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¶ … Convicted Felons Change?

One of the most pressing issues in modern criminal law is whether convicted felons can change. Are felons born to engage in antisocial activities, or do their environments shape them in a way that makes them antisocial? Moreover, does it matter? Whether caused by nature or nurture, do people with serious criminal tendencies have a meaningful chance at change once they have begun engaging in serious criminal behavior? Or, are convicted criminals so likely to reoffend and become recidivists, that aiming to reduce recidivism is a waste of resources? All of these questions are extremely important and need to be answered as quickly and as accurately as possible. The United States has a prison population that is disproportionately large for an industrialized, democratic nation. Moreover, recidivism rates in the United States are extremely high, so that there is no real hope of prison populations declining in the immediate future. Furthermore, while some people believe that law changes, such as the decriminalization of drug offenses, would remove status offenders from the criminal justice system, if criminal behavior cannot be successfully treated, then simply decriminalizing behaviors will not encourage people to act in a pro-social manner. Therefore, this paper will examine the issue of whether felons can change.

The nature vs. nurture question is an impossible one to answer because of the dearth of available research topics. A true nature vs. nurture question can only be done on identical twins, separated at birth, and raised in different environments. Otherwise, the genetic factors cannot be eliminated. Moreover, because environment can have a meaningful, if small, impact on a person's genetics, even twin studies do not conclusively answer those questions. Despite that caveat, the majority of researchers believe that blanket criminality owes more to nurture than to nature. The relationships between poverty, race, and criminality are well-documented, as are reports showing the inherent racism and classism in the American criminal justice system. Minorities are more likely to be convicted of crimes, and, therefore, become felons, when engaging in the same behavior as whites. That one factor skews the notion of whether felons can be successfully rehabilitated.

Another area where most researchers have come to a consensus is on whether the modern criminal justice system, as it currently exists, has been successful at providing opportunities for rehabilitation and reducing recidivism. The answer to that question is a resounding no. Today's criminal justice system places a high emphasis on punishment, and there is no disincentive for policymakers to change that emphasis. With rising crime rates and increased perception of danger, voters want politicians who are tough on crime, not politicians who are worried about rehabilitating criminals. This short-sighted perspective has actually been very damaging for society, because it has done nothing to reduce long-term crime rates or discourage recidivism.

Fortunately, some programs embrace rehabilitation as well as punishment. These programs have demonstrated that rehabilitation programs can dramatically impact recidivism rates. For example, the San Francisco Sheriff's Department's Resolve to Stop the Violence Program (RSVP) has been effective in reducing the rate of re-arrest for violent offenses "by more than 82% for those who spent 16 weeks or more in the program" (Hennessey, 2005). Many believe that the success of the RSVP program is because it provides such a total approach to reducing recidivism. First, unlike some rehabilitation programs, RSVP members do not self-select. On the contrary, they are chosen for the program based on criminal history and current charges. However, it would be erroneous to assume that this means that the program only targets minor offenders; on the contrary, many participants would be considered hardened offenders, having been convicted of crimes including: domestic violence, armed robbery, assault, battery, and rape. The fact that many of these criminals are rehabilitated and do not reoffend strongly suggests that convicted felons can reform.

The RSVP program may be successful, but that success is largely due to significant difference between the RSVP program and traditional forms of incarceration. First, the participants are not housed in cells, but in an open dormitory. This change in housing sets up a different community structure than traditional jail cells. Moreover, rehabilitation is the main focus of their incarceration; the offenders must participate in rehabilitation for fourteen hours a day, six days a week, for a minimum of 30 days. The counselors supervising the program are all either ex-offenders or victims of violence (Hennessey, 2005). The curriculum is based on the "Man Alive" violence prevention program, which: (1) raises awareness of belief systems promoting violence; (2) teaches men they have an alternative to violence; (3) improves communication skills; (4) develops empathy; and (5) focuses on personal responsibility (Hennessey, 2005). Furthermore, the program acknowledges that violence is only one of the problems that these men face, because their environments typically help shape their criminal behavior. As a result, the program offers educational opportunities, job training, and drug and alcohol treatment. Finally, once the RSVP graduates are paroled, they must continue with mandatory participation in violence-prevention and job placement programs, and work with victims' organizations speaking out against violence (Hennessey, 2005).

This post-parole work is crucial, because it keeps the men committed to a non-criminal way of life. In fact, it is during the time immediately following release that many convicts find it so tempting to re-offend, because they are challenged to reestablish themselves in an unsupervised environment, where they might face financial challenges and almost certainly face challenges based on choice of friends. "Parolees ARE returning home to their communities and they are facing multiple challenges: employment opportunities, housing, substance abuse addiction, transportation, and mental health services, to name a few. Many have strained relationships with family members, which impact their parole" (Prizmich, 2007). This rejection by the community makes it more likely that criminals are going to reoffend because, the risk of anti-social behavior increases when one feels " fear, lack of trust, low self-esteem, feelings of rejection, inadequate social skills, lack of empathy, isolation from others, and poor communications skills" (Freeman-Longo, 2001). It also makes it more likely that offenders will re-engage with criminally-oriented groups like formal or informal gangs. Therefore, maintaining a great reentry program is a necessary part of the rehabilitation process.

The RSVP program's success is interesting, but it is not applicable to a general population of felons. First and foremost, the RSVP program targets male offenders. This makes sense because the majority of offenders, especially violent offenders, are male. However, not all felons are male and there is significant body of sociological evidence suggesting that males and females offend for different reasons. Although not generally a felony, prostitution is a crime that is associated with high rates of recidivism. More importantly, prostitution is strongly linked to other felonious behavior, such as human trafficking, drugs, and organized crime. Despite all of those links, the reality is that the people most likely to be arrested for crimes in the sex trade, prostitutes, are more like victims than perpetrators. That is why the City of Dallas has stopped prosecuting prostitution. That does not mean that Dallas is advocating legalization. On the contrary, its anti-prostitution efforts may actually have increased since its decision not to prosecute the crime. What Dallas now does is treat prostitutes like victims of sex crimes rather than like criminals. This reverses the prostitutes' perceived role in society, which is that of criminal perpetrator, and makes them less likely to engage in future criminal behavior.

The success of the RSVP program and the City of Dallas' approach to prostitution elimination demonstrate that it is possible to successfully rehabilitate some criminals. However, it would be irresponsible to suggest that the successful rehabilitation of some criminals translates into the ability to rehabilitate all criminals. It is generally acknowledged that there are subgroups of felon that are very resistant to rehabilitation. These people are considered career criminals. Over the last quarter-century or so, several states have enacted anti-recidivism statutes, which have been aimed at increasing punishment for career criminals. These three-strike statutes, which provide for sentence amplification for third-time offenders, abandon the goal of rehabilitation and seek to incarcerate offenders for extensive periods of time. The message that these statutes send is that some offenders are such hardened felons that the protection of society requires their extended incarceration.

However, the reality behind three-strike statutes is not necessarily what one would assume. The fact that someone is a felon does not mean that he has committed violent or dangerous crimes; just that he has committed crimes that rise to the level of a felony. Some of these crimes can actually be relatively innocuous. Take, for example, the scenario in Lockyer v. Andrade, 538 U.S. 63 (2003). Defendant Andrade had a history of relatively petty criminal activity, including theft, residential burglary, drug offenses, and escape from prison. His criminal record lacked any evidence of violent crime. In 1995, Andrade stole video tapes on two different occasions from two different department stores. The prosecution chose to prosecute those petty thefts as felonies, which they could do because of his prior conviction. The third conviction could serve as the third strike for California's anti-recidivism statute, thereby triggering a minimum 25-year sentence. Andrade was convicted of both counts of petty theft and was sentenced to two consecutive terms of 25 years to life in prison. After exhausting his appeals in the California legal system, Andrade filed a petition for habeas corpus, arguing his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment because it was disproportional to the underlying crime. The United States District Court for the Central District of California rejected Andrade's petition, but the Ninth Circuit agreed with Andrade on appeal. The State of California sought review of the Ninth Circuit's decision, and the Supreme Court ultimately resolved the dispute in favor of the state. Basically, the Court announced that it was not enough for a state court to err when applying an anti-recidivism statute; instead, without using those words, the Court almost suggest that a lower court would have to act with malice in order to make a defendant eligible for habeas review. What this decision makes clear is that there is no type of constitutional protection for repeat felons.

Not only has the Court sanctioned states' abilities to impose enhanced sentences on repeat offenders, but it has also sanctioned states' rights to have jurors determine the severity of a crime. One would imagine that a person's punishment would be determined solely by looking at the crime. However, mandatory punishments have fallen into disfavor. The whole reasoning behind degrees of murder has been to establish the level of criminal culpability that a defendant had when taking a human life. Moreover, in Gregg v. Georgia, 428 U.S. 153 (1976), the Supreme Court approved Georgia's death penalty statutes, which permitted juries to impose the death penalty after convicting a defendant, if they found the presence of one or more aggravating factors. Aggravating factors could include things such as the prior or simultaneous commission of another crime, killing for money, or killing a government official (428 U.S. 156). However, what is the most interesting is that the perceived level of depravity or evil of the crime could be considered by the jury, absent any other evidence of extraneous criminality.

How and why did society become so convinced of the entrenched criminality of convicted felons? While it may seem like an assumption that has existed throughout time, the reality is that the idea of the born criminal really only began to really take shape in the early 19th century, with its strong emphasis on social Darwinism. Social Darwinism suggested that "in the struggle between strong and weak, the fittest survive, procreate, and pass on their traits and (superior) characteristics" (Winfree and Abadinsky, 2003, p.34). Social Darwinists did not necessarily distinguish between individuals and groups or countries. One of the things suggested by Social Darwinists is that criminality was genetic, which would make rehabilitation difficult, if not impossible. Moreover, if criminality was genetic, then it stood to reason that some races were more likely to engage in criminal behavior than other races. It should come as no surprise that, in the United States, which was confronting a changing relationship between the races at the turn of the century, Social Darwinism was considered a good, scientific explanation for continuing disparity between the races. Even today, some people argue that African-Americans are incarcerated in disproportionate numbers because they offend in disproportionate numbers. However, Social Darwinism was used by the Nazis to justify extermination of the Jews, and not only discouraged its use in social sciences, but also discouraged many people from examining genetic links for criminality for many years (Weiler, 2007, p.4391).

While it is probably apparent that most convicts are not the types of monsters that one associates with criminals who cannot be rehabilitated, it is equally obvious that some criminals are almost certainly beyond rehabilitation. Take, for example, the phenomenon of serial killers. Of violent and dangerous felons, serial killers, who tend to kill multiple people who lack any prior relationship to the killer, are probably the most frightening and dangerous-seeming group, despite the fact that one is much more likely to be murdered by a friend or family member than by a serial killer. However, the very fact that these killers murder for enjoyment or to fulfill some type of psychological need, separates them from the more average felon.

There are stories about people killing for enjoyment that predate modern times. Vlad Tepes and Elizabeth Bathory are only two of the historical mass murderers that might be considered serial killers in modern times. Moreover, because only recently have accurate record keeping and criminal investigation made it easier to identify where and when serial killers are active, if not necessarily to apprehend those killers. This study of serial killers has taken them outside of the realm of the criminally insane, where it is highly likely serial killers lurked for several centuries prior to the serial killers coming to the forefront of the national consciousness with the arrest of trial of Ted Bundy. What the studies have revealed is that there does seem to be some commonality to serial killers. "Identified serial killers usually turn out to be white males of above-average intelligence who begin killing in their twenties or thirties" (Vronsky, p.8). Moreover, serial killers generally appear very normal. Between murders they hold down jobs, maintain relationships, and otherwise maintain a facade of normalcy. Ted Bundy was a rape crisis counselor; John Wayne Gacy volunteered as a clown at a children's hospital (Vronsky, p.5,7). The very fact that these killers can so easily blend into society and are often so charismatic places them among the most frightening of criminals and has given the public the perception that they will always reoffend.

However, the reality is that not all serial killers will reoffend. "Serial killers sometimes do burn out, and depending on the personality of the individual they either allow themselves to be captured, commit suicide, or cease killing on their own and quietly fade away back to where they came from" (Vronsky, p.17). That being said, there is some truth to the notion that serial killers are unstoppable killing machines, because, when captured in the middle of an incomplete killing phase, it seems that serial killers will reoffend at the first opportunity. Arthur Shawcross served 14 years for the murder of two children, was released, and killed 11 women in the 21 months between his release from prison and his apprehension for those crimes (Vronsky, p.17). Richard Biegenwald served 17 years for murder, and committed at least seven additional victims in the eight years between his release and apprehension (Vronsky, p.17). Peter Woodcock killed two children, was confined to a psychiatric facility for over 30 years, and the first time he received a temporary pass to leave the facility, killed and then sodomized a fellow inmate; he then turned himself into the police for the crime (Vronsky, p.17). Looking at the above examples, it becomes difficult to escape Vronsky's conclusion that "serial killing appears to be incurable: Time or prison does not relieve the need that serial killers feel for murder- only killing does" (Vronsky, p.17).

In fact, Joel Norris was one of the first experts to write a comprehensive book about serial killers. Of course, other criminologists and behavioralists had described individual cases of serial killers, but Norris was among the first to describe serial killing as a disease. What he concluded is that serial killers have a combination of symptoms pointing to serial killing as a disease (Norris, 1988, p.36). There is certainly not consensus in this among the experts. On the contrary, many experts believe that serial killers may suffer from other mental disorders, such as sociopathology, psychopathology, schizophrenia, bi-polar disorder, or depression, but that the mental disorders merely contribute to the disease. Regardless of how one labels it, serial killers tend to exhibit a set of disease-like symptoms. Most of them respond well during incarceration, but will revert to violence if released; many have experienced trauma to the head and possible brain injury; most were abused as children; most do not fear social consequences; most do not learn from punishment; most have an ill-defined sense of self, most refuse to accept personal responsibility for their actions; almost all of them react spontaneously to violence; many of them have grandiose views of themselves; and many abuse drugs or alcohol (Norris, 1988, p.37-42). Some of these traits, such as drug and alcohol abuse, are treatable. Other factors, such as the receipt of a head injury, have no curative treatment.

With serial killers, even if they could be rehabilitated, it would be hard to use them as examples for arguments for rehabilitation because of the severity of their crimes. However, what about the in-between criminals? There are literally hundreds of thousands of criminals who have done more than committed an isolated felony and who seem undaunted by the consequences of their crimes, but whose antisocial behavior does not rise to the level of the serial killer. Many of these in-between criminals carry a label of some sort of mental illness, perhaps antisocial personality disorder, and there is speculation that there is something in their genetic background, or perhaps in their early childhoods, that keeps them from relating to other humans in the normative manner, but, in fact, predisposes them to criminality. Asking whether or not those individuals can be rehabilitated is a worthwhile question. That question only gets more interesting when one considers the biological factors that can contribute to felonious behavior.

In fact, there has been some interesting research linking at least one biological factor, though not really a genetic factor, to criminal behavior. Describing a study linking abnormal fear condition to a predisposition to crime, Stetzer described that adults in the study who had been convicted of crimes demonstrated no evidence of fear conditioning, as contrasted with the control group (2010, p.1). There are two main hypothesis to describe why biological factors may contribute to criminality. The first hypothesis is that inadequate fear conditioning makes some people fearless, though whether this fearlessness is the cause or result of repeated antisocial behavior is unknown (Stetzer, 2010, p.2). Others suggest that antisocial behavior is not due to a lack of fear response or even a muted fear response, but is related to increased amygdale responsiveness, which would translate into increased overall anxiety (Stetzer, 2010, p.2). Moreover, the different research suggests that there might be multiple biological causes of criminal behavior. Some criminal behavior could be due to inadequate fear conditioning, while other criminal behavior might be due to a hypersensitive fear response. It is easy to see how both ends of the spectrum could result in an individual who acts outside of the law.