This week on the “Heritage Explains” podcast, Paul Larkin, a senior legal research fellow in Heritage’ Meese Center for Legal and Judicial Studies, explains a program that could be helping recidivism rates.

MICHELLE CORDERO: Currently there are 2.2 million people in our nation’s prisons and jails. That’s a 500 percent increase over the last 40 years. And did you know that today, nearly half of all federal inmates return to prison after they are released?

This Spring the House passed a bipartisan bill called the First Step Act of 2018, that aimed to help ex-offenders become productive, law-abiding members of society.

The bill would assess the individual needs of the inmate and factor in recidivism risk, or the likelihood of returning to criminal behavior, in order to match him or her to programs that set them up for success in the future.

“Nobody wins when former prisoners fail to adjust to life outside, or worse, end up back behind bars. We want former inmates to find a path to success, so they can support their families and support their communities.” - President Donald Trump

CORDERO: Conservative-run states have already proven the importance of productive activities in prison, from faith-based mentorships to Toastmasters classes and from earning a GED to addiction counseling.

Federal prisons also offer several recidivism-reduction programs, including substance abuse treatment and education programs.

Today, Paul Larkin, a senior legal research fellow in Heritage’s Meese Center for Legal and Judicial Studies, is going to help explain a lesser known program that could be helping recidivism rates and why our nation fell away from rehabilitation programs for inmates in the first place.

PAUL LARKIN: There are several possible justifications that have been advanced historically for the punishment of criminals. One is simply retribution, they have done something wrong and the moral order needs to be corrected, therefore punishment is the available means of ensuring that any wrong has been righted.

Another is deterrence, which can be specific or general. Specific deterrence is designed to prevent that person from committing a crime again, whether it's the same crime or a different one. General deterrence is designed to prevent the population as a whole from committing crimes.

But another possible rationale that has recently fallen out of favor is called rehabilitation, the idea that someone has an errant soul rather than ill body, but that if the person is trained how to live life properly, he or she will be able to walk the straight and narrow after the punishment is imposed. That theory became very prevalent in the 19th century, and that's why the early places of confinement, that is, long term confinement, were called penitentiaries, and that's so that people could do penance. The theory was that if someone read the Bible, for example, in contemplation, and was in isolation, the person would be able to reform his, because most criminals are men, his errant ways.

Unfortunately, rehabilitation has fallen out of favor recently. Most recently, the current, and the predominant, justification for punishment is incapacitation. The theory is that once a person is confined in a prison ... Notice they're not usually called penitentiaries any more, they're now called prisons. Once a person is confined in a prison, the only ones against whom he can commit further crimes are either the prisoners, the guards, et cetera, but not the community. So, incapacitation is designed to isolate offenders so that they can no longer commit crimes against members of the community.

CORDERO: So what has changed over the past couple hundred year's. Why do we lean less toward rehabilitation?

LARKIN: Rehabilitation was essentially born in the 19th century, has a very strong religious base. The theory was that everyone had a soul, and that every errant soul could be corrected, and that what we needed to do was show a person the error of his or her ways, set that person on the right track, and then, with the support of the community and individuals like parole officers, help that person avoid whatever it was that led him to commit crime in the first place.

The problem with rehabilitation, however, was that it came under attack from the left, and from the right. From the left it came under attach on the ground that it was too subject to discrimination, in other words, it was up to the system to decide whether a person had been rehabilitated, and it's essentially impossible to rehabilitate someone in a prison. The argument is that trying to decide if someone in prison has become rehabilitated is like trying to decide if someone would be a good pilot when that person is in a submarine, it just is not an environment where you can make that judgment.

From the right, the argument was that too often judges were too lenient on offenders, and what was the best way to protect the public was not simply to have harsher penalties, but have more definite penalties. You see, the rehabilitative idea required a great deal of discretion. The judge had to have discretion to decide how long someone should be incarcerated, and prison officials had to decide when someone had become rehabilitated. In effect, someone who committed a very serious crime could serve a very short term of imprisonment, and there were a great many people outraged by that. They thought that criminals were getting off too lightly.

So, as time bore on in the 20th century, beginning in the '60s and '70s, rehabilitation essentially had no friends. What made it worse was that the crime rate went up dramatically beginning in the '60s and the '70s. It's possible that the people who were in support of rehabilitation could have weathered the storm that was seen in society by the very different views as to whether rehabilitation was possible. But when you add in the massive increase in crime, particularly street crime, that we saw beginning in the '60s, the storm became un-weatherable, and it destroyed rehabilitation, at least as a general justification for punishment.

CORDERO: So what methods does our current system use to help inmates right now?

LARKIN: Well, believe it or not, despite the fact that we have seen tremendous increases in the amount of money that we've spent on education, there are still a large number of people in society who can't read and write. A very simple program that is often used in prison is to train people to read, write, and cipher. It is essentially impossible to get a job today if you cannot do that. Believe it or not, there are also a large number of people that don't know how to manage a checkbook.

These are basic life skills that you can teach someone. Now, someone who has these basic skills is never going to go on and manage a Fortune 500 company, and is never going to become a physician, but there are a great many jobs out there, the construction industry is but one, where you don't need to have a PhD in order to be successful. But you will need the life skills necessary of how to make judgments about allocating your money for rent, for food, for commuting costs and the like, and if you don't have those you're going to wind up overshooting your mark, and you could wind up then turning back to criminal activity to make up the financial difference. So, those are some of the activities that prisons can help teach people in that regard.

CORDERO: Paul I wanted to ask you about something you recently wrote about and that’s animal assisted therapy. You believes that dogs can have a role to play in rehabilitating offenders who are imprisoned for their crimes. What makes this type of rehabilitation different that just learning life skills?

LARKIN: Dealing with a dog, as people who are familiar with animals know, can bring out the best in us because of the way dogs are. My own person view are dogs are the best proof of the existence of God. They love us unconditionally, they ask only to be loved in return.

And for some prisoners, having a dog gives them a feeling of love that maybe they didn't have before. If nothing else, it gives them the responsibility to care for another living thing that maybe you cannot get unless you've done something exactly like that.

CORDERO: When did prisons first start using animals for this type of rehabilitation?

LARKIN: Well, actually, as far as I've been able to learn, the first effort in this regard came not in a prison facility, it came in a mental facility, where one of the staff members noticed that the inmates who had been taking care of an injured animal had far better state of mind than the inmates who were in a different wing and didn't have any such responsibility. There were fewer infractions, fewer disciplinary problems, they required less medication, et cetera, et cetera, that the general quality of life was better, as well as the quality of the lives of the individuals.

So, they tried it out, and did an experiment on a longer term basis, and they found out that it worked. The people who had responsibility for an animal did better. Well, there was a woman who was a nun, who actually had been a mental patient earlier on, and thought that she would see if this could be replicated elsewhere, and among the places that wound up trying it out were different prisons.

Now, generally these programs involve dogs, but some can involve other types of animals. For example, out West I know, perhaps in Nevada, there is a program that involves horses as well. So, there are more opportunities that we've seen now than just the ones that involve dogs. But as I think most people say they find that dogs are among the friendliest and most sympathetic, loving, and empathetic creatures that you can have, and they wound up working, at least in a very anecdotal sense.

CORDERO: Interesting so then Paul why aren’t we seeing more programs like this take off?

LARKIN: We don't, unfortunately, have hard and fast scientific studies that prove the value of these programs, what I've called prisoner dog programs. And after all, if you want to get a drug marketed in the United States, you have to go through your standard, very rigorous double-blind sort of study, where you randomly assign people to receive the drug, and others to receive something different, whether it's a placebo or some other type of drug, because you want to be sure that, before you market this drug on a nationwide basis, it's not going to have any harmful effects.

But no one has suggested that they just randomly assign dogs to prisoners. You have to have a good prison record, and you have to volunteer for it. That essentially keeps the programs that we've had going from being subject to the same sort of critical analysis that we normally would want to see in the social sciences, and certainly in the hard sciences, like when we're dealing with pharmaceuticals.

But that doesn't mean it shouldn't be considered further. There have been a goodly number of reports that these have benefited five different communities, if you will, the prisoners who are taking care of the dogs, the other prisoners in that cell block, because there is less violence, better behavior, the people who wind up receiving the dogs, whether they are given over to someone as a companion animal or whether they assent for further training so that they can be an assistance dog, the community as a whole, and finally the dogs themselves, some of whom escape a death sentence from being confined somewhere to receive a life sentence with a family that winds up taking the dog in and having it become another member of the family.

CORDERO: So what can Congress do to help facilitate more rehabilitation programs like these?

LARKIN: Congress should look into whether these are definitely worth time, and effort, and funds, to see if they can produce positive results, both for the people that come out of federal prison, as well as the people that come out of state prisons.

Congress doesn't generally tell the states how to run their criminal justice systems, but congress does fund a goodly number of state criminal justice programs. If programs like these are valuable at helping people in the community avoid all the problems from recidivism, then they're worth, perhaps, the money that congress is spending on other subjects, and maybe should be redirected here.

CORDERO: Last question for you, Paul, and this is more of a personal opinion, do you believe that criminals within the system right now benefit from rehabilitation programs? Can you rehabilitate them?

Some, yes. All, no. There are some people who had such horrid upbringing that they are now, in all likelihood, hardwired to commit crimes. It is a tragedy, it is sad, but unfortunately for a goodly number of people, they're never going to be rehabilitated because they've passed the point at which that could have happened.

For some number of people, once they reached their 20s or 30s, they now have become so set in their ways, as one of the phrases is used, that rehabilitation as a practical matter is just not going to be effective. And if you take a look at a lot of the people on death row, they probably were physically or sexually abused when they were children. And that's a tragedy, and you wish you could do something about it, but you can't change people retroactively, all you can do is try to set them on a new path going forward.

For some that's possible, and I know of instances where it's happened, but it's not true that everyone can be. That's just the reality as have to face.

CORDERO: Thank you so much.

LARKIN: It's my pleasure.