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The Limited Justice of Incarceration

Editor’s Note: This essay is based on remarks delivered for the Christian Legal Society at the Pepperdine Caruso School of Law on October 14, 2020

In his 2011 book, In Defense of Flogging, Peter Moskos proposes a thought experiment: faced with a choice between 10 brutal lashes from a cane and five years of hard prison time, which would you choose? His conjecture, backed up by the votes of at least one of his audiences, is that most people would choose the lash. His point is not to argue for a return to corporal punishment, but to juxtapose an obviously brutal form of punishment with our own use of incarceration and to suggest the possibility that public flogging is comparatively humane. Moskos provokes us to ask the fundamental question: what is just punishment?

As Danielle Allen argued in The World of Prometheus: The Politics of Punishing in Democratic Athens, the major transition from citizen-administered justice in societies like ancient Athens to the state-based system of modern criminal punishment produced practices that “disincline us from reflection on the relationship between punishment, power, and politics.” Rarely, if ever, are most citizens “obliged to consider directly and personally the implications of using power, of wielding cultural and institutional tools, in order to punish.” Since systems of punishment express fundamental commitments about justice and relate to a broader “system of value,” Allen rightly aims to provoke reflection on “the sort of world and system of value. . . constituted by the acts of power imposed with punishments.” Moskos, Allen, and scholars like Robert Bellah and the authors of The Good Society call us to examine our institutions and the purposes and values they express, abjuring the temptation to see ourselves as powerless pawns rather than contributors to and perpetuators of those institutions.

Justice, Retribution, and Punishment

While at any given time far more people are under some form of community supervision than behind bars, incarceration has come to occupy a central position in our method of social control and punishment, especially for violent crime such as assault, armed robbery, and murder. The rate of prison incarceration has roughly quadrupled since 1972, from around 100 for every 100,000 people to over 400, down from a peak of over 500 in 2007. Even as the incarcerated population has decreased in the last several years, the U.S. remains a world leader in terms of both the rate and level of incarceration. Racial disparities are rife in our criminal justice systems, with black men especially overrepresented. All this, along with the high rate of recidivism, has inspired bipartisan dissatisfaction with the criminal justice systems in the U.S. and motivated reforms at the federal and state levels.

In a June essay, I sketched the case Glenn Loury advances that the overly punitive U.S. approach to social control in the last several decades constitutes a systemic injustice:

The argument is that our incarceration system and treatment of people formerly incarcerated [fails] to adequately respect the human dignity of prisoners, former prisoners, and their families and communities. The charge is based on the scale at which we incarcerate, the quality of treatment incarcerated and formerly incarcerated persons receive, and the overall state in which it leaves communities. The charge of injustice is based not on the fact of punishment, but on the reality that the total result of our method of social control is a failure to prevent crime in many communities, a failure to rehabilitate offenders and integrate them back into society, and a failure to leave poor minority communities better off.

How would a more just society conduct punishment, understood as the total response to crime?

More substantially, what form of punishment accords with the “elevated yet gloomy conception of man, deeply informed by the peculiar, paradoxical wisdom of the West’s great religions” that, according to Yuval Levin, “sits at the core of most conservative thinking about society and politics” and offers wisdom for a “reforming conservatism”? In this conception, “the human person” is an “incorrigible mass of contradictions: a fallen and imperfect being created in a divine image, a creature possessed of fundamental dignity and inalienable rights but prone to excess and sin and ever in need of self-restraint and moral formation.”

The use of incarceration as our paradigmatic method of punishment for serious crime may have obscured our sense of proportionality.

A just punishment regime—one that properly respects the dignity of the human person—integrates three components often considered at odds: retributive, reparative, and restorative. Retributive punishment, which is focused on proportionality according to desert, and restorative justice geared toward mending relationships and integration back into the community are challenging to integrate, but they are compatible. Insistence on personal accountability for behavior encourages acknowledgment of wrongdoing on the part of a person who commits a crime. The relational aspect of justice requires material or symbolic restitution for the victim and the community. Finally, just punishment leaves open a path of restoration to good standing in the community.

In Restoring Justice, Daniel Van Ness and Karen Strong discuss the principles and practices associated with “restorative justice,” promoting a reorientation of modern criminal justice systems to emphasize the reparative and restorative elements in the tripartite schema above—though not necessarily to abandon the retributive element. Van Ness and Strong point out that restorative justice includes elements attractive to a variety of religious, philosophical, and political dispositions. Restorative justice is not simply about moving from a punitive to a rehabilitative system. As theorist Howard Zehr described in Changing Lenses, the shift of the restorative justice approach is to view crime in terms of harm to persons and communities, rather than to the state, and to view punishment as aimed at restoring right relations among people and good order in communities.

The retributive element of justice is important. Crime is an affront to human dignity, a failure to properly respect other human beings. Harming a person without cause is a grave injustice. Crime properly induces guilt and deserves punishment. Retributive justice is based on what the Roman law called lex talionis, the law of proportional retaliation also evinced in the Old Testament: an eye for an eye, a life for a life (Lev. 24:19-21; Gen. 9:6). In a critique of what he called the “humanitarian theory” of punishment, C.S. Lewis construes retributive justice as a limiting principle. Deterrence or rehabilitation may be positive outcomes of punishment, but desert must be the primary justification. Otherwise, the state is using the punished person as a means to some other end, violating Kant’s categorical imperative.

We might think of a “tough on crime” approach as purely retributive, but Moskos and the authors of a white paper aimed at churches as a call to action for justice suggest it is not properly retributive. In other words, the use of incarceration as punishment is a fear-based response to crime, primarily oriented toward deterrence and incapacitation, and it is only clearly effective at incapacitation. Recognition of the disproportionate nature of years of prison time as a penalty for drug use and other low-level crimes has motivated reforms in many states, such as the elimination of three-strikes laws and the increased use of alternatives to incarceration for non-violent offenses.

An uncomfortable possibility deserves consideration: the use of incarceration as our paradigmatic method of punishment for serious crime may have obscured our sense of proportionality. Given the dreadful and possibly criminogenic conditions of confinement, the manner in which years of life in prison correspond to the harms of physical violence is unclear. While I do not advocate a return to brutal forms of corporal punishment, I suggest greater attention to what constitutes proportional punishment, even for serious crimes, is in order.

Turning to the reparative component of just punishment: justice is a relational virtue, and injustice disturbs right relations among people. Justice thus demands reparation of damage or repayment of debt, whether in material or symbolic terms, to the degree possible. The punishments for robbery and theft in Leviticus exhibit this reparative component, as do elements of the Code of Hammurabi and Roman Law.

As with the retributive component, years in prison do not clearly integrate the reparative element of just punishment. Victim-offender reconciliation programs introduced in the 1970s in Ontario and programs like the Restorative Justice Program in Maine, which Anthony Bradley discusses in Ending Overcriminalization and Mass Incarceration, exemplify community-based approaches that encourage victim-offender reconciliation and could enhance the reparative element in justice systems across the U.S.

The Tradition of Restorative Justice

Finally, a restorative or “reintegrative” element is central to just punishment. This element is perhaps most fully developed in the Christian tradition. Individual guilt and accountability to the community are important in that tradition, but there is also a teaching of universal guilt. As Paul says in Romans, all have sinned and fallen short of the glory of God; yet, while we were still sinners, Christ died for us (Rom. 3: 23, 5:8). This means, as David B. Forrester has written, Christians see themselves as “forgiven offenders.” The drama at the heart of the Christian anthropology is therefore about restoration. Christ reconciles sinful humanity to God (2 Cor. 5:19). Chris Marshall writes, “the death and resurrection of Christ is, for Christians, the controlling frame of reference for comprehending the true meaning of divine justice.” Christian anthropology thus suggests we cannot forget the dignity of a person who has committed a crime. Such persons do not become part of a separate class of offenders or criminals. They remain human beings, image-bearers who have committed crimes, but whom God yet desires to redeem.

Moving toward a more restorative system would require not only continued legal and policy reforms but also a more general effort on the part of citizens to adopt a restorative posture toward people who have committed crimes and served sentences.

The Christian tradition especially suggests a restorative component, but scholars like John Braithwaite note the widespread practice of restorative justice in a number of pre-modern societies, forms of which also provided templates for responding to major crises of the 20th century. In Restorative Justice and Responsive Regulation, Braithwaite mentions a number of cultural traditions that informed the restorative justice movement gaining traction in the 1990s. “Restorative justice,” he argues, “has been the dominant model of criminal justice throughout most of human history for perhaps all the world’s peoples.” Traditional justice practices and frameworks also helped to facilitate Rwanda’s recovery from the 1994 genocide and South Africa’s transition from Apartheid.    

Support for giving second chances, for reintegrating and restoring people who have convicted of crimes into full membership of society can be found in a number of religious and philosophical traditions, particularly those that recognize the frailty and vulnerability of human beings, all being susceptible to the lures of destructive behavior and in need of a healthy social environment and community support.

In U.S. justice systems, the “collateral consequences” of incarceration, especially related to employment, occupational licensure, and obstacles to restored voting rights following felony convictions in several states are out of line with the restorative element of justice. Moving toward a more restorative system would require not only continued legal and policy reforms but also a more general effort on the part of citizens to adopt a restorative posture toward people who have committed crimes and served sentences, including those that make the “sex offender” registry.

Ideally, a just response to crime occurs when the offender, the victim, and the members of the community all conceive of the response as merited by the offense and oriented toward reparation or restitution. Upon completion of the punishment, the community welcomes the offender back into full membership in the community.

Reform of laws and practices toward this vision of justice is underway in many states, including traditionally tough-on-crime states like Texas. In addition to sentencing reform for nonviolent crimes and an increased focus on diversionary programs, many states are establishing paths for people with felony or misdemeanor convictions to erase or set aside criminal records, fully regaining good standing in the community. Most states allow a path to regained voting rights for people with felony convictions as well. These reforms are salutary and should continue, but, as legal scholar John Pfaff and others have pointed out, the key driver of incarceration has been the response to violent crime. That’s the tougher political and ethical nut to crack.

The restorative component of just punishment—the imperative of welcoming people who have committed crimes back into membership of the community—especially demands attention and involvement from citizens outside the official justice system. In her study When Prisoners Come Home: Parole and Prisoner Reentry, Joan Petersilia contends for a focus on community-based programs and linkages:

Parole and reentry services of the future must focus on linking offenders with community institutions. This means that we have to reach outside the criminal justice system to other units of government and the community: churches, ex-prisoner self-help groups, families, and non-profit programs.

I had an opportunity to speak briefly with Pastor Jon Kelly of the Chicago West Bible Church, who has served time in juvenile detention centers and a sentence in prison for the role he played in a robbery and murder of a drug dealer (an accomplice of his shot and killed the victim). After pleading guilty for third-degree murder and serving a portion of his sentence and parole, he has since pursued a career in ministry, including a focus on ministry to incarcerated and formerly incarcerated people, encouraging church members to support people through the process of reentry into society. He told me people leaving prison need many resources and three primary sources of stability: a job, a safe environment, and healthy relationships. In his experience, people without the third do not make it, even if they have the first two. On the other hand, people with the third can weather challenges associated with the first two. He used a convicting and challenging image to make the point: “Our dinner table is the best resource we can offer anyone.”

Kelly’s point about the need for direct involvement on the part of families, neighbors, and potential friends for people trying to rebuild their lives after incarceration underscores an idea fundamental to the reparative and restorative elements of justice. We should not understand crime as simply or mainly a harm against the state, and to which the state is the primary respondent. Rather, crime damages relations between people and the good order of a community. Members of a community are not passive recipients of justice; rather, we should conceive of ourselves as active participants in the response to crime, a response the state facilitates but cannot fully perform. Punishment—the total response to crime—is a function of healthy communities themselves: calling perpetrators of crimes to account, encouraging material or symbolic reparation of harm, and providing paths toward reintegration.

Reader Discussion

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on November 27, 2020 at 12:06:46 pm

This essay is an act of very well written, friendly persuasion. It has persuaded me, a ''law and order conservative," that my focus on community protection is too narrow, pragmatically, even to serve my purpose of protecting the community and too self-centered, morally, to serve a Christian's responsibility.

Mr. Peterson has much to offer, and will, I'm certain, have much, much more to offer his field of study, his community and his nation.

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paladin
on November 29, 2020 at 00:17:13 am

We once again encounter one of those exceeding rare instances where Paladin, for whom I have the highest respect, and I disagree. I am not moved.

Mr. Peterson does deserve credit for his recognition of dignity in this particular policy debate, but his treatment of it is rather schematic, almost "dignity...you know.... the thing!" It is not obvious from the discussion that dignity is a characteristic of a person, not how that person is treated. We may consider that Thomas More displayed great dignity, even in the brutal act of his martyrdom. Dignity is often most striking in the most humiliating circumstances, a fact which attends the sanctity of many saints, and is noted in the fact that crucifixion, central to the Christian triumph, was intended as much an insult to dignity as it was a method of fatal trauma. The power of dignity is found in the interactions between individual people, in the recognition of humanity in the particular circumstances of everyday life, rather than in the homogenized anonymity of politics and lip service to abstract ideals. This is not to refute anything that Mr. Peterson said, but merely to suggest that if he wishes to rely on dignity as a basis for his position, he may wish to defend it as such, vigorously and with specifics, and not be content with a few mentions.

I respect Mr. Peterson's attempt to link his argument with Christian principles, although in doing so, he commits the same basic error as those who rely on the Gospels to advance socialist causes. As I have mentioned many times on this site, there are three words conspicuously missing from Jesus's teachings: "The government should..." The ethical teachings of Jesus, the notion that God's relationship to us is personal (for example the Old Testament quote from Jeremiah 1:5 "Before I formed you in the womb I new you...") or the Parable of the Lost Sheep (Matthew 18:12-14), center the concept of individual agency, wholly apart from any government program or political initiative. Notably missing from the Beatitudes are "blessed are the lobbyists," or "Blessed are the politicians..." We also note that the Good Samaritan took it upon himself to care for the injured traveler, and did not content himself with notifying the proper authorities. One may assume that Jesus was familiar with, and unimpressed with the idea of deferring virtue to the appropriate government agencies.

To the extent that Mr. Peterson argues that we have an individual obligation to seek out, to respect the dignity of, and to help convicted criminals lead meaningful lives (of which a job, a clean record, and community acceptance are just proxies), I am there with him. To the extent he argues that this is a blueprint for policy, I am skeptical.

Mr. Peterson's contention that crime is not so much an offense against the state, but against a victim and a community, has a certain logical appeal, but is unconvincing, One of the benefits of delegating the punishment of crimes to the state and not the community is that it protects criminals. Mr. Peterson's romantic notion of a criminal, victim and community sitting around discussing reparative justice and "symbolic restitution," and other such overlooks the fact that community-administered justice included things like lynching, revenge killings, feuds and so forth. It is not a good idea to try to replace the observed shortcomings of the state with the imagined virtues of the community. Furthermore, it is not quite clear how this good faith and reconciliation is supposed to work with regard to persons found in violation of criminal statues, when the current culture is quite accommodating of "unpersoning" people who post controversial matter on Twitter. The suspicion is that a great deal of the mischief and injustice that Mr. Peterson attributes to the "punitive approach to social control" (and I do not deny that there is in fact a great deal of mischief and injustice) are due to wider cultural issues, and not just transient attitudes toward the social stratifications observed in crime.

Crime is a cultural issue. When that culture includes obstacles among certain people such as family disintegration, usurping of educational opportunities for political proselytizing, and writing off anti-social behavior as one of "their" characteristics, is seems rather naive to not make such phenomena central to any decarceration effort. To paraphrase Theodore Hesburgh, C.S.C. the most important thing that a man can do for his children is to love their mother, and the most important thing that a man can accomplish is to be a good father to his children. A similar idea applies to women. It may be simply futile to design effective criminal justice in a culture that does not value fathers, mothers, or families.

Mr. Peterson does not address the possibility that a more just system may result in more crime. One may certainly wonder about the nature of the Ferguson effect, or the remarkable increase in homicides in Milwaukee following the demonization of the police. It seems reasonable to surmise that such phenomena reflect a degree of deterrence, and that criminals may calibrate their behavior to the criminal justice system before deciding to commit crimes, rather than simply chancing the restitutive and retributive options once they are caught.

Mr. Peterson passes too lightly over the concept of incapacitation. Father Flanagan was wrong: there is such a thing as a bad boy. On February 27, 2012, Thomas M. "T.J." Lane shot six people at Chardon High School in Ohio, killing three of them. He was tried and convicted. At his sentencing he turned toward his victims' family members and said "This hand that pulled the trigger that killed your sons now masturbates to the memory. Fuck all of you." One may also recall John Wayne Gacy's last words: "Kiss my ass." These people, and those like them; the Aurora Theater shooter, Ted Bundy, etc., are realities. They are facts of life and society does not have the luxury of chancing therapeutic interventions while indulging decarceration fantasies. Some people are sociopaths and some are psychopaths, and while it is perfectly permissible for individual people moved by Christian love to care about these people, to pray for them, to recognize their humanity amid their outrages, this makes for unsound policy. Obviously we may be concerned that too strict a focus on these anomalies should not unduly sacrifice the redemption of less spectacular offenders, but it seems not only prudent, but essential, to begin with the premise that some people should be incarcerated.

In a similar manner, it is not obvious that a community sit-down with a social worker and a family that has lost its father to a repeat drunk driver will agree on what symbolic restitution is, or whether it will do any good. "Hugging it out" still leaves a very large interest of the state and larger community unaddressed.

Finally, I believe that Mr. Peterson would do well to consider the source of laws that provide the legal basis for incarceration. Slap-happy legislators who are enamored of banning this and mandating that, of providing jail time for violation of some transgression that runs afoul of nothing more than a virtue-signaling gesture, are a great source of the problem. Jail time for opening a hair salon? Arrest for selling loose cigarettes? It should be recognized that incarceration is not only a means of "punitive social control," but also a means of cultural coercion. Maybe ending these excesses is a good place to start.

I do not assert that Mr. Peterson is wrong, or even misguided. I do think that the road to getting where he aspires to be is much, much longer and winding than he lets on.

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z9z99
on November 30, 2020 at 11:00:34 am

It is precisely because human persons have inherent Dignity that we must protect ourselves from those who desire to do us harm.

I would agree that “upon completion of the punishment”, the community should welcome offenders back into full membership in the community”, if the offender can demonstrate they have been transformed.

Crime is an offense against the inherent Dignity of the human person, as a beloved son or daughter, thus I would agree with Z and Father Hesburgh, that the best way to fight crime, is to respect the inherent Dignity of the essence of being, in essence, a beloved son, daughter, brother, sister, husband, wife, father, mother, and thus work to sustain families, not destroy them.

Since we know that there are a multitude of persons who will eventually be back in their community once they have completed their punishment, it seems logical to assume that just punishment that serves to restore and help those persons to return to society with the skills necessary for becoming good citizens would be beneficial to both those individuals and society as a whole, with the understanding that some crimes are so heinous that those particular criminals must forever be incarcerated, because they will always be a threat to the lives of others.

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Nancy
on November 30, 2020 at 15:34:28 pm

Impressive analysis, impressively stated!

I agree with everything you said on the matter and, very likely, would say, given world enough and time. And I appreciate your cautious skepticism, based on history and human nature, and your sobering realism, based on penal experience, as to the prospects of success (in deterring and rehabilitating violent criminals and in reconstructing communities heavily populated with criminals and savaged by violent crime) for a retribution, restitution, restoration system of crime and punishment.

Yet, while Peterson surely recognizes these obstacles, you suggest that he fails to appreciate that the path to their solution "is much, much longer and winding than he lets on." Perhaps his essay is an attempt at inspiration rather than solution, an effort to inspire us to undertake the struggle by simplifying the difficulty of the task.

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paladin
on December 01, 2020 at 00:30:53 am

Paladin,

I do not disagree. I wish Mr. Peterson all the best in his endeavors, and fully acknowledge that our society and culture need people like him on the side of civilization. My critique is intended more as a guardrail against what I see as two hazards that menace the best intentions of people such as Mr. Peterson.

The first is the notion that any of society's ills, whatever their source, not only demand a political response, but also that a political response is inherently superior to any alternatives. We see this ad nauseum with regard to COVID, where the simplest explanation for the course of the pandemic in the setting of a myriad of policies and expert ukases, is that policy interventions have little effect. We really should have enough evidence to conclude that viral spread is unaffected by official hubris, ignorance, cognitive biases, fallacies, ambition and plain stupidity, yet here we are after almost 10 months, being assured that we just need to do a little more of what has yet to work.

I submit that mass incarceration is not the result of any single factor, and will not be remedied by tweaking sentencing practices, or demanding more accountability from prosecutors, or providing more social workers. Policies cannot remedy cultural defects. If it is true that denigration of the American family contributes to the injustices that lurk in the criminal justice system, there is no policy patch that uncouples the denigration of the former with the injustice of the latter. One cannot rely on academic theory and policy initiatives to replace an institution that ideologues find unfashionable, and expect that there will not be significant collateral damage. The remedy for damage caused by academic theory and misguided policy is unlikely to be more academic theory and policy initiatives. At some point it becomes necessary to acknowledge human nature, and to at least consider that this nature is not subject to our preferences and delusions.

The second hazard is that of trying to extrapolate religious wisdom to public policy. We may consider Matthew 5:40, in which Jesus advises that if someone were to take our cloak, we should give him our coat as well. This would make for an awkward principle of criminal jurisprudence. It is of course a fact that virtue that is undertaken corporately, as for example by writing a check to a particular charity rather treating an individual person with particular charity, enables a significant measure of convenience. It also allows for displays of indignation when the misfortune that occasions our gift persists despite our obvious caring (And the caring of course must be obvious or there is no point). But there are some misfortunes, some sorrows, and some trials that require more than philanthropy and commiseration, and this is a realm of human life that policy can little touch. Some wounds are spiritual wounds and are not amenable to academic fashions.

This in fact is a central dispute and central error in our thinking about religion and public life. There is a vast difference between helping a stranger because human decency demands it and doing so because policy enables it. The former is an act of living humanely, the latter an act of rote.

There are crucial differences between redemption and rehabilitation, gratitude and satisfaction, and respect and civility. There are differences between recognition of human dignity and mere civil courtesies. There are, in short, differences between those gestures and contributions that arise from human decency and those that arise from civic obligation. The two classes have different origins, different purposes and different effects. It is not unfair to regard one as spiritual and the other political, and to assert that one cannot be substituted for the other. The spiritual has much to offer in this culture, just as it has in all cultures, including those that actively tried to suppress it and were nonetheless survived by it.

If we had a culture indifferent to human dignity, if individual concern and private acts of charity were dismissed as insufficient, then no policy could replace them. If we had a culture that nurtured those things, no such policy would be necessary. One cannot take the individual ethical and spiritual imperatives of the Gospels and follow them by delegating their observance to the state. True charity is just as essential to the person who gives it as to the person who receives it.

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z9z99
on December 01, 2020 at 13:04:15 pm

When I said last, "I agree with everything you said on the matter and, very likely, would say, given world enough and time." I failed to foresee that given ''world enough and time" you ''would say" more, with which I also agree, but as to which codicil I do not see where it leaves us, you, me and Mr. Peterson, all of whom wish to do the right thing regarding crime and punishment, except to despair that with government reform the criminal's life is doomed to be "solitary, poor, nasty, brutish, and short," but that with a cultural predisposition toward charity it may be less so.

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paladin
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