Abstract

LOTTER, Casper. Are offenders entitled to a right to rehabilitation or rather to a rehabilitation-driven environment?. Tydskr. geesteswet. [online]. 2022, vol.62, n.4, pp.830-852. ISSN 2224-7912.  http://dx.doi.org/10.17159/2224-7912/2022/v62n4a12.

perpetuate structural violence, 2) the bigoted selection of particular neighbourhoods for policing and 3) processing through the criminal justice system, 4) a stigmatising shaming culture (such as in South Africa) that marginalises vulnerable groups (notably ex-offenders) to function as a "source" (not a "cause") of crime, and 5) the political distortion of our understanding of crime to serve the interests of the rich and powerful. As far as the functionalist approach to crime is concerned, the danger of this rationale is that it not only underestimates the significance of structural oppressions, but also neglects how, as Martinson (2001[1974]) observes, criminality is symptomatic of the fundamentally unjust nature of our society. Yet the most serious objection to Omar's (2011) traditional position is that rehabilitation might not even be possible in stigmatising shaming cultures, such as that found in South Africa. To assist this analysis, a brief overview of the literature on interactionist and conflict approaches covering the past fifty years, is considered. Four approaches functionalist, interactionist, conflict and control) inform our understanding of deviance and crime. Functionalist theories argue that society is essentially healthy, and that crime (or other deviant behaviour) is the result of the breakdown of existing moral values and institutions, while interactionists emphasise how crime is "a socially constructed phenomenon". However, the traditional approach that underpins almost all rehabilitation and reintegration initiatives is functionalism. My own theoretical framework lies somewhere between an interactionist and conflict approach to crime. I am primarily concerned with the politically charged labelling perspective, as well as post-colonial thinking on the societal predation of the marginalised (including ex-offenders). The interactionist approach, on the one hand, investigates how marginalisation and stigmatisation are socially constructed. In fact, Giddens and Sutton (2017) argue that the nature of "labelling" has perhaps been the most fruitful insight of this movement. Merton (1948), one of the leading academics on the labelling perspective, suggests the term "self-fulfilling prophecy" in his exploration of the everyday dynamics of labelling, and defines the former as "a false definition of the situation evoking a new behavior which makes the originally false conception come true". Yet conflict criminologists contend, on the other hand, that the class conflict inherent in capitalist societies inevitably results in crime. No one, however, claims that a transition to a socialist state would magically result in the total disappearance of "crime". Acknowledging the negative impact of stigma on ex-offenders in South Africa, Muntingh (2005) argues that "[t]he reality is ... that ex-prisoners continue to suffer from social and economic exclusion - a reflection of society's belief that those who have offended or been imprisoned cannot be part of 'good' society again". Although written almost twenty years ago, this is as true today as it was then. In fact, the presence of the prison-industrial complex in South Africa over the past two decades accelerated the recycling of ex-offenders for profit rather than embracing their sustainable resettlement and rehabilitation. Stigmatising shaming cultures (typically individualistic societies, such as the US, UK and South Africa), on the other hand, encourage subtler lingering shame and rejection of offenders, and therefore generate higher rates of recidivism. Additionally, Braithwaite (1989) contends that the penal practices of many stigmatising shaming cultures in the West practised the "uncoupling of shame and punishment". According to Galtung (1996), one of the foremost theorists in Peace Studies, denial ofcertain groups access to basic human needs is a natural precursor to conflict, being itself a form of cultural violence, legitimised by stigma. Therefore, labelling and re-offending go hand-in-hand. Conflict Management's emphasis on the recognition of basic human needs to "provent" (Burton, 1997) conflict and forestall recidivism can clearly be seen here. In the case of South African ex-offenders, the effects of stigma on their prospects after release are serious hurdles to reintegration. This is the reason, among others, why conflict management is such a powerful theoretical lens with which to understand recidivism within the context of a stigmatising shaming culture. It is concluded that enforcing an offender's right to rehabilitation in our harsh stigmatising shaming culture is an ineffectual, pointless measure unless the right conditions are created in favour of a pro-rehabilitation and integrative (rather than stigmatising) shaming culture. From the perspective of ex-offenders, transformative, not restorative, justice is what is called for.

Keywords : enforceable legal right; rehabilitation; traditional position; Jameelah Omar; simple problem; society; essentially healthy; functionalist approach; conflict approach; stigmatising shaming cultures; integrative shaming cultures; labelling perspective; recidivism; transformative justice.

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