Death and Rehabilitation

Abstract

While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea that death spurs rehabilitation. Courts’ and scholars’ conclusion that death is irrelevant to rehabilitation likely stems from changes in our understanding of rehabilitation. While it was once understood as referring to an offender’s character transformation, references to rehabilitation now often focus on offenders’ direct impacts on society. This has the effect, though, of distracting from the humanness of the worst offenders and consequently not providing them with true opportunities to transform their characters — a denial which challenges the Eighth Amendment’s focus on respecting the human dignity of the condemned.