Typically, the criminal justice system is most concerned with an offender’s behavior before and during the crime committed, since it is the focus of sentencing decisions. However, according to a forthcoming paper in the University of Pennsylvania Law Review, analyzing an offender’s potentially redeeming behavior after the crime is just as important.
“Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment,” the paper said.
The authors, Paul H. Robinson and Muhammad Sarahne of the University of Pennsylvania, contend that judges, correctional officials, probation and parole supervisors, and others in the justice system should take into account how convicted individuals act after the crime—with the aim of rewarding redeeming behavior.
Such an approach is a way of balancing punishment with rehabilitation, they argue.
In their paper, the authors describe archetypes of four kinds of post-offense behavior that the criminal justice system should treat with “special recognition and preferential treatment”: the Responsible Offender, the Debt-Paid Offender, the Reformed Offender, and the Redeemed Offender.
The Four Archetypes
The Responsible Offender is described as an individual “who avoids further deceit and damage to others during the process leading to conviction.” This could include behaviors like participating in the investigation, cooperating with law enforcement, and becoming genuinely remorseful.
The authors give an example of someone who’s committed sex crimes, and chooses to turn himself in. Furthermore, to guarantee that the victims won’t have to testify in court at a trial, the accused pleads guilty.
The Debt-Paid Offender is described as someone who, “according to true principles of justice rather than the sentence actually imposed,” suffers the full punishment deserved.
The example given by the authors is a situation where an incarcerated individual has already spent a considerable amount of time, or even the full amount of time of the sentence while awaiting trial.
The Reformed Offender is one who actively takes affirmative steps to leave criminality behind. “It is not enough for the person to simply claim they will not commit another offense,” the researchers explain. “The person must take affirmative steps to assure that he or she will avoid criminality in the future.”
The authors say these types of offenders will have gained new training or education, or undergone drug treatment while having employment and changing their acquaintances — anything that shows real effort towards reform.
Lastly, there is the Redeemed Offender who, out of genuine remorse, does everything possible to atone for the offense before, during and after sentencing.
The authors provide an example of Mathew Cordle, who, after being sentenced to many years in prison for accidentally killing someone while drunk driving, becomes an anti-drunk driving advocate. Cordle started a social media campaign called “SaveYourVictim,” and he actively raises funds for “Safe Rides to Save Your Victim” which pays for car rides home as an incentive not to try and drink and drive.
Cordle is a perfect example of the Redeemed Offender, the authors say.
Moreover, these types of offenders deserve to be “acknowledged and celebrated in a ceremony as public as a trial and conviction, that the record of the conviction be updated to show the public redemption,” the authors explain.
Recommendations and Rewards
The authors say that regardless of which type of positive post-crime offender archetype you fall into, rewards and incentives should be considered to reinforce the good behavior.
The first recommendation is that an offender who demonstrates redemptive conduct should be encouraged to pursue whatever level of educational opportunities are available to incarcerees, such as through federal Pell Grants.
However, not all facilities offer such opportunities to the incarcerated population.
One federal survey of state facilities that the authors cite concluded that just 27 percent of state and private prisons, and just 3 percent of jails, had college courses available for completion.
Moreover, as the authors note, “only 56 percent of state prisons, 44 percent of private prisons, and 7 percent of jails had vocational training programs available.”
Since educational opportunities are not always available, the authors also recommend that the incarcerated individuals have preferential access to training, like a prison cosmetology program or construction and HVAC programs.
Preferential access to rehabilitation programs is also a great reward, as the authors note that this can eliminate or restrict the “collateral consequences of conviction that continue after the sentence is completed.”
The authors also recommend eliminating certain consequences of conviction and punishment inside incarceration facilities as a way to promote positive behavior before, during, and after incarceration.
“Such an acknowledgment and reward system for positive post-offense conduct can serve to not only encourage such conduct but also can be justified by principles of fairness and justice,” the authors concluded.
“Those who behave better deserve to be treated better.”
Paul H. Robinson an expert on Criminal Law and the Colin S. Diver Professor of Law at the University of Pennsylvania Law School. Muhammad Sarahne is an SJD Candidate at the University of Pennsylvania Law School and a Dean’s Scholar.
Additional Reading: “When Prison Can Be Rebirth”, by Ruth Utnage, The Crime Report, June 16, 2020
The full paper can be accessed here.