The Restricted Justice of Incarceration – Regulation & Liberty
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.