On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program. The case is Tapia v. United States (No. 10-5400).
After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison. The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:
I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.] [O]ne of the factors that affects this is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program, number one.
The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.
As I discuss in detail in this article, the idea of the federal sentencing guidelines system emerged from intense dissatisfaction with the rehabilitative paradigm that dominated American penology in the middle decades of the twentieth century. Careful reviews of the social scientific literature in the 1970’s purportedly demonstrated that “nothing works” — no available treatment programs for criminal offenders could be proven to reduce recidivism by any significant degree.
Sen. Ted Kennedy, the leading legislative proponent of sentencing reform in the 1970’s, plainly agreed with the “nothing works” thesis. For instance, an early version of his reform bill (S. 181 in 1977) pointedly identified only three permissible purposes of punishment: deterrence, incapacitation, and desert. Rehabilitation is off the table.
But the legislative process is messy, and Kennedy’s skepticism of rehabilitation was not expressed so clearly in the final version of the bill enacted in 1984. Thus, 18 U.S.C. § 3553(a)(2)(D) declares that one permissible purpose of a sentence is “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”
On the other hand, 18 U.S.C. § 3582(a) imposes what might at first seem a contrary mandate:
The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. (emphasis added)
One plausible way of reconciling these provisions — adopted, for instance, by the Third Circuit — is this: rehabilitation is not a proper purpose of imprisonment, but it is a permissible purpose for other sorts of sentences, such as probation. Under this reading, Tapia’s prison sentence would be improper.
Another reading, though, would cast the rehabilitative purpose ban of § 3582(a) in much narrower terms. Although imprisonment per se may not be viewed permissibly as rehabilitative — it’s hopeless to think that merely removing an offender from the community will do anything to turn the offender’s life around — imprisonment might be a venue for particular rehabilitative interventions whose success a judge may permissibly seek to facilitate in determining sentence length. Under this reading, Tapia’s sentence would be okay since the judge was not thinking of imprisonment per se as a means of promoting rehabilitation, but rather as a setting for a specific drug treatment program that was believed to promote rehabilitation.
I’m not sure what the right answer is from the standpoint of statutory interpretation, but I am skeptical of the wisdom of a sentence like Tapia’s. My concerns are both pragmatic and principled.
On the pragmatic side, I am doubtful of the ability of judges to make accurate decisions about which defendants are able to benefit from what sorts of prison-based programming. Although we’ve progressed beyond the “nothing works” mentality of the 1970’s, rehabilitation remains a highly uncertain science. Many programs claim impressive results in reducing recidivism rates, but few have been rigorously tested. Those that have been carefully assessed tend to show modest benefits, if any at all. Moreover, even with respect to good programs, judges have little control over the assignment of particular defendants to those programs. Given all of the uncertainties, I have a hard time seeing the justice (or cost-effectiveness, for that matter) in depriving a person of his liberty for an extra few months in the hope that the person will be rehabilitated while in prison.
On the principled side, a sentence like Tapia’s seems to muddy the message of moral condemnation that criminal punishment ought to send. Is Tapia being punished or treated? Does the sentence primarily communicate a message that Tapia deserves blame for her conduct, or that she is in need of social services to address a mental illness? Does the 51 months reflect what she deserves? If so, why did the judge seek to justify it by reference to treatment needs? And if the 51 months really does exceed what is deserved based on the severity of the offense, then the sentence is (at least arguably) morally untenable.