Author: Skylar Davidson

What is Rehabilitation Theory and how does it relate to crime prevention?

Rehabilitation Theory is a forward-looking theory, similarly to Deterrence Theory and Incapacitation Theory, where punishment through rehabilitation is justified through its ability to control crime. In contrast to Deterrence Theory and Incapacitation Theory, however, Rehabilitation Theory positions punishment as a mechanism to improve an individual’s character or behavior, which would then reduce the likelihood of recidivism. The word “punishment” often has a negative connotation, but Rehabilitation Theory gained traction in the United States through a concept known as the Rehabilitative Ideal, which positions punishment as a way for corrections to serve higher social purposes, notably the reduction of recidivism. 

The Rehabilitative Ideal follows a positivist school of thought where participation in crime is the outcome of processes such as environmental factors, including family upbringing and social conditioning, or genetic factors. Throughout the early 20th century, the Medical Model of Intervention became the baseline rehabilitative treatment for individuals who commit crimes. People who commit crimes were seen as products of socio-economic or psychological forces beyond their control. Crime became a “sickness,” where the goal of rehabilitative treatment was to “cure” individuals, which would in turn reduce recidivism. Proponents of the Medical Model point to the subsequent introduction of psychiatrists, psychologists, and clinical social workers into prison settings. However, advocates for individuals in prison ultimately brought the Medical Model’s failures to light, pointing to the invasive and illegal procedures taking place in correctional institutions such as psychosurgery, electroconvulsive therapy, and chemical castration performed under the guise of “rehabilitation.” 

Rehabilitation Policy in the US Before Martinson

The use of rehabilitation as a form of punishment and crime prevention emerged in the late 19th century in penitentiaries at a time when people in prison were responsible for their own rehabilitation. The primary rationale behind crime was thought to stem from an individual’s inability to “to lead orderly and God-fearing lives.” However, penitentiaries soon became reformatories, which aimed to rehabilitate offenders through educational and vocational training, though they still utilized physical punishment. 

The 1936 Cambridge-Somerville Youth Study was one of the first experiments that operated under the guidance of the Rehabilitative Ideal. The program aimed to prevent delinquency, and targeted under-priveleged boys by offering individual counseling through activities and home visits. Such attempts to utilize rehabilitation as a form of crime prevention would inform the intensive use of the Rehabilitative Ideal throughout the 1950s and 1960s in public policy. 

The Prisoner Rehabilitation Act of 1965 authorized furloughs, a system of work release, and standardized the use of community residential treatment centers for adult federal prisoners. The act emphasized the importance of reforming correctional work to create improved educational and vocational training programs for people in prison. Attorney General Nicholas deB. Katzenbach verbalized his support of the Prisoner Rehabilitation Act of 1965 by stating that the policies would amplify “the growing trend in the correctional field to augment inherently limited institutional resources with potentially greater community resources.” The law contained three major provisions:

1. The Attorney General would have the authority to transfer individuals who were in prison to residential community treatment centers (more commonly known as Halfway Houses);
2. The Attorney General can give individuals in prison brief periods to leave for emergencies or purposes relating to release preparations; and,
3. The Attorney General can allow people in prison to work in private employment or participate in community training programs while remaining in prison.

The aim of the Prisoner Rehabilitation Act of 1965 was to codify the federal government’s dedication toward creating rehabilitative programs for people in prison in order to reduce crime in the United States. 

The Martinson Report: “Nothing Works”

While the United States gravitated toward rehabilitation as a form of crime prevention throughout the 1950s and 1960s, everything changed in 1974 when Robert Martinson released his paper titled, “What Works? – Questions and answers about Prison Reform,” more commonly referred to as “The Martinson Report.” Between the years of 1960 and 1975, reported rates of robbery, aggravated assault, rape, and homicide increased by 263%, and property crime rates, specifically burglaries, increased by 200%. Crime was at an all time high in the United States, which led sociologists like Martinson to explore the effectiveness of rehabilitation as a form of crime prevention in America. 

In Martinson’s research involving over two-hundred studies, he concluded that there was little reason to believe that rehabilitation reduces recidivism. Martinson addressed forms of rehabilitation such as education and vocational training, individual counseling, transforming the institutional environment of rehabilitation, medical treatment, and decarcerating individuals in prison, providing evidence for why he believed such measures do not work to prevent crime. Criminological reports leading up to the 1970s that found no significant treatment effects for prison rehabilitation programs coupled with Martinson’s Report ultimately coined the phrase and conclusion that “nothing works” in rehabilitating people in prison and that prison sentences should not include opportunities for rehabilitation. 

Because Martinson’s Report arrived during a period of intensified rates of crime and recidivism in the United States, policymakers from all political backgrounds began to lean into the “get tough on crime” era. Martinson’s message was attractive to liberals, since it could be used to argue against incarceration and indeterminate sentencing, as well as conservatives, who demanded tougher handling of people who commit crimes. The political right and left, in addition to academics, found common ground through Martinson’s “nothing works” mentality, ultimately leading to the decimation of rehabilitative prison programming as a form of crime prevention in US public policy. 

Rehabilitation Policy in the US After Martinson

The Martinson Report, along with the overall agreement of policymakers and academics, culminated in the decline of the Rehabilitative Ideal and the rise of “new punitiveness.” As a result, the United State’s current criminal justice system is more punitive, where incapacitation is the most common form of crime prevention in US policy, rather than rehabilitation. 

The 1989 Mistretta v. United States case ultimately reversed the Prisoner Rehabilitation Act of 1965, as well as any efforts by the federal government to implement rehabilitation as a way to prevent crime. Under the Sentencing Reform Act of 1984, Congress eliminated indeterminate sentencing at the federal level and created the United States Sentencing Commission. The Commission was intended to address the discrepancies in sentencing by federal court judges by creating sentencing guidelines for all federal offenses. Mistretta argued that the Sentencing Reform Act of 1984 violated the delegation-of-powers principle in US constitutional law by giving the Commission “excessive legislative powers.” However, the Supreme Court upheld the federal sentencing guidelines implemented by the Commission, which removed rehabilitation from serious consideration when sentencing people who committed a crime. In other words, the guidelines established by the commission were to be applied in all scenarios, ignoring factors such as responsiveness to treatment, person and family history, previous efforts to rehabilitate oneself, or alternatives to incapacitation.

In 2008, Congress passed the Second Chance Act, which sanctioned federal investment in strategies to reduce recidivism and increase public safety using Rehabilitation Theory. Allegheny County, PA established reentry programs for people who were in prison that connected individuals with education, job readiness, treatment, and other services. Iowa also established pre-release planning for individuals nearing the end of their prison sentences. Overall, there have been few efforts from the federal government over the past few decades to implement reforms rooted in rehabilitation to reduce recidivism. A 2017 Department of Justice report on the Federal Bureau of Prison points to several policy goals focusing on rehabilitation as a form of crime prevention such as identifying individual’s criminogenic needs, developing standardized, evidence-based programs to reduce recidivism, ensuring that people who are in prison receive substance abuse treatment, and helping people in prison maintain family ties. 

Effectiveness of Rehabilitation on Crime Prevention and the Impact on People of Color 

Although Martinson later retracted many of his conclusions regarding rehabilitation programs, and his original report was found to include major methodological flaws, the academic community and policymakers embraced his views on rehabilitation as a form of crime prevention. Contemporary research demonstrates that rehabilitation programs reduce recidivism by about 10%. The risk-need-responsivity (RNR) model uses risk assessment tools to provide rehabilitative treatment to individuals with the highest risk of committing another crime. In a study focusing on the effects of RNR efforts on Ohio’s halfway house programs, the recidivism rate of high-risk individuals lowered by 20%. The Boston Reentry Initiative (BRI) serves as an example of how community partnerships can also reduce recidivism. The BRI provides a family member or mentor to meet each released person when they leave prison, and researchers found that participants had a rearrest rate 30% lower than the control group. Rehabilitation has the capacity to lower recidivism rates when policymakers invest in mental health care, personalized education plans for individuals in prison, and ensuring that individuals leaving prison have job opportunities. People in prison who participate in education programs have a 43% lower chance of returning to prison than those who do not, and individuals who have a job when they are in prison are 24% less likely to recidivate. 

More than 600,000 individuals are released from state and federal prisons every year, but within three years of their release, two out of three individuals are rearrested. Because one in three African-American men are imprisoned throughout their lifetime, compared to one in six Latino men and one in seventeen White men, rehabilitative measures, rather than deterrence or incapacitation, have the greatest potential to reduce the mass incarceration of people of color in the United States. However, rehabilitation programs, specifically during the peak of US Rehabilitative Ideal policymaking, were reserved for individuals deemed capable of reform by policymakers who mostly prioritize white people. As a result, any early sociological studies of prisons do not include people of color in prison, which means the impact of rehabilitation as a form of crime prevention on people of color was, and still is, largely unexamined.

Deterrence is one of the several goals of punishment alongside incapacitation, rehabilitation, and retribution. Deterrence emphasizes that an individual will feel reluctant to commit a crime if the consequences of that punishment are too great. Legislators have utilized deterrence measures to create policies intended to reduce recidivism, sometimes at the cost of reinforcing racial disparities throughout the United States’ criminal justice system. 

What is Deterrence Theory, and how does it relate to crime prevention?

Deterrence Theory has three components: certainty, celerity, and severity of punishment, all of which aim to prevent both individuals who may commit a crime as well as other members of society from participating in unwanted behavior. 

• Deterrence Theory implies that there is a certainty that the person who commits a crime will be caught. If a person believes that they will not be caught, then the threat of any punishment will not be effective;
• Celerity is the idea that punishment imposed immediately after an offense will likely be more effective than one that is imposed years later;
• Finally, if the benefit of carrying out a criminal offense outweighs the consequence, then committing a crime may seem like the more advantageous option, even to a rational person. As such, the severity of punishment is perhaps the most important component of Deterrence Theory, demonstrating that the punishment must not only deter individuals who may commit a crime, but also other members of society by positioning criminal behavior as unacceptable. 

Contemporary deterrence theories are rooted in classical criminological theory. Cesare Becarria’s 1784 “Essay on Crimes and Punishments” and Jeremy Bentham’s 1781 “An Introduction to the Principles of Morals and Legislation” formed the foundation for the revival of Deterrence Theory in the 1970s. Rather than utilizing Deterrence Theory to explain why people commit crime, as was initially intended by founding philosophers such as Becarria and Bentham, economists and criminologists began to view the theory as a solution to crime. Principle assumptions of deterrence theory include:

1. A target group receives a message, such as “it is wrong to murder, and taking someone’s life may result in a life-term prison sentence;”
2. The target group perceives the message as a threat;
3. The target group makes a rational decision as to whether or not they partake in criminal behavior based on the message they received.

The “Get Tough Approach” to Crime

After violent crime rates increased by 126% between 1960 and 1970, Congress adopted deterrence theories from classical criminological theory in the 1984 Sentencing Reform Act, which was signed by President Ronald Reagan and served as the beginning of what would eventually become the “Get Tough On Crime” era. The 1984 Sentencing Reform Act set forth a new sentencing structure where any defendant found guilty of any offense under any Federal statute would be sentenced to a set term of imprisonment or probation and a fine in addition to additional sanctions. Legislators and legal scholars posited that mandatory sentences would deter people from committing crimes because harsher consequences would prevent criminal behavior. Despite the lack of evidence supporting these legislators’ claims, such ideology eventually gave birth to President Bill Clinton’s “Tough on Crime” campaigns throughout the 1990s. 

The 1994 Violent Crime Control and Law Enforcement Act (“the Crime Act”)  included funding for 100,000 more police officers, and implemented the “Three Strikes” policy. Overall, the bill lengthened prison sentences for certain federal crimes and raised mandatory minimum sentencing requirements across the United States. Anyone convicted of a crime under a mandatory minimum would receive at least that sentence. Mandatory minimums were intended to promote uniformity, ensuring that the law would determine a sentence, not the biases of the judge. The Three Strikes Law generally mandates a life sentence for the third offense of violent felonies, imposing harsher punishments for people with lengthy criminal records. Proponents of the Three Strikes Law claim that if a person who committed a crime knows that they face the potential of a life in prison for their next crime, they will not participate in offending behavior. Advocates of the policy contend that the Three Strikes Law protects victims who may fear the return of those who committed the crime, especially in cases involving rape or theft. Opponents of the Three Strikes Law argue that the policy does not deter the most violent crimes, since a life sentence would not prevent a person from committing a crime who acts impulsively. Additionally, out of nearly 34 million serious crimes committed each year in the US, only 3 million result in arrests, so many individuals who consider committing a crime do not anticipate being caught. 

Truth In Sentencing (TIS) laws restrict the possibility of early release for incarcerated individuals. Such laws aim to limit the amount of time people in prison can earn off of their non-life sentences, which require incarcerated people to serve a substantial portion of their prison sentence before being eligible for release. Additional federal legislation passed as a part of the Crime Act and amended in 1996 gave states grants to expand their prison capacity if they imposed TIS requirements on those who commit violent crimes. The program, known as the Federal TIS Incentive Grant Program, functioned under the 85% Rule, which required states to force those who commit violent crimes to serve at least 85% of their sentence in prison in order to receive the grant. As a result, earning time off of court-appointed sentences through good behavior and participation in prison programming or rehabilitation no longer helped people in prison reduce their prison sentence. New York implemented a 1998 law which required first time offenders to serve 85% of a determinate sentence. Nevada’s TIS laws required anyone who committed a crime to serve 100% of the minimum prison term before becoming eligible for parole.

Criticisms, “Get Tough” Policies, and their Impact on Racial Minorities 

Deterrence Theory and related policies aim to reduce crime, but a series of studies indicated that harsher penalties led to increases in crimes of rape, assault, larceny, robbery, burglary, and auto theft. Because criminal acts may be driven by a variety of factors, such as the influence of drugs or alcohol, the existence of harsh penalties is not necessarily a deciding factor in a person’s willingness to commit the crime. Deterrence Theory assumes that human beings are always rational actors that consider the consequences of their behavior before committing a crime, so someone who is temporarily impared would not consider the pros and cons of their actions. Additionally, proponents of Deterrence Theory would assume that more severe sentences reduce a person’s likelihood of committing another crime. However, a 1999 study that reviewed 336,052 people with criminal records dating back to 1958 found that longer prison sentences increased recidivism by 3%. Finally, Deterrence Theory operates under the assumption that there is certainty people will be apprehended for committing a crime, but due to the limits of the US criminal justice system, many crimes do not result in arrest or conviction. Increasing the severity of punishment through longer prison sentences, for instance, would not deter individuals from criminal behavior if they do not believe they will be apprehended. 

Mandatory minimums aim to create a more equitable criminal justice system, however one effect has been an increase in the power of prosecutors and a reduction in the power of judges in sentencing. Prosecutors have the ability to charge defendants with crimes that trigger mandatory minimum sentences. Previously, a judge had the ability to reduce sentences based on their understanding of the case and the defendant’s risk to society, however TISs moved that decision to prosecutors.
African-American adults are 5.9 times more likely and Hispanic adults are 3.1 times more likely to be incarcerated than white adults, so imposing life sentences because an individual has a criminal record disproportionately impacts people of color. The Crime Act also expanded the school-to-prison pipeline and increased racial disparities in juvenile justice involvement by creating mandatory minimums that impact low-income children of color who are convicted of multiple crimes. Additionally, prosecutors are twice as likely to pursue a mandatory minimum sentence for African American people than for white people who were charged with the same offense. The 100:1 ratio in the amount of crack cocaine v. powder cocaine that triggered a five year mandatory minimum ultimately led to the mass incarceration of African Americans. Five grams of crack cocaine resulted in the same sentence as 500 grams of powder cocaine, and because the majority of people arrested for crack offenses are African American, the 100:1 ratio created racial disparities in the average length of sentences. The Fair Sentencing Act of 2010 reduced the statutory penalties for crack cocaine offenses to a 18:1 ratio and eliminated the mandatory minimum sentence for simple possession of crack cocaine by increasing statutory fines.

What is Incapacitation Theory and how does it relate to crime prevention?

Similar to Deterrence Theory, Incapacitation Theory follows a reductivist school of thought, meaning that policymakers justify punishment through incapacitation by positioning it as a way to avoid potential future consequences. That being said, Incapacitation Theory operates under the assumption that any person who commits a crime may commit another crime. Incapacitation Theory suggests that people who have committed crimes should be prevented from committing other crimes through removal from society and/or other methods that restrict an individual’s physical ability to commit another crime. 

Proponents of Selective Incapacitation, an incapacitation strategy within Incapacitation Theory, argue that people who are convicted of committing a crime should be divided into two groups before sentencing:

1. “Dangerous offenders,” people who pose a high risk of committing further dangerous crimes; and
2. “Non-dangerous offenders,” people who are unlikely to commit more dangerous crimes if they are released from prison.

While the intention of Selective Incapacitation supporters may be to avoid overly severe punishments that result in longer sentences and prison overcrowding, there is no known method through which the courts could distinguish dangerous individuals from non-dangerous individuals with accuracy. Sentences based on Selective Incapacitation punish individuals for crimes not yet committed, which runs the risk that people who are identified as dangerous and are incarcerated will not actually commit another crime. 

There are multiple types of Incapacitation within Incapacitation Theory: 

• Incarceration– Imprisonment serves as the primary method of incapacitation in the United States. Incapacitation through incarceration functions through the perspective that a person who committed a crime cannot commit more crimes in their community while they are carrying out their prison sentence;
• Capital Punishment– The Death Penalty is the most severe and permanent form of incapacitation. An individual is not capable of committing any other crimes once they are put to death, so capital punishment fulfills the goal of incapacitation to an extreme degree;
• Lesser Penalties– Lesser penalties may concern restricting a person from committing a crime rather than completely disabling a person from committing another crime. For instance, revoking an individual’s driver’s license in response to numerous speeding tickets or putting a person on house arrest both achieve restrictive forms of incapacitation.

Policy Origins of Mass Incarceration in the US

Following President Richard Nixon’s presidential campaign concerning “law and order,” his administration allocated $1.5 billion in state and local law enforcement grants to prevent crime in America. Soon thereafter, Nixon declared the “War on Drugs,” and Congress passed the Comprehensive Drug Prevention and Control Act (CSA) in 1970 to prevent drug abuse, provide treatment for drug abusers, and strengthen law enforcement authority in the field of drug abuse. The CSA also provided a legal basis for the government’s “War on Drugs.” For instance, New York’s strict 1973 sentencing guidelines known as the “Rockefeller Drug Laws” placed mandatory prison sentences of fifteen years to life for drug dealers and addicts, including marijuana. Some policymakers argue that sentencing laws like the Rockefeller Drug Laws expanded the United State’s prison population from the 330,000 in 1973 to a peak of 2.3 million today. 

President Ronald Reagan’s administration further expanded Nixon’s “War on Drugs” through the Anti-Drug Abuse Act of 1986, which authorized $1 billion to state and federal law enforcement and mandated harsher penalties in federal drug cases. The policy also expanded the use of no-knock warrants. Reagan’s administration’s drug reform policies resulted in an increase of incarceration rates of non-violent drug offenders from 50,000 in 1980 to over 400,000 in 1997. 

The 1994 Crime Bill under President Bill Clinton’s administration paved the way for states to pass more tough-on-crime laws, as coined through Clinton’s “Tough on Crime” era. The 1994 law encouraged prosecutors and police to incarcerate more people and for longer periods of time. The Three Strikes Law, one of the most well known policies under the 1994 Crime Bill, required a minimum sentence of twenty-five years to life for people who commited three crimes with prior serious felony convictions. While Deterrence Theory partly informed the Three Strikes Law, the policy took shape through Incapacitation Theory. In California alone, there were almost 43,000 individuals in prison under the Three Strikes Law as of 2004, which was 26% of the total CA prison population. 

Due to sentencing policies resulting from the “War on Drugs,” the number of Americans incarcerated for drug offenses has increased from 40,900 in 1980 to 430,926 in 2019. Overall, there has been a 500% increase in US prison and jail populations over the past forty years, with over two million people incarcerated today.

Effectiveness of Incarceration and the Impact on People of Color

Despite the steady decrease in violent crime over the past twenty years, the population of people in prison for violent crimes has quintupled since 1984. The National Research Council concluded that although prison growth was a factor in reducing crime “the magnitude of the crime reduction remains highly uncertain and the evidence suggests it was unlikely to have been large.” That being said, higher incarceration rates do not correlate to lower violent crime rates. The Sentencing Project points to two main factors that can explain why the impact of mass incarceration on reducing crime today is limited:

• Incarceration is not a very effective tool to prevent youth crimes and drug crimes, since those individuals are quickly replaced by other people seeking an income or struggling with addiction.
• Additionally, people tend to “age out” of crime, where crime drops rapidly when adults reach their 30s and 40s. 

John Ehrlichman, Counsel and Assistant to the President for Domestic Affairs under President Nixon, later admitted in a “War on Drugs” confessional statement:

“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.”

African Americans make up 12% of the US population, but they account for 44% of the US prison and jail population as the largest single demographic group behind bars. Harsher sentencing laws for drugs disproportionately fell on communities of color after the Reagan administration’s Anti-Drug Abuse Act of 1986. In particular, mandatory minimum sentences that were authorized for drug users as a result of the Anti-Drug Abuse Act of 1986, specifically the 100:1 ratio between crack and powder cocaine sentences, led to wider racial disparities in incarceration rates. After the enactment of federal mandatory minimum sentencing on crack cocaine offenses, the average federal sentence for African Americans was 49% higher than for white people, 38% higher than it was four years prior. Although the Fair Sentencing Act of 2010 reduced the crack and powder cocaine sentencing disparity, Black Americans are incarcerated in state prisons at nearly five times the rate of white people. 

Incapacitation through Capital Punishment and the Impact on People of Color 

Proponents of the capital punishment argue that incapacitation through the death penalty ensures that executed individuals who committed a crime are unable to commit another crime. However, there is no evidence pointing to the fact that the death penalty prevents crime more effectively than long term imprisonment, especially since states that have capital punishment do not show significant changes in either crime or murder rates. While capital punishment is a form of incapacitation, it is not more effective than life imprisonment in preventing crime, which explains why thirty-seven states allow juries to sentence defendants to live imprisonment without the possibility of parole instead of the death penalty. 

Out of the 3,350 people currently on “death row” in the US, more than 40% are African American, and a disproportionate number are Native American, Latino, and Asian. Since October 2002, twelve people have been executed in cases where the defendant was white and the murder victim was black, while 178 African American defendants have beeen executed for murders with white victims, demonstrating the disproportionate impact of the death penalty on people of color.