A Plea to Rethink Justice-as-Punishment - by Henry Smidstra

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 19^th, 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 18^th 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 19^th 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 18^th and early 19^th 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 20^th 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.