A large, ominous, mysterious, billboard along Highway #1 approaching Vancouver from the East boldly proclaims: “Every unjust sentence bullies the victim.” One wonders what they, whoever “they” are, consider a just sentence, one that bullies back the one committing the harm? One also wonders on what evidence or grounds they base their theory of justice. The sentiment Implied is that sentences currently given are a pain to the victims; sentences are not severe or painful enough for the offenders. Assumed also is that just sentences can simply be measured in a quantitative sense to reflect in the application of “justice” the same amount of pain (or more) delivered, as suffered by the victim. Perhaps they desire “throwing the book” at the wrongdoer, meaning sentencing the maximum amount of time sanctioned by the criminal code without any reductions by the Judge. Will the supporters of this legal opinion posted at the Highway, perhaps be satisfied with the recent sentencing of Justin Bourque to seventy-five years for the murders of three policemen and of wounding two others in Moncton in June 2014? Justin was sentenced last Oct 27 (2014) to five concurrent life sentences; he will be prison without eligibility of parole for seventy five years! This sentencing was the harshest sentence given since the abolition of the death penalty in Canada in1975. Is this the kind of justice desired by those behind the opinion written on the sign?
The timing of Justin’s sentencing however, a week after the violence and highly publicized murders of unarmed soldiers in Ottawa and St.-Jean-sur-Richelieu last October (2014), also leads one to wonder at the intent of the public message sent. The tragic events at Ottawa’s National War Memorial and in Quebec are disturbing, and we are all led to expressions of outrage and lament. Raw lament, grief, and confusion, must not, however, be exploited for political ends. These senseless murders of soldiers defy simple quick simply legal answers; so do the murders and violence that Justin Bourque committed. It could be said that, freed by new legislation allowing this kind of concurrent sentence, the judge not only threw the allowable book at Justin, he reflected the nature of the crime: an approximation of life for a life. Even the 18th century Utilitarian crafters of deterrence theory actually considered life sentences even more severe and evil that the death penalty.
Modern justice is an abstract symbolic practice that expresses publicly a statement, not only of denunciation of the crime, but one that will happily satisfy the public that wants to see “justice,” however it perceives it, done. In general, criminal justice is an expressive institution in which the Judges, and especially the politicians in power, send messages to manage public opinion. One could surmise that Justin’s sentence was an attempt to satisfy public opinion by “sending a message” to the public that the state means business through its courts and will not countenance such brazen public murders and thus appease public fears. The judge, in Justin Bourque’s sentencing, in symbolic arithmetic reciprocity, is sending a message of some sort to society. However, it is a mistake to make public opinion management determine the shape of justice. There is no question that crimes, especially serious crime need to be publically denounced and addressed, but justice should be done in a just way, not using people a means to political ends. Traditionally, severity in pain application has been the measure for justice meted out proportionally to the crime. Is justice then simply a legal form of returning evil for evil, and is severity its measure? Is justice simply a public “message” through the courts to manage public opinion; and, is that adequate, or effective, as justice, to address the loss and grief that the relatives of the victims and the wounded ones suffer? Causes addressed? Can we get to a Good place of healing and peace through a bad way of returning evil for evil?
In ordinary life, bullying back because one is bullied is simply revenge, not justice, and it generally reflects a lack of social skills and self-image; an inner weakness, revealing deficits of emotional intelligence of the bully who, for example, may be compulsively projecting inner fear and self-loathing onto innocent bystanders. Research has shown clearly that neither general deterrence nor consecutive sentences deters crime. Just look the south of our border. But I have heard it so many times on the news, that a certain sentence is to send a “strong message” to the community that such crimes will not be tolerated, and perhaps, it is added as an aside, the sentenced individual may get some help in prison…”perhaps?” I hear relatives grieving: this will not bring the deceased back. Generally, victims and relatives who need to be empowered and validated are mere footnotes to our criminal justice system; perhaps a victim-impact statement will be read by the judge. Sentences by and large have become public statements for the benefit of public opinion in an attempt to maintain the wellbeing of social-political order, while at the same time “educating” the public mind as to what “proper” punishments are: severity seems to be the proclaimed norm already. So what is the notion of “bullying” on the sign along Highway One all about?
Public safety is certainly a basic necessity for good order and the common good. There must be just intervention to stop violence, abuse, and victimization, for human wellbeing and good order; though it must be said that Canada’s murder rate is already at a 50 year low. However, maintaining public order is certainly an ongoing responsibility for us all. It is important to consider what is meant by the social order, by political order, or economic order, and how such conceptions are related to moral order. Graeme Newman (1981) has concerns about grounding the moral order simply in the social contract for sanctioning of law and order policies. He warns that history shows us, that not all socio-economic-political orders have been moral; some oppress or are racist and unjust (p. 274). About what is the good for persons-in-relationship-in society there is probably not a clear consensus to be found in modern or post-modern terms. Followers of Christ will agree that unbiased equity and unconditional love for ones neighbour, even ones enemy, is the great moral commandment for what is Good; judgment, discipline, and justice seek to establish the safety, wellbeing, and peace, not of further social fragmentation and continued suffering. From this it would follow that in horrendous murders, the wellbeing of the relatives of the victims, as well as the well-being of all human life in the country, is the primary order of concern, not the severity of punitive retributive. Order must serve humanity for shalom for all; humanity does not primarily worship order.
Public and institutional thought about criminal justice today consists of a confluence of a number of streams of influence, of history, religious, philosophical, and political. In my opinion, not much new formal theological thought has been done for a century or so on Criminal Justice. Our present criminal justice system has significant roots in Enlightenment rationalism, of 18th century English ideology of crime control. To manage social order and maintain public opinion, a brutally severe criminal code was sanctioned in which 350 crimes warranted the death penalty; it was called the “bloody code.” As well, entwined are ancient religious undercurrents of retribution for vengeance for religious or metaphysical balance. These ideas and concepts along with utilitarian concepts continue to play out in the courts and in the minds of the people. Criminal justice is mostly done today in the courtroom or behind walls in mostly abstract unseen ways. It has been said that we are more civilized today. However, when very public, horrendous crimes occur, justice is played out in the media and by the nation’s political leaders in threatening terms to mollify public opinion and address modern, primal, visceral, cries for vengeance. Public outcries for justice may reflect raw, fresh emotion; however, legitimate lament of relatives of the victim’s raw emotion of grief should not be exploited for public policy on crime. Also prominent in such times are the implicit theories of primal retribution still imported via quasi-religious beliefs, sometimes crudely calling for severity of retributive punishment such as, “I hope he or she rots in hell.” I heard it said again just yesterday on the evening news. Such sentiments are likely latently present in the opinions inscribed on the very public sign along Highway #1.
Other than in circles where Restorative Justice has been actively studied and practiced, opportunities for balanced, reasonable, moral philosophical dialogue about criminal justice issues are scarce in my experience, often especially so in religious circles. Many are of the mind that criminal justice is primarily for the state, not for the church to think deeply about. Some admit that it is a mystery to them, so discussion is avoided on the topic. Reigning utilitarian deterrence theory is based on Enlightenment’s focus on rationalism as found in the concept of rational choice; that as rational animals we make all personal choices according to what will make us happy or will benefit us, and it is assumed that we will naturally reject what will cause us pain or loss. Crime, according to this model, is deterred by tough law and order ideologies promising severity of punishment. Criminals simply chose to be punished retributivists assert. In North America, the late 19th century positivist, progressive, schools of thought created the theoretical “medical model” that focused on the “pathological” criminal with interventions or prison programs promising to rehabilitate prisoners in the belief that with science society could solve all the behavioral defects of criminals (Remember Clockwork Orange?). Martinson asserted that nothing worked, just lock them up; others have insisted that some things do work. Wise informed discernment is necessary. Reformers such as Beccaria and Bentham warned that too much severity was actually counterproductive and also suggested that for deterrence to be effective, speedy convictions and the knowledge that punishment would be certain would also be necessary (celerity and certainty). Few seemed aware of the social, environmental, contributors to crime that should be addressed by society as a whole. Modern neo-liberalism places all responsibility for rehabilitation solely on the individual criminal…responsibilism.
Much has been learned in the last century from the various schools of thought. Especially from studies in Restorative justice, criminologists have learned of the primary need for a holistic approach which addresses environmental causes and pathways to crime and places those harmed centrally in the process. Pro-active, holistic interventions are needed to create safe and healthy communities. Rehabilitative prisons along the classical lines of thought just do not work. As well, our present system with its intertwined conglomeration of ways of thinking and responding to crime makes discussion complex. David Garland (1990) metaphorically describes the modern institutionalized system of penality as a palimpsest: as an ancient reused parchment on which previously written and erased information is still imbedded and functioning (p. 275). Contrary to modern researched evidence, incarceration for deterrence in the vain hope of rehabilitating individuals in harsh, non-therapeutic prisons, is still is the main strategy utilized by our current Canadian system. Despite system dysfunction, shorter interventions can bring about the conditions necessary for change; there are some wise, courageous wardens who allow curative interventions contrary to official rhetoric about getting tough on criminals. Nevertheless, an ancient religious strand of thought still coming through, is the belief in the necessity for divine retribution to balance the metaphysical or moral scales of justice; pain application is an end in itself. This desire, seemingly still “hard wired” in so many, is primarily interested in focusing on repaying the evil doer for the evil done; outcomes for peace and wellbeing for victims and community seems forgotten in the cries for retribution.
Historically there has been resistance in evangelical circles to attempts of reducing the severity of retributive punishment as carried out in the Nation`s courts and prisons. Some modern resistance follows from the moral deontological philosophy of Immanuel Kant; accordingly, rules are more important than people or outcomes. In the Evangelical tradition there are also persistent ideation arising from the exploitation of apocalyptic symbolism of the wrath of God at the last Judgment (Revelation 20) as being a template for judgement on the sin of crime on earth. This model was begun by John and Charles Wesley in 18th century England in their Methodist preaching and revivalism. According to Michael Hay (1975), and Graeme Newman (1981), the Wesley’s and the Methodist preachers understood, and resonated with, the mind of the masses of disenfranchised and vulnerable poor caught up in the massive social structural changes of the 17th and 18th centuries. The emerging gentry and industrialist classes had begun to control parliament and managed public law and order, managing public opinion with criminal justice practices carried out in public, with official, ritualized, dramatic, severity of its Assize courts appealing to the religious beliefs of the public in God’s judgment on earth as in the Great Assize of Revelation 20. Methodist preaching with emotional, enthusiastic, severity, connected with the masses of the working class which ironically seemed to find solace and meaning from this in the midst of social and mental turmoil of that era. No one doubted God’s promised wrath on sin, that the 350 British Laws sanctioning capital punishment (Bloody code) were unjust; they believed that they were just punishments deserved and ordained by God (Newman, 127).
Brutally dehumanizing, by 21st century standards, 18th century justice as meted out with severity in what amounted to public spectacles, gala events. The ideology of the Majesty of the Law was shaped by apocalyptic imagination and imagery of the wrath of the god of the Great Assize. The imagery of the last judgment, and of the imagined fires of hell, was enthusiastically preached with a woodenly literalistic but vivid hermeneutic. This emotionally moral approach to criminal judgment heightened by the social insecurities and anxieties, resonated with primal religious ideation of the common people. The public gallows events acted out a “theology”, or ideology, more powerful than even sermons in Church. In London England, the condemned convicts were paraded from Newgate prison to the gallows at Tyburn where twenty-four condemned could be hanged in public at one time. These “gala” events were attended to by the enthusiastic preaching of the Methodist preachers, especially John and Charles Wesley, waxing eloquent about the wrath of God in descriptive hell-fire sermons. Graeme Newman (1981) writes of John Wesley’s preaching, “When he preached of death and hell to his rougher audiences, people fell with convulsions and hysteria. With the help of Wesley, the mob beneath the gallows seemed to understand…..for the ordinary onlooker….the public hanging was a deeply spiritual experience. He liked it, but he knew not why” (pp. 136-137). Newsletters circulated by the Ordinary (Chaplain) at New Gate Prison contained the last moments and words of the condemned became popular reading. If anything, we might call this today, emotional “bullying” by the church colluding with the state ideology for social control. At the time it must have seemed to be God’s design for justice, and it seemed to “work” in maintaining British social economic order for a century without the necessity of a large police force or army (Hay, 1975, p. 56). But at what moral costs! The residue of that mindset is still implicitly entwined in cries for tough justice in “truth in sentencing” policies today.
One cannot know exactly if the Wesley’s, Wilberforce, and the Methodist preachers after them were aware of their ideological collusion with the powers that be of their time, but their preaching has left a legacy of a tradition of revivalist preaching with a narrow soul saving strategy and an attitude of absolute obedience to state policy on Justice, without question, as divine vengeance. An important principle in interpreting the Bible, besides acknowledging specific genres, is to let the Bible interpret itself: to use the entire scope of the Bible`s message of grace and salvation to interpret any one text, and not to read the whole Bible through one, or a few selected texts on Judgment. Harmful criminal acts require a punishment response, but punishment is not an application of a painful sanction as a deserved and required by a metaphysical law or divine mandate. I will suggest that the major moral theme in the Bible is, love, grace, reconciliation, and shalom, not judgment for eternal wrath. Jesus as champion of the poor and oppressed does put the holders of fiscal power and social order on notice that oppression will have a final resolution in favour of shalom; the proclaimed jubilee will find its amen in the New Heaven and the New earth. Those committed to another gospel, a gospel of power, control, and domination of human beings and nature, will suffer ultimately, as God will have the last Word. It is hard to imagine, though, a place of severe eternal pain and torment taking place under, or next to, the streets of the New Jerusalem. Apocalyptic genre triumphantly proclaims the ultimate victory of Light over darkness; of wellbeing over the causes of suffering and torment, the last enemy to be conquered will be death itself.
Divine Judgement, suggests Harry Boer (1979), is more to be ascribed to a nation suffering the consequences of its own making, rather than experiencing the fantastically metaphorical apocalyptic descriptions found in Revelation regarding Divine Justice merely at the end of time (114). An end will come to the profiteering and trampling of the poor into the dust, but such judgment as discipline will serve the restorative or reparative purposes of God, not as commonly understood Divine, wrathful, punitive retribution; God is not morally bound to the ancient reciprocity code after all. Harry Boer suggests that we learn about our own personal and national responsibilities for the common good from John’s Revelation. What Revelation states about Rome, Boer states, “…it is about any economic-political-religious complex that is inhabited and governed by men who make self and their desires rather than God and His service the centre of their lives” (126).
A nation’s morality will not be measured and judged in the end by how severely it metes out its justice in the courts, whether justice is too soft or not, but rather in the end it will be judged by the health and shalom of human flourishing of the poorest and most powerless citizens and residents, including the quality of human life as found in a nations prisons. The goal God has in mind for this world is not one of destruction, but of restoration and complete communion with the eradication of the causes of injustice. Such an eschatological universe, already at work now, describes Oliver Quick (1971) must reflect in every corner of the universe the praise of His Goodness (247). Judgment is a means of establishing this goal of shalom. The ideal of justice is not a mixture of severity and peace, all bullying will end. We must picture the fullness of judgment as just wholeness, “The world to come must be a world in which judgment and penalty are past” (Quick, 1971, p. 247).
Boer, H. R. (1979). The Book of Revelation. Grand Rapids , Michigan: William B. Eerdmans Publishing Company.
Garland, D. (1990). Punishment and modern society. Chicago: The University of Chicago Press.
Hay, D. e. (1975). Albion's Fatal Tree. New York: Pantheon Books.
Newman, G. (1981). The punishment response. New York: J.B.Lippincott Company.
Quick, O. C. (1971). Doctrines of the Creed. London and Glasgow: Collins.