Doing Justice to Mercy: Religion, Law, and Criminal Justice

Recapturing the Good, Not Merely Measuring Harms: Rehabilitation, Restoration, and the Federal Sentencing Guidelines

63 Recapturing the Good, Not Merely Measuring Harms Rehabilitation, Restoration, and the Federal Sentencing Guidelines jon at h a n ro t hc h i l d As the essays in this book demonstrate, the current criminal justice system faces significant challenges: overcrowding, racial disparities, financial shortfalls, increases in juvenile inmates, and the collapse of families and communities of those incarcerated. These challenges impel critical reflections on the basic purposes of criminal punishment on both a theoretical and practical level. According to the United States Commission Guidelines Manual (November 2000), the four basic purposes of criminal punishment are deterrence, incapacitation, just punishment, and rehabilitation . Each of these purposes has garnered extensive support, and debates among the different proponents have been polemical at times. Within the last decade, the general consensus has acknowledged incapacitation as “the principal justification for imprisonment in American criminal justice .” While incapacitation does function to remove immediate threats to the wider public, the notion of “warehousing” criminals lacks a capacious vision of individual and social flourishing and appears condemned to a self-perpetuating system of revolving doors. The purpose of this essay is to begin to explore the features that may constitute such a capacious vision. Specifically, I focus on rehabilitation and the extent to which it has declined and, in many circles of criminal justice discourse, disappeared altogether. Understanding reasons for the disfavor shown toward rehabilitation requires historical and theoretical analyses that lay bare the problems with and prospects of retrieving V4366.indb 63 V4366.indb 63 8/22/07 3:21:09 PM 8/22/07 3:21:09 PM 64 jonathan rothchild rehabilitation within our current system. Rehabilitative ideals manifest themselves in diverse scopes and distinct contents, but, broadly construed , rehabilitation designates any method (or constellations of methods that may or may not be religious in character) established for purposes of transforming individuals so as to redress harms; restore social relationships and reintegrate offenders into society; repudiate cycles of vengeance ; and replenish moral, social, and individual goods. I argue that rehabilitation—underpinned by expansive conceptions of self and society illuminated by theological resources and restorative models of justice— more fully accommodates the procedures of justice and the claims of mercy than other modes of punishment. While portions of the current system can be preserved with minor modifications, I contend that the current trend of incapacitation must be reconceived in order to avoid settling for reductive solutions. There are two principal sections of the essay: the first as a longer, more descriptive and analytical exercise and the second as a more constructive project. The first section undertakes a historical excursus that traces the implementation of rehabilitative objectives in the United States from the 1800s to the 1970s. The trajectory reveals the formation of different rehabilitative techniques that, at least in their earliest forms, have religious origins. The charting of significant developments helps one to conceptualize the ramifications of rehabilitative models. In the 1970s, the paradigm shifted from rehabilitation to incapacitation and just punishment; the determinate, minimal mandatory sentencing introduced by the 1987 Federal Sentencing Guidelines encapsulated the diminishing reliance upon rehabilitative programs. Extended exegesis of the Federal Sentencing Guidelines, in conversation with its critics, will enable us to consider determinate sentencing vis-à-vis justice and mercy. The second section considers rehabilitation in the current criminal justice system. Three thematic questions orient my discussion: (1) who is involved in crime and punishment? (2) what methods of punishment are suitable to justice and mercy? and (3) what theological resources can illuminate matters of justice and mercy? To offer modest responses to these questions, I will explore alternative solutions to imprisonment, including programs that strive to engender rehabilitation through restorative justice . Restorative justice attends to various matrices of the criminal justice dynamic between victim, offender, and community, and not merely offender and state as in retributivist models. Restorative justice does not V4366.indb 64 V4366.indb 64 8/22/07 3:21:09 PM 8/22/07 3:21:09 PM Rehabilitation and the Federal Sentencing Guidelines 65 seek leniency for offenders, but rather it situates them within frameworks of reciprocity and accountability. I answer the third inquiry by highlighting the unique contributions of theology to social problems such as criminal justice. These contributions include marshaling critiques of finite systems as well as fostering profound images of self and society. I consider the...