Criminal Law and Philosophy

https://doi.org/10.1007/s11572-020-09547-4

ORIGINAL PAPER

What is Criminal Rehabilitation?

Lisa Forsberg1,2,3   · Thomas Douglas2,4 

© The Author(s) 2020

Abstract
It is often said that the institutions of criminal justice ought or—perhaps more often—
ought not to rehabilitate criminal offenders. But the term ‘criminal rehabilitation’ is
often used without being explicitly defined, and in ways that are consistent with widely
divergent conceptions. In this paper, we present a taxonomy that distinguishes, and
explains the relationships between, different conceptions of criminal rehabilitation. Our
taxonomy distinguishes conceptions of criminal rehabilitation on the basis of (i) the aims
or ends of the putatively rehabilitative measure, and (ii) the means that may be used to
achieve the intended end. We also explore some of the implications of each conception,
some of the payoffs of a taxonomy of the kind we offer, and some areas for future work.

Keywords  Criminal rehabilitation · Moral education · Moral improvement ·

Criminal justice · Reform

It is often said that the institutions of criminal justice ought or—perhaps more
often—ought not to rehabilitate criminal offenders. Such claims can be found in
academic literature—for example, from criminology and penal theory.1 They can

1
  See e.g. Andrew Ashworth, Andrew von Hirsch, Julian Roberts (eds.), Principled Sentencing: Read-
ings on Theory and Policy, 3rd ed (Hart Publishing, 2009); Peter Raynor and Gwen Robinson, “Why
help offenders? Arguments for rehabilitation as a penal strategy”, European Journal of Probation 1
(2009), pp. 3–20.

* Lisa Forsberg
[email protected]
1
British Academy Postdoctoral Fellow, Faculty of Law, University of Oxford, St Cross Building,
St Cross Road, Oxford OX1 3UL, UK
2
Oxford Uehiro Centre for Practical Ethics, Faculty of Philosophy, University of Oxford, Suite 8,
Littlegate House, 16/17 St. Ebbe’s St., Oxford OX1 1PT, UK
3
Somerville College, University of Oxford, Woodstock Road, Oxford OX2 6HD, UK
4
Hugh Price Fellow, Jesus College, Turl Street, Oxford OX1 3DW, UK

13
Vol.:(0123456789)
Criminal Law and Philosophy

also be found in policy documents and legal judgments.2 But what, exactly, does
criminal rehabilitation consist in? The term is often used without a clear referent,
and in ways that are consistent with widely divergent conceptions. As Ted Hon-
derich notes, ‘a number of views [recommend] punishment or some other practice
for dealing with crime on the ground that it will reform, correct, rehabilitate, treat,
improve or cure offenders’, but ‘[o]ften these doctrines have been ill-defined’.3
This imprecision cannot be excused on the basis that, in practice, the boundaries of
the concept of rehabilitation are intuitively clear, for there are, in fact, many grey zones.
When prison authorities provide psychological therapies to prisoners suffering from
depression, are they rehabilitating those prisoners? When a parole board requires that
a paroled sex offender undergoes ‘chemical castration’, is it imposing a form of reha-
bilitation? Is imprisonment itself rehabilitative? The answers to these questions are, we
think, not obvious.
In this paper, we present a taxonomy that distinguishes and explains the relationships
between different conceptions of criminal rehabilitation.4 We also explore some of the
implications of each conception, and some of the payoffs of a taxonomy of the kind we
offer. The taxonomy distinguishes conceptions of criminal rehabilitation on the basis
of (i) the aims or ends of the putatively rehabilitative measure, and (ii) the means that
may be used to achieve the intended end. This two-dimension approach reflects the fact
that, on some conceptions, rehabilitation is to be distinguished from other functions of
criminal justice by the ends at which it aims, on others, it is to be distinguished by the
means used to achieve this end, while on others still it is to be distinguished by the com-
bination of means and ends that it deploys. Our main motivation for offering this tax-
onomy is the hope that explicitly separating distinct conceptions of criminal rehabilita-
tion will serve as a first step towards remedying the unclarity that characterises much of
the existing literature on rehabilitation. We hope, for example, that our taxonomy might
help to clarify the scope of influential criticisms of criminal rehabilitation—it may
allow us to precisely specify which practices are unjustified if these criticisms succeed.
Section one presents some of the reasons that a taxonomy of criminal rehabilitation
(henceforth just ‘rehabilitation’) is needed. Section two illustrates some of the different
ways in which rehabilitation is understood in the literature. Section three outlines five
different conceptions of rehabilitation, distinguished from one another by the ends that
they take rehabilitation to serve. Section four introduces means-based subvariants of the
different conceptions identified in the preceding section. Section five explores some of

2
  E.g. Ministry of Justice, Transforming Rehabilitation. A Strategy for Reform, May 2013, available at
https​://consu​lt.justi​ce.gov.uk/digit​al-commu​nicat​ions/trans​formi​ng-rehab​ilita​tion/resul​ts/trans​formi​ng-
rehab​ilita​tion-respo​nse.pdf; Ministry of Justice, Prison Safety and Reform, November 2016, available at
https​://asset​s.publi​shing​.servi​ce.gov.uk/gover ​nment​/uploa​ds/syste​m/uploa​ds/attac​hment​_data/file/56501​
2/cm-9350-priso​n-safet​y-and-refor​m-_print​_.pdf. For some examples of legal judgments that emphasise
the importance of rehabilitation, see note 11 below.
3
  Ted Honderich, Punishment. The Supposed Justifications Revisited (London: Pluto Press 2006), p. 112.
4
  Throughout, we understand rehabilitation as a type of intervention, rather than as a type of psychologi-
cal process, though obviously the term ‘rehabilitation’ is used to refer to both.

13
Criminal Law and Philosophy

the payoffs of our taxonomy of rehabilitation. Finally, section six identifies some areas
for future work.
We remain neutral throughout on the role that rehabilitation should play in actual or
ideal criminal justice systems. Though we are sympathetic to the view that criminal jus-
tice systems ought to rehabilitate, and this partly motivates our interest in the topic, we
are not committed to this view, let alone to the stronger view that rehabilitation ought
to be the sole or primary official function of criminal justice. We also take no view on
whether, if criminal justice systems ought to rehabilitate, this rehabilitation ought to
be conceived as an aspect of punishment, or as something that is done in place of or
in addition to punishment. In addition, we leave it open whether traditional forms of
punishment, such as incarceration, themselves qualify as instances or components of
rehabilitation.
We will, from the outset, exclude from the category of rehabilitation all interven-
tions that aim to prevent an individual from re-offending (i) by making it physically
impossible for the person to re-offend (e.g. by physically separating the offender from
potential victims, or killing the offender), or (ii) purely by introducing disincentives or
incentives. This is because we wish to maintain a distinction between rehabilitation and
two forms of intervention with which it is often contrasted: incapacitation and deterrent
punishment. However, in the interests of offering an inclusive taxonomy, we will other-
wise start from a broad working conception of rehabilitation that includes all interven-
tions that have commonly been referred to as ‘rehabilitation’, as well as some that we
think are sufficiently similar to those practices that they might, without obvious error,
be picked out using that label.

1 Why Conceptual Clarity is Needed

We need a taxonomy of criminal rehabilitation in order to protect against the conflation

and confusion of different conceptions of rehabilitation. Why do we need this? There
are at least five reasons.
First, the thought that criminal offenders ought to be rehabilitated has exerted a
strong influence on the design of many criminal justice systems, including some not
generally thought of as rehabilitation-focused, such as the United States’ system. This
can be seen, for example, in the language used to describe parts of the criminal justice
system: US prisons are, for instance, often referred to as ‘correctional facilities’,  and
their staff as ‘correctional officers’.5 Having a clear view of the conception(s) of reha-
bilitation that informed their development could help us better understand the historical
development of such criminal justice systems.
Second, although pure rehabilitation theories according to which rehabilitation is the
sole legitimate function of criminal justice are no longer popular in moral and legal
philosophy, the rehabilitation of offenders—or something akin to it—does, as we will

5
  James Rachels, “Punishment and Desert”, in Hugh LaFollette (ed) Ethics in Practice (Oxford: Black-
well, 1997), pp. 470–479.

13
Criminal Law and Philosophy

discuss further below, play some role in many currently influential theories, such as
those defended by Robert Nozick, Antony Duff, and Victor Tadros.6
Third, notwithstanding the turn against purely rehabilitative theories of criminal
justice, our criminal justice systems do, as a matter of fact, continue to prominently
pursue what could be aptly described as rehabilitation.7 Whether or not we think
that our criminal justice system ought to be in the business of rehabilitation, they
are in this business, and criminal justice practitioners generally acknowledge this.
Rehabilitation programmes, broadly construed, are in place in prisons in most juris-
dictions in Europe and North America. The nature and purpose of such programmes
vary according to type of offence and the  offender’s perceived needs, but include
education, vocational training, psychological/behavioural interventions, and inter-
ventions addressing offenders’ addiction problems. The United Kingdom currently
operates rehabilitation programmes designed to reduce offenders’ aggressive behav-
iour,8 treat alcohol and substance abuse related to offending behaviour,9 and target
some particular types of offending such as domestic abuse and sexual offences.10
The means used to achieve these ends are generally counselling-based, but can also
include pharmaceutical interventions (especially when targeting addiction-related
offending and sex offending, in relation to which methadone maintenance therapy
and anti-libidinal interventions are sometimes employed). The European Court of
Human Rights has stated that signatory member states have a positive obligation
to foster the rehabilitation of criminal offenders, and that criminal justice systems

6
 Honderich, Punishment. The Supposed Justifications Revisited, p. 112; Steven Sverdlik, “Punishment
and Reform”, Criminal Law and Philosophy 8 (2014): 619–633; Robert Nozick, Philosophical Expla-
nations (Harvard University Press, 1981); Antony Duff, A. (2005) “Punishment and Rehabilitation—or
rehabilitation as punishment”, Criminal Justice Matters 60 (2005): pp. 18–19; Victor Tadros, The Ends
of Harm. The Moral Foundations of Criminal Law (Oxford: Oxford University Press, 2011).
7
  For an argument to this effect, see Lucia Zedner, “Dangers of Dystopias in Penal Theory”, Oxford
Journal of Legal Studies 2 (2002), pp. 341–366, at pp. 345–346. See also Edward L. Rubin, “The Inevi-
tability of Rehabilitation”, Law & Inequality: A Journal of Theory and Practice 19 (2001), pp. 343–377.
8
  E.g. Aggression Replacement Training, a programme designed for individuals ‘convicted of violent
offences or who have problems controlling their temper’. The programme ‘challenges offenders to accept
responsibility for their behaviour; the aims are to reduce the incidence of assault, public order offences
and criminal damage, increase public protection and challenge offenders to accept responsibility for their
crime and its consequences’. Another similar programme is Controlling Anger and Learning to Manage
it (CALM), which is an ‘emotional management programme designed for those whose offending behav-
iour is precipitated by intense emotions’, the goal of which is to ‘assist offenders understand the factors
that trigger their anger and aggression and learn skills to manage their emotions’. See Ministry of Justice,
‘Offender Behaviour Programmes (OBPs)’ https​://www.justi​ce.gov.uk/offen​ders/befor​e-after​-relea​se/obp
accessed 30 December 2017.
9
 E.g. FOCUS Substance misuse programme and Addressing Substance Related Offending (ASRO),
both of which are cognitive behavioural intervention programmes aimed at addressing individuals’
alcohol or drug related offending behaviour, see  Ministry of Justice, ‘Offender Behaviour Programmes
(OBPs)’ https​://www.justi​ce.gov.uk/offen​ders/befor​e-after​-relea​se/obp accessed 30 December 2017.
10
 An example of the latter is the Sex Offenders Treatment Programme—Core (SOTP Core), which
‘helps offenders develop understanding of how and why they have committed sexual offences [and]
increases awareness of victim harm’. SOTP Core’s ‘main focus is to help the offender develop meaning-
ful life goals and practice new thinking and behavioural skills that will lead him away from offending’,
see Ministry of Justice, ‘Offender Behaviour Programmes (OBPs)’ https​://www.justi​ce.gov.uk/offen​ders/
befor​e-after​-relea​se/obp accessed 30 December 2017.

13
Criminal Law and Philosophy

should be designed with this aim in mind.11 Given that we apparently are attempting
to rehabilitate criminal offenders, we should get clear on what exactly rehabilitation
comprises.
Fourth, a better understanding of rehabilitation may allow us to better appraise
moral objections to rehabilitation and to rehabilitative theories of criminal justice.
Rehabilitation fell out of favour in moral and legal philosophy due in part to moral
concerns, for example, regarding its putative failure to treat offenders as moral
agents responsible for their conduct (the ‘theoretical objection’).12 However, reha-
bilitation has received insufficient attention from philosophers and arguments for
it are often not presented charitably.13 We suspect that a failure to clearly describe
rehabilitation may have led to its being prematurely dismissed by some.
Finally, a better understanding of rehabilitation may help us determine the extent
to which rehabilitative theories are capable of overcoming the other main set of
concerns that caused them to fall out of favour: empirical worries to the effect that
measures taken aimed at rehabilitating offenders were of limited effectiveness (the
‘empirical objection’).14 The ineffectiveness of rehabilitation has been questioned,15
and even if currently available modes of rehabilitation—such as counselling—are
indeed ineffective, it is possible that future modes—which might combine tradi-
tional interventions with interventions acting directly on offenders’ brains—will be
more effective.16 To assess the empirical objection, both in relation to current and
potential future interventions, we need a yardstick against which effectiveness can
be measured—that is, we need to know what rehabilitation is and what it aims to
achieve.

11
  Sonja Meijer, “Rehabilitation as a Positive Obligation”, European Journal of Crime, Criminal Law
and Criminal Justice 25 (2017): 145–162. See e.g. the cases of Murray v Netherlands (Application
10511/10) (2017) 64 E.H.R.R. 3, para 104 and Khoroshenko v. Russia (Application no. 41418/04), 30
June 2015, para. 121. The importance of rehabilitation is also emphasised in European Court of Human
Rights jurisprudence such as Dickson v United Kingdom (Application No.44362/04) (2008) 46 E.H.R.R.
41, para. 75; Vinter and others v. United Kingdom (Application no. 66069/09) (2016) 63 E.H.R.R. 1,
para. 115 and Harakchiev and Tolumov v. Bulgaria, 8 July 2014, paras. 243–246.
12
  Jeffrey Howard, “Punishment as Moral Fortification”, Law and Philosophy 36 (2017): 45–75.
13
  Howard, “Punishment as Moral Fortification”.
14
  Howard, “Punishment as Moral Fortification”.
15
  Howard, “Punishment as Moral Fortification”, p. 59. See also Doris Layton MacKenzie, What Works
in Corrections: Reducing the Criminal Activities of Offenders and Delinquents (Cambridge: Cambridge
University Press, 2006); Francis T. Cullen and Karen E. Gilbert, Reaffirming Rehabilitation, 2nd ed
(Routledge 2013): 201–208.
16
  Richard Moran, “Medicine and crime: The search for the born criminal and the medical control of
criminality”, in Peter Conrad and Joseph W. Schneider, Deviance and Medicalization (Temple University
Press, 1992) pp. 215–240, at p. 223; Thomas Douglas, “Criminal Rehabilitation Through Medical Inter-
vention: Moral Liability and the Right to Bodily Integrity”, Journal of Ethics 18 (2014): 101–122, at pp.
101-102. These types of interventions have become the subject of moral debate, see e.g. Elizabeth Shaw,
“Direct Brain Interventions and Responsibility Enhancement”, Criminal Law and Philosophy 8 (2014):
1-20; Douglas T, “Nonconsensual Neurocorrectives and Bodily Integrity: A Reply to Shaw and Barn”,
Neuroethics 12 (2019): 107–118.

13
Criminal Law and Philosophy

2 Divergent Conceptions of Criminal Rehabilitation in the Literature

Though rehabilitation has been an influential concept in debates on criminal justice,

it is often not properly defined or elucidated.
Some authors are careful to distinguish between ‘reform’ and ‘rehabilitation’.
As some characterise this distinction, reform seeks to alter character traits, moti-
vations or dispositions, whereas rehabilitation aims at ‘improvement of … skills,
capacities, and opportunities’.17 Others understand reform as the historically prior
practice of providing ‘opportunities for education and contemplation in support of
the reform of one’s moral character’ and rehabilitation as the more recent (twentieth
century) practice of using (primarily psychological) interventions aimed at ‘correct-
ing offenders personality traits, behaviours or attitudes’.18 But not all employ this
distinction or indeed agree that such a distinction can or should be made. We will
use rehabilitation to refer to both what has been called rehabilitation and what has
been called reform.
Steven Sverdlik notes that ‘[t]he history of reformist thinking about state punish-
ment is confusing, in part because of terminological issues’.19 Plato and Hegel have
been taken to be early proponents of reform or rehabilitation theories, but neither
Plato nor Hegel uses a term that would be translated as ‘reform’ or ‘rehabilitation’
to refer to his view.20 Jeremy Bentham and A. C. Ewing both use the term ‘reform’,
which they argue is at least part of what criminal justice should aim to achieve,21 but
more contemporary defenders of what some would regard as varieties of rehabilita-
tion or reform often explicitly reject these labels. Herbert Morris, Jean Hampton and
Duff have all been characterised as defenders of reform or rehabilitation,22 but all
reject one or both of these labels being applied to their theories. Morris rejects both
the ‘reform’ and ‘rehabilitation’ labels,23 and Hampton takes care to distinguish her
theory from ‘rehabilitative’ alternatives.24 Duff refers to the ‘reform’ of offenders
as an aim of criminal punishment, but sees punishment as encouraging self-reform,
which he appears to understand as distinct from reform simpliciter, as understood

17
 Antony Duff, Punishment, Communication and Community (New York: Oxford University Press,
2001), p. 5; Zachary Hoskins, “Punishment, Contempt, and the Prospect of Moral Reform”, Criminal
Justice Ethics 32: 1-18, at p. 9.
18
 Fergus McNeill, “Punishment as rehabilitation”, in Gerben Bruinsma and David Weisburd (eds.)
Encyclopedia of Criminology and Criminal Justice (New York: Springer, 2014), pp. 4195-4206; Peter
Raynor and Gwen Robinson, Rehabilitation, Crime and Justice (Palgrave Macmillan 2009).
19
  Sverdlik, “Punishment and Reform”, p. 620.
20
  Sverdlik, “Punishment and Reform”; J.M.E. McTaggart, Punishment. Studies in Hegelian Cosmology
(2nd ed) (Cambridge: Cambridge University Press, 1918): 129–50, 132f.
21
  Sverdlik, “Punishment and Reform”. See Jeremy Bentham, An Introduction to the Principles of Mor-
als and Legislation (London: Methuen, 1982), p. 180–1; A.C. Ewing, The Morality of Punishment (Lon-
don: Kegan, Paul, Trench, Trubner, 1929).
22
  Sverdlik, “Punishment and Reform”.
23
 Herbert Morris, “A Paternalistic Theory of Punishment”, American Philosophical Quarterly 18
(1981): 263–71, at p. 264.
24
 Jean Hampton, “The Moral Education Theory of Punishment”, Philosophy and Public Affairs 13
(1984): 208–38, at pp. 214-215.

13
Criminal Law and Philosophy

in traditional rehabilitation theories. He rejects the unqualified ‘reform’ and ‘reha-

bilitation’ labels since he takes these to be compatible with or to include interven-
tions that make offenders law-abiding in ways that bypass or undermine their moral
agency. His theory requires active engagement of the offender’s moral agency.25
More recent literature concerned with the moral permissibility of using so-called
neurointerventions, such as brain-active drugs, in crime-prevention employs various
conceptions of rehabilitation and often expresses ambivalence about how it should
be understood, and/or a reluctance to commit to any univocal conception. For exam-
ple, Lene Bomann-Larsen refers to ‘voluntary rehabilitation programs aiming at cor-
recting undesirable behaviour’ or ‘to change [offenders’] undesirable behavioural
pattern’.26 Elizabeth Shaw refers to interventions to ‘develop more effective ways of
re-integrating offenders back into society’ and avoid ‘reconviction’.27 One of the pre-
sent authors (Douglas) employs a disjunctive definition on which rehabilitation aims
either at ‘making offenders less disposed to offend’, or at ‘moral improvement’.28 In
this more recent literature, there is an on-going debate regarding whether interven-
tions intended to rehabilitate offenders need to engage the offender’s rational capaci-
ties in order to be morally permissible. This discussion mirrors some of the earlier
literature on whether criminal rehabilitation ought to be pursued through reason-
engaging means.29
It is not just in the philosophical literature that criminal rehabilitation is often not
clearly defined, or is used in ways that are consistent with divergent conceptions.
Fergus McNeill notes that also in the criminological literature, ‘[b]oth as a set of
concepts and as a set of practices, rehabilitation is a “tangle”’.30 Peter Raynor and
Gwen Robinson suggest that, ‘despite the longevity and continuing relevance of the
concept of rehabilitation in the context of offending, it has rarely been “unpacked”
or examined critically’ and that ‘it is quite common to come across “offender reha-
bilitation” in both academic and policy contexts with no accompanying definition of
the term’.31 Sonja Meijer argues that ‘rehabilitation remains vague’ and that ‘[i]nter-
pretations … differ between the disciplines and professional groups … (law, crimi-
nology and social work), but also within these groups’ and across jurisdictions.32
In what follows, we develop a taxonomy that clarifies how different conceptions
of rehabilitation (broadly understood) differ and overlap with regard to the posited
aims of rehabilitation, and the means via which they allow these aims to be pursued.

25
 Duff, Punishment, Communication and Community, pp. 90–1.
26
 Lene Bomann-Larsen, “Voluntary Rehabilitation? On Neurotechnological Behavioural Treatment,
Valid Consent and (In)appropriate Offers”, Neuroethics 6 (2013): 65–77, at p. 65.
27
  Shaw, “Direct Brain Interventions and Responsibility Enhancement”.
28
  Douglas, “Criminal Rehabilitation Through Medical Intervention”.
29
  E.g. Shaw, “Direct Brain Interventions and Responsibility Enhancement”; Kasper Lippert-Rasmussen,
“The Self-Ownership Trilemma, Extended Minds, and Neurointerventions”, in David Birks and Thomas
Douglas, Treatment for Crime (Oxford: Oxford University Press, 2018), pp. 140–158.
30
  McNeill, “Punishment as rehabilitation”.
31
  Raynor and Robinson, Rehabilitation, Crime and Justice 2009, p. 4.
32
  Meijer, “Rehabilitation as a Positive Obligation”, p. 146.

13
Criminal Law and Philosophy

3 Five Conceptions of Criminal Rehabilitation

We will start by distinguishing five conceptions of rehabilitation on the basis of their

aims.
Consider first one rather ‘thin’, non-normative, conception of rehabilitation:
Rehabilitation as anti-recidivism. An intervention I administered by a crimi-
nal justice system to offender O in response to O’s offence is an instance of
rehabilitation just in case (1) it is intended to reduce the likelihood that O will
re-offend, (2) other than by reducing O’s capacity to reoffend, disincentivising
re-offending by O, or incentivising non-offending by O.
The aim of reducing the likelihood of recidivism need not, we take it, be the ulti-
mate goal of an intervention in order for it to qualify as rehabilitative on this concep-
tion. The ultimate goal may, for instance, be to protect third parties from harm, to
promote public safety, to facilitate earlier release of the offender from prison, or sim-
ply to maximise aggregate utility. The aim of reducing the likelihood of recidivism
also need not, we take it, be the immediate goal of the intervention. The intervention
may, for instance, be intended to promote empathy, self-control, or introspection,
with the reduced likelihood of offending being an intended effect of the realisation
of that immediate aim.
Note that, on rehabilitation as anti-recidivism, rehabilitation may share with
incapacitation and specific deterrence the aim of preventing people from committing
future crimes, so its aim is not a distinctive feature. Rather, its distinctive feature
lies in how it gets there, that is, in the means used to achieve this end. Incapacitation
seeks to reduce the likelihood of recidivism through rendering it physically impos-
sible, for example, by separating the offender from potential victims, or killing the
offender. Special deterrence seeks to reduce the likelihood of re-offending by dis-
incentivising it. Rehabilitation, by contrast, employs other means: most likely, the
alteration of the offenders’ intrinsic dispositions.33
The anti-recidivist conception of rehabilitation is commonly endorsed, at least
implicitly, in policy documents. For example, the Ministry of Justice in the UK uses
recidivism as the outcome measure for assessing the effectiveness of interventions
they refer to as rehabilitative.34
We might also consider a broader alternative to rehabilitation as anti-recidivism:
Rehabilitation as harm-reduction: An intervention I administered by a crimi-
nal justice system to offender O in response to O’s offence is an instance of
rehabilitation just in case (1) it is intended to prevent harmful conduct by O

33
  Not all agree that rehabilitation or reform should be distinguished from special deterrence. See, for
example, Arnold S. Kaufman, “The Reform Theory of Punishment”, Ethics 71 (1960): 49-53, at p. 49.
34
  E.g. Ministry of Justice, Transforming Rehabilitation. A Strategy for Reform, May 2013, available at
https​://consu​lt.justi​ce.gov.uk/digit​al-commu​nicat​ions/trans​formi​ng-rehab​ilita​tion/resul​ts/trans​formi​ng-
rehab​ilita​tion-respo​nse.pdf. Phelps argues there has been a rhetorical shift in the US so that rehabilitation
now refers to anti-recidivism: Michelle Phelps, “Rehabilitation in the Punitive Era: The Gap between
Rhetoric and Reality in U.S. Prison Programs”, Law & Society Review 45 (2011), pp. 33–68.

13
Criminal Law and Philosophy

(restricted to the kinds of harms that are legitimately the business of the crimi-
nal law), (2) other than by reducing O’s capacity to engage in such conduct,
disincentivising such conduct by O, or to incentivising less harmful conduct
by O.
This account requires some clarification.
First, for the purposes of rehabilitation as harm-reduction, we take harmful con-
duct to include conduct with negative effects on the wellbeing of others; on some
subvariants of the view, it might also include harm to the offender himself.
Second, as our parenthetical rider indicates, the concept of harm, for the purposes
of this account, will need to be restricted. Not all harms, even serious ones, are prop-
erly the target of the criminal law, and thus criminal rehabilitation. It is doubtful that
we would classify an attempt to prevent an offender from cheating on his partner
as rehabilitative. Moreover, even harms that are within the domain of criminal law
may be too distant from the crime that has been committed to qualify as a proper
target of an attempt at rehabilitation. It is, for instance, doubtful whether we would
characterise an attempt to prevent a murderer from committing tax fraud as rehabili-
tative. Perhaps, to qualify as rehabilitation an intervention must target ‘harmful con-
duct’ relevantly similar to the offending behaviour of which the offender has been
convicted.
Third, as with rehabilitation as anti-recidivism, we do not require that harm-
reduction must be the immediate or ultimate goal of an intervention for it to qualify
as rehabilitation on this view; it must simply be a goal.
Rehabilitation as harm-reduction seems to be deployed by Sverdlik in his defence
of rehabilitative punishment. Sverdlik holds that punishment can be justified even
when it does not have any general deterrent effects, because it may rehabilitate the
offender—that is, reduce the likelihood that the offender will perform actions that
‘either cause serious setbacks to well-being, or pose a great risk of doing so’.35 Sver-
dlik sees rehabilitation as something that should aim at improving offenders’ respon-
siveness to prudential and moral reasons, however he appears to think of improving
reasons-responsiveness as a means to the further end of diminishing social costs,
rather than as an end in itself.36
An alternative to rehabilitation as anti-recidivism and rehabilitation as harm-
reduction is:

35
  Sverdlik, “Punishment and Reform”, p. 628.
36
  Sverdlik’s view is like some of the moral improvement views that we will consider later on in that it
sees rehabilitation as something that should be aimed at improving offenders’ reasons-responsiveness,
but it is unlike these moral improvement views in that it does not take the reasons rehabilitation aims to
improve to be just moral reasons; efforts at improving reasons-responsiveness on his view can also aim at
prudential reasons. Sverdlik thinks that the requirement that offenders should refrain from offending for
moral reasons is overly demanding, and that it is imprudent for those who seek to defend rehabilitation
as an aim of criminal justice to insist on moral motivation in offenders, since it is (1) hard to measure,
(2) does not necessarily lead to reduced recidivism, (3) overly demanding since it might exclude some
instances of successfully induced anti-recidivism where offenders obey the law for self-interested rea-
sons. (But he allows for insistence on moral motivation insofar as acting from moral motivation makes
offenders more stably disposed to acting in ways that does not affect others’ well-being negatively.)

13
Criminal Law and Philosophy

Rehabilitation as therapy. An intervention I administered by a criminal justice

system to offender O in response to O’s offence is an instance of rehabilita-
tion just in case it is intended to cure or ameliorate a mental deficit in O that
is understood by the intervener (1) to have causally contributed to O’s past
offence(s), or (2) to predispose O to further offending.
‘Mental deficit’ can be understood in either of two different ways: as referring to a
mental illness or disorder, or as referring to some defect in the capacities relevant
for criminal responsibility, such as capacities for rational agency. The first might
aptly be described as a ‘psychiatric’ understanding, since it equates the goals of
rehabilitation with those of clinical psychiatry, whereas the second might be labelled
a forensic understanding. There will likely be a large overlap in these two under-
standings, but we take it to be plausible that some mental disorders do not diminish
rational capacities, and some diminishments in rational capacity to not constitute
mental disorders.
On rehabilitation as therapy, and especially on the psychiatric understanding of
it, the aims of rehabilitation overlap with those of clinical medicine (and more spe-
cifically, given the focus on mental illnesses and deficits, clinical psychiatry). As
with standard medical treatments, the aim of curing or ameliorating the deficit may
be instrumental to the further aim of benefitting the individual. However, other fur-
ther aims are also possible. These may include, for example, preventing re-offend-
ing, protecting the public, or advancing the social good. If the further aims of the
intervention include preventing recidivism or harmful conduct, then the intervention
will qualify as rehabilitation on both rehabilitation as therapy and one or both of the
accounts we offered above.
Bertrand Russell appears to have had something like rehabilitation as therapy in
mind when he wrote that
When a man is suffering from an infectious disease, he is a danger to the com-
munity, and it is necessary to restrict his liberty of movement. But no one asso-
ciates any idea of guilt with such a situation. On the contrary, he is an object
of commiseration to his friends. Such steps as science recommends are taken
to cure him of his disease, and he submits as a rule without reluctance to the
curtailment of liberty involved meanwhile. The same method in spirit ought to
be shown in the treatment of what is called ‘crime’.37
We think that rehabilitation as therapy can also be attributed to some who take them-
selves to be critics of rehabilitation. For example, Jean Hampton distinguishes her
moral education theory of punishment from rehabilitative views by noting that her
theory ‘does not perceive punishment as a way of treating a “sick” person for a men-
tal disease, but rather as a way of sending a moral message to a person who has acted
immorally and who is to be held responsible for her actions’.38 This suggests that she

37
  Bertrand Russell, Roads to Freedom (London: George Allen and Unwin Ltd, 1918) at p. 135. For
another defence of rehabilitation as therapy, see Karl Menninger, The Crime of Punishment (Viking.
1969).
38
  Hampton, “The Moral Education Theory of Punishment”, pp. 214–215.

13
Criminal Law and Philosophy

endorses a therapeutic conception of rehabilitation and denies that her own favoured
form of punishment is rehabilitative on the basis that it is non-therapeutic. Herbert
Morris also seems to endorse rehabilitation as therapy in characterising his own view
as non-rehabilitative. He states that ‘[i]t is not one’s health; it is not even one’s moral
health with respect to any particular matter that is sought to be achieved; it is one’s
general character as a morally autonomous individual attached to the good’.39
It is, however, tempting to think of Hampton and Morris not as opponents of
rehabilitation, but as proponents of a particular, non-therapeutic, kind of rehabilita-
tion,40 namely:
Rehabilitation as moral improvement. An intervention I administered by a
criminal justice system to offender O in response to O’s offence is an instance
of rehabilitation just in case it is intended to morally improve O.
This is a thicker conception of rehabilitation than the ones we have previously con-
sidered, which have all been ‘thin’, in the sense that they characterise the goals of
rehabilitation in non-normative terms, or at least in terms that can plausibly be
understood as non-normative.41
Hampton maintains that ‘punishment is justified as a way to prevent wrongdoing
insofar as it can teach both wrongdoers and the public at large the moral reasons for
choosing not to perform an offense’.42 As we have seen, she does not regard punish-
ment of this sort as rehabilitative, suggesting that she would reject rehabilitation as
moral improvement as an account of the nature of rehabilitation.43 However, those
who characterise Hampton as a proponent of rehabilitation may do so because they,
in contrast to Hampton, endorse rehabilitation as moral improvement, or something
close to it. From here on, we will accept the position of those (including Sverdlik)
who characterise Morris and Hampton’s views as rehabilitative.44
Others have endorsed rehabilitation as moral improvement too. For example,
Duff appears to have something like this conception in mind when he uses the term
‘moral rehabilitation’ to describe the kinds of changes at which his preferred type
of communicative punishment aims.45 Jeffrey Howard’s moral fortification view is
an explicit defence of rehabilitation that endorses rehabilitation as moral improve-
ment, or something close to it—he aims to ‘resuscitate the rehabilitative approach to
criminal justice’46 by developing a conception of rehabilitation that is immune to the

39
  Morris, “A Paternalistic Theory of Punishment”, p. 266. He also discusses the reasoning justifying
rehabilitation as therapy in Herbert Morris, “Persons and Punishment”, The Monist 52 (1968): 475-501,
at pp. 480–488.
40
  Sverdlik, “Punishment and Reform”, p. 261.
41
  Rehabilitation as therapy characterises the goals of rehabilitation normatively if the concepts of men-
tal illness and mental deficit are themselves normative.
42
  Hampton, “The Moral Education Theory of Punishment”, p. 213.
43
  Hampton seems to take what she refers to as rehabilitation theories to be something like our reha-
bilitation as anti-recidivism or rehabilitation as cost-reduction conceptions. In her view, rehabilitation
theories take the good to be ‘the wrongdoer’s acceptance of society’s mores and her successful operation
in the community’: Hampton, “The Moral Education Theory of Punishment”, p. 215.
44
  Sverdlik, “Punishment and Reform”, p. 261.
45
 Duff, Punishment, Communication and Community, p. 19.
46
  Howard, “Punishment as Moral Fortification”, p. 61.

13
Criminal Law and Philosophy

criticism that rehabilitation fails to respect offenders as moral agents responsible for
their conduct. Howard argues that offenders have an obligation, owed to other moral
agents, to rehabilitate themselves, where rehabilitation is understood to consist in
enhancing the dependability of one’s moral capacities.47
Whether or not they take themselves to be defending a variant of rehabilitation,
those who defend the moral improvement of offenders as a legitimate goal of crimi-
nal justice understand moral improvement in different ways, and we might recog-
nise these differences by distinguishing a number of different variants of rehabilita-
tion as moral improvement. These variants share a commitment to a specific kind of
end, that is, making the offender morally better, but differ in their understanding of
what becoming morally better consists in (the nature of moral improvement), and on
what sorts of moral improvement rehabilitation may legitimately aim at (the scope
of legitimate moral improvement). On the nature of moral improvement we can, for
example, distinguish between views according to which moral improvement consists
in the acquisition of more justified moral beliefs, more morally virtuous character
traits, more praiseworthy moral motives, or more morally desirable actions.48 On
the scope of legitimate moral improvement, we can distinguish between attempts to
morally improve a person with respect to the particular type of conduct for which
the individual has been convicted, or more globally.
It has been argued that Hampton and Morris have in common that ‘the psycho-
logical changes in offenders that they are interested in promoting are, roughly, these:
becoming convinced that one’s action was wrong; feeling guilty for performing it;
resolving not to do it again’, and Howard and Duff hold views that are similar with
respect to the kinds of changes they believe should be promoted.49 There appears
then to be much agreement on the nature of moral improvement, but there are also
important differences between their accounts, in particular regarding the scope of
legitimate moral improvement.50
Morris favours a view on which rehabilitative measures may permissibly aim at
a global kind of moral improvement.51 On his view, we should provide an offender
with a form of moral education that helps him develop into ‘an autonomous individ-
ual freely attached to that which is good’.52 The particular good aimed at is a moral
good, which has several parts of which the main ones are: ‘that one feel contrite, that
one feel the guilt that is appropriate to one’s wrongdoing, that one be repentant, that

47
  Howard, “Punishment as Moral Fortification”.
48
  Thomas Douglas, “The Morality of Moral Neuroenhancement”, in Jens Clausen and Neil Levy (eds.)
Handbook of Neuroethics (Springer, 2015).
49
  Sverdlik, “Punishment and Reform”. Sverdlik argues that this also applies to Duff.
50
  Sverdlik, “Punishment and Reform”, p. 623.
51
  But note that the scope of the moral improvement that could permissibly be aimed at is restricted to
individuals who have previously committed a criminal offence, see Russ Shafer-Landau, “Can Punish-
ment Morally Educate?”, Law and Philosophy 10 (1991), pp. 191–192.
52
  Morris, “A Paternalistic Theory of Punishment”, p. 265.

13
Criminal Law and Philosophy

one be self-forgiving, and that one have reinforced one’s conception of oneself as a
responsible being’.53
On Howard’s view, the scope of moral improvement sought may be somewhat more
local: offenders ought (as a matter of what they owe to their fellow moral agents) to
take measures to reduce the likelihood that they will commit further criminal wrongs
by undertaking measures aimed at fortifying their moral capacities and in particular
their sense of justice.54
On Hampton’s view, interventions should do more than merely deter ‘THE
offender’ from committing certain offences; they should also provide him with
moral reasons for choosing to refrain from committing such offences.55 In this way,
moral education imparts on offenders moral knowledge that will help them choose
to do what is right. By ‘certain offences’ and ‘such offenses’, we mean offenses of
the kind for which the offender is now being punished. Hampton states, for exam-
ple, that ‘our principal concern as we punish is to get the wrongdoer to stop doing
the immoral action by communicating to her that her offense was immoral’.56 This
suggests a narrower understanding of the legitimate scope of rehabilitation; reha-
bilitation should only or at least mainly target moral improvements relevant to the
particular sort of criminal activity that has been committed.
Similarly, Duff defends what some see as a rehabilitation-based account of crimi-
nal justice aimed at moral improvement57 on which it is not permissible for moral
improvement to take a focus that is too global or wide-ranging.58 Duff insists that
criminal justice ‘can properly insist on addressing only those aspects of [an offend-
er’s] conduct or attitudes that constituted her crime’.59
As with the aims invoked by thin conceptions of rehabilitation, the aim of moral
improvement may, on rehabilitation as moral improvement, be proximal to some
further aim, such as the promotion of offender wellbeing, the social good, the non-
instrumental value of being morally good (or the non-instrumental value of becom-
ing morally better), or some combination of these. It may also be distal to some
more immediate aim, such as the promotion of offender empathy, self-control, self-
understanding, or introspection. Proponents of rehabilitation, as conceived in reha-
bilitation as moral improvement, typically assume some non-instrumental value to
moral improvement.
Our fifth and final conception of rehabilitation is:

53
  Morris, “A Paternalistic Theory of Punishment”, p. 265.
54
  Howard, “Punishment as Moral Fortification”.
55
  Hampton, “The Moral Education Theory of Punishment”, pp. 213–214.
56
  Hampton, “The Moral Education Theory of Punishment”, p. 216. For a discussion regarding the scope
of moral education and the range of behaviour that the state may legitimately punish, see Hampton, pp.
218–220.
57
  Sverdlik, “Punishment and Reform”, p. 621.
58
  Sverdlik, “Punishment and Reform”, p. 625.
59
 Duff, Punishment, Communication and Community, p. 126. Sverdlik takes this to mean that Duff
would ‘allow for efforts to transform an offender’s general attitudes towards, say, property rights, even
if he was only convicted of burglary. But it would seem to disallow efforts at transforming this offend-
er’s attitudes towards spousal abuse if he was only convicted of burglary.’ Sverdlik, “Punishment and
Reform”, p. 625.

13
Criminal Law and Philosophy

Rehabilitation as restoration. An intervention I administered by a criminal justice

system to offender O in response to O’s offence is an instance of rehabilitation
just in case it is intended to restore O’s moral or social relationships or standing.
On this conception, rehabilitation is a matter of restoring the offender’s social or
moral standing in society or his social or moral relations with others, or fostering
the capacities needed for such restoration. This could include social and vocational
capacities as well as moral ones.60 On one variant of this conception, rehabilita-
tion aims at restoring the offender’s moral relationships or standing. On this vari-
ant, criminal rehabilitation is in some respects akin to the payment of compensatory
damages at tort law; its concern is to bring it about that the offender compensates his
victim, pays off a moral debt owed to his victim, corrects the wrong committed, or
restores the moral balance between offender and victim. On another variant, rehabil-
itation aims to restore the offender’s social relationships or repair a social injury, by,
for example, helping the offender (re)establish friendships, family bonds, and rela-
tionships with others (including victims). A third, hybrid variant would understand
rehabilitation as aiming at the restoration of both moral and social relationships.61
This seems to be the most commonly held variant of the view.
Proponents of rehabilitation as restoration include Margaret Fry, who in her
advocacy for penal reform emphasised the rehabilitative potential of offenders pay-
ing damages to their victims, arguing that ‘repayment is the best first step towards
reformation that a dishonest person can take’.62 Lucia Zedner holds that ‘crimi-
nal justice should be less preoccupied with censuring the code-breakers and focus
instead on the process of restoring individual damage and repairing ruptured social
bonds’.63 At the same time, though, she holds that restoration or reparation is not a
matter of ‘straightforward importation of civil into criminal law’.64 Rather, it is con-
cerned with ‘a wider set of aims’ and ‘involves more than “making good” the dam-
age done to property, body or psyche’.65 It ‘must also entail recognition of the harm
done to the social relationship between offender and victim, and the damage done to
the victim’s social rights in his or her property or person’.66

60
  The terms reparation and restoration are also used with different meanings in different contexts and
by different authors and, as Lucia Zedner notes, ‘it is far from clear that they share a common vision as
to its shape and purpose’: Lucia Zedner, “Reparation and Retribution: Are They Reconcilable?” Modern
Law Review (1994): 228-250, at p. 234. See also Kathleen Daly and Gitana Proietti-Scifoni, “Reparation
and Restoration”, in Michael Tonry (ed.), The Oxford Handbook of Crime and Criminal Justice (Oxford
University Press, 2013) pp. 207–253.
61
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, pp. 235–238. See also John Braith-
waite, Crime, Shame and Reintegration (Cambridge University Press, 1989).
62
  Margaret Fry, Arms of the Law (Victor Gollancz, 1951), p. 126).
63
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, p. 233.
64
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, p. 234.
65
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, p. 234.
66
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, p. 234.

13
Criminal Law and Philosophy

A restorative conception of rehabilitation can also be attributed to John Braith-

waite and Philip Pettit, who hold that an aim of criminal justice is to restore ‘domin-
ion’.67 They explain that
For dominion to be restored, what is sought is some evidence of a change in
attitude, some expression of remorse that indicates that the victim’s rights will
be respected in the future. Achieving such a change in attitude may entail the
offender agreeing to undergo training, counselling or therapy and, as such,
these may all be seen as part of reparative justice. A forced apology or obliga-
tory payment of compensation will not suffice; indeed, it may even be counter-
productive in eliciting a genuine change of attitude in the offender.68

4 Means‑Based Subvariants of the Conceptions

In the previous section, we distinguished five different conceptions of rehabilitation

on the basis of their aims or ends. In relation to the first two conceptions—reha-
bilitation as anti-recidivism and rehabilitation as harm-reduction—we introduced
a condition restricting the means that could be used to achieve the intended aim. In
respect of the latter three conceptions—rehabilitation as therapy, rehabilitation as
moral improvement, and rehabilitation as restoration—we included no such condi-
tion. This is because in respect of the first two conceptions, such a condition was
needed to distinguish rehabilitation from incapacitation and deterrence. In respect of
the latter, we do not think a means-based condition is necessary to distinguish reha-
bilitation from other functions of criminal justice. Nevertheless, some proponents
of these latter three conceptions may also wish to impose means-based constraints
on what can qualify as rehabilitation—or permissible rehabilitation—and we can
distinguish subvariants of these views by reference to the nature and stringency
of these constraints. For example, we can distinguish between views according to
which an intervention must, if it is to qualify as (permissible) rehabilitation, engage
the offender’s rational faculties (for example, by employing education programmes),
views on which it may bypass the offender’s rational faculties but must engage other
psychological processes (for example by employing forms of behavioural therapy
that work largely at a subconscious level), and views on which rehabilitation may
bypass psychological processes entirely, acting directly on neurochemical states (for
example, through the administration of psychopharmaceuticals).
We have already hinted at such subvariants of rehabilitation as moral improve-
ment. Several proponents of the moral improvement of criminal offenders endorse
a requirement that attempts at moral improvement must employ means that engage
the offender’s rationality. That is, they impose an ‘rationality constraint’ on the
types of means that can permissibly be employed in rehabilitation; they reject as

67
 John Braithwaite and Philip Pettit, Not Just Deserts: A Republican Theory of Criminal Justice
(Oxford University Press, 1990), p. 37.
68
  Zedner, ‘Reparation and Retribution: Are They Reconcilable?’, pp. 234–235.

13
Criminal Law and Philosophy

impermissible interventions that affect recipients in a way that bypasses their ration-

ality (which we take to be ‘all mental processes that are rational, in the sense of
being reasons-responsive’),69 for example  because  the ‘initial effects of the inter-
vention on the motivational states of the recipient are not mediated by rational
processes’.70
Morris and Hampton think that the moral improvement sought by institutions of
criminal justice ought to come about as a result of autonomous action on the part
of the offender and ought not to bypass ‘the human capacity for reflection, under-
standing, and revision of attitude’.71 The change in dispositions in the offender ought
to be the result of his autonomous reflection. Hampton, Morris, and Duff all hold
that attempts at moral improvement should seek to bring it about that the offender
(among other things) becomes convinced that his actions were wrong, feels guilty
about his actions, and resolves not to perform similar actions again. Such transfor-
mations could potentially be produced through, for example, brain washing or con-
ditioning, but these authors reject the use of such means.
Hampton specifies that interventions that bring about the moral improvement of
offenders are ‘not intended as a way of conditioning a human being to do what soci-
ety wants her to do (in the way that an animal is conditioned by an electrified fence
to stay within a pasture)’, but to teach ‘the wrongdoer that the action she did (or
wants to do) is forbidden because it is morally wrong and should not be done for that
reason’.72 On Hampton’s view, the State does not only want to change offenders to
avoid them behaving in certain ways; it ‘also wants … to get the human wrongdoer
to reflect on the moral reasons for that barrier’s existence, so that he will make the
decision to reject the prohibited action for moral reasons, rather than for the self-
interested reason of avoiding pain’.73
Though they reject the label themselves, Hampton, Morris and Duff can—as we
have seen—be characterised as proponents of rehabilitation on rehabilitation as
moral improvement. However, a more fine-grained characterisation of their views
would understand them as proponents of a subvariant of this conception, according
to which moral improvement must be sought through rationality-engaging, and not
rationality-bypassing, means.
The distinction between rationality-engaging and rationality-bypassing inter-
ventions might be relevant to other conceptions of rehabilitation too. The require-
ment to engage rational faculties has advocates in recent literature on the use of

69
  Thomas Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Differ-
ence?”, in David Birks and Thomas Douglas (eds.) Treatment for Crime: Philosophical Essays on Neuro-
interventions in Criminal Justice (Oxford University Press, 2018): 208-223, at p. 215. For a discussion of
this objection see Douglas, pp. 215–217.
70
  Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Difference?”, p.
216. See also Thomas Douglas, “Enhancing Moral Conformity and Enhancing Moral Worth”, Neuroeth-
ics 7 (2014): 75–91.
71
  Morris, “A Paternalistic Theory of Punishment”, p. 265; Hampton, “The Moral Education Theory of
Punishment”, p. 222; Duff, Punishment, Communication and Community, p. 122.
72
  Hampton, “The Moral Education Theory of Punishment”, p. 212.
73
  Hampton, “The Moral Education Theory of Punishment”, p. 212.

13
Criminal Law and Philosophy

‘neurointerventions’—or interventions that act directly on the brain—for crime-

prevention purposes, not all of whom are proponents of rehabilitation as moral
improvement. For example, Elizabeth Shaw holds that ‘[e]fforts to reform the
offender should be through rational dialogue’ because ‘subjecting a person to
direct brain interventions would amount to treating her as if she were a puppet, an
automaton or a robot—as something less than human … In other words, it would
“objectify” her’.74 Shaw does not herself commit to any of the particular concep-
tions of rehabilitation that we delineate above. However, we could imagine that
proponents of any of the conceptions that we have outlined might wish to invoke
a reason-engagingness requirement that would render certain means incompatible
with its conception of rehabilitation. Moving beyond the criminal justice literature,
such a requirement has also been advocated in relation to, for example, the treatment
of depression, where it is has figured in arguments for preferring psychotherapy to
anti-depressants.75
There are further distinctions that can be made between subvariants of the dif-
ferent conceptions of rehabilitation based on the means they take to be consistent
with (permissible) rehabilitation. For example, one of the present authors (Douglas)
has distinguished between perceptual and non-perceptual influences, that is, inter-
ventions whose primary motivational effects are mediated by perceptual processes,
and interventions where this is not the case.76 Some interventions bring about their
motivational effects via perceptual mechanisms in the recipient, for example, the
recipient seeing an aggression-attenuating colour or other environmental stimuli,
which ‘then sets in train some brute subconscious process which attenuates strong
impulses towards aggression’.77 In other interventions, there might be ‘no such role
for perception’, because ‘motivational change is instead the upshot of a chemically
or physically induced change in the neurochemical bases of aggression’.78 Douglas
rejects the moral significance of the distinction, but notes that some might argue
that, whereas perceptual means to rehabilitation can be permissible, non-perceptual
means cannot, because they operate (bring about their intended motivational effects)

74
 Elizabeth Shaw, “Direct Brain Interventions and Responsibility Enhancement”, Criminal Law and
Philosophy 8 (2014): 1–20. Robert Sparrow makes the same argument in Robert Sparrow “Better Living
through Chemistry?”, Journal of Applied Philosophy 31 (2014): 23–32, at pp. 26–27.
75
  See e.g. Carl Elliott, “The tyranny of happiness: Ethics and cosmetic psychopharmacology”, in Erik
Parens (ed.) Enhancing human traits: Ethical and social implications (Georgetown University Press,
1998): 177–188. For a discussion see Neil Levy, “Rethinking Neuroethics in the Light of the Extended
Mind Thesis”, American Journal of Bioethics 7 (2007): 3-11, at pp. 7-10 and Neil Levy, Neuroethics:
Philosophical challenges for the 21st century (Cambridge University Press, 2007).
76
  Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Difference?”, p.
218. Note that Douglas discusses but does not endorse this distinction. There is room for significant
debate over how to draw the distinction between rationality-engaging and rationality-bypassing interven-
tions, see e.g. Neil Levy, “Nudge, Nudge, Wink, Wink: Nudging is Giving Reasons”, Ergo 6 (2019):
281-302, and also Neil Levy, “Nudges in a post-truth world”, Journal of Medical Ethics 43 (2017): 495–
500 and Neil Levy, “Nudges to reason: not guilty”, Journal of Medical Ethics 44 (2018): 723.
77
  Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Difference?”, p.
218.
78
  Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Difference?”, p.
218.

13
Criminal Law and Philosophy

in a way that is non-transparent to the recipient, or is difficult for the recipient to

monitor, or is irresistible.79
Jan Christoph Bublitz and Reinherd Merkel distinguish between interventions
that ‘bypass’ psychological processes altogether (which they call ‘direct’ interven-
tions) and those whose effects are ‘mediated…by internal processes on the part of the
addressee’ (which they call ‘indirect’ interventions).80 As they understand it, this dis-
tinction is not co-extensive with either the distinction between rationality-engaging
and rationality-bypassing interventions, or that between perceptual and non-percep-
tual interventions. On the one hand, Bublitz and Merkel take perceptual mediation
to be necessary, but perhaps not sufficient, for an intervention to qualify as indirect.
They write that ‘[t]entatively, indirect (or external) interventions are those stimuli
which are perceived sensually…and pass through the mind of the person, being
processed by a host of psychological mechanisms’.81 On the other hand, they take
rational mediation not to be necessary for indirectness, noting that the psychological
processes engaged by indirect interventions, and bypassed by direct ones, are ‘not
necessarily rational’.82 Bublitz and Merkel hold that both direct and indirect interven-
tions are ‘stimuli changing mental states and, in whatever way they achieve this by,
are always accompanied by changes in the brain’, but that indirect interventions are
unable to bypass the recipient’s psychology and therefore respects him as a subject,
whereas direct interventions that bypass the recipient’s psychology do not. Among
permissible interventions, Bublitz and Merkel mention conscious or direct commu-
nication  and psychotherapy, while they take impermissible direct interventions to
include the administration of psychoactive substances and deep brain stimulation.83
As with the distinction between rationality-engaging and rationality-bypassing
interventions, requirements to engage perception or to employ indirect means may

79
  Douglas, “Neural and Environmental Modulation of Motivation. What’s the Moral Difference?”, pp.
219–222.
80
 Jan Christoph Bublitz and Reinhard Merkel, “Crimes Against Minds: On Mental Manipulations,
Harms and a Human Right to Mental Self-Determination”, Criminal Law and Philosophy 8 (2014):
51–77, at pp. 69–70. Note that Neil Levy has in earlier work used the direct–indirect distinction to
denote interventions that affect the recipient’s brains via her rational capacities  (indirect) or bypassing
them  (direct): Neil Levy, Neuroethics: Challenges for the 21st Century (Cambridge University Press,
2007), p. 70.
81
  Bublitz and Merkel, “Crimes Against Minds”, pp. 69-70, our italics. See also Douglas, “Neural and
Environmental Modulation of Motivation. What’s the Moral Difference?”, note 20.
82
  Bublitz and Merkel, “Crimes Against Minds”, p. 70.
83
  It might turn out that some of the distinctions relied on to generate means-based subvariants of the
conceptions are untenable. Theorists have noted that a distinction between, for example, rationality-
engaging and rationality-bypassing means is hard to sustain and that it is questionable whether, even
if it could be sustained, it would track something of moral significance. See e.g. Douglas, “Neural and
Environmental Modulation of Motivation. What’s the Moral Difference?”; Henry T. Greely, ‘Neurosci-
ence and Criminal Justice: Not Responsibility but Treatment’, Kansas Law Review 56 (2008): 1103-38,
at pp. 1133-34; Matt Matravers, “The Importance of Context in Thinking About Crime-Preventing Neu-
rointerventions”, in David Birks and Thomas Douglas (eds.) Treatment for Crime: Philosophical Essays
on Neurointerventions in Criminal Justice (Oxford University Press, 2018): 71-93, at pp. 82-83; Levy,
“Nudge, Nudge, Wink, Wink: Nudging is Giving Reasons”.

13
Criminal Law and Philosophy

potentially be used to generate further means-based subvariants of each of the con-

ceptions of rehabilitation we identified in Sect. 3.

5 Payoffs of Taxonomy

Delineating the five different ends-based conceptions of criminal rehabilitation iden-

tified by our taxonomy, and further means based subvariants, has, we think, at least
two payoffs.

5.1 Defining the Scope of Objections

One payoff is that the taxonomy helps to define the scope of some objections to
rehabilitative theories of criminal justice. Delineating different conceptions of reha-
bilitation makes it clear which conceptions are, and are not, susceptible to common
criticisms of rehabilitation. One influential criticism of the view that rehabilitation
is a legitimate function of criminal justice, and an important reason that such views
have fallen out of favour in moral and legal philosophy, is the ‘theoretical objection’
mentioned above—that rehabilitation fails to treat offenders as responsible moral
agents.84 Our taxonomy suggests that this objection is more limited in its scope than
proponents have seemed to assume.
There are two reasons why a rehabilitative intervention might fail to treat the
offender as a rational agent: (i) because the intervention has an aim that is incompat-
ible with viewing the offender as a full or adequate rational agent, or (ii) because
the intervention employs means that fail to engage the offender’s rational agency,
thereby failing to treat him as a full moral agent. If the objection is based on (i),
it seems to apply primarily to rehabilitation as therapy, on which rehabilitation
presupposes a mental deficit. Insofar as  a mental deficit implies a lack of mental
capacity, this view arguably presupposes  that the recipient  of the rehabilitation is
less than fully responsible (though this will depend on which incapacities exactly
are implied—the objection will have its fullest force in relation to what we called
the forensic understanding of rehabilitation as therapy, since, on this understanding,
rehabilitation targets precisely those mental capacities that are relevant to criminal
responsibility). Other conceptions of rehabilitation are not vulnerable to this objec-
tion, since they do not presuppose any mental incapacity or lack of rational agency.
Perhaps rehabilitation as moral improvement and rehabilitation as anti-recidi-
vism presuppose that the target of rehabilitation is flawed in some way.85 However,
there is no reason to suppose that the flaw must be a lack of capacity rather than,
say, a lack of moral virtue or the presence of immoral motives. Hampton’s view,
for example, explicitly rejects the idea that offenders are individuals suffering from
some illness or deficit for which they ought to receive treatment. She conceives of

84
  Howard, “Punishment as Moral Fortification”.
85
  The same may be true of some forms of rehabilitation as harm-reduction, insofar as they view the
offender as needing to improve his prudential reasoning, or something like that.

13
Criminal Law and Philosophy

offenders as responsible moral agents who have acted immorally and to which pun-
ishment sends the moral message that they have acted immorally.86
Howard’s fortificationist view is presented as an attempt to overcome the class of
objections  according to which rehabilitation fails to treat offenders as responsible
moral agents.87 He takes agents to be under a duty to fortify their moral capaci-
ties such that they do not commit criminal offences, and rehabilitation’s aim to be
to  foster those capacities. These capacities, in the criminal justice context, relate
to what John Rawls describes as our first moral power: to ‘identify and be moved
by moral duties of justice’, and have both an epistemic component, relating to ‘the
identification of one’s justice-related moral duties’, and a motivational component,
relating to ensuring ‘one’s compliance with those duties’.88 Offenders are, on How-
ard’s view, under an obligation to fortify their own moral capacities by undergoing
rehabilitation as a matter of what they owe to their fellow moral agents. Far from
being treated as not responsible for their criminal offences, offenders are on How-
ard’s view responsible for their failing moral capacities, or for failing do what it
takes to bring about a state of affairs in which they do not culpably commit a crimi-
nal offence.
Our taxonomy thus clearly shows that we can reject rehabilitation, as character-
ised by rehabilitation as therapy or certain subvariants thereof, for the reasons pro-
ponents of the theoretical objection give—that it fails to treat offenders as morally
responsible agents—but deny that these concerns or criticisms apply to other con-
ceptions of rehabilitation and perhaps thereby maintain that rehabilitation (on these
other conceptions) is a legitimate function of criminal justice.
If the objection is instead based on (ii)—that the intervention employs means
that fail to engage the offender’s rational agency—then whether the objection suc-
ceeds depends on which means are used to pursue it. All of the conceptions of reha-
bilitation that we have introduced (including rehabilitation as therapy) are compat-
ible with rehabilitation being pursued through rationality-engaging means, such as
engaging an offender in rational dialogue. As noted above, existing views that see
moral improvement as a legitimate function of criminal justice typically impose a
‘rationality constraint’ on the types of means that can permissibly be used for reha-
bilitation purposes, such that the means used must not bypass the offender’s rational
capacities. But, as we noted, such a constraint could also be included in other con-
ceptions, including rehabilitation as therapy, giving defenders of rehabilitation a
way of avoiding objections based on (ii).

5.2 Suggesting Connections to Other Literatures

A second payoff of our taxonomy is that it helps to draw links with other literatures
by suggesting parallels between rehabilitation and other types of intervention. For
example, on rehabilitation as anti-recidivism and rehabilitation as harm-reduction,

86
  Hampton, “The Moral Education Theory of Punishment”, pp. 214-215.
87
  Howard, “Punishment as Moral Fortification”, p. 61.
88
  Howard, “Punishment as Moral Fortification”, p. 49.

13
Criminal Law and Philosophy

rehabilitation is somewhat similar to some public health interventions, such as

behaviour change campaigns intended to protect public health (for example, drink
driving campaigns, vaccination promotion campaigns), suggesting that literature
from public health might fruitfully inform discussions of rehabilitation. Parallels
between criminal justice and public health have already received some attention, but
these have focussed on quarantine,89 which, since it operates via the imposition of
external constraints, is more analogous to incapacitation than rehabilitation. Other
types of public health intervention, such as health promotion campaigns intended
to encourage vaccination or social distancing, are more closely analogous to
rehabilitation.
There are further possible links with other literatures that have not been explored,
or which warrant further attention. On rehabilitation as therapy, for example, reha-
bilitation is in some respects similar to standard medical treatment, suggesting that
literature from medical and psychiatric ethics—and especially on non-consensual
psychiatric interventions—might be relevant to the discussion of rehabilitation.
On rehabilitation as moral improvement, rehabilitation is relevantly similar to,
for instance, the moral education of children, which standardly also aims at moral
improvement. Again, this is a topic on which there is also some existing ethical dis-
cussion.90 Drawing these links may help to clarify the types of interventions that can
permissibly be used to rehabilitate offenders, and constraints that ought to be placed
on their use. For example, a consent requirement in relation to rehabilitative inter-
ventions is suggested by rehabilitation as therapy, given that consent is standardly
required for medical therapies, but not by some other conceptions, such as rehabili-
tation as anti-recidivism.
Identifying connections to other literatures may also strengthen the case for reha-
bilitation. On any of our conceptions of rehabilitation there are, as we have sug-
gested, practices analogous to rehabilitation outside the criminal justice context.
These include, most obviously, health promotion interventions in public health, psy-
chiatric treatments, and the moral education of children. This puts some pressure
on opponents of rehabilitation to either (i) say something about why rehabilitation
is inappropriate in criminal justice while these other interventions are appropriate
outside the criminal justice context, or (ii) hold that these other interventions are
inappropriate too. In the case of the comparison to the moral education of children,
opponents of rehabilitation views could perhaps quite easily identify morally rel-
evant differences; many accept that we can treat children in ways in which it would
not be permissible to treat adults, for example, because children are yet to develop

89
  E.g. Derk Pereboom, Living Without Free Will (Cambridge: Cambridge University Press, 2001); Derk
Pereboom, Free Will, Agency, and Meaning in Life (Oxford: Oxford University Press, 2014); Derk Per-
eboom, “A Defense of Free Will Skepticism: Replies to Commentaries by Victor Tadros, Saul Smilan-
sky, Michael McKenna, and Alfred R. Mele on Free Will, Agency, and Meaning in Life”, Criminal Law
and Philosophy 11 (2017): 617–636; Gregg D. Caruso, “Free Will Skepticism and Criminal Behavior:
A Public Health-Quarantine Model,” Southwest Philosophy Review 32 (2016): 25-48; Gregg Caruso,
“The Public Health-Quarantine Model”, in Dana Nelkin and Derk Pereboom (eds.), Oxford Handbook of
Moral Responsibility (New York: Oxford University Press).
90
  For a recent extended discussion, see Michael Hand, A Theory of Moral Education (Routledge, 2017).

13
Criminal Law and Philosophy

some capacities or agency or will that warrants the kind of respect we afford adults
who are full moral agents, or because children have a different profile of pruden-
tial values.91 But identifying morally relevant differences is more difficult when the
comparison is to practices that do not involve children.
Identifying links to other literatures may also help us make headway towards
greater clarity in discussions of rehabilitation. To some extent, existing unclarity can
be attributed to the fact that different conceptions of rehabilitation invoke notions,
such as mental disorder and moral improvement, that are themselves open to multi-
ple interpretations and frequently used imprecisely. This source of unclarity remains
even when different conceptions of rehabilitation are distinguished. However, our
taxonomy also suggests that we may be able to mitigate some of this unclarity by
drawing on conceptual work done in other areas. For example, when defining men-
tal deficit we might derive some benefit from work in psychiatry, the philosophy
of mind, and the philosophy of science; when clarifying the moral improvement
conception, we might rely on work on moral education and moral bioenhance-
ment. Once we have achieved greater clarity in regard of what these notions mean
or have better defined them, we can proceed to examine the extent to which they are
measurable and how.

6 Work to be Done

The concept of rehabilitation is often deployed in academic discussions, policy doc-

uments and legal judgments without being precisely defined, and without its exten-
sion being intuitively clear.
In this article, we have sought to bring a measure of clarity by offering a sim-
ple taxonomy of rehabilitation. We have outlined five conceptions of rehabilitation
that can be discerned in the literature, as well as a number of subvariants of these
conceptions. The five conceptions are distinguished from one another chiefly by the
ends that they ascribe to rehabilitation, but subvariants within these conceptions are
in some cases distinguished also by the means used to achieve these ends.
This taxonomy is, however, just a beginning. There may be scope to broaden our tax-
onomy by adding conceptions of rehabilitation that we have missed. And there is cer-
tainly scope to deepen it by distinguishing variants of the conceptions that it posits. One
way to achieve such a deepening would be to more finely specify the aims of rehabilita-
tive interventions, as we began to do with interventions that aim at moral improvement,
for example, by distinguishing local and global forms of moral improvement. Simi-
larly, different variants of rehabilitation as anti-recidivism could differ in the breadth or
range of the types of criminal (and other) behaviour that they seek to prevent. Another
approach would be to specify hierarchies of aims. For example, we could distinguish
between views according to which rehabilitation aims at moral improvement with the

91
  E.g. Tamar Schapiro, “What Is a Child?”, Ethics 109 (1999): 715–738; Anthony Skelton, “Children’s
Well-being: A Philosophical Analysis”, in Guy Fletcher (ed.), The Routledge Handbook of Philosophy of
Well-being (Routledge, 2015), pp. 366-377.

13
Criminal Law and Philosophy

further aim of protecting the public and views according to which moral improvement
is seen as the ultimate end. Finally, yet another approach would be to introduce fur-
ther means-based distinctions. Perhaps, for example, an interesting distinction could be
drawn between effortful and effortless means.92 The broadening and deepening of our
taxonomy is, however, a task for further work.
There are also difficult questions of application raised by our taxonomy: not all
existing conceptions of rehabilitation can be neatly classified into the (overlapping) cat-
egories that it establishes. To give just one example, Plato describes a view that might
be best understood as a mixture of rehabilitation as therapy and rehabilitation as moral
improvement, on which an individual who has committed a wrong
should voluntarily go to wherever he will pay the penalty as soon as possible, to
the judge as if to the doctor, eager to take care that the disease of wrongdoing not
become chronic and make his soul fester and become incurable … He ought not
to hide his injustice but bring it out in the open, so that he may pay his due and
become well, and it is necessary for him not to act cowardly but to shut his eyes
and be courageous, as if he were going to a doctor for surgery or cautery, pursu-
ing the good and noble and taking no account of the pain, and if his injustice is
worthy of a beating, he should put himself forward to be beaten.93
In Plato’s case it is hard to say whether the deficit to be corrected is a moral one (in
which case his view might be treated as a variant of rehabilitation as moral improve-
ment) or a prudential one (in which case it is perhaps closer to rehabilitation as ther-
apy). This is unsurprising, given that ancient philosophers typically did not distinguish
between prudence and morality.94 Plato’s view is an example of a view that does not
fit neatly into our taxonomy, suggesting our taxonomy needs to be developed further.
Again, we leave these questions as a possible subject for future work.
Our taxonomy leaves much work to be done, in further specifying the preliminary
conceptions of rehabilitation that it offers, in teasing out the relationships between
them, and perhaps in adding further conceptions. Nevertheless, we hope that it will
serve as a useful starting point for further work on the nature of rehabilitation, and that
it already makes some progress towards clarifying this ambiguous concept and the
messy literature that surrounds it.

Open Access  This article is licensed under a Creative Commons Attribution 4.0 International License,
which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as
you give appropriate credit to the original author(s) and the source, provide a link to the Creative Com-
mons licence, and indicate if changes were made. The images or other third party material in this article

92
 This distinction has sometimes been thought to have moral significance in discussions of bio-
medical enhancement, including moral bioenhancement, see e.g. Lisa Forsberg and Anthony Skelton,
“Achievement and Enhancement”, Canadian Journal of Philosophy 50 (2020): 322–338; Thomas Doug-
las, “Enhancement and desert”, Politics, Philosophy & Economics 18 (2019): 3–22; Thomas Douglas,
“Enhancing Moral Conformity and Enhancing Moral Worth”, Neuroethics 7 (2014): 75–91.
93
 Plato, Gorgias, translated by Terence Irwin (Oxford University Press, 1979), p. 53.
94
  Henry Sidgwick, The Methods of Ethics, ­7th ed (Macmillan, 1907), pp. 91-92. For a different view,
see Terence Irwin, The Development of Ethics: A Historical and Critical Study, Volume I: From Socrates
to the Reformation (Oxford University Press, 2007).

13
Criminal Law and Philosophy

are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the
material. If material is not included in the article’s Creative Commons licence and your intended use is
not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission
directly from the copyright holder. To view a copy of this licence, visit http://creat​iveco​mmons​.org/licen​
ses/by/4.0/.

Publisher’s Note  Springer Nature remains neutral with regard to jurisdictional claims in published maps
and institutional affiliations.

13