What’s so liberal about rehabilitation?

Last week, the UK justice secretary, Chris Grayling, announced his plan to reduce reoffending: private companies and charities will be invited to ‘supervise’ offenders for 12 months following their release from prison.

While it is not entirely clear what such ‘supervision’ will entail, Grayling anticipates that every prisoner leaving jail – even those who have only spent a few days in the slammer – will have to complete an additional year-long period under the watchful eye of a government-approved supervisor. These supervisors will assist the offender in finding work or staying off drugs or alcohol, but if the offender were to commit another offence during that time, he or she could be returned to prison immediately, irrespective of whether the new offence would itself warrant a custodial sentence.

Grayling says he is reluctant to ‘set the rules’ on levels of supervision. In a casually authoritarian turn of phrase, he described how ‘some offenders will be monitored intensively, some less so’. Effectively, having paid their debt to society, upon leaving prison offenders will step right back into the criminal-justice system to be monitored in case they screw up again.

The plans have attracted an appropriate level of opprobrium. Andrew Neilson of the Howard League for Penal Reform pointed out that the plans turned a ‘two-week prison sentence’ into ‘a year and two weeks trapped in the criminal-justice system’. Others have pointed out that the proposed method of remunerating supervisors on a ‘payment by results’ basis represents an attack on the publicly funded probation system.

But the most fundamental problem with the scheme is what it says about our approach to punishment. 

In recent years, the English criminal-justice system has been gradually moving closer to rehabilitative justice, and away from traditional punishment. Rehabilitative justice is a theory of punishment as a means of reform. Britain is the only country in the world where offenders are automatically released on probation at the midway point of a sentence, in almost all cases. Whole-life sentences are extremely rare in England, whereas elsewhere, especially in the US, they are very common. Parliament has also introduced various community sentences for minor offences, to take the place of imprisonment. All of these reforms suggest that the traditional idea of retributive punishment – embodied in the Biblical notion of an ‘eye for an eye’ – has fallen out of fashion, giving way to the use of criminal justice to encourage prisoners to change their ways.

Grayling’s new scheme shows how rehabilitative justice has the potential to be far more draconian than a more traditional, retributive system. If a system becomes too focused on rehabilitation, and loses sight entirely of the need to give people what they deserve, it leaves no space for punishments to have any moral dimension. Punishment becomes solely about what works to change people’s behaviour, rather than what would be ‘just’.

This was anticipated by CS Lewis, who wrote an essay highlighting the potentially draconian tenets of rehabilitation, ‘The Humanitarian Theory of Punishment‘. Lewis argued that rehabilitation removed the idea of ‘desert’ from punishment. For Lewis, ‘desert’ – what is deserved or merited – was ‘the only connecting link between punishment and justice’, because it ensures that the punishment is directly proportional to the offence.

Punishing someone on the basis of what they deserve, rather than what will apparently work to correct their behaviour, also allows the propriety of that punishment to be a moral question rather than a technical one. Lewis wrote that it is ‘a question in which every man has the right to an opinion, not because he follows this or that profession, but because he is simply a man, a rational animal enjoying the Natural Light’. Lewis recognised that the logical conclusion of rehabilitation was to replace the moral question of what someone ‘deserved’, a question which is necessarily bound up with the morals and conscience of the offender’s community, with a more clinical question of what would ‘work’ to correct the individual’s behaviour. State-sanctioned rehabilitation, he wrote, ‘removes sentences from the hands of jurists whom the public conscience is entitled to criticise and places them in the hands of technical experts whose special sciences do not even employ such categories as rights or justice’. 

Grayling’s proposed scheme shows how rehabilitation, often thought of as a more liberal alternative to traditional punishment, can give the state free rein to interfere in the lives of offenders, even after they have ‘paid their debt’ through doing time.

Once offenders have done their time in prison, once they have served their sentence, they are entitled to be left alone. The introduction of this draconian pseudo-sentence, an odd midway point between citizenship and incarceration, flies in the face of proportionality and fairness. Of course, prison should work to rehabilitate prisoners. But once an offender is outside the prison walls, their rehabilitation should no longer be the state’s concern. Once they are free they become citizens again, and will, it is hoped, begin the vital process of rehabilitating for themselves.  

Luke Gittos is a paralegal working in criminal law and convenor of the London Legal Salon.