Prison Readmission Penalties May Be Ethically Sound

​​​​​In response to high hospital readmission rates for Medicare beneficiaries, the Affordable Care Act, through Section 3025, amended the Social Security Act to create the Hospital Readmission Reduction Program (“HRRP”). Hospitals are now penalized if they readmit a patient for the same health issue within thirty days of discharge. As a result, hospitals are incentivized to ensure patients make a full recovery after discharge by improving care coordination, conducting follow-up visits, and assisting patients to enroll in support services. However, attorney Karen DeBolt feels the penalty will do more harm than good, as the penalty is unlikely to significantly improve the overall prognosis of patients. She questions whether it’s the hospital’s fault a chronically ill patient faces readmission or whether it’s just the nature of the illness.

Stuart Butler, a Senior Fellow in Economic Studies at the Brooking Institute, believes the ACA’s readmission penalty scheme would be beneficial if applied to
prison recidivism. The United States has the highest incarceration rate in the world with over 1.5 million inmates. As many as 2/3 of prisoners released will be arrested for the same or new crime within three years of release and 3/4 of released prisoners will be arrested within five years. Others assert that while “prisons exist to protect the public and punish the offender . . . increased attention should be placed on rehabilitating inmates​ to prevent a cyclic nature of offense, arrest, release, and repeat.” 

Clearly, based on the recidivism rates, the United States is often unsuccessful at rehabilitating inmates. A recent
report from the International Journal of Research and Practice on Student Engagement that occupational programs for developing vocational skills in order to ensure reintegration into society as working and productive members suffer from budgetary constraints. Furthermore, the report states the availability of rehabilitative services is limited, as 70-85% of incarcerated individuals need alcohol or substance abuse treatment, but only 13% actually receive treatment. Butler argues that prisons have no incentive to help inmates prepare to re-enter society, thus the recidivism penalty, which penalizes prisons that fail to rehabilitate inmates, would incentivize prisons to increase efforts to rehabilitate its inmates. Butler envisions the recidivism​penalty to function much like HRRP​: “[I]f​ an unusually high number of released inmates from a particular prison were convicted and sent back to prison within three years then the prison’s budget would be cut and the bonuses and salary increases of senior prison staff trimmed back.”

Obviously inmates must be held responsible for the crimes they commit. This approach in no way takes away that responsibility. Instead, the recidivism prison penalty seeks to punish prisons for failing to rehabilitate prisoners. But is it fair to hold the prison staff liable for unsuccessful attempts to rehabilitate inmates? Do prisons have an ethical responsibility to rehabilitate inmates so that society is ultimately safer? If so, then isn’t it fair to punish the prison for failing to fulfill their ethical duty? Butler believes so. He states that after complaining of the “unfairness” of being held liable, “[p]risons would get serious not only about training inmates but also about working with potential employers to help line up jobs. Instead of dumping released prisoners on the street, prison managers, like today’s hospital managers, would become more interested in arranging stable housing for their ex-customers.” But, what if, like Karen DeBolt claims, the unsuccessful rehabilitation is just the “nature of the illness.” What if it’s not the prison’s fault that an inmate has not been rehabilitated and has committed another crime, but rather the inmate resists rehabilitation because he or she does not want to change? Ph.D. Economist Jason Shafrin, while he is more reserved than Butler regarding his confidence in this approach, states, “[i]t certainly​ would provide some incentive to refocus prison​ from a place of punishment to a place of rehabilitation. It may be worth a try.”


Kathryn Brown is second year law student at DePaul University College of Law and is expected to graduate in May of 2017. Previously she studied Political Science at Saint Ambrose University where graduated summa cum laude. She is a Fellow for the Jaharis Health Law Institute, contributor to the Institute’s E-Pulse blog and staffer for the DePaul Law Review.   ​