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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

The War Against Rehabilitation

        Currently, our inmates and convicts are almost determined to fail. Harsh sentencing of drug offenders, inmates being seen as monetary value, and not being taught any work-skills while in prison makes it extremely hard for convicted individuals to make a life post-release. This causes them to migrate back into the subcultures that directly contributed to their arrest and conviction. When you couple this with the innate cruelty and torture of solitary confinement and other practices of prison staff, convicts have no realistic chance of integrating back into society.

Society is constantly evolving and its norms and culture alongside it. What was acceptable ten years ago may not be acceptable now, and vice-versa. A great example for this would be in criminals convicted of drug offenses, and especially for marijuana. As more and more states start to decriminalize and legalize marijuana, it seems more and more ridiculous to hold someone in prison for drug offenses.

            If a convicted offender were to apply for a job, the hiring manager would probably ask about their background. If the person was only convicted for drug offenses, they may have an easier time getting hired than for an assault or burglary. This is dependent on the establishment, but as the culture shifts into decriminalizing more and more substances, so does the understanding that perfectly normal, capable people may have drug charges.

            Another faucet of society that has been evolving is the drug culture itself. Members of a drug culture often operate in the same ways as any other subculture and typically have their own way of dressing, their own history, and their own shared beliefs. Just like a video game subculture, or a car club subculture, certain things would be considered normal and certain things would be considered taboo. These subcultures surrounding drugs may make the process for rehabilitation increasingly harder and put offenders at risk of reoffending, but some may also provide an overall better place in society post-conviction.

            Let’s say an offender gets a conviction for buying cocaine for personal use and ends up being sentenced to a couple of years in prison. Upon release, it is going to be extremely hard for this inmate to find work as not a lot of places hire convicted felons. If they can get a job inside of their own subculture, their risk for re-offending is going to increase significantly because they are back where it is acceptable to use cocaine and surrounded by people that do. In this offender’s case, the drug culture is actually inhibiting their rehabilitation by making it exponentially easier for them to use again.

            This same problem can be seen with any drug subculture and it even leaks into mainstream society through music and television/movies. The more that drugs are at the forefront of society, the easier it is for first-time users to be tempted to indulge. With the possibility of breaking the law by buying and selling drugs increasing, the possibility of being convicted of a crime increases as well. The abundance of these subcultures then makes rehabilitation increasingly harder as well by allowing the offender to fall back into the cycle of use.

            This can be true of any subculture that engages in criminal activity. According to the Bureau of Justice Statistics, “Overall, 67.8% of the 404,638 state prisoners released in 2005 in 30 states were arrested within 3 years of release, and 76.6% were arrested within 5 years of release.” (Matthew Durose, 2014, Recidivism of Prisoners Released in 30 States) Making it increasingly difficult for convicts to survive in society post-prison is one of the reasons for such high recidivism rates. If someone gets out of prison after serving for ten years for burglary, that person will have difficulty entering the job market. They may pick back up stealing and burglarizing in order to purchase foods and goods to survive.

            One of the biggest changes to criminology over the last few years would be the ever-increasing calls for a more rehabilitation focused criminal justice system. Public perception of the drug war and its victims has changed to a more treatment-oriented system where drug courts curb the burden that the corrections system once had to hold. Violent offenders are also being highly scrutinized as mental illness is becoming more and more understood. As medicine and science evolves, treatment can evolve as well, leading to more rehabilitation focused sentencing.

            Mass incarceration is a burden on our system that offenders have to bear. The only reason that an offender should be put in a prison for the entirety of their life is if they are an absolute danger to the community and there is no need for rehabilitation. This could be a violent offender with multiple convictions on their record, or a sexual predator who frequently preys on underage victims. A drug offender who may have been caught with a large shipment of methamphetamine or cocaine should not spend their entire life or even more than ten years in prison depending on past convictions.

The United States’ sentencing laws are outrageous in certain circumstances. Litigation has done it’s share of decreasing the amount of time received for crimes, but still has a long way to go. It’s been found through multiple studies that revenue levels directly predict incarceration rates and growth. (Lynch, 2011, Criminology and Public Policy, 673-689.) The same studies also prove a correlation the other way around as well. As mass incarceration becomes a norm in certain states, so does legislature to increase revenue.

Arizona is one of the best examples of this. As the move to normalize mass incarceration in the state increased in the 1970’s, so did revenue generating ‘schemes’ as well. These ranged from taxing alcohol and tobacco more heavily, to imposing more fees on drunk drivers. This legislation to increase these revenue streams were put directly into building more prisons and paying for the cost of mass incarceration in the state. As more and more states increase revenue streams to pay for mass incarceration, more and more offenders are handed lengthier sentences and the criminal justice system moves away from rehabilitation.

This changes the offenders’ lives drastically because they are often given very large sentences and no way to recover after. They may develop a mental illness from being in prison for an extended time and not have the tools after to become a productive member of society. If the system had focused on their rehabilitation from the beginning, they could have contributed more. Because our system is so focused on punishment, these offenders really have no chance at a better life, post-sentence.

            Correctional professionals are not off the hook either, so to speak. The widespread use of isolation or segregated treatment as punishment for offenses while in prison is virtually unconstitutional and inhumane. In 1890, Supreme Court Justice Samuel Miller stated that

“A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be any subsequent service to the community.” (ACLU)

Even after the input from the highest court in the land, however, prisons and corrections officials still implemented the widespread use of solitary confinement as a practice. In the United States, around 7% of the prison population is in solitary confinement, or about 80,000 individuals. A study published in the American Journal of Public Health found that detainees in solitary confinement in California prisons in 2004 accounted for 73% of the suicides even though they were less than 10% of the overall total prison population. (ACLU) This means that by utilizing solitary confinement and essentially relying on it so much is causing our prisoners to kill themselves. The purveyors of this concept are technically responsible for these deaths.

We have an ethical and constitutional obligation to ensure our inmates are not subjected to cruel and unusual punishment. If an inmate is sentenced to ten years in prison but ends up committing suicide before the ten years is finished, the prison and its employees have failed to uphold what they were obliged. When the Supreme Court ruled on the right to healthcare for inmates, they, “…reasoned that to place persons in prison or jail, where they could not secure their own care, and then to fail to provide that care, could result in precisely the pain and suffering prohibited by the Eighth Amendment to the Constitution.” (Health Affairs)

In Orange Country, California, three women are currently suing the Orange County jail for indirectly causing the deaths of their children. One of the women, Sandra Quinones, claims that after her water broke, it took deputies over two hours to get the woman to a hospital, a trip that involved a stop for coffee at a Starbucks. The baby passed away in the hospital. Another woman, Ciera Stoetling, gave birth in the county jail after informing the jail nurse that she was having contractions. The nurse told her that there was not enough staff to take her to a hospital and she would have to wait two more days. The baby later passed away. Regardless of the circumstances of their arrest, these women did not deserve to lose their children, especially over a coffee break at Starbucks. The inhumanity displayed by the guards and staff at the Orange County Jail is inexcusable, but unfortunately, seems business as usual.

Why is treatment of an inmate innately cruel by the prison staff? Is it a belief that prisoners deserve to be punished further than just being in prison and if so, why do the guards believe it to be their own responsibility to enact? Since first documented in the Stanford Prison Experiment, humanity acts strangely when placed in positions of power over one another, especially when the person underneath has been sufficiently dehumanized. This normalization of cruelty is portrayed everywhere we can look for it, from Guantanamo Bay and Abu Ghraib, to Orange County Jail.

            Convicts deserve fair and impartial treatment throughout the process of engaging with the criminal justice system. The fact that they cannot find employment when they are released means they cannot become productive members of society. If they are tortured in prison by being placed in solitary confinement constantly, we are breaking their capacity to handle the difficulties of life following their release. All of these factors increase the chances of recidivism ultimately meaning that the criminal justice system did not do its absolute best to help our convicts or our communities.




ACLU. (2014). The Dangerous Overuse of Solitary Confinement in the United States. Retrieved from ACLU:

Dubler, N. (2014, March 10). Ethical Dilemmas In Prison And Jail Health Care. Retrieved from Health Affairs:

Lynch, M. (2011). Mass incarceration, legal change, and locale: Understanding and remediating american penal overindulgence. Criminology and Public Policy, 673-689.

Matthew Durose, A. C. (2014). Recidivism of Prisoners Released in 30 States. U.S. Department of Justice.

Zoukis, C. (2017, July 20). What Humanity Learned From The Stanford Prison Experiment. Retrieved from Huffington Post:

Photo by Craig Lloyd from Pexels

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