The timeline of rehabilitation policies has had its peaks and valleys, and these have usually been keyed to the underlying philosophy of the period, such as religious instruction, vocational training or social psychology. Still, the U.S. Supreme Court has recently reminded us that rehabilitation is always relevant. At the same time, the latest discoveries about the brain’s operations and effective behavioral treatments are igniting another peak in the progress of the rehabilitative ideal.

Rehabilitation Is Relevant

When sentencing is revisited, decision makers are faced with the question of whether new information ought to be considered. In last year’s Pepper v. United States, 131 S.Ct. 1229 (2011), the Supreme Court shed light on the importance of rehabilitation evidence when a case is remanded for resentencing.

Arrested on federal drug charges in 2003, Jason Pepper pled guilty in an Iowa district court. The sentencing guidelines for his crimes ranged from 97 to 121 months. The U.S. attorney recommended a 15 percent departure, but the judge granted a 75 percent reduction resulting in a sentence of 24 months.

The prosecution appealed, and the U.S. Court of Appeals for the Eighth Circuit reversed and remanded for resentencing in light of United States v. Booker, 543 U.S. 220 (2005). Just days after this decision, Pepper had completed his prison term and started his post-release supervision.

At the resentencing hearing held in 2006, Pepper introduced evidence that he had completed a 500-hour drug treatment program while incarcerated; since then, he went back to school and became a straight-A student at the community college, worked part time, and complied with all the terms of his release. Moreover, his father testified that Pepper had matured and “made his way of thinking change.” Even his probation officer endorsed the original sentence.

The district court believed that the post-sentence rehabilitation evidence, along with Pepper’s low risk of recidivism, militated against returning him to prison. Again, the government appealed, and the appeals court held that the 59 percent downward departure based on rehabilitation was an abuse of discretion, i.e., it was irrelevant to sentencing. On review, the Supreme Court vacated the decision and remanded it for reconsideration in light of Gall v. United States, 128 S.Ct. 586 (2007).

Despite the court’s ruling in Gall, the Eighth Circuit found no reason to change their opinion that post-sentence rehabilitation was not an appropriate factor. When the case was returned to the district court, another resentencing hearing was held, at which Pepper introduced evidence about his promotion and success at work, continued enrollment in school, his recent marriage, and stable home life.

This time, the sentencing judge discounted the rehabilitation evidence. In 2009, Pepper was sentenced to 65 months incarceration and returned to prison. The decision was affirmed on appeal.

Once more, it fell to the Supreme Court to assay Pepper’s sentence. Writing for the majority, Justice Sonia Sotomayor began with the observation that punishment must be individualized to be fair. Thus, the current measure of the defendant’s life and character were essential to reaching a just decision that should be based on the “fullest information possible.”

The federal sentencing structure created by Congress in the Sentencing Reform Act of 1984 and the court through Booker and its progeny required fully informed decision making and complete consideration of all statutory factors (18 U.S.C. §§3661, 3553(a)). The court reasoned: “This sentencing framework applies both at a defendant’s initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal.”

Thus, post-sentence rehabilitation was relevant to assure that the sentencing judge took into account the most current snapshot of the defendant’s background and character.

Indeed, Congress intended that the courts should “impose a sentence sufficient, but not greater than necessary” (18 U.S.C. §3553(a)), a rule of lenity. In this case, Pepper’s post-sentence achievements provided the best indicator of his reform and future behavior, and they confirmed the wisdom of the original sentencing judge’s leniency.

Causes of Crime

Last year, the New York legislature revised the framework for parole decision-making from a retrospective focus on the “seriousness of the crime” and “criminal history” to forward looking “rehabilitation” and “risk-assessment.”1 This new policy recognizes the need to move away from the conception of prisoners as frozen in amber by their convictions to dynamic living persons with the potential for reform and reintegration.

The Parole Board’s new procedures are to consider rehabilitation and risk assessment. The language of NY Exec §259-c (4) (Chp. 62 §38-b (Part C, Subpart A) 2011 N.Y. Laws) reads:

_____________________________________________Such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision.

Like federal resentencing, any decision concerning parole release ought to be based on a current picture.2 Notably, the parole law’s new rehabilitation model and risk assessment approach is aligned with current thinking in “criminogenic science,”3 and some courts are also taking cognizance of the causes of crime in their deliberations.

Relying on the Drug Law Reform of 2009 (L 2009, ch. 56), a county court judge conned the intent behind this criminogenic legislation to justify ordering drug treatment instead of incarceration for a new category of cases.

The defendant in People v. Watford, 943 N.Y.S.2d 740 (Monroe County Ct. 2012), had been charged with identity theft and falsifying business records. She requested judicial diversion into a drug/alcohol program under §216 of the Criminal Procedure Law. Although her offenses did not fall within the designated drug crimes and specific low-level felonies eligible for alternative sentencing (N.Y. CPL §216.00(1)), the judge looked beyond them to the criminogenic principles behind the legislation.

______________________________It is inconceivable that the legislature intended to restrict the judicial diversion program to those very few offenders who are fortunate enough to be charged with a particular crime, and not others who are similarly situated—that is, accused of low level, non-violent criminal behavior and found by well-trained and conscientious professional therapists and clinicians to be in serious need of drug addiction treatment.

Viewing the eligibility section categorically, the court concluded that the legislature’s intent was to exclude “repeat and violent offenders” but not non-violent offenders. Thus, if the crime was fueled in part by drug/alcohol addiction or if the offender would benefit from treatment, the statute applied.

According to the court, the legislative history (Sponsor’s Memo, Bill Jacket, L 2009, ch. 56) made it clear that the law was designed to get at a source of criminal conduct—substance abuse. This “smart on crime” approach empowered judges to individualize sentencing, which included treatment and probation in lieu of prison. Thus, rehabilitation, in its therapeutic formulation, can be viewed as a form of crime prevention.4

The “New Rehabilitation”

Changes in the valence of policy making can also be precipitated by advances in medical science. Currently, strides are being made in three key areas: pharmacology, genetics and neuroscience.5 These are the drivers behind a “New Rehabilitation”: “Instead of focusing on changing the character of offenders, or in extreme cases a crude mutilation of an offender’s anatomy, this New Rehabilitation instead focuses on changing the biochemical composition of an offender.”6

Fifty years ago, the Supreme Court decided Robinson v. California, 370 U.S. 660 (1962), which declared that penalizing someone for solely being addicted to drugs was cruel and unusual punishment. Some years later, the court reached a different conclusion when it upheld a conviction for public intoxication in Powell v. Texas, 392 U.S. 514 (1968).

In the era of Robinson and Powell, legal theory was constrained by the scientific understanding of addiction and alcoholism,7 and the rehabilitation ideal had been encumbered by a lack of effective treatments. Thus, it was finally rejected in favor of retribution.

Both cases highlighted what Justice Thurgood Marshall described in Powell as the “developing productive dialogue between law and psychiatry.” Unfortunately, retribution became the fallback theory when no viable treatment options appeared to exist, but today rehabilitation is being revitalized by cutting edge catholicons in science and medicine.

For instance, experiments in the area of real-time neurofeedback might provide support for “rational sentencing” and “customized rehabilitation.”

Specifically, rt-fMRI [real-time functional MRI] is being used to decrease neural activations associated with craving and increase neural activations associated with cognitive control. This strategy may allow the overcoming of habitual responses to drug-cues in addicts.8

At the same time, a pharmaceutical approach to substance abuse (and addictions of all kinds) is on the drawing board. The idea is to create a vaccine for drug addicted individuals. “Because addiction is now thought to cause physical changes in the brain, doctors increasingly advocate medical solutions to America’s drug problem….”9 This approach might one day lead to a medical amnesty for persons seeking treatment without fear of arrest.10

Thus, a scientific-medical approach is catalyzing a rational-therapeutic view of punishment and informing policies in the development of treatment courts and alternatives to incarceration.11


The tools for judging character have come a long way since the days when Diogenes, with lamp in hand, roamed sunlit streets in search of an honest man. The modern day search is conducted by neuroscientists with MRIs that can peer into the inner workings of the human mind.12

The Supreme Court has declared that rehabilitation is always relevant, and it follows that the science of rehabilitation must be relevant as well. Just as the nomenclature of prisons has changed from penitentiaries to reformatories to correctional facilities to reflect their missions, the rehabilitative goal is evolving through its linkage to novel methods of treatment. Thus, the “New Rehabilitation” looks to techniques for promoting personal change and a successful path to a second chance.13

The progress of justice can be measured by the distance traveled from Robinson and Powell to the resurrection of rehabilitation for adults in Pepper and for juveniles in Graham v. Florida, 130 S.Ct. 2011, 2029-30 (2010). Indeed, rehabilitation theory dictates that people should not be defined by their rap sheets, and the scientific study of human nature has become the great equalizer that will ultimately change the focus from mens rea to mea culpa.

In the last analysis, the ideological challenge at the heart of criminal punishment is not between retribution and rehabilitation. It is the progress from the belief that offenders are their crimes to the view that offenders are real people capable of redemption. Offenses cannot change, but offenders can. Thus, legislatures and sentencing courts should take into account the philosophical and scientific outlooks heralding the “New Rehabilitation.”14 Otherwise, the result would be to punish the rehabilitated, which is tantamount to incarcerating the innocent.

Ken Strutin is director of legal information services at the New York State Defenders Association.


1. See Philip M. Genty, “Changes to Parole Laws Signal Potentially Sweeping Policy Shift,” NYLJ, Sept. 1, 2011, at 4.

2. See, e.g., Matter of Thwaites v. N.Y.S. Bd. of Parole, 34 Misc. 3d 694 (Sup. Ct. Orange County 2011); Matter of Velasquez v. N.Y.S. Bd. of Parole, 6271/2011, NYLJ, Feb. 6, 2012 (Sup. Ct. Orange County). But see Matter of Hamilton v. N.Y.S. Bd. of Parole, 943 N.Y.S.2d 731 (Sup. Ct. Albany County 2012).

3. See John Caher, “Effect of Risk Assessment Rule on Parole Decisions Is Unclear,” NYLJ, April 30, 2012, at 1.

4. See, e.g., “Preventing Crime: What Works, What Doesn’t, What’s Promising,” (NIJ 1998) (“Rehabilitation programs with risk-focused treatments”).

5. See Meghan J. Ryan, “Breakthrough Science and the New Rehabilitation,” ExpressO 4 (2012).

6. Id. at 45.

7. See David M. Eagleman and Mark A. Correro, “Why Neuroscience Matters for a Rational Drug Policy,” 11 Minn. J.L. Sci. & Tech. 11 (Winter 2010).

8. 11 Minn. J.L. Sci. & Tech. 7, 24.

9. See Douglas Quenqua, “An Addiction Vaccine, Tantalizingly Close,” The New York Times, Oct. 4, 2011, at D1.

10. See Amy Bell, “New Law Gives Drunken Minors Amnesty When Seeking Medical Treatment, Press & Guide,” May 26, 2012 (Michigan Public Act 125 exemption from underage drinking).

11. See Emily R. Murphy, “Paved with Good Intentions: Sentencing Alternatives from Neuroscience and the Policy of Problem-Solving Courts” (SSRN March 7, 2012); Hadar Aviram, “ Neuroscience, Treatment, and Drug Courts,” Cal. Corr. Crisis Blog, March 21, 2009.

12. See, e.g., Thomas Insel, “Brain’s Wiring Revealed in HD,” NIMH Director’s Blog, March 30, 2012.

13. See, e.g., Richard J. Davidson & Bruce S. McEwen, “Social Influences on Neuroplasticity: Stress and Interventions to Promote Well-Being,” 15 Nature Neuroscience 689 (2012).

14. See generally Daniel M. Filler & Austin E. Smith, “The New Rehabilitation,” 91 Iowa L. Rev. 951 (2006).