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Promoting rehabilitation for criminals

The notion that rehabilitation should play no role in sentencing or the length of incarceration needs to be revisited.

June 20, 2011

You don't have to be soft on crime to believe in the rehabilitation of criminals. But a federal judge who tried to ensure that a convicted defendant would participate in a drug rehabilitation program had his wrist slapped last week by the Supreme Court. The ruling was a faithful application of federal law, but it should motivate Congress to rethink its approach to incarceration.

After a federal jury convicted Alejandra Tapia of smuggling illegal immigrants across the U.S-Mexico border, U.S. District Judge Barry T. Moskowitz sentenced her to more years in prison than called for under federal sentencing guidelines. The rationale, Moskowitz said, was to enable Tapia to enter an inmate drug rehabilitation program with a long waiting list. The judge's heart was in the right place, but the Supreme Court found that lengthening Tapia's sentence for that purpose was illegal.

Writing for a unanimous court, Justice Elena Kagan held that "a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation." The reason was simple: Federal law says that "imprisonment is not an appropriate means of promoting correction and rehabilitation."

The decision makes sense. But the larger principle behind it is troubling: the notion that rehabilitation should play no role in sentencing or the length of incarceration.

That principle emerged in response to complaints about the previous system of indeterminate sentences, in which judges often gave different defendants unequal sentences for the same crimes. The length of a prisoner's incarceration also depended on whether he or she was thought to be sufficiently rehabilitated to be released. As a result, critics say, minorities ended up serving more time in prison than whites.

The controversy over sentencing highlights a perennial debate about the nature of a just punishment system: Is fairness furthered by treating every similarly situated defendant the same or by paying attention to individual differences? Taking rehabilitation into account is an example of the latter philosophy — and wise public policy in our view.

A generation after it removed rehabilitation as a factor in incarceration, Congress needs to take another look at the issue. One possibility is to make more generous a current provision allowing prisoners to earn limited time off for good behavior. Another is to allow judges to impose lesser sentences on defendants who agree to rehabilitation. (Kagan's opinion noted that this policy was not before the court.) Finally, sentencing guidelines could be revised to take account of a defendant's agreement to enter an in-prison rehabilitation program.

It was wrong for a judge to extend a defendant's sentence to allow her to enter a rehabilitation program. But the courts should be free to provide prisoners with incentives for rehabilitation. Action by Congress, not the courts, is necessary to bring that about.

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