Rehabilitation Ascending

It was not so many years ago that the distinguished philosopher of criminal punishment, Michael Moore, declared that rehabilitation was not really a justification of punishment at all.  Part of Moore's criticism of rehabilitation is that it is in some profound sense paternalistic -- the objective being to teach and remake the offender.  See, e.g., Placing Blame 85 (1997).  That sort of aim, he argued, was not a proper one for the state -- indeed, it wasn't really "punishment" at all.

Yet an interesting feature of the recent direction of Supreme Court 8th Amendment jurisprudence -- including the Court's latest pronouncements in the consolidated Miller v. Alabama decided a couple of days ago -- is that it has to some extent vindicated Moore's descriptive observations about rehabilitation.  That is because rehabilitation seems to be gaining some strong traction in the context of juvenile sentencing (e.g. Roper, Graham, Miller).  And, of course, a paternalistic approach to punishment sounds most plausible when the offender is a juvenile.  How else should the state treat its young than as a correcting, and in some fundamental sense benevolent, father?

Justice Kagan's opinion for the Court in Miller is loaded with this species of paternalistic rehabilitationism, in close association with somewhat retributivist-sounding language.  E.g.,

• "State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile's "lessened culpability" and greater "capacity for change." 
• "Because juveniles have diminished culpability and greater prospects for reform, we explained, 'they are less deserving of the most severe punishments.'" 
• "A child's character is not as 'well-formed' as an adult's; his traits are 'less fixed' and his actions less likely to be 'evidence of irretrievabl[e] depravity.'"
• "Our decisions rested not only on common sense -- on 'what any parent knows' -- but on science and social science as well."

It is noteworthy that the last of these examples explicitly alludes to the state as benevolent parent, after which follows a flood of social science data about the malleability and improvability of adolescent character.

This may be more controversial, but it seems to me that notwithstanding the Court's purported foregrounding of retributivism, rehabilitation is doing the real work.  It might be that Jackson v. Hobbs presented a strong case for the absence of real desert, but Miller v. Alabama is a different story altogether.  The Court does practically nothing to distinguish the facts of Jackson from those of Miller.  "No one can doubt that [Miller] and Smith committed a vicious murder."  That's it, and it is quickly followed by the observation that "they did it while high on drugs and alcohol consumed with the adult victim" (footnote -- precisely what relevance does the victim's participation in these activities have?) and with a recitation of Miller's dreadfully abusive background. I should add that Justice Breyer's concurrence focuses on the issue of intent to kill. 

That suggests to me that to the extent that retributivism involves an examination of the specific conduct of the defendant, that feature of retributive punishment really didn't matter at all to the Court.  What mattered most is who the defendants -- both of them -- were, not what they did, and what their joint capacity for social and moral improvement was in virtue of who they were.  To wit: "the mitigating qualities of youth" was far more important than any particular factual distinction in these cases.  Give it the label you like, but when you emphasize "the incompetencies associated with youth" and the possibility that "reform" can ameliorate those "incompetencies," that sounds in rehabilitation to me.

It will be interesting to see if this rationale, one which is based on the individual frailties and weaknesses of the offender, has continuing traction in reviving what once, to many, seemed a discredited theory of punishment.  It's always difficult to predict these things, but in the fertile 8th Amendment context, I expect that it will.