January/February 2013Table of Contents
Foundation Briefs
Advanced Level January/February Brief
Resolved: Rehabilitation ought to be valued above retribution in the United States criminal justice system.
foundationbriefs.comPage 1 of 113
January/February 2013Table of Contents
Table of Contents
Table of Contents
The Structure of a Foundation Brief
Definitions
Topic Analysis
The Goals of Criminal Justice
The goals of criminal justice are not limited to ensuring “justice” – they include security, peace, the right to freedom, and compensating victims.
Aff Evidence
What is rehabilitative justice?
A rehabilitative approach does not necessarily require a system-overhaul. Rather, simply ameliorating the prison environment counts as rehabilitative justice. 2
Rehabilitation and incarceration are not mutually exclusive.
Rehabilitation is conceptually distinct from other aspects of punishment.
Rehabilitation is the best approach for the individual offender
Rehabilitation allows offenders to have a second chance at rejoining & contributing to society and increases trust in the legal system
A retributive approach, unlike a rehabilitative one, restricts social re-integration and disproportionately punishes offenders.
Whether or not rehabilitation provides a benefit for society and is effective is a secondary consideration. Rather, the fact that it is a right of the individual must come first.
Rehabilitation is not unfair by nature of its individualistic approach to justice.
Using a rehabilitative approach is the only way to provide a benign environment for inmates.
Rehabilitation and Deterrence
Rehabilitation and Deterrence are mutually inclusive by definition.
Rehabilitation is needed to prevent future crimes.
The Rehabilitative Approach is Feasible
A rehabilitative approach can manifest as existing prisons acting as social centers for alternative responses to crime.
A rehabilitative approach does not create more precarious prison environments as some suggest. Rather, it fosters discipline by giving offenders a common goal to work towards.
Contrary to some beliefs, the rehabilitative approach works well on serious offenders, as demonstrated by several meta-analyses.
The rehabilitative approach, in comparison to the retributive one, attracts more correctional workers, making the overall process more feasible and the environment more benign.
The Government’s Obligation to Rehabilitate
The existence of parole contracts demonstrates that the government has an obligation to provide rehabilitation for offenders.
Because the state assumes responsibility for the well-being of inmates when they incarcerate them, rehabilitation is a primary obligation.
When the government refuses to consider rehabilitative models, they ultimately victimize their own citizens.
The ICCPR (ratified by the US in 1992) requires it to promote rehabilitation (explicitly in the case of juveniles).
Any political society that values voluntary participation must focus on enhancing the ability of its members to consent to its authority
Offenders have a right to rehabilitation following from the state’s right to punish
The rehabilitative approach is effective
Meta-analyses prove that putting offenders in prison and denying them rehabilitation increases recidivism rates.
Rehabilitation approach has been successful in the past.
Delancey Street is a proves that rehabilitation works.
Rehabilitation programs dramatically reduce behavioral difficulty – the UK provides a good case study.
Rehabilitation programs dramatically reduce reoffending and social costs – the UK provides a good case study.
Reeducation programs significantly reduce recidivism, especially in the case of the least educated inmates – a study of the Texas prison system confirms.
Rehabilitation programs substantially reduce recidivism – a meta-study provides the insight.
Rehabilitation programs substantially reduce social costs – a meta-study provides the insight.
Retribution punishes the wrong groups
Retribution often punishes families and children for minor crimes committed by parents.
Retribution is a bad investment
Retribution creates more prisoners that cost the state money, money that could be used to prevent crime or recidivism.
Consequentialism requires identifiable social goods to justify punishment.
While retribution may work in theory, it fails in implementation.
Rehabilitation proves to be more cost-effective.
Empirically, the retributive approach does not reduce recidivism.
Retribution as a means to victim satisfaction is misplaced
Human desire for punishment does not justify retribution, especially when it spurs recidivism.
Forgiveness is an essential ethic for the community to adopt when it comes to crime.
Punishing offenders doesn’t provide any authentic benefits for the victims.
Victims overwhelmingly do not weigh the punishment of the offender as their primary concern.
Tag: Retributive approaches leave the parties directly involved in litigation feeling wronged.
Rehabilitation restores state’s obligations under social contract
Impoverished criminals do not have access to society’s benefits.
The impoverished are more likely to be both criminal offenders and victims.
Retribution restores balance to the social contract.
Rehabilitation, by virtue of upholding the social contract, garners more respect for the legitimacy of the law.
Rehabilitation benefits the community
The rehabilitative process educates the community about the criminal, the victim, and itself.
Rehabilitation results in more useful members of society.
There are general goods derived from valuing rehabilitation over retribution.
Rehabilitation is a more democratic and scientific way of maintaining social order.
Crime is the product of individuals becoming worn down as they struggle to grapple with their environments – restoring their ability to take control of the situation is in the interests of society.
Rehabilitation is the approach most consistent with our basic intuitions
Humans are naturally inclined to have unconditional love for fellow beings while, at times, hating their actions.
The fact that there are varying degrees of culpability based on circumstance in court trials means that rehabilitation is a necessary component of the justice system.
Multisystemic Therapy
A legitimate option for rehabilitative treatment is Multisystemic Therapy, or MST. The background.
MST adheres to the principles of rehabilitation.
MST has unique positive features.
Retributive punishment fails to be proportional
Reasoning behind the need for proportionality under retributive punishment.
Switching from fines to prison, and changing the length of prison sentence, does not properly adjust for proportionality.
Long prison sentences do not affect the happiness of criminals, whereas any amount of prison time damages long-term prospects for criminals.
Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society.
Retribution via prison gives no chance to criminals, regardless of the crime, to integrate back into society.
Retribution unfairly punishes beyond prison time
Prison, regardless of sentence length, is linked to increased chronic disease.
Prison prevents reintegration and damages long-term economic prospects of criminals.
Prison damages family relationships.
Retribution does not effectively punish criminals
Prisoners quickly adapt to prison.
Retribution is unnecessarily subjective.
Treatment programs oriented towards retribution fail to reduce recidivism and are unnecessary for deterrence.
Treatment programs oriented towards retribution empirically fail to lower recidivism in any significant way.
Retribution causes unnecessary suffering
Retribution imposes suffering on a criminal that serves no morally legitimate purpose.
Offenders are also victims
Crime is a result of environmental factors and justice for offender is served through rehabilitation.
Character is largely a matter of environmental influences.
Crime is a race issue.
Retribution causes more harm than good
Imprisonment and focus on retribution leads to more crime in the long-term.
Retribution is ineffective
There must be more than philosophical justifications (such as the argument of just deserts) in order to justify retributive practices.
Making a community of criminals come together is conducive for a more developed culture of crime.
Neg Evidence
What is Retributive Justice?
An overview of Retributive Justice
Just desert is the objective of retribution.
A clarification on Retributive Justice.
Retributive justice is an appeal to moral outrage as a way to respond to the actions of offenders.
Retribution is the best approach for the individual offender
Using a retributive model is the only way to respect the value of individual choices, because it allows us to recognize culpability and hence, agency.
The retributive model is the most optimal choice to respect the offender and treat them as an end as it recognizes their autonomy, culpability and right to do wrong.
Retributive justice’s advantages over revenge
Retribution removes the desire for personal revenge; revenge has disadvantages.
Retribution is distinct from revenge.
Immanuel Kant & Retributive Justice
States are limited by the categorical imperative to inflict punishment because it is deserved, not because it will promote the good of civil society.
Kant’s basis for proportionality/how to punish.
Idea of “Just Deserts” as a moral justification for Retribution.
Retributive systems are reciprocal in limiting the agency of the criminal to match the harm to society
Retribution fundamental to criminal justice system
The nature of criminal justice as a system of rules demands that it must be retributive.
Intuition and Retribution
There is some intuitive grounding in our desire to seek retribution.
Rehabilitation unfairly treats offenders differently
Because rehabilitation is on a case-by-case basis, and because the criminal justice system cannot accurately judge these cases, offenders are unfairly treated differently.
There are practical issues with the individualistic approach of rehabilitation.
The rehabilitative approach is inherently biased against minorities and low socio-economic status offenders who may need more rehabilitation.
Rehabilitation makes a criminal’s sentence structurally arbitrary by making it conditional on the indeterminate judgment of experts.
The juvenile court offers an empirical example of the arbitrariness contained within the rehabilitative approach.
The message of a retributive approach
Retribution is necessary to create ethical norms about right and wrong.
Criminal acts are more than just material crimes, they have an expressive dimension.
Only retribution can restore the expressive wrong of criminal acts.
Retribution is necessary to express censure and restore the moral damage of crime.
Retribution restores balance to the social contract.
Retribution restores the equilibrium of benefits to be enjoyed by members of society.
Since people generally seek retribution, any other strategy used to deal with offenders fosters contempt between the people and the law.
We must be retributive or otherwise we will signal to the offender that they have won.
Acknowledging deserts is essential to upholding the way our societies function.
Punishing offenders is key to indirectly rewarding law-abiders.
From an ethical standpoint, without a system of just deserts, morality loses its reward so people lose reasons to follow it.
Punishment resets the scales of justice by recognizing that law-abiders had to make an effort to avoid breaching laws.
Offenders know what they’re doing when they commit crimes, thus, to recognize their agency, we must hold them accountable for their actions.
Retributive punishments are past-oriented and seek to allocate moral blame to the offender.
The retributive approach treats punishment as a question of accountability and sees offenders as accepting social law.
Censure is a conceptual component of punishment and one that retribution fulfills
Failing to penalize an offender infringes on social rules in principally the same way that the offender infringed them.
Retribution is necessary to compensate society for the unfair advantage that the offender gains by committing a crime.
Retribution Necessary For Victims
Restoration requires retribution in order to be fully restorative.
Without retribution, the power is taken away from the people, because they issue their response to offenses via punishment
Crimes Are Public Acts
Crimes victimize entire communities.
Crimes are public wrongs against the community as a whole.
Retribution is the approach most consistent with our intuitions
It’s been empirically proven that humans almost always resort to retribution when given a choice.
People inherently value retribution over deterrence, so whether or not retribution is effective in deterring crime is irrelevant.
The desire to punish is a natural human instinct.
Restorative Justice
Restorative justice is conceptually distinct from retribution or rehabilitation.
Restorative justice is a system distinct from classic retributive justice.
Restorative justice is a complex system focusing on reconciliation.
Restorative justice is essential to accomplishing the broader goals of criminal justice
Restorative justice is compatible with the state’s punitive authority.
A restorative approach is better for victim health and satisfaction.
A restorative approach is better for offender consent and understanding.
A restorative approach significantly reduces reoffending compared to traditional criminal justice.
A restorative approach dramatically enhances public security.
Rehabilitation is ineffective
Rehabilitation fails as a deterrence measure.
The success of rehabilitation must be proven outside of recidivism rates.
The positive effects of rehabilitation on deterrence and safety are empirically ineffective while incurring great social costs.
Aff Counters
Rehabilitation does account for the victim
Process of rehabilitation will give the victim her place back at the rightful moral position.
The often-discussed civil liberties-based problems with a rehabilitative approach could be easily avoided if rehabilitation were officially recognized as a sentence.
In reality, rehabilitation can be refused—offenders just need to be offered the opportunity to partake in it. Therefore, potential associated harms are voluntarily assumed.
Rehabilitative process still includes punishment
Punishment can be defined in ways that are included in the rehabilitative process.
Neg Counters
Social status of criminal not important
Natural duties render social obligation to a violent criminal irrelevant.
Proportionality of suffering not central to retribution
The punishment is the concern for justice, not whatever subsequent suffering an individual criminal perceives.
The exact proportionality of punishment is less of a concern than the message it sends.
Moral criticisms of Utilitarianism
Utilitarianism as a justification for rehabilitation is not moral.
Cases
Aff Case
Contention One: Retribution fails to uphold proportionality of punishment.
Contention Two: Rehabilitation holds the community together.
Contention Three: Punishment for the sake of punishment is unjust.
Neg Case
foundationbriefs.comPage 1 of 113
January/February 2013Definitions
The Structure of a Foundation Brief
Topic Analysis
This is a general reflection on the resolution. It will provide to you an impression of the topic at hand, challenges you will face while debating, and a picture of where we see the debate headed.
Framework
Often times, the most important part of the debate is to actually win before the debate begins. With this section, we will set you up for such a feat. With unique analysis on how to lay the conditions for victory, you will be guaranteed to begin battle already with an advantage.
Strategy Sections
Foundation Briefs is committed to making sure you understand the evidence provided to you. We will never simply throw quotes at you and hope you can understand what we are trying to imply. That is where the Strategy Section comes in. At the beginning of all major sections (i.e. the section in the brief regarding al-Qaeda) there will appear a small section of original Foundation Briefs analysis to tell you how we see the evidence being used, what rhetoric will please the judge and which counterarguments to be prepared for.
Important note: Webpages and online articles that are long and continuous will always be cited as page one (1)
foundationbriefs.comPage 1 of 113
January/February 2013Topic Analysis One
Definitions
Rehabilitation
Smith, Nick. Encyclopedia of Criminal Justice.
“Punishment intended to reform a convict so that she can lead a productive life free from crime.”
Merriam-Webster Online Dictionary
1a: to restore to a former capacity :reinstate
b: to restore to good repute : reestablish the good name of
2a: to restore to a former state (as of efficiency, good management, or solvency) rehabilitate slum areas>
b: to restore or bring to a condition of health or useful and constructive activity
Ought
Oxford Dictionaries, Online
used to indicate duty or correctness
Valued
Oxford Dictionaries, Online
consider (someone or something) to be important or beneficial; have a high opinion of
Retribution
See negative section “What is Retributive Justice?”
foundationbriefs.comPage 1 of 113
January/February 2013Topic Analysis
Topic Analysis
Sammi Cannold
Rehabilitation ought to be valued above retribution in the United States criminal justice system.
My reaction to this topic, which I believe was similar to many others’, was “haven’t we done this before?” If public health vs. criminal justice as Nov/Dec 2010 wasn’t enough on the rehab versus retribution debate, wasn’t Jan/Feb 2012? I suppose not.
Consequently, the challenge with this topic for you now becomes going beyond the debates on rehab versus retribution that people have been having for the past two years.
But how?
General Framework Suggestions
Because the bulk of the contention level arguments will have been made before, being nuanced on this topic rests heavily on the framework debate. The use of ought in the wording of the resolution provides a direct link to moral obligations and hence, arguments that stem from that. So, a few interpretations of that obligation…
- It is agent neutral. Because the resolution does not clarify who ought to be valuing rehabilitation above retribution, it’s logical to assume that the obligation is simply one we all have. This position allows for some of the more philosophical frameworks that stem from agent neutrality. For example, debaters should look at and consider practical reason, veil of ignorance, contractarianism and contractualism frameworks. Additionally, epistemological (from the study of knowledge), ontological (from the study of what is) and metaethical (the study of ethical properties) arguments can be made to deepen frameworks as they provide foundations for what we all share (from which we can draw normative implications).
- It belongs to the government. Since the government is the only one who can actually make decisions in legislation that would value rehabilitation over retribution (or vice versa), it would be logical to view the obligation from their standpoint. Therefore, you might want to consider frameworks that stem from that obligation. One such example might be a social contract framework in which you explain that people give up rights to the government in exchange for protection, which requires the government to protect them either via rehabilitation or retribution. On the other hand, you could also ground a government-based strategy in constitutional or international law by arguing that the government’s primary obligation is to uphold such statutes and they dictate that rehabilitation should be valued over retribution (or vice versa).
Core Affirmative Arguments