Against Neorehabilitation

Abstract

In the face of severe budget constraints, bipartisan calls for reform, dropping crime rates, and judicial interventions, states are seriously considering and implementing criminal justice reform to manage state prison populations for the first time in three decades. Scholars agree that states need a guiding theory to transform emergency and short-term reforms into a long-term shift in policy and practice away from mass incarceration. Numerous scholars advocate for a return to an improved theory of rehabilitation to guide the states in implementing such reform. This return—through neorehabilitation, or the rehabilitation of rehabilitation—centers on the use of evidence-based programming and predictive tools to create a rehabilitative model that "works."

Despite the intriguing nature of this new rehabilitative model, this Article challenges this general shift in scholarly and practice reform. It argues that the problem of mass incarceration cannot be resolved through a return to this particular form of rehabilitation, no matter how "improved" it may be. To that end, this Article demonstrates that current rehabilitation-guided sentencing reforms—with their emphasis on evidence-based programming and the use of predictive tools—have several inherent flaws that will limit the effort to downsize prison populations beyond mere budget-cut crises. Specifically, the neorehabilitative model stands to institutionalize a focus on the wrong offenders, exacerbate racial disparities, and distort our perception of justice. Moreover, this new rehabilitation model fails to provide a sufficiently different theory of reform from total incapacitation, which grew out of the desire to improve rehabilitation. For these reasons, this Article argues that the neorehabilitative model is a dangerous theory of reform as states shift toward broader and long-term sentencing policies.

Keywords: sentencing, punishment, technology, criminal justice reform