A Failing System: The Opioid Crisis, Recidivism, and the Desperate Need for Prison Reform.

• Author: Lanagan, Olivia

"As the opioid epidemic rages on, citizens are expecting governing bodies to take action. This is an issue that touches rural, suburban, and urban populations. It impacts incarcerated populations as well as the general population. As it expands, more individuals are in need of therapeutic intervention and legal representation. As such, governmental agencies must be collaborative and creative in crafting policy and law to fight this crisis." (1)

1. INTRODUCTION

   The opioid crisis is a public-health emergency affecting millions of Americans. (2) Approximately 130 Americans die every day from misuse of opioids, including prescription pain relievers, heroin, and fentanyl, while millions more suffer the social, economic, and public health repercussions associated with addiction. (3) Among these consequences is an increasing incarceration rate among opioid users. (4)

   As the increasing incarceration rate suggests, opioid related cases fill state and federal court dockets. (5) When determining sentences, judges must balance the need to impose a proper sentence for criminal violations with addressing the underlying issue of drug addiction. (6) The Sentencing Reform Act of 1984 (SRA) provides that, on its own, "imprisonment is not an appropriate means of promoting correction and rehabilitation[,]" and the Supreme Court affirmed this provision in Tapia v. United States. (7) Nevertheless, the federal circuits have split on the issue of whether a judge may consider the possibility of drug rehabilitation when imposing a sentence. (8) The Seventh, Ninth, Tenth, and Eleventh Circuits have held that a court violates Tapia and the SRA when it considers a defendant's need for rehabilitation in sentencing. (9) In contrast, the First, Second, Fourth, Fifth, Sixth, and Eighth Circuits have held that courts may consider a defendant's need for rehabilitation when imposing a sentence, as long as it is not the determinative factor. (10) Most recently, in United States v. Schonewolf, the Court of Appeals for the Third Circuit joined the latter position. (11) Nonetheless, the Third Circuit failed to adequately address the specific issue of drug rehabilitation in prison and on parole. (12)

   The opioid crisis is only worsening: Between July 2016 and September 2017, areas in as many as forty-five states saw a 30% increase in opioid overdoses. (13) Additionally, the United States has a high rate of incarceration--a condition the opioid crisis worsened--and better policies are necessary to prevent recidivism among opioid users. (14) At the same time, however, the courts' hands are tied, as the SRA and its interpretation prohibit judges in the Seventh, Ninth, Tenth, and Eleventh Circuits from considering the possibility of rehabilitation in prison when imposing prison sentences. (15) Fortunately, research has proven that newer rehabilitation methods, including drug courts and cognitive-behavior therapy (CBT), effectively reduce recidivism. (16)

   This Note will examine the rise and fall of rehabilitation as a sentencing concern in the United States, the history of the SRA, and subsequent litigation over proper sentencing considerations related to rehabilitation. (17) This Note will also discuss the reemergence of rehabilitation considerations in sentencing and scientifically-proven rehabilitation methods. (18) Moreover, this Note will analyze the Third Circuit's recent decision in Schonewolf and the circuit split regarding the role rehabilitation plays in determining prison sentences. (19) Finally, this Note will conclude by recommending the implementation of more drug courts and the use of CBT at the community level so that policymakers can better address the role of rehabilitation in sentencing. (20)

2. HISTORY

   1. Tracing Rehabilitation as a Goal of Punishment

      1. The Development of Rehabilitation as a Penological Theory

         There are four traditional penological goals behind sentencing: deterrence, incapacitation, punishment, and rehabilitation. (21) The first goal, deterrence, suggests that punishing crime both dissuades the public from committing crimes and discourages the offender from repeating crimes. (22) Incapacitation theory asserts that imprisoning offenders prevents them from committing additional crimes. (23) The third goal, punishment, asserts that offenders should receive a penalty in proportion to their offense. (24) Every prison sentence is retributive because it restricts a defendant's freedom, penalizing their crime. (25) Finally, rehabilitation is an ambitious sentencing goal that aims to decrease criminal acts in three key ways: by increasing one's ability to become employed; by decreasing one's propensity to commit crimes by "redirecting [one's] value system[;]" and by increasing one's "control over antisocial needs and desires by restructuring his personality." (26) Notably, of the four theories, rehabilitation is currently the most controversial. (27)

         Rehabilitation's penological roots go as far back as the Bible and Ancient Greece. (28) Despite this history, incarceration in America was based on retribution, not rehabilitation, until that began to change at the end of the nineteenth century. (29) Prior to the nineteenth century, legislatures imposed fixed sentences rather than leaving sentencing to judicial discretion. (30) Imprisonment did not emerge as a form of sentencing until the 1790s, and legislatures initially continued to impose fixed sentences. (31)

         In 1790, Quakers in Pennsylvania opened the world's first penitentiary, the Walnut Street Jail. (32) The Walnut Street Jail focused on rehabilitation and prisoner reform, which the Quakers viewed as superior to corporal punishment. (33) The Quakers emphasized rehabilitation because they believed that crime was not simply an individual choice, but that society influenced people to commit crime. (34) Thus, the Quakers believed that it was "unfair to take retributive measures against offenders who were not entirely at fault." (35) After the Quakers established the Walnut Street Jail, other penitentiaries began to appear throughout New England that similarly emphasized rehabilitation, but through other means such as vocational training and living in silence. (36)

      2. The Rise and Fall of Indeterminate Sentencing in the United States

         In 1870, the National Congress on Penitentiary and Reformatory Discipline (National Congress) argued that rehabilitation should be the primary penological goal in the United States. (37) The National Congress concluded that indeterminate sentencing was the best way to achieve this goal. (38) Under indeterminate sentencing, the prisoner is not released until he or she is reformed--which takes an indeterminate and subjective amount of time--giving the judiciary greater sentencing discretion. (39) Following the National Congress's push, state legislatures began implementing forms of indeterminate sentencing laws in the late 1800s. (40) By the 1920s, rehabilitation was the primary penological goal in the United States, as evidenced by the majority of states adopting indeterminate sentencing schemes; by 1960, every state had some type of indeterminate sentencing structure. (41)

         Throughout the early to mid-1900s, criminal rehabilitation became more individualized and the medical model of rehabilitation emerged. (42) This model supports the idea that individuals do not commit crimes out of free will, and its emergence resulted in society recognizing criminals as ill individuals who need treatment to cure their illness. (43) Traditional rehabilitation methods include counseling, psychotherapy, education, and vocational therapy, but prisons also used more extreme methods such as psychosurgery, brainwashing techniques, drug therapy, and behavioral conditioning. (44) Following Professor Robert Martinson's highly influential article in 1974, it became commonly accepted among policy makers that rehabilitation did not work as a penological goal. (45) The article and corresponding study concluded that most prison reform programs failed to reduce recidivism. (46) Moreover, indeterminate sentencing resulted in judges administering widely-varying sentences. (47) These phenomena led to the belief that indeterminate sentencing facilitated discrimination because judges and parole boards might use racial bias when imposing a sentence. (48)

   2. Sentencing Reform Act of 1984

      1. Legislative History

         In 1975, as the public's faith in rehabilitation and indeterminate sentencing waned, Senator Edward Kennedy introduced a sentencing reform bill. (49) The bill proposed uniform goals and guidelines for judges to follow when determining sentences, but ultimately never passed due to several shortcomings, such as a lack of guidance for judges. (50) Legislators introduced similar bills in subsequent years, but none gained traction until 1983 when Senator Kennedy introduced the Comprehensive Crime Control Act. (51) In defending the bill, the Senate Judiciary Committee (Committee) concluded that an ineffective model of rehabilitation plagued the current federal sentencing system. (52) The Committee opined that when determining a sentence, judges should consider all four purposes of sentencing: deterrence, incapacitation, punishment, and rehabilitation. (53)

      2. The Sentencing Reform Act of 1984's Provisions

         Congress enacted the SRA in 1984. (54) The SRA abolished the Parole Commission and created the United States Sentencing Commission (Sentencing Commission), which established the United States Federal Sentencing Guidelines (Sentencing Guidelines) for judges to use in sentencing and took away the judge's sentencing power and discretion. (55) The SRA also made all sentences essentially determinate and provided that only good behavior in custody could reduce a sentence. (56)

         Initially, the Sentencing Guidelines were mandatory. (57) Now, judges must follow the Sentencing Guidelines, but maintain some discretion when imposing sentences. (58) Judges may depart from the Sentencing...