Accessed 12/10/12. http://plato.stanford.edu/entries/legal-punishment/ Crimes are, at least, socially proscribed wrongs—kinds of conduct which are condemned as wrong by some purportedly authoritative social norm. That is to say that they are wrongs which are not merely ‘private’ affairs, which properly concern only those directly involved in them: the community as a whole—in this case the political community speaking through the law—claims the right to declare them to be wrongs. But crimes are ‘public’ wrongs in a sense that goes beyond this. Civil law deals in part with wrongs which are non-private in that they are legally and socially declared as wrongs—with the wrong constituted by libel, for instance: but they are still treated as ‘private’ wrongs in the sense that it is up to the person who was wronged to seek legal redress. She must decide to bring, or not to bring, a civil case against the person who wronged her; and although she can appeal to the law to protect her rights, the case is still between her and the defendant. By contrast, a criminal case is between the whole political community—the state or the people—and the defendant (or, in politically backward polities such as Britain, between the monarch and the defendant): the wrong is ‘public’ in the sense that it is one for which the wrongdoer must answer not just to the individual victim, but to the whole polity through its criminal courts. foundationbriefs.com Page 90 of 113 January/February 2013 Neg: Consistency w/ institutions Retribution is the approach most consistent with our intuitions It’s been empirically proven that humans almost always resort to retribution when given a choice. Carlsmith, Kevin M. and Darley, John M. Psychological Aspects of Retributive Justice. Advances in Experimental Social Psychology (40). Participants began the experiment knowing only that a crime had been committed, and that they were responsible for recommending a sentence. The experimenter presented them with different categories of information about the crime, each of which was uniquely relevant to deterrence, incapacitation, or retribution. Thus, for example, participants could select ‘‘frequency of crime in society’’ (a deterrence-related category), ‘‘likelihood of repetition’’ (an incapacitation category), and seven other possible bits of information that could be readily classified into the three categories. Once selected, they learned a particular detail of the case from that category, such as ‘‘crimes of this sort are extremely rare,’’ or ‘‘experts report that the perpetrator is very likely to repeat this crime given the opportunity.’’ The dependent measure was a count of frequency with which each category was chosen, and the order in which they were chosen. In short, people could choose to learn different types of information, and their choices could inform us of the underlying theory that guided their behavior. Participants overwhelmingly chose the retributive items. On the first of five repetitions, 97% of participants selected a retributive piece of information. On the second and third repetitions, strong majorities (64% and 57%) also selected retributive items. As the retributive category ran out of con- tent, people shifted their requests to the incapacitative category. Only when no other category was available did people seek out deterrence-related information. This evidence would work very well under the umbrella of a naturalism framework. If humans inherently prefer retribution, and naturalism says we should go by the laws of nature, then negating is the only position that makes sense. foundationbriefs.com Page 91 of 113 January/February 2013 Neg: Consistency w/ institutions People inherently value retribution over deterrence, so whether or not retribution is effective in deterring crime is irrelevant. Carlsmith, Kevin M. and Darley, John M. Psychological Aspects of Retributive Justice. Advances in Experimental Social Psychology (40). In a subsequent companion study, we tested the retributive motive against the general deterrence motive. In the first study, we asked over 300 university students to read a vignette of criminal wrongdoing and to provide a recommended sentence for the perpetrator. Across participants, we manipulated the moral severity of the harm and the need to generally deter the particular crime. To further generalize our findings, we instan- tiated each of the manipulations in several ways. For example, one vignette manipulated the retributive factor by increasing or decreasing the harm committed (e.g., embezzling modest amounts of money from an employer versus illegally dumping toxic chemicals near a town’s water table to avoid expensive disposal fees). In another vignette, the harm was kept the same but the morality of the action was varied (e.g., stolen funds were used to benefit underpaid factory workers at the company’s overseas plant, vs. using the stolen funds to finance a lavish lifestyle and extensive gambling debts). Again, the results were quite clear and mirrored our previous results. Regardless of how we instantiated the manipulations, people were highly sen- sitive to changes in the retributive factors, and ignored the deterrence factors. Figure 4.1 shows the path analysis conducted in Carlsmith et al. (2002) The desire to punish is a natural human instinct. Rachels, James. (1997). Punishment and Desert. Ethics in Practice. (470-479) This objection is, for the most part, misguided. The idea that wrongdoers should be “paid back” for their wickedness is not merely a demand for primitive vengeance. It is part of a moral view with a subtle and complicated structure, that can be supported by a surprisingly strong array of arguments. The key idea is that people deserve to be treated in the same way that they choose to treat others—thus, those who treat other people badly deserve to be treated badly in return. Retributivism is just the application of this idea to the special case of punishment. If this were only a view about punishment, it would not be very compelling. But the idea that people should be treated according to their deserts is a central component of our general moral understanding, with applications in many different areas of life. If we were to stop thinking of people as deserving or undeserving of special treatments, our moral outlook would be unrecognizably different. foundationbriefs.com Page 92 of 113 January/February 2013 Neg: Restorative Justice Restorative Justice Restorative justice is conceptually distinct from retribution or rehabilitation. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 Restorative justice differs from approaches of both punitive and rehabilitative justice in a fundamental way. It offers a distinctive “lens” (Zehr 1990). Crime is perceived through the harm it causes and not by the mere transgression of legal order. The response is neither to punish nor to rehabilitate the offender, but to set the conditions for repairing as much as possible of the harm caused. Two potential strategies for this stuff: a) use the first cards about how it’s conceptually distinct from retribution and rehabilitation and make RJ a negative counterplan – even though the Aff can do it too, you get to coopt a ton of rehabilitation benefits, b) use your own definition of rehabilitation/retribution to link aspects of restorative justice into whichever side you’re defending. The article also contains a ton of case studies in case you want to carve out specific counterplans or tailor your analysis to specific examples. Restorative justice is a system distinct from classic retributive justice. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 Restorative justice (RJ) is an option for doing justice after the occurrence of an offence that is primarily oriented towards repairing the individual, relational and social harm caused by that offence. The fundamental difference between retributive and restorative justice lies in the assumptions on the aim and function of punishment, the role of responsibility and emotions, the position of the victim and the way the balance upset by the offence is to be restored. Victims who participate in restorative justice find the outcomes more satisfying than those participating in traditional judicial sanctions. Among offenders, the willingness to participate in a restorative process is also high. It is the process during the meeting itself which makes most offenders understand what they caused, and to become increasingly emotionally involved and less rationally calculating. There is a slightly lower rate to repeat offending, compared to traditional criminal justice, while programmes targeting mostly violent and serious offenders achieved better results. Restorative justice goes far beyond criminalizable matters. It increasingly penetrates issues of discipline in schools, neighborhood conflicts, child welfare and protection matters, and other fields of social life. It is a uniform system that extends to various special fields foundationbriefs.com Page 93 of 113 January/February 2013 Neg: Restorative Justice and sciences and that responds to various conflicts in society in accordance with a set of principles and rules and with the assistance of institutions and specialists. The borderlines between the subsystems are set by political decisions at each point in time and geographical location. According to the restorative approach, the breaking of a rule (the crime, for instance) is primarily interpreted as a conflict between the affected persons and communities. Therefore, response to such an act should be made by the community of the individual and not by an external power. There are three rules that apply to all types of conflict management procedures: conflict management is a conscious activity; its goal is not to decide who is right and who is wrong, instead, the goal is to overcome the problem; and the person managing the conflict should never take sides. Restorative justice is a complex system focusing on reconciliation. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 These types of criminal proceedings and punishments imposed in this way can also serve to console the members of the affected community, particularly in cases when the offence directly damage community interests. (This could, for example, be group vandalism affecting public order or criminal acts damaging the environment.) Under constant professional supervision, both the victim and the offender, and when necessary any other person or community representative who was affected by and concerned with the offence, participate in the restorative process. The participants, with the help of a specially trained expert, jointly seek a solution for every problem that has arisen as a result of the crime. Examples of restorative processes may be mediation or a conference aiming at reconciliation or the determination of the method and extent of the punishment to be applied. In the restorative process, the equality of the parties should be ensured and attention should be paid to the potential variation in their abilities, which can be a reflection of their respective cultural and social status. Over the course of the process, the manner of reparation and restitution can be determined; for instance a punishment could be formulated by defining a given service which must be rendered to the community, provided that it is fair and proportionate to individual and community needs. Furthermore, the respective liabilities of the participants may be clarified in order to serve the integration of both the victim and the offender. The restorative process, which always concludes as a traditional criminal proceeding, can only be applied when both the victim and the offender have given their consent to its use. This consent may be withdrawn by the parties concerned at any time during the course of the restorative process. The agreement and the settlement should be voluntary and a confession made in the course of the restorative process may not be used as evidence against the offender in any traditional criminal proceedings. If the restorative process had no result the traditional criminal process has to be resumed on the spot. However the criminal institutions have to enforce the most important values of restorative justice against the offender, the victim and the community concerned. foundationbriefs.com Page 94 of 113 January/February 2013 Neg: Restorative Justice Restorative justice is essential to accomplishing the broader goals of criminal justice European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 I believe that these objectives should be fulfilled by accomplishing the aims set out in the philosophy of restorative justice. This is a topic that has been debated by many in the Hungarian literature over the past few years. Several years ago I myself found the role of conflict resolution in emotionally tense situations viable only through punishments enforceable in the community and only analysed its significance in this context. However, since then I have realised that the philosophy of restorative justice is a suitable guide to criminal policy reform and as a mechanism to achieve a change in attitudes within the framework of the existing legal institutions while sustaining those at the same time. Namely, restorative justice creates a closer link in the frame of the criminal procedure between attitudes based on ethical or rule of law considerations of punishment. It aims at repairing the relationship between the offender and the victim involving the community. It strives further to reduce the harm caused to the victim and to the injured community as well as at resolving the conflict manifested in the criminal offence. In this way, the penalty is given a new meaning, and the extent of the element of unnecessary and unreasoned punitivity is reduced. At the same time, the awareness of the rational behind the sanction increases simultaneously for the offender, the victim and the community concerned. In contrast to the above, it does not endanger the values of classical criminal justice nor the guarantee system of it. Restorative justice is compatible with the state’s punitive authority. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. Restorative justice is not an alternative to traditional criminal justice as stated by Norwegian criminologist Nils Christie. It does not treat conflicts which, through its monopoly over justice, were “stolen” by the state from the parties concerned and which should be returned by it to its rightful owners in order to restore social tranquillity. When the institution of restorative proceedings is applied against the offenders, it still amounts to the enforcement of the state’s punitive claim. According to the interpretation of Péter Bárándy, a restorative proceeding is none other than “a proceeding led by a mediator and temporarily forming a part of the criminal proceedings under the voluntary commitment of parties who are polarised against each other in the criminal proceedings (the victim and the offender). The result of this is then taken into consideration as a basic point of view by the criminal authorities when the process is returned back into the basic proceedings in the course of determining guilt or levying the sentence” (Bárándy 2007). foundationbriefs.com Page 95 of 113 January/February 2013 Neg: Restorative Justice A restorative approach is better for victim health and satisfaction. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 Victims who participate in mediation or conferencing perceive a high degree of procedural justice, appreciate the communicative value of the encounters, and find the outcomes more just than traditional judicial sanctions. Victims also suffer less post-traumatic stress after a conference; have less fear and anger, and more sympathy for the offender. Our conclusion must remain cautious, but it appears clearly that the victims who are willing to participate are not disappointed. A restorative approach is better for offender consent and understanding. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 Among offenders, the willingness to participate in a restorative process is also high. Probably many offenders simply hope that the outcome will be better that way than if they went to court. As long as it does not cause secondary victimisation, this is not a problem. It is the process during the meeting itself which makes most offenders understand what they caused, and to become increasingly emotionally involved and less rationally calculating. Offenders who participated in mediation or a conference understand and accept the obligation to repair better than in a traditional juridical sanction. foundationbriefs.com Page 96 of 113 January/February 2013 Neg: Restorative Justice A restorative approach significantly reduces reoffending compared to traditional criminal justice. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 The results of studies of re-offending do not lead to triumphant conclusions. Bonta et al. (2006) found an overall 7% lower rate of repeat offending, compared with traditional criminal justice. Better results were achieved in programmes targeting mostly violent and serious offenders. This is paradoxical because conferences are applied mostly to divert less severe youth offences from court. Also the quality of the conference matters (Maxwell et al. 2004; Hayes and Daly 2003). If the conference is followed by systematic support or treatment for the offender, the risk of re-offending is much lower. It may be naive to expect that a conference of a few hours could on its own change a life course that has sometimes gone wrong from birth. But the meeting is an excellent opportunity to begin treatment and other social support. A restorative approach dramatically enhances public security. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 The most systematic implementation of restorative justice schemes is in New Zealand where, since 1989, family group conferencing for all serious youth offences is a mainstream response under the Children, Young Persons and their Families’ Act. The statistics on youth offending have shown a spectacular decrease since then (Maxwell et al. 2004). There is a drastic fall in the number of arrests, a halving in the number of young offenders in court and a reduction of the number of confined juveniles to a quarter of the number locked up in 1989. I believe such developments to be beneficial for public safety foundationbriefs.com Page 97 of 113 January/February 2013 Neg: Rehabilitation ineffective Rehabilitation is ineffective Rehabilitation fails as a deterrence measure. Perceptual Research on General Deterrence: A Critical Review by Kirk R. Williams and Richard Hawkins. Law & Society Review , Vol. 20, No. 4 (1986), pp. 545-572 Deterrence theory implies a psychological process whereby individuals are deterred from committing criminal acts only if they perceive legal sanctions as certain, sweift, and/or severe. Recognizing the importance of perception for the deterrence process, investigators initiated analyses of perceptual properties of sanctions. An essential ingredient of deterrence theory is a coherent view of the psychological processes an individual undergoes before committing a criminal act. The theory must take into account the perceptual linkages that led to general deterrence as well as other preventive consequences of sanctions. Given the opportunity to commit a criminal act, the person presumably weighs the costs and rewards of doing so in comparison to other behavioral options. The more the individual perceives legal sanctions as certain, swift, and/or severe, the greater is the perceived cost of crime and thus the probability of deterrence. The success of rehabilitation must be proven outside of recidivism rates. Charles R. Tittle. “Prisons and Rehabilitation: The Inevitability of Disfavor.” Social Problems, Vol. 21, No. 3 (1974), pp. 385-395 If all could agree that the extent of post prison criminal behavior were an unequivocal indicator of rehabilitative success or failure, the problem of measuring recidivism would make assessment almost impossible. Data adequate to permit accounting of post release behavior are seldom available and many of those which do exist are of questionable validity. Re-arrest statistics are biased by the differential probability of arrest for ex-convicts, regardless of actual criminal conduct. Arrest may indicate nothing at all about guilt. For example, in an FBI follow-up study of all individuals released form custody in 1963, only 40 percent of those re-arrested within a four-year period of time had been reconvicted at the end of that period and extrapolation suggests that reconvinction for the entire population of releasees for the indefinite future would not exceed 35 percent. Being arrested does not necessarily signify criminal conduct, just as criminal behavior is frequently undertaken without a resulting arrest. Hence, there is only a tenuous connection between criminality and arrest. Furthermore, persons may be arrested for all sorts of acts, not necessarily of the same type for which they had been previously incarcerated. Arrest for drunkenness is hardly indicative of failure to rehabilitate a burglar. Much of the empirical evidence provided by the affirmative would consist of recidivism rates and how rehabilitation results in lower recidivism rates. However, recidivism rates are about re-arrest, and that is foundationbriefs.com Page 98 of 113 January/February 2013 Neg: Rehabilitation ineffective not sufficient in proving or disproving the success of rehabilitation. Therefore, if the affirmative’s case states rehabilitation provides for more social order and less crime based on the recidivism rates, we must demand more evidence and/or more rationale for the claim. The positive effects of rehabilitation on deterrence and safety are empirically ineffective while incurring great social costs. European Best Practices, 2010. “European Best Practices of Restorative Justice in the Criminal Procedure.” 2010.. http://www.eucpn.org/download/?file=RJ_ENG.pdf&type=8 According to instrumentalism, criminal law is acceptable because it serves higher social aims: social order and peace. This suggestion can be tested empirically. Extended research concludes that punishment is not effective for any of these goals [McGuire and Priestley 1995; Andrews and Bonta 2003; Tonry and Farrington 1995]. The idea that punishment rehabilitates or individually deters offenders has never been confirmed empirically. There is no indication that harsher or more intensive punishments lead to greater public safety and peace. On the contrary, the more public policy relies exclusively on repression and punishment, the more this will lead to more imprisonment, more human and financial costs, less ethics, less public safety and a lower quality of life. foundationbriefs.com Page 99 of 113 Aff Counters foundationbriefs.com Page 100 of 113 January/February 2013 Aff Counters: Rehabilitation & victim Rehabilitation does account for the victim Process of rehabilitation will give the victim her place back at the rightful moral position. Waldman, Ellen. "Healing Hearts or Righting Wrongs?: A Meditation on the Goals of “Restorative Justice”." Hamline Journal of Public Law & Policy 25.2 (2004). Web. (360) In this notion of justice, it is the experience of providing restitution, not enduring punishment, that is morally educative for the offender and dignity-restoring for the victim. While retributivists believe that offender punishment reverses the offender’s assertion of dominance over the victim, restorativists believe that it is the offender’s efforts at repair that restore the victim to her rightful moral position. As Howard Zehr has written, “when an offender makes an effort to make right the harm, even if only partially, it is a way of saying, I am taking responsibility, and you are not to blame.”11 In taking efforts to help repair what has been sundered, the offender assumes the role of moral supplicant and grants the victim the power to either bestow or withhold grace. foundationbriefs.com Page 101 of 113 January/February 2013 Aff Counters: Rehabilitation & victim The often-discussed civil liberties-based problems with a rehabilitative approach could be easily avoided if rehabilitation were officially recognized as a sentence. Halleck, Seymour L. and White, Ann D. (1997). Is Rehabilitation Dead? Crime and Delinquency (October, 1997). Many minor offenders, men who have not committed dangerous crimes, have been kept in prison indeterminately because they have failed to meet some nebulous criterion of rehabilitation. It is obviously desirable to protect offenders against such abuses, but it is simplistic to assume that the only way they can be protected is to do away with rehabilitative programs. Norval Morris, an eminent criminologist and dean of the University of Chicago School of Law, has offered a succinct principle as a solution to the problem: “Power over a criminal’s life should not be taken in excess of that which would be taken were his reform not considered as one of our purposes.” Morris is arguing that the restriction of liberty of offenders is justifiable only for purposes of deterrence, incapacitation, or retribution. Any restriction of liberty should be governed by due process of law. Rehabilitative efforts would not infringe upon the civil rights of offenders if they were conducted within a framework of fixed sentencing. They can be safely continued even within a framework of indeterminate sentencing if they are used as a way to achieve earlier release, but the absence of rehabilitation ought not be used as a reason for restricting liberty indefinitely. With changes in laws in a few states and with careful monitoring of rehabilitative programs, most of the apprehensions of civil liberties advocates regarding restrictions of liberty can be relieved. In reality, rehabilitation can be refused—offenders just need to be offered the opportunity to partake in it. Therefore, potential associated harms are voluntarily assumed. Halleck, Seymour L. and White, Ann D. (1997). Is Rehabilitation Dead? Crime and Delinquency (October, 1997). The ethical issue of experimenting with the minds and bodies of offenders is more complex. Given the current primitive state of the technology of mind control, this issue can, in the short run, be resolved by vigorously enforcing the offender’s right to refuse rehabilitation. If an offender is given a fixed maximum sentence and has a reasonably good idea of his probable release date, he can make a rational choice between submitting to a rehabilitative technique which may or may not help him gain an early release and simply “doing time.” His decision is intelligent and voluntary to the extent of his having full information on the possible adverse effects of any treatment for which he might volunteer. Increasingly, criminals are demanding and receiving such information. Recently the courts have prevented prison officials from depriving non-volunteering prisoners of commonly available privileges. foundationbriefs.com Page 102 of 113 January/February 2013 Aff Counters: Rehabilitation & punishment Rehabilitative process still includes punishment Punishment can be defined in ways that are included in the rehabilitative process. Daly, Kathleen. “Revisiting the Relationship between Retributive and Restorative Justice” in Restorative Justice: From Philosophy to Practice (2000), edited by Heather Strang and John Braithwaite. Aldershot: Dartmouth. Web. (10) Another way to define punishment practices is anything that is unpleasant, a burden, or an imposition of some sort on an offender. Thus, compensation is a punishment, as is having to attend a counselling program, paying a fine, or having to report to a probation officer on a regular basis (see, more generally, Duff 1992, 1996; Davis 1992). This is, in my view, a better way to define punishment. If this more inclusive definition were used, it would be impossible to eliminate the idea of punishment from a restorative response to crime, even when a meaningful nexus is drawn between an offence and the ways that an offender can "make amends" to a victim.10 Now, of course, punishment as a social institution is considerably more than the array of sanctions or penalties imposed for crime. Garland (1990: 17) suggests that "punishment is a legal process ... where violators are condemned and sanctioned in accordance with specified legal categories ... The process is ... complex and differentiated, ... involv[ing] discursive frameworks of authority and condemnation; ritual procedures ...; a repertoire of penal sanctions, institutions, and agencies ...; and a rhetoric of symbols, figures, and images by ... which the penal process is represented to its various audiences". The variety of sites and practices of punishment lead Garland to conclude that punishment has "a whole range of possible referents" and "is likely to exhibit internal conflicts and ambiguities". Using Garland's definition, we could all agree that restorative justice is one practice in a broader conceptualisation of punishment as a social institution. One of the big objectives on the Neg will be to show that punishment is necessary and that rehabilitation simply lets criminals off the hook. However, the Aff can demonstrate that much of the process of rehabilitation is still unpleasant for the criminal and the process still demonstrates the victim’s and community’s condemnation of the criminal act. foundationbriefs.com Page 103 of 113 Neg Counters foundationbriefs.com Page 104 of 113 January/February 2013 Neg Counters: Social status of criminal Social status of criminal not important Natural duties render social obligation to a violent criminal irrelevant. Green, Stuart. Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders. Rep. Rutgers Law School, Jan. 2010. Web. (16) Imagine that D commits a violent, non-defensive act of murder or rape or assault against a fellow citizen. Should the fact that he has failed to receive what he deserves from society in terms of economic, political, or social opportunities affect our judgment about whether he deserves to be punished for his act? Assuming that D’s impoverishment and disenfranchisement have not caused his criminal act to be excused or justified by means of insanity, mistake, duress, or necessity, I believe that his impoverishment and disenfranchisement should not affect our judgment of his culpability. The reason is that the moral underpinnings of violent offenses against the person, such as murder and rape, do not depend on background considerations of social justice. Such offenses arise out of what Rawls called “natural duties” (which are to be contrasted, as we’ll see in a moment, to crimes like perjury and obstruction of justice, which arise out of what he called “political obligation”). In Rawls’s words: “[I]n contrast with obligations [like those derived in the original position], [natural duties] have no necessary connection with institutions or social practices; their content is not, in general, defined by the rules of these arrangements. Thus we have a natural duty not to be cruel, and a duty to help another, whether or not we have committed ourselves to these actions. It is no defense or excuse to say that we have made no promise not to be cruel or vindictive . . . . Indeed, a promise not to kill, for example, is normally ludicrously redundant, and the suggestion that it establishes a moral requirement where none already existed is mistaken. . . . A further feature of natural duties is that they hold between persons irrespective of their institutional relationships; they obtain between all as equal moral persons.” In short, the moral obligations that D breaches when he commits a violent offense against another person are obligations owed to his fellow citizens, as individuals, rather than to the government. foundationbriefs.com Page 105 of 113 January/February 2013 Neg Counters: Suffering not central Proportionality of suffering not central to retribution The punishment is the concern for justice, not whatever subsequent suffering an individual criminal perceives. Gray, David. "Punishment as Suffering." Vanderbilt Law Review 63.6 (2010). Web. (1670) Rather, the point is that the subjective suffering of a particular offender is neither sufficient nor necessary to the justification, measure, or description of punishment for retributivists. To the contrary, punishment for retributivists is, or ought to be, justified, measured, and described solely in objective or perhaps intersubjective terms by reference to the offender’s culpability in a crime.266 The suffering experienced by a particular offender subjected to the punishment he objectively deserves is therefore incidental, and retributivists bear no responsibility for justifying that suffering. As has been emphasized here, this does not mean that subjective experiences of suffering are without moral or practical significance. For example, suffering may be an important factor in the exercise of mercy. Suffering may also be an important consideration for penal technologists charged with the practical task of executing objectively justified sentences. However, it is a mistake to conflate the normative concept “punishment” with suffering as a contingent effect. The exact proportionality of punishment is less of a concern than the message it sends. Markel, Dan, and Chad Flanders. "Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice." California Law Review 98.3 (2010). Web. (951) Suffice to say here that in principle, retributivism can lay out the outer limits for punishment, both on the high and the low ends, in accordance with its interest in properly communicating condemnation to the offender. 165 But beyond this, a retributive conception of proportionality need not have much in the way of precision to say about the particular details of punishment's implementation, consistent with its greater concern with justifying the institution of punishment within and by the liberal state.166 That principles of proportionality cannot give us a certain answer in every case does not mean we can say that proportionality (or retributive justice) is never able to give answers about what is too little or too much. foundationbriefs.com Page 106 of 113 January/February 2013 Neg Counters: Utilitarianism Moral criticisms of Utilitarianism Utilitarianism as a justification for rehabilitation is not moral. Raynor, Peter, and Gwen Robinson. "Why Help Offenders?Arguments for Rehabilitation as a Penal Strategy." European Journal of Probation 1.1 (2009): 3-20. In so far as these arguments depend on a utilitarian justification, they are vulnerable to a number of traditional criticisms of utilitarian theories of justice. These have recently been reviewed by Hudson (2003), and several of them are relevant to arguments about rehabilitation: for example, if rehabilitative penalties are held to be generally beneficial to society, does it matter if the offender who is being rehabilitated is not actually guilty of the offence, provided that he or she is generally believed to be guilty? One version of utilitarian theory is often believed to imply that punishment of the innocent is justified if it contributes to the general good, which clearly conflicts with widely accepted views about justice. foundationbriefs.com Page 107 of 113 Cases foundationbriefs.com Page 108 of 113 January/February 2013 Aff Case Aff Case Core Value: Justice Criterion: Fairness Contention One: Retribution fails to uphold proportionality of punishment. The fundamental concept of justice requires fairness. For the criminal justice system, this means that criminals must be punished in proportion to the crime they committed. To punish them for less than the damage they caused is to allow them to take advantage of society and the victim, to punish them for more is to inflict unnecessary suffering and cruelty. However, retribution actually fails to create proportionality in punishment. Studies on the suffering of criminals in prison show that regardless of prison sentence length, prisoners generally reported the same amount of happiness. This means that a prisoner who serves 10 years in prison is generally just as happy as one who only serves a 6-month sentence. However, despite prison sentence length not mattering, the criminal record that comes with any length of sentence is destructive to the future of criminals. The prisoner who serves only a few months is forever doomed to low paying jobs just as much as someone who served 20 years. What these studies show is that retribution is inherently flawed. When society seeks to punish criminals with the intent to inflict suffering on them, it can do so only in an unjust manner. Rehabilitation can maintain proportionality because it tailors treatment to specific criminals. Contention Two: Rehabilitation holds the community together. It is important for all parties in a crime to be able to repair the damage caused by the crime and move forward in the future. Rehabilitation accomplishes this goal. During the rehabilitative process, the criminal must right his wrongs and repair the damage he or she caused. In this way, the society and the victim get reconciliation. The rehabilitation also equips the criminal with the skills necessary to move away from a life of crime and to function in society as a law-abiding citizen. This has multiple benefits. First, it helps to minimize the number of repeat offenses. Decreasing the amount of crime in a society is clearly just. Second, it ensures proportionality because criminals don’t have a lifetime of suffering for a moment of weakness; they can become productive members of society. foundationbriefs.com Page 109 of 113 January/February 2013 Aff Case Contention Three: Punishment for the sake of punishment is unjust. The idea behind retribution is that criminals are punished because they deserve it. It is inflicting suffering because the criminal deserves it. The notion is called “just desert.” However, as outlined by philosopher Jeremy Bentham, this idea is unjust. Bentham rightly argues that all suffering by humans is undesirable. Retribution does not achieve any pragmatic goals; it seeks only to inflict harm on a criminal to fulfill people’s primal desires for revenge. Society has advanced beyond the need to fulfill these negative emotions. There is no justification for inflicting pain on a human being because someone thinks they deserve it. Utilitarians seek to achieve a goal when they punish a criminal, those who believe in rehabilitation use punishment to reform a criminal back into society. foundationbriefs.com Page 110 of 113 January/February 2013 Neg Case Neg Case I negate and observe that the resolution is agent neutral as there is no actor who ought to take the prescribed action. By not specifying an actor, the topic asks us to delineate what moral obligations we are reasonably all obligated to have to one another—therefore, the ethical analysis must come from the standpoint of neutral individuals. Even if the actor is the government, its primary obligation is to uphold the rights of its citizenry (or it ceases to exist), meaning the NC framework is still true. Ought is defined as expressing moral obligation1 thus I value morality defined as the distinction between good and bad behavior. The only way to determine what is good and bad is to determine if it is consistent with agency. Enoch 12: In order to know what it takes for a car to be a good car, we need to understand what cars are, what their constitutive functions are, and so on. A good car is just a car that is good as a car, good, that is, in measuring up to the standards a commitment to which is built into the very classification of an object as a car. Analogously, then, perhaps in order to know which actions are good (or right, or reason supported, or rational, or whatever), all we need is a[n] better understanding of what actions are, or perhaps of what it is to be an agent, someone who performs actions. Perhaps the normative standards relevant for actions will fall out of an understanding of what is constitutive of action just as the normative standards relevant for cars fall out of an understanding of what is constitutive of cars. The intuitive idea can be put, I think, rather simply: And consistency with agency requires that we respect individual choices before all else. Enoch3 2: Waldron’s argument for a right to do wrong can be summarized – perhaps somewhat, though not too, roughly – as followed: Rights are general in nature, and at least [T]he rights for which the question of whether there is a rights are usually justified by reference to the importance of the relevant choice[.]s: ‘In the ranges of actions to which a theory of rights draws attention, [I]ndividual choices are seen as crucial to personal integrity.’ But then, refusing to acknowledge a right to do wrong would trivialize rights: For surely, [and] in defending the agent’s integrity and acknowledging the importance of the relevant choices for her life, we cannot just mean to defend her choice as long as she chooses to do the right [or moral] thing. Nor can we merely mean to defend her choices as long as she either does something that is morally required or does things morality is indifferent to. The appropriate subject matter for [L]imiting the scope of rights to just these choices would undermine the paradigmatic justification of rights. As already stated, the right to choose A or B or C or D is standardly justified by reference to the importance of the choice to the agent’s integrity; but if rights are always just rights to choose among the permissible options, then these rights no longer look as important to the agent’s right to do wrong typically arises are ‘not just the right to do A, but a general right which is the right to choose A or B or C or D.’ Such Merriam Webster. “Agency Shmagency,” David Enoch. Hebrew University of Jerusalem. 2006. Philosophical Review. Vol. 115. No. 2. 3 Enoch. “A Right to Violate One’s Duty.” Law and Philosophy. Vol. 21. No 4/5. Pp. 355- 284. Jstor. 2002. 1 2 foundationbriefs.com Page 111 of 113 January/February 2013 Neg Case integrity, and so the right seems not to have been justified in the first place. If rights are to be important— important enough to be justified in the first place—then, Waldron concludes, it must be possible to have a right to do wrong. So, once we undermine that right, then we undermine the reason that we have rights in the first place. If we have a right to do wrong, nobody can make our decisions for us. Therefore, we must respect that individuals are fully responsible for the actions they take and the criterion is respecting agency. This is defined as having due regard for the capacity, condition, or state of exerting power or taking action. 4 I contend that the way in which we respect the agent’s choice is by treating them as fully culpable for the actions, which requires a retributive approach. First, using a retributive model is the only way to respect the value of individual choices, because it allows us to recognize culpability and hence, agency. Aranella5: What are those benefits? H. L. A. Hart has argued that the law's conduct-responsibility requirement maximizes the utility of individual choice within a coercive legal fair attribution requirement serves to reassure the law-abiding members of the community that their individual choices will be respected and valued n41 because they know that serious criminal liability and punishment will be limited to those actors who could have acted otherwise and who appear to be at fault for what they have done. In addition, demonstrating that the criminal was at fault for conduct that he could have avoided committing fosters the deterrent value of the law's most efficient sanction: moral stigma. Imposing moral censure when the public believes that the individual could not have avoided the violation undermines the censure's deterrent efficacy. In short, the conduct-attribution model of "moral" responsibility constitutes a "disguised" method of enhancing social utility. framework. This Holding actors responsible not only respects their agency, but also, as per Arenella’s argument, the agency of other community members. In essence, by holding the correct people accountable we recognize that others could have taken the same action, but autonomously chose not to. Further, the retributive model is the most optimal choice to respect the offender and treat them as an end as it recognizes their autonomy, culpability and right to do wrong. Aranella 2: 4 Merriam Webster 5 Arenella, P. (1992). Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability. UCLA Law Review, (39). foundationbriefs.com Page 112 of 113 January/February 2013 Neg Case "Just desert" retributivists offer deontological justifications for what they perceive as a necessary conceptual link between justifi- able punishment and moral desert. Justice requires that individuals be rewarded and punished on the basis of what they deserve. It is "right" to give people what they deserve, and the "good" of this practice is that justice is being done regardless of whether blaming the deserving wrongdoer generates desirable social consequences. Some retributivists derive this principle of distributive justice from Kant's categorical imperative that moral agents be treated as "ends" in themselves before they can be Blaming a deserving wrongdoer treats him as an end because we are respecting and responding appropriately to his autonomous choice to do wrong. treated as a "means" of promoting others' objectives.46 As per Aranella’s argument, if agency is not respected, individuals will not feel as though they are accountable for their actions, because we deny that they are fully responsible for what they did. And finally, offenders know what they are doing when they commit crimes, so in order to recognize their agency, we have to hold them accountable for their actions. Siegel6: Criminals such as Johnny Ray Gasca carefully plan their criminal activities. They buy equipment, try to avoid detection, plot to sell their illegally gotten gains, and then attempt to squirrel their criminal profits in some hidden bank account. Their calculated actions suggest that the decision to commit crime can involve rational and detailed planning and decision making designed to maximize personal gain and avoid capture and punishment. Some criminologists go as far as suggesting the source of all criminal violations- committing a robbery, selling drugs, attacking a rival or filing a false tax return- rests upon rational decision making. Such a decision may be based on a variety of personal reasons, including greed, revenge, need, the final decision to commit a crime is only made after the potential offender carefully weighs the potential benefits and consequences of their planned action and decides that the benefits of crime are anger, lust, jealously, thrill-seeking or vanity. But greater than its consequences. Thus, I negate. 6 Siegel, Larry. J. (2009) Criminology, Tenth Edition. foundationbriefs.com Page 113 of 113
