A real equality before the law

Professor Pat Carlen
Thursday, 19 December 2013

‘Rehabilitation’ is difficult to define when applied to criminal justice. Re-integration, re-settlement or re-entry are often used instead of re-habilitation. Yet all these terms imply that those to be ‘re-habilitated’/’re-integrated’/‘re-settled’ or ‘re-stored’ previously occupied a social state or status to which it is desirable they should return. Not so. Most criminal prisoners have, prior to their imprisonment, usually been so economically and/or socially disadvantaged that they have nothing to which they can be advantageously rehabilitated. They are returned to their place in society, but from that disadvantaged place they are repeatedly returned to prison.

Rehabilitation programmes have tended to be reserved for poorer prisoners found guilty of crimes against property and for prisoners released after serving long sentences for non-business–related crimes. When poorer citizens break the law their needs are not viewed as deserving of rehabilitative measures by the state, but as risk factors predictive of future lawbreaking. By contrast, many white collar and corporate criminals are too embedded in, and/or too geographically dislocated from, local jurisdictions for prosecution to be possible. When successful prosecution occurs, rehabilitative measures aimed at changing greedy corporate mindsets are not seen as being necessary, desirable or possible.

Rehabilitation is not seen as being necessary for corporate and other white collar criminals because their punishments seldom de-habilitate them in either material or status terms. Nor is rehabilitation considered to be desirable in terms of turning corporate offenders away from wrongdoing. Corporate lawbreaking is such a celebration of capitalist values that, on those infrequent occasions when offenders are brought to trial, they, unlike poorer criminals, are seldom assessed as criminals whose thinking requires changing. Governments are reluctant to see corporate criminals in court through fear that publicity will fuel calls for more corporate regulation, a destabilising of markets or an exodus of corporate capital to more sympathetic jurisdictions. Finally, rehabilitation is not seen as possible because corporate and other powerful criminals have such access to world-wide communications, global travel and hospitality that bringing them to trial is physically impossible.

One way to stop thinking of criminal justice as being primarily about the crimes of the poor, might be to rethink crime and its regulation within a new social justice applicable to all classes: a justice seeking pay-back from lawbreakers from all classes to the state in proportion both to the harms committed and the ability to pay; and payback from the state to all those - whether law abiding or law breaking - whom it has failed materially and culturally in terms of ensuring satisfaction of their minimum needs. Outside of an inclusive justice based on equality before the law, rehabilitation policy has no relevance to the richest and most powerful criminals who pose the deadliest risks both locally and globally, and very little relevance to all those other prisoners who have never had anything to be rehabilitated to.

This comment piece is based on Pat Carlen's 2012 Eve Saville Lecture - 'Against Rehabilitation: For Reparative Justice' - delivered in November 2012. The full lecture can be read here.