Mitigating America’s mass incarceration crisis without compromising community protection: expanding the role of rehabilitation in sentencing

The United States is in the midst of an unprecedented mass incarceration
crisis. Financially, this is no longer readily sustainable, even for the
world’s largest economy. Further, the human suffering that prison causes
is no longer tolerable from the normative perspective. Nevertheless,
lawmakers have failed to propose or adopt coherent or wide-ranging
reforms to mitigate this crisis. The crisis has emerged over the past forty
years largely as a result of the emphasis on community protection as the
most important objective of sentencing and the fact that the primary
means of pursuing community protection during this period has been
incapacitation in the form of imprisonment. In this Article, we argue
that policy makers and courts took a profoundly wrong turn by equating
community protection almost solely with incapacitation. A more
progressive and often effective means of protecting the community is by
rehabilitating offenders. In theory, rehabilitation is a widely endorsed
sentencing objective, so it should already influence many sentencing
outcomes, but the reality is otherwise. Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders. This is
attributable, at least in part, to skepticism regarding the capacity of
criminal sanctions to reform offenders. This approach is flawed.
Empirical data establishes that many offenders can be rehabilitated. In
this Article, we argue that sentencing courts should place greater weight
on the objective of rehabilitation and that such a change would
significantly ameliorate the incarceration crisis, while enhancing
community safety. We make three key recommendations in order to
implement our proposal. First, it is necessary to promulgate rehabilitation
as a means of protecting the community. Second, we propose that the role
of rehabilitation in sentencing should be expanded. In particular, and
contrary to current orthodoxy, rehabilitation should have a meaningful
role even in relation to very serious offenses. In indicating the role that
rehabilitation has played in their decisions, courts should clearly
articulate how they have adjusted penalties in light of assessments of
offenders’ potential for rehabilitation. Third, it is necessary to ensure that
decisions by courts relating to the prospects of rehabilitation are made on
the basis of more rigorous, empirically-grounded and transparent
criteria. To this end, we examine the under-researched topic of the role
that instruments that predict the likelihood of an offender’s recidivism
should play in guiding sentencing decisions. The solutions advanced in
this Article will provide the catalyst for rehabilitation to assume a much
larger role in sentencing and thereby significantly ameliorate the
incarceration crisis.