The paths of offender rehabilitation and the European dimension of punishment: New challenges for an old ideal?
| Author | Adriano Martufi |
| DOI | 10.1177/1023263X18820678 |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| Subject Matter | Articles |
Article
The paths of offender
rehabilitation and the European
dimension of punishment:
New challenges for an old ideal?
Adriano Martufi*
Abstract
In recent years, the aim of offender rehabilitation has grown to become one of the most prominent
features of European penal policy. European legal texts, however, lack a clear definition of this
concept, thus leaving to supranational Courts the responsibility of clarifying its meaning. This article
analyses the case law of European Court of Human Rights and the Court of Justice of the European
Union as regards rehabilitation. It argues that the Europeanization of criminal justice is generally
contributing to a re-conceptualization of this aim of punishment with relevant implications for the
national criminal justice system and its actors. Finally, the article underscores the differences in the
approach to rehabilitation between the two Courts, trying to assess their potential impact on
national law and their significance in the broader context of European penal policy.
Keywords
Criminal Law, European criminal law, fundamental rights, rehabilitation, punishment
1. Introduction: Rehabilitation and European law
Over the course of the last few decades, the idea that punishment must serve the purpose of
rehabilitating offenders has been subject to a number of criticisms. At the beginning of the eighties,
the scepticism surrounding the ‘rehabilitative ideal’ was so deep that several commentators went as
far as predicting that rehabilitation, as a penal strategy, would soon be a thing of the past.
1
Against
all odds, however, the notion of ‘rehabilitation’ has resiliently survived until today and – far from
* Universiteit Leiden, Leiden, Netherlands
Corresponding author:
Adriano Martufi, Universiteit Leiden Faculteit der Rechtsgeleerdheid, Steenschuur 25, Leiden, 2300 RA, Netherlands.
E-mail: a.martufi@law.leidenuniv.nl
1. F. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose (Yale University Press, 1981).
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(6) 672–688
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DOI: 10.1177/1023263X18820678
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being marginalized – has steadily preserved a key role within the academic and political debate on
punishment. Moreover, the aim of offender’s rehabilitation has continued to inspire and orient the
work of many criminal justice professionals around the world, along with the commitment to
implement treatments and programmes inspired by the ideal of rehabilitation.
2
It is against this background that, in recent years, the rehabilitative aim has acquired increasing
importance in Europe. Recent analyses of European Court of Human Rights (ECtHR) law and
European Union law have convincingly shown that ‘rehabilitation’ can now be regarded as one of
the most relevant features of European penal policy.
3
Little attention, however, has been paid to
analysing in-depth the meaning of this concept at the European level and its implications for
national law and policy. This comes as no surprise: from a theoretical point of view, ‘rehabilita-
tion’ has always been considered a notion that raises more questions than it answers. As crimin-
ologists Peter Raynor and Gwen Robinson have observed, one of the biggest issues when talking
about rehabilitation is that ‘we cannot be sure whether those who discuss and/or promote rehabi-
litation share a common vision of the rehabilitative enterprise’.
4
From a historical perspective, one can distinguish amongst four different forms of offender
rehabilitation in early and late modern penal systems. A first approach regards rehabilitation as
‘reform’ and ‘penance’ and is usually associated with early penitentiary systems (for example, the
Auburn model combining hard labour and solitary confinement).
5
More recent approaches include
a correctional model based on coercive therapeutic treatments aimed at ‘healing’ the offenders; and
a less controversial approach, inspired by s ocial learning, oriented towards resettlement (a lso
labelled ‘re-socialization’ or ‘social rehabilitation’).
6
Finally, criminological research and practice
have recently come up with the proposal of conceptualising rehabilitation as a right of the indi-
vidual, irrespective of any utilitarian considerations and criminal policy concerns.
7
The reality of punishment, however, tends to escape conceptual straightjackets, thus making the
above-mentioned categorization probably over-simplistic and non-exhaustive. Providing a defini-
tion of rehabilitation at the European level may also prove challenging due to the great variety of
legal and penological traditions existing in the Member States. The way in which the rehabilitative
ideal is expressed by national law, for example, varies from one country to another, often reflecting
diversity in the conceptualization of this principle along with profound differences in its legal and
practical implementation. Arguably, this would call for a cautious approach when trying to sketch
out a European-wide notion of ‘rehabilitative punishment’. After all, it is understood that – in the
absence of a clear ‘autonomous notion’ authoritatively developed at supranational level – any
attempt to define the meaning of a legal concept must first draw on the definitions existing in the
domestic legal systems.
8
2. G. Robinson and I. Crown, Offender Rehabilitation: Theory, Research and Practice (Sage, 2009).
3. S. Snacken and D. Van Zyl Smit, Principles of European Prison Law and Policy (Oxford University Press, 2009), p. 83
et seq.
4. P. Raynor and G. Robinson, Rehabilitation, Crime and Justice (Palgrave McMillan, 2005), p. 2 et seq.
5. D. Melossiand M. Pavarini, The Prison andthe Factory: Originsof the Penitentiary System(MacMillan, 1981),p. 172 et seq.
6. R. Canton, An Introduction to the Philosophy of Punishment (Palgrave McMillan, 2018), p. 102 et seq.
7. E. Rotman, ‘Do criminal offenders have a constitutional rights to rehabilitation?’, 77 The Journal of Criminal Law &
Criminology (1986), p. 1023–1068; S. Lewis, ‘Rehabilitation: Headline or footnote in the new penal policy?’, 52 The
Journal of Community and Criminal Justice (2005), p. 119–135.
8. G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007),
p. 25 seq.
Martufi 673
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