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Criminal Justice Matters
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Punishment and Rehabilitation – or punishment as
rehabilitation
Antony Duff's
Published online: 13 Mar 2008.
To cite this article: Antony Duff's (2005) Punishment and Rehabilitation – or punishment as rehabilitation, Criminal Justice
Matters, 60:1, 18-19, DOI: 10.1080/09627250508553608
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Punishment and Rehabilitation -
or punishment as rehabilitation
R. A. Duff considers the meaning of rehabilitation and punishment
and whether they are opposed responses to crime.
ehabilitation' has been a buzz word in the punishment is a condemnatory enterprise: in
rhetoric of penal policy for so long that it convicting and punishing an offender, we (through
.is worth pausing to think about its the state that acts in our name) censure her as a
meaning and connotations, I will distinguish a wrongdoer (Feinberg 1970). Therapeutic
'therapeutic' from a 'moral' meaning: the former is rehabilitation, by contrast, offers sympathetic
more common, but has nothing to do with assistance rather than condemnation: even if
punishment; the latter, however, points towards a someone's need for rehabilitation is clearly due to
plausible understanding of punishment as a moral his own imprudence or misconduct, the therapeutic
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engagement with the offender. approach ignores such fault, and looks only at his
needs. Second, some modes of punishment, most
Therapeutic Rehabilitation obviously imprisonment, often create a need for
rehabilitation rather than providing it: ex-prisoners
In its therapeutic meaning, 'rehabilitation' suggests
may need rehabilitation precisely because of what
a condition of well-being of which someone has been
they have suffered in prison. Third, if we are to treat
deprived, and to which he is to be restored: it suggests
those who need rehabilitative help as responsible
that he has lost certain capacities—physical,
citizens (a liberal democracy must treat its adult
psychological, or social—which rehabilitation will
members as responsible citizens unless they are
restore. Those who have suffered serious physical
unable to make their own life decisions), then
disability might be rehabilitated by a treatment
rehabilitation must be offered rather than imposed:
programme to rebuild their physical capacities.
the state should offer those in serious need the help
Analogously, someone who has through illness or
that they need, but should not force them to accept it.
other misfortune lost some of the social capacities
Punishment, by contrast, is imposed: offenders are
that are required for an adequate life (capacities
not offered punishment, but are required to undergo
required if they are to hold a job, for instance, or
or undertake it.
live successfully with others) might be offered
rehabilitative programmes that aim to help them If we think that therapeutic rehabilitation is
regain those capacities, and thus to regain their social generally the appropriate response to crime, we
position. should therefore either advocate the abolition of
Many of those who appear and are sentenced in criminal punishment, in favour of an explicitly
our criminal courts need or would benefit from therapeutic regime for offenders (Wootton 1963); or,
rehabilitative measures of this kind, especially if we think that abolition is impossible, argue that we
programmes concerned with social skills and should offer rehabilitation to those who are being
capacities.Their offences are also often connected punished, during or alongside their punishment, for
to their lack of certain social skills and capacities: instance by offering rehabilitative programmes to
theft is often connected to poverty, which is itself prisoners (Rotman 1990). On this latter view,
often connected to a lack of the skills that would however, whilst the offender's punishment might give
secure a decent job; certain kinds of violence and us and her the opportunity for rehabilitation, that
vandalism might reflect a lack of the capacities (as rehabilitation is still no part of the punishment; nor
well as of the external conditions) required for living should it be imposed on offenders, as distinct from
a peaceable social life. Sometimes we should perhaps being offered for them to accept or refuse as they see
talk of 'habilitation' rather than of rehabilitation, fit.
since some of those who offend never had the chance There is, however, another way of understanding
to acquire the capacities that they now lack, or the the idea of rehabilitation, as a moral process that can
social position and relationships to which help to make plausible sense of criminal punishment.
rehabilitation might restore them: but the point is
that it is often appropriate to look at offenders in Moral Rehabilitation
such terms as these.
Some theorists argue that we can justify criminal
This is not, however, to say that their punishment punishment as a process of moral education (Morris
should aim to rehabilitate them, since therapeutic 1981). One problem with this view is that it is not
rehabilitation is quite distinct from—indeed, is hard clear how it treats offenders as responsible citizens;
to reconcile with—criminal punishment. First, another is that it is not clear that it is education that
18 Che centre for crime and justice studies
they need. We might more plausibly portray responsible for culpably committing them: then the
punishment as a matter of moral rehabilitation. offender's commission of the crime creates a need
Suppose that I have wronged other members of a for some kind of moral rehabilitation between him
community to which I belong: I have let down a and those whom he wronged, both the immediate
friend; or wronged my academic colleagues by victim and the wider community. If we think then not
neglecting my departmental duties or, even more of imprisonment (whose role in any morally
seriously, by plagiarising an article; or betrayed my acceptable penal system will be small), but of such
partner by sexual infidelity. If the wrong is serious, I sentences as Community Service Orders and
(and they) might see a need for moral rehabilitation. probation, we can see them as formally analogous to
What creates this need is not that I have lost capacities the kind of apology and reparation that a moral
or skills that I once had: it is that my wrongdoing wrongdoer might make to those she has wronged.
has threatened my relationships with those whom I The burden that the offender is required to
wronged, and thus threatens my place in the undertake, as his punishment, can be seen as
community that they and I form—in this group of constituting a formal, and forceful, apology to his
friends or this department, in this family or marriage; victim and to the wider community. The apology has
indeed, it threatens the community by denying its something of the quality of a public ritual rather than
defining values. Now therapeutic rehabilitation, we of a sincere expression of personal feelings, though
saw, aims to restore a person to the social position we may hope that it will become sincere; but it serves
and relationships from which their loss of capacities to make clear to the offender the wrong that he has
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threatened to drive them: analogously, moral done, and for which he owes and is required to offer
rehabilitation aims to restore a wrongdoer to the this apology, and to make clear to the victim our
moral relationships and community that were shared recognition of that wrong. Furthermore, a
threatened by her wrongdoing. The wrong stands probation order involves, as probation officers often
between me and my friends, or colleagues or family: put it, an attempt to bring and to help the offender to
it makes it impossible to carry on as we were, since confront the character and implications of his crime,
it implicitly denied the values, the mutual concern, and to find ways of avoiding repeating it, partly by
on which our relationship depended. I cannot brush programmes that seek to address offending behaviour
it off as something trivial, which has no further and its causes: by undertaking such programmes the
implications: I must rehabilitate myself in their eyes, offender is also making apologetic reparation for his
to restore myself and our relationship. crime.
What can such moral rehabilitation involve? It Much more needs to be said about this idea of
begins with apology—a sincere and repentant punishment as moral rehabilitation (see Duff 2001).
recognition of the wrong I have done. Sometimes, All I have tried to do here is to suggest that it deserves
especially if we know each other well and the wrong serious attention. _
was not serious, an oral apology is enough: but
sometimes, when the wrong is more serious and Antony Duff's work concentrates on the philosophy
lasting, and especially if we do not know each other of law. He teaches at the University of Stirling where
that well, something more is required—something he is co-director of the MLitt in Legal and Political
that will make more forceful the apology that I owe Philosophy.
('mere words' are not enough); something that will
show that I am taking seriously the need to avoid
such wrongs in future, and to reform myself and my References
conduct. Two elements of such moral rehabilitation Duff, R. A. (2001) Punishment, Communication, and
might be, first, undertaking some burdensome task Community. New York: Oxford University Press.
to express my apologetic repentance (doing
something burdensome for my friend; volunteering Feinberg, J. (1970) 'The Expressive Function of
for extra departmental or domestic duties); second, Punishment', in Doing and Deserving: Essays in the
taking steps to address the causes or sources of my Theory of Responsibility, J. Feinberg (ed).
wrongdoing, and perhaps seeking help—whether Princeton,N.J.: Princeton University Press.
informal or formal—in dealing with them.
We can, I suggest, make sense of criminal Morris, H. (1981) 'A Paternalistic Theory of
punishment in similar terms: not, I hasten to add, of Punishment', American Philosophical Quarterly 18:
criminal punishment as it all too often operates now, 263
but of criminal punishment as it could perhaps be,
and as it would need to be if it is to be justified as Rotman, E. (1990) Beyond Punishment: A New View
something that a state can legitimately impose on or of the Rehabilitation of Offenders. New York:
require of its citizens. Greenwood Press.
If the criminal law defines as crimes only kinds
of conduct that are indeed wrongs against both their Wootton, B. (1963) Crime and the Criminal Law.
individual victims (when they have them) and the London: Stevens.
political community as a whole; if it convicts of such
crimes only people who can properly be held
CJITI no. 60 Summer 2005 19
