A
Plea to Rethink Justice-as-Punishment
News reports on crime usually attract
lots of interest, and our newspapers cover it greedily; one wonders, though, if
reports of injustice done to prisoners get read at all. Federal Correctional
Investigator (ombudsman) Howard Sapers (www.oci-bec.gc.ca), writes regular reports of the state of
affairs in Canada’s federal prisons and highlights issues for attention for the
benefit of all our MP’s, as well as making his reports available on line for
the public.
I remember the title of one report quite some years back: “Prisons
are not good for your health.” Last week (Oct.
Sept. 30) his lament was mentioned on the CBC news citing the
deteriorating health condition of mentally ill prisoners overrepresented in our
prisons. Critical concerns have been reported by him many times. He reports again and again, on the injustice
of the overrepresentation of Canada’s First Nations people in our prisons.
Later in the week, the news reported a radical cut in “wages” for prisoners, a
wage which is on an average, 2 or 4 bucks a day, hardly a living wage for
prisoners. They do have financial obligations to purchase their own shampoo,
postage and phone calls, and pay for other personal needs. Sapers’ reports
contain information about inadequate health services and unhealthy conditions
for high-need prisoners in Canada’s prisons. His reports of an increase in self-harm
and about the dangerous conditions in which these human beings are forced to
live as wards of the state, should shock us. Are we deaf to this issue of the
continued injustice to our fellow human beings in prison, or are we convinced
that justice is not relevant here? I
wonder if this sort of institutional injustice just gets ignored by our
government (they have Howard Sapers’ reports), and that it generally goes in
one ear, and out of the other, of the greater public. Who cares? I will hear it
said, “They don’t deserve justice, they don’t deserve it, look at what they are
in for; and by the way….they are already getting the justice they deserve!”
Seeking justice for those perceived by the
public and their government to be undeserving of justice, other than the
retributive variety, is a hard sell; primarily the public and its government in
this regard consider justice to be primarily retributive punishment, with no
connection at all to justice in its wider and holistic sense. It appears to me that abstracted and
bifurcated in this way, justice consists of processes and practices that see
justice primarily as punishment. Like the mythological understanding of hell,
the fear of going to jail, of having the” book thrown at you and going to
jail,” the fear of punishment, is supposed to keep one on the straight and
narrow, and when you land in jail, that’s the justice you deserve. Not only has a bifurcation occurred in the
concept and practice of justice, but also an inversion of primacy has happened,
often reinforced by amygdalin political and public reactions, especially to
events featured sensationally in the media.
Justice has been institutionalized into two modern systems: civil
justice, and criminal justice, and never the two shall meet. Justice has been
inverted to the extent that when, typically speaking, the word justice is
spoken, such as in the phrase, “let justice be served,” retribution commonly
comes to mind, not restoration, rectification, or reconciliation. The focus is
generally on individuals caught up in street and survival crime, not on
corporate or institutional injustices in the marketplace or prisons; of the
kind of justice that Amos speaks of, about the injustice of trampling on the
rights of the poor and vulnerable.
It has not always been seen that way of
course. The Bible speaks of justice as justice, as mishpat and tsedeka; and, krisis
and dikiasune. These are inherently intertwining concepts and in tandem do
not major on punishment, but rather on rectification and restoration of peace
by way of inclusive collaboration in social problem solving and establishing
shalom. Neither ancient Israel, nor the Roman Empire, established a specific
criminal justice system with a fixed special criminal code to facilitate
punishment as we have today. Sure, “punishments” were meted out then, and
sometimes very badly, but punishment was not formally institutionalized and
rationalized until the 18th, and 19th, centuries. Punitive practices existed and were certainly
formalized by the inquisitional practices of the medieval church in Europe. Torture
was an approved method to extract confessions; there an assumption that it is
was better to experience the pain of hell-like torture here below, rather than
wind up in the eternal torment of hell because of un-confessed sins. With the onset of the Industrial revolution
and changes in the legal system (Glorious Revolution, 1688) to emphasize
property rights over natural and human rights, many displaced and landless
people, children included, became a perceived as social problems so that laws
and practices were created to punish a new class of wrongdoers to deter and
impose order. These could not be punished by status degradation and fines,
because these people were of “questionable” social status and did not have
money. So public corporal punishment, the pillory, gibbet, and scaffold became
public instruments to do “justice” and control the problem; you know,
“different strokes for different folks,” and, “to take it out on their
hides.”
In connection with imposed punishment,
there is a paradox known as the paradox of control: the more control one
attempts to exercise over a situation, the less in control one actually feels; the
inevitable is that of ramping up the control, in this case, punishment, using
more threats and having to carry them out publically. In 18th century England, the
emerging modern criminal justice system ramped up the offences for which
executions and punishments were mandated; the “bloody code,” or “reign of
terror,” as it has been called, sanctioned at least 350 offences for which the
death penalty could be meted out. Hangings and public gruesome public punishments
became public spectacles, gala events (from the word, gallows) supposedly
to satisfy justice and make public, “moral” statements. These public spectacles
however, attracted many pick pockets, prostitutes, stimulating more crime in
general, that public hangings and other
forms of public forms of corporal punishment were moved out of sight, behind
the walls…. the beginnings of our modern prisons. Late in the 18th century, and
early in the 19th century “reformers” of the prison system stepped
in “civilize” and create a rationalized veneer for these
barbarous practices. The system we have today in Canada is heir to this classical
school of criminology.
Refined
by the rationalists and utilitarian’s of the 18th and 19th century, the
efficacy of punishment as a legal sanction was not questioned, nor grounded in
moral ethics or theology, but based purely on the grounds of rationalism, and later behaviorism, and positivism. It may
have been a step forward only in looking more civilized with the spread of
Enlightenment ideas. Cesare Beccaria,
one of the founders of our modern system believed that the punishment of a life
sentence was in actuality more severe than the death penalty, he
preferred banishment , a form of “civil death”(Newman, 1981, p. 159). A life
sentence served better the emerging “civilizing” mentality of the late 18th
and early 19th century society; it served the utility principal
better. Jeremy Bentham considered punishment a necessary evil to maintain the
social contract. Our systems were further refined by the positivism of the
“progressive era,” 1880-1920, when science and the medical model became
normative; when all social and criminal problems were seen to be addressed and
overcome with scientific solutions. Punishment-as- justice just took different
forms or appearances in the 20th century. The criminal justice
system today and its attending theoretical foundations exists within influences
of this historical momentum; and, the public, church included, more or less
“bought” into this, and sees criminal justice primarily it seems, as sanctioned
pain-application by the justice system when laws are broken; little thought and
creativity seems to have gone into connecting with pro-active and social
justice issues that address the roots and pathways to crime, and the basic
rights and needs especially of the poor, the
mentally ill, the un-propertied, the disenfranchised, and homeless. Primary justice that serves human rights and
relationships does not seem to be seen as normatively relevant in matters of
crime. Justice must be perceived to be done by the public, and pain-application
as punishment seems to be understood as necessary justice, if not for
deontological reasons, then for the utility of deterrence.
Underlying all of this seems to be an
unquestioned concept of justice with an inherent Aristotelian duality based on
the ancient reciprocity code: justice is a motivation to return what is due a
person; good for good, and evil for evil. Nicholas Wolterstorff (2011) reminds
us that Jesus Christ repudiated that code, all of it, not just the negative
side which is known as the lex talionis.
Wolterstoff emphasised that Christ continued in the Old Testament prophetic
tradition and brought it to a more inclusive fulfilment. In fact the Gospels
could be termed, the Gospel of justice in Jesus Christ; the whole New Testament
Wolterstorff (2008) suggests is one that breathes primary justice, not
retributive justice, with a focus on the righting of the wrongs of oppression
of the vulnerable, the poor, and socially excluded. Primary justice is inclusive, and is about
upholding the rights of the wronged, of the weak and vulnerable, so that they
are restored to the conditions where they can flourish and enjoy God’s design
for them, namely shalom. Primary justice
embraces and enfranchises, whereas mere charity and benevolence keeps
vulnerable individuals trapped in unjust structures, and basically keeps them
as wards of the state. Biblical Justice is not primarily about retribution or
punishment, but about rectification, reconciliation and peace. Justice is about
life, and about upholding the God bestowed worth of every human being.
Absolutely every human being is precious in God’s sight emphasizes Wolterstorff
(2008), and justice as inherent rights
inheres in every person grounded, not in what we deserve, but in God’s love and
worth bestowed on us. Thinking this way
about justice inevitably determines that we must think about punishment
differently. In fact, suggests Wolterstorff (2011), wrongs must be set right;
if the wronged are lifted up, those abusing power must be brought down; but not
by force of violence or retributive punishment.
Following Christ, (and Paul) a classical understanding of retribution as
returning evil for evil must be “repudiated”; but rather, evil is to be
returned with good; any form of intervention and punishment may not do evil,
but must serve the good. “Impose on the evil doer some diminution of his
wellbeing only if it serves the good. Reject vengeance. Do not try to get even.
Repudiate the reciprocity code” (Wolterstorff, 2011, p.126).
In my experience, it is difficult to
find respectful, holistic, in-depth theological studies or dialogue on criminal
justice in the Christian tradition other than a focus on the wrath of God and
retribution. Therefore, moral philosophical questions about the grounding,
efficacy, and ethics, of punishment as justice (pain application sanctioned as
justice), will need serious attention from a theistic perspective. I gather
that it is assumed by many in the church that justice is only done by the
courts and its agencies, so one need not concern oneself with criminal justice
theory or its issues. However, in this space unexplored by theistic moral
discourse and engagement, alien values have crept in it appears. Is it so that
the church by and large assumes that the state is doing God’s will no matter
how severe the penalty? And, if so, how it can justify such a conclusion will
need much respectful attention? Punitive
severity, and a disregard of the conditions that the Correctional Investigator
is alerting us to, it seems to me, will not change if justified by a continued
adherence to the reciprocity code. If Wolterstorff is right, and I think he is,
this is not in keeping with the biblical concept of justice. God in Christ is
not in the business of making war on human kind, nor of excluding and
exterminating sinners, but of reconciling them, and of including them in his
peace, saving them to enjoy His shalom, on earth as well as in heaven.
Works Cited
Newman, G. (1981). The
punishment response. New York: J.B.Lippincott Company.
Wolterstorff, N. (2008). Justice:
rights and wrongs. Princeton: Princeton University Press.
Wolterstorff, N. (2011). Justice
in love. Grand Rapids Michigan: William B.Eerdmans Publishing Company.