Punishment And Reason In Rehabilitating The Offender

• Date: 01 April 1978
• DOI: 10.1177/003288557805800105
• Published date: 01 April 1978
• Author: Paul Wagner
• Subject Matter: Articles

Punishment And Reason In
Rehabilitating The Offender
Paul Wagner*
As crime rates continue to soar and prisons become vastly over-
crowded, public attention has increasingly focused on the task of
criminal rehabilitation. A series of promising innovations in prison
reform has been followed by a succession of disappointing results.
Each new program has, in its turn, fallen far short of the expecta-
tions of those responsible for initiating the program.1 Most of the
failure to effectuate a program of criminal rehabilitation is the re-
sult of a disparity between the notion of the nature of man in our
system of criminal justice and the notion of the nature of man im-
plicit in our system of criminal rehabilitation. In our system of
criminal justice man is explicitly regarded as a deliberative and
reflective agent. In our system of criminal rehabilitation man is often
considered as an organism wholly subject to the principles of be-
havior modification and presumably unable to be reflective and
deliberative.
Taking as a given that notion of the nature of man which is
implied by our judicial system, it becomes apparent that the task
of a system of rehabilitation is to reform an offender by develop-
ing in him the skills and dispositions necessary for one who is to
act in accord with those social practices recognized as just by the
members of the community-at-large. For an individual to act in
accord with these social practices he must be able to do at least
three things. First, he must be able to recognize a class of actions
as characteristic of a specific practice. Second, he must be capable
of recognizing as relevant those features of a situation that make
consideration of a specific act appropriate. Third, he must be able
&dquo;to understand, at least in an intuitive way, the meaning and content
of the principles of justice and their application to particular insti-
tutions.&dquo;2 In other words, the individual must have the ability to
reason and consequently to decide upon a course of action that is
generally compatible with the institutions and practices of the com-
munity. And, most importantly, the anticipated course of action
must be one which avoids violating the principles of justice. By the
phrase &dquo;principles of justice&dquo; I mean to refer here to a general
moral attitude of man which regards each person as being an object
of ultimate value, and consequently the ultimate value of each per-
son necessitates that we treat those who are similar, similarly, and
those who are dissimilar, dissimilarly. &dquo;Person&dquo; is used here to de-
note a human being who has the capacity to participate in the social
institutions of a given community. Thus, an individual who is reha-
bilitated is one who takes care to insure that his actions comply
*Paul Wagner is Coordinator of the Criminal Rehabilitation and Education
Program, University of Missouri—Columbia.
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with those rules and regulations of society which arc designed to
insure that each person is treated justly. There may be those who
find themselves troubled by this rough and ready characterization
of a universal essence for the so-called &dquo;principles of justice&dquo;. While
I admit there is a great deal of uncertainty involved in trying to
determine all of the specifics associated with a notion such as the
principle (s) of justice, it seems clear that some such universal es-
sence must exist, lest it ultimately appear that there is in fact no
moral structure-reference to which may be used to justify the
practices inherent in any system of justice. As Michael Scrivens has
correctly noted,
What’s right for the eskimos may well not be right for us-
in one sense. If this were not so, ethics would be overrigid and
nonadaptive. But in another sense, what’s right ( or wrong ) must
be right (or wrong) for all, or else ethics fails to be ethics,
i.e., the notion of being right (as opposed to wrong) evaporates
completely.3
Thus, the rehabilitated criminal is a person who has become rela-
tively adept in reasoning about how it is he can act and at the same
time show respect for the personhood of others. Consequently, an
important aim and perhaps even the most essential element in any
program of criminal rehabilitation, is to develop in the individual
the intellectual skills necessary for coping with the moral, legal, and
cultural complexities of the given social structure.
Before discussing the numerous difficulties associated with
teaching a criminal to be more rational in his behavior toward oth-
ers, I would like to note first that the environment of most lower
class Americans, and hence most inmates,4 is such that it seems to
work against members of that class developing the intellectual dis-
positions and skills necessary for coping with our society. The lower
class American is faced with a unique dilemma in reference to many
legal and moral matters. This dilemma is every bit as perplexing as
the frequently discussed &dquo;Pnisoner’s Dilemma&dquo;.5 In the example of
the Prisoner’s Dilemma there are two men arrested for committing
the same felony. However, the prosecution does not have enough
evidence to convict either of the accused unless it can convince one
to testify against the other in return for which the former will be
granted immunity from prosecution. If neither of the accused will
testify against the other, the prosecutor has sufhcient evidence to
convict both on a lesser crime carrying a minimal sentence. The
prisoner’s dilemma then is to decide whether or not to &dquo;snitch&dquo; on
his accomplice. If he decides to remain silent, he will certainly go
to jail. If his accomplice remains silent each will go to prison for
a short period of time. If his accomplice agrees to testify against
him, then he will serve a much longer sentence. If, on the other
hand, he testifies against his partner, he will be freed. As Professor
Sen has noted, &dquo;Games of the type of the Prisoner’s Dilemma bring
on a contrast between individual rationality and social optimality.&dquo;6
The Prisoner’s Dilemma has perplexed philosophers and social sci-
entists for nearly two decades and yet it is not at all clear that any
38

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one solution has received adequate justification.7 How then can we
reasonably expect a poorly educated, lower class American to...