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The U.S. Penal System: Restorative and/or Retributive Justice?
published in Woodstock Report No. 61, March 2000
This is a very personal subject for me, partly because of my side ministry as a prison chaplain and because many of my friends are in the system. But I'll leave that aside to get to the heart of what this forum is about. At Woodstock, we believe that reflecting on these issues is the meat, the warp and the woof, if you will, of reading the gospel, and doing something about them. That is why Woodstock is interested in creating a vehicle to help parishes (read: congregations, mosques and synagogues around the country) do something that apparently the political process is not real good at promoting. And that's what John Courtney Murray would call a "civilized conversation" about the role of prisons in achieving criminal justice.
We Catholics use lingo like "sin." Substitute the word "crime" every time you hear "sin." We use the lingo like "conversion." Does that sound like rehabilitation? We use "penance" and we even have a "sacred penitentiary" in our Roman Catholic tradition. But that lingo has stayed confined to sanctuary or confessional; it hasn't really been explored. Sister Julia Upton, who's an associate provost as St. John's University has written a book on the sacrament of reconciliation and says, "We need to expand our notion of reconciliation." We begin to do so in a very real way tonight. Last fall we had an afternoon of conversation with Father Jim Consedine, a priest of the Diocese of Christchurch in New Zealand, who's been working in the area of restorative justice for 21 years. In January, I went with Jim Nolan, another Woodstock fellow, to a Fordham University conference on-and I've never seen these two words in the same line before- forgiveness and the law. We're here to look at something perhaps a little bit more narrow when we look at the prison system in these United States. I'm grateful to you for coming and I'm especially grateful to the panel.
On arrival here you got a program, I hope, with a very famous picture on the front: Pope John Paul II and the gentleman who sought his life. And hopefully too you got a bibliography of readings (see page 10 here). We're looking at a system that has about two million people incarcerated-that's half a million more than the next incarcerating country in the world, Russia. So we're incarcerating 500,000 more than "mother Russia."
What's going on? What's happened? What's right? What could be right? What's wrong? What do we need to look at? What questions should we raise if we at Woodstock want to create a document that might be a discussion starter for parishes, for synagogues, for mosques across the country?
HEALING A BROKEN SYSTEM
Twenty years ago, this past Christmas, I started as the District of Columbia jail's full-time minister. At that time, I think I was under the general belief, as many are in this country, that prisoners, people who have broken the law, should be where they're at, in jail, in prison, being punished for their lawlessness. And that our justice system of these United States is fair, impartial, and balanced. But then I listened to the stories of hundreds, now probably thousands, of men and women who have gone through the District of Columbia jail, and my early naivete has long since gone away. I now recognize that our system of criminal justice is not fair, is not impartial, and is not balanced.
Most of us have little experience with the criminal justice system, unless we're judges, police officers, or correctional officials, so we only learn of the system by what we hear on the nightly news, and by what our political leaders tell us. Every evening on the news, there are often three or four stories that have to do with some horrendous crime that has taken place in the community, leading us to believe that crime is everywhere in our community, that we are under siege. And you're led to believe, by the nightly news, that we need to be very frightened, and that we need to have even harsher penalties for those who break our laws and to respond even more harshly when, obviously, we're out of control as a city.
The others who form our consciences and attitudes towards the criminal justice system in this country are politicians. Like the news media who run these sensational stories, obviously to win ratings, politicians oftentimes will use a "get tough policy" on crime basically to win votes, because it sounds good. It's a quick fix to very complex social, economic, and racial problems that we have in our society today.
As I have listened to the stories of the people at the District jail for all these years, some sad and some familiar themes arose. Most of them grew up in poverty, in dilapidated public housing. Most of them dropped out of high school when they were in their first or second year. Their literacy level is at the fifth-grade level. Eighty percent are addicted to drugs or alcohol, or a combination of both. Sixty percent of that 80 percent are non-violent offenders. We in this country have become harsher and more punitive in our response to people that we are locking up.
We call it a "war on drugs." It's actually, I think, a war on the poor of our nation. And we have seen less and less rehabilitative programs in prisons across this country and less and less after-care programs, drug treatment programs, in our communities. We have created policies in this country where we have done away with parole on the federal level; many states are following suit. We have "three strikes and you're out" legislation in places like California. We have minimum sentencing legislation, which adds up to extended stays in prison. In the last 25 years, the length of prison sentences has grown some 500 percent! We in this country have become harsher and more punitive in our response to people that we are locking up. We call it a "war on drugs." It's actually, I think, a war on the poor of our nation.
The United States, the land of the free, has one-quarter of all the people who are incarcerated in the world. We have grown our population of the incarcerated over these last 25 years basically with the poor and people of color: 48 percent are black, 18 percent are Hispanic. Blacks make up only 13 percent of our national population, Hispanics make up 9 or 10 percent. What's that all about? The remaining one-third of those locked up in this country are white people. What they have in common with their black and brown brothers is that they're poor, addicted, under-educated, and jobless.
Our recidivism rate in this country is an astronomical 70 percent for juveniles and 63 percent for adults. Depending on the jurisdiction, we spend $30,000 a year to incarcerate one person. (That figure runs as high as $75,000, in New York.) As taxpayers, we could ask why we have a system that is failing 63 percent or 70 percent of the time to rehabilitate people and put them back in the community. If you were in private industry and your business was failing at those rates, you'd certainly have to change some of the ways you're doing business.
I think many judges, and many people in corrections, and in policing
across the United States, would agree that our system is severely broken
and we need to begin to look at another form, another model, of justice.
The model that we use right now is called a retributive model of justice;
basically it's a model that punishes people. It's a retaliatory system
and it pays back in terms of years or months of pain by incarceration of
a person who obviously has violated the law.
There is another model that has begun to show promise in places like New Zealand-it was used in South Africa by the Truth and Reconciliation Commission-and in about 600 jurisdictions here in the United States in some small ways. It's called the restorative model of justice which is based upon the Biblical understanding of what justice really is. Justice is supposed to lead to healing. When crime is committed, the peace and security of the community is broken. It is smashed; trust is gone, and it needs to be reestablished and put back into place. Restorative justice begins that process working with human beings.
By contrast, in the retributive model, the state becomes the victim and the actual victim in the case is sidelined and used oftentimes as a prosecutorial witness in the case. The state becomes offended by the fact you've broken this law, whereas the model of restorative justice basically is saying: get the people involved. The one who has offended and the victim sit down together with mediators and with representa-tives of the court and begin to put the thing back together.
THE POLITICS OF PUNISHMENT
I remember somebody saying at the time of John F. Kennedy's funeral, "Someday, today will be a long time ago." And I was thinking, "What will people say about us when this day is a long time ago?" What will they say about our prison population that is larger than that of all the other industrialized countries except Russia-and sometimes we're in front of Russia. We also have more people in prison than they do in all of China. What will they say about us for having done that? And we've done that in the last 20 years in which our prison population has tripled.
Since 1973 we've sentenced more than 6,500 people to death and executed over 500. We've had the death sentence overturned in over 2,200 cases. And we still have over 3,500 people in the United States waiting to be executed. What will future generations say about us for using the death penalty, and what have we said to a community about the value of life, when we say we are justified in taking life because of something that somebody did? And let me say as a former prosecutor who spent 25 years out there, most of the time with the death penalty in existence: we cannot do it fairly, no matter how hard we try or how sensitive we are in trying to do it.
Right now, no prosecutor can get elected unless he or she promises
to be tougher than the guy who's in. You want a chief of police who
makes a whole lot of arrests. You want a judge who sentences for
a long period of time. You want a legislature who provides for more
minimum mandatories. The dialogue has gone haywire. And we
need somehow to bring sweet reason back into the process.
THE MORAL COMPONENT OF CRIME
I got a view of things after serving fifteen years in the California legislature. I also served 25 months in a federal penitentiary and four months in a halfway house. And I had a chance to see, first hand, the impact of the policies that I'd advocated as a legislator. God really took the scales from my eyes and I'm grateful for my time in prison, because he did expose me to what was going on.
As Father Mike said, the system is broken. It's horribly
broken. We lock up two million Americans. That's one out of
every 125 people in the United States of America. If you add parole
and probation, the people who are on supervised release, that's six million.
That's one out of every 42 Americans either directly behind the walls of
a prison or with a probation or parole agent to whom they report.
One in every 42. And yet victims aren't healed from their wounds.
Our communities aren't any safer. The crime rate is down, but there's
growing evidence that officials are "cooking the books," misreporting crimes
to artificially drop it. And even where it has dropped-like the deaths
in New York-we see the shooting of Amadou Diallo, and other incidents that
are deep wounds in our community.
Father Mike also mentioned that two-thirds of ex-prisoners commit another crime and are back in prison. If you take your car to a mechanic, and two-thirds of the time you have to take it back, you'd find a new mechanic. And yet, we still continue the same thing. I had 25 months to sit and think about what was wrong with my old view, the injustices, and how to make it right. And I got ahold of a pamphlet put out by Justice Fellowship on Restorative Justice called, "Beyond Crime and Punishment." And this just opened my eyes to things. It essentially says we are focusing on the wrong thing. We focus on law breaking, whereas crime is really victim harming.
If all we do is focus on the broken law, then all you can do is enforce the power of the government, the fist of government, and lock people up, to punish them. If, on the other hand, you look at crime as "victim harming," the solution should bring repair to the harm done to the victim. And when you repair the harm done to the victim through restitution and reparation, generally the victim becomes very forward looking and doesn't want to harm and further punish the offender, but says, "I don't want you to do this again." "What can we do to make you not do this again?" "How can we change your life?
Transformation becomes important. I saw the wasted lives in our prison system; nothing's done to change these folks' lives. Crime is a moral problem; it's not a legal problem. And that's the role of the church. We have to call the people of America, call them to their better selves-both liberals and conservatives. I'm a conservative Republican, and as a conservative my attitude was, well, "Lock them up and we'll forget about them." The reality is, the people we lock up-95 percent of them-are going to get out eventually. They're our neighbors, and my wife and children have to be concerned what they're like when they get out. How we treat them inside is going to determine how they are when they get out.
If we do nothing to deal with their underlying pathologies, and the difficulties they have in dealing with life, they're not going to make very good neighbors. So just selfishly we should care. But also morally we should care, because they are our brothers and sisters. If we accept Christ's redemption of our sins, we certainly can accept our brothers' and sisters' sins as equally redeemable.
But liberals are also wrong. Liberals look at all the externalities, like poverty and ignorance. However, the reality is that there are plenty of people who are born poor, who don't have good educations, but who don't harm other people. So we have to deal with the basics in their lives. Most of these kids haven't been talked to about sin and the basic moral rules of life.
It's like taking a kid and shoving him onto a basketball court, but not telling him what the lines are for, what the goals are for. Don't tell him the rules, and then when he fouls out, we kick him and hit him, throw him in prison, and after five or ten years, we let him out and we still haven't talked to him about the rules. Inside prison, we should talk about the rules of life. Help them reform their lives. Help them understand they're creatures of God, that God created them with love. And he sent his son to redeem them of their sins, and if they live according to those rules they can be happy with God forever. Inside prison, we should talk about the rules of life. Help them reform their lives. Help them understand they are creatures of God.
Instead, society tells them they're the products of molecules bumping around for billions of years and that, by accident, they popped into life as human beings with no plan, no love, and no future. Why not live by your own rules? That's what society tells them. We have an obligation to say to them: "That's wrong. God loves you, He created you, God doesn't make mistakes. And here are the rules. Simple rules to live by." We don't have enough police officers to stop people from doing bad things. If we do nothing to deal with the moral component of crime, they won't be able to deal with poverty, ignorance, or anything else.
If we do nothing to deal with the moral component of crime, they won't be able to deal with poverty, ignorance, or anything else. And so we have to have that centrality of the gospel and then deal with them as brothers and sisters to heal them and help them move on to a job, a home, a good family.
AMERICA'S PENAL SYSTEM: RELIGIOUS ROOTS, THEOLOGICAL QUESTIONS
Let's go to the time when the present penal system in the United States was founded. It was the end of the 18th century and the beginning of the 19th century. There were two systems, both of which were thoroughly motivated by religious impulses. It was very clear at the beginning that religiously motivated people thought that they could bring about rehabilitation. But it wasn't religion in general because you have to have some specific religion. We all come from some tradition or other. So there were two traditions in the very beginning.
The first was inspired by the Quaker tradition, a sort of optimistic theology about who people are and what's going on in people. Speak to that which is of good in people and God will come out of people. That was their philosophy. So they set about rehabilitation. Their ideal was "let's put people in a cell where they can be silent, be with God, meditate, hear the word of the Lord, hear the pastor speaking to them, and in that spirituality transformation will happen, and rehabilitation will take place." Their notion of rehabilitation was restoring a person to virtue and happiness.
The other tradition came more out of a Calvinist theology, which was a little more pessimistic about the nature of human beings, more focused on who's saved, who's not. We know about sin in the world, so it's a very legitimate tradition, but different. It meant that they built different types of prisons than the Quaker-inspired prisons. They built a prison that focused more on what they wanted to bring about, which was obedience.
They felt that maybe not everybody is saved, maybe not everybody can be good, but everybody can obey the law. So we instill habits of work in people, help build their skills, and they will be rehabilitated. But rehabilitation in this system is obedience and it became a notion of passive obedience. It focused more on power and on force than on spirituality. This is the system that focuses on punishment. This is the present system in the United States. (The other system took root in Europe, but it faded out in the United States.)
Let's go to a different tradition, the Catholic tradition, which has never had a big impact on the criminal justice system in this country. What can we learn from Catholic theological anthropology, its view of the human person and of God?
One element is the importance of the sacraments and the belief that God is in the sacraments. Take the sacrament of penance, a rich, 2000-year-old tradition on how to deal with sin. It is an incredibly complex tradition of working with people to restore and rehabilitate them. What's the notion of rehabilitation here? It's rehabilitation back into the community. It's being reconciled to one another. Do not leave the body, stay with the body-reconcile back into the community. When you go to penance, there are four elements of it.
Confession: yes, I did something wrong; there's sorrow for that; I do penance for that which I did wrong; then absolution takes place. You're forgiven. It's over. That's at odds with our criminal justice system. There are fourteen states in this country where, if you've committed a felony, you can never vote again in your life. You can do your time, pay back your money, heal a victim, but you're not forgiven. You're never off the hook.
In Alabama, one-third of the African-American men are not able to vote. That's where the sacramental tradition could help us.
There are four questions that any religious tradition has to ask of the justice system: What is it? Does it work? Is it good? And is it loving? Let me walk quickly through those four questions.
What is it? At the moment there are two models of criminal justice. One is let's punish people, put them in boot camps, deter them, because that instills discipline and fear, and prevents crime. There's another model of treatment: let's work with people because when you work with people, you reduce crime.
Second question: Does it work? According to not one or
two but literally hundreds of studies, the punishment model-the get-tough
approach of long sentences, extensive supervision, ankle bracelets and
so forth-generally increases recidivism by at least seven percent.
Increases recidivism. The treatment model-again hundreds of studies
on this-is associated with an average reduction in crime by 25 percent.
Well, one system is not working, and the other one is. Why are we
doing the first and not the other one?
Next question: Is it good? I really believe that people
think the punishment model is a good system. Because of their theology,
because of their tradition, because of whatever, they just believe this
is good. But the research says no. Boot camps don't work, yet
we keep building them. So we need a new criteria for judging what
is a good system.
Finally: Is it loving? I think until you get out of the moral sphere into the loving question you don't get into the religious field. Is it loving to execute someone? Even if it worked, would it be loving? Even if it did reduce crime, should we be doing it? Unless we ask these moral and religious questions, we can't really deal with this issue. And criminologists usually answer only the first two questions: What is it? And does it work? That's why we need a religious tradition to ask the other two questions. But the four questions need to come together.
THE NEW PLANTATIONS
It's an honor to be up here with such a distinguished panel. I'm not a diplomat, I'm not an eloquent speaker. I'm just someone who has been on both sides of the street. I was listening to Father Bryant say that 80 percent of the prison population faces some form of addiction, and that 80 percent of the prison population has some type of drug charges. Well, we need to stop calling prisons, "prisons." Drugs are the new "slavery" and prisons are the new "plantations." Bottom line. Look at the proportion of black people or Hispanic people that are incarcerated. Racism is alive and well, and so is slavery.
You win a war on drugs, not by locking people up, but by getting them off drugs. It's as simple as that. It doesn't take Einstein's theory of relativity to understand that. If you don't have a demand, the supply dwindles.
We need to start working with the social service agencies in our dioceses. I work with Catholic Charities and I spend 24 hours a day, seven days a week responding to the calls of priests in our parishes. It's not only a problem in the District of Columbia, it's a national problem, it's a world problem. We need to get out of the problem and start looking for some concrete solutions. Prisons don't work. When I went to jail, I got a master's degree in manipulation. I learned more about breaking the law than I did about obeying it.
Can you imagine that the first time your father and you ever hug is when he's coming back from Leavenworth Federal Penitentiary in Kansas, asking to see Darryl, and you're coming back from District Court? You both are in R&D (receiving and discharge) and that's the first time you ever hug in eighteen years. We have generations of families on the plantations. I refuse to call them penitentiaries; they are plantations. We need to remove the shackles. We need to stop pointing the finger, stop accusing people, and start extending a hand and helping people.
LOVE OF POWER OR LOVE OF GOD?
Why is it that we feel we can throw away the key? Punishment as punishment. What's the logic of it? What's the effect of it? It seems to be, and I take this from other books and other scholars, that we punish in order to make the criminal feel pain. We punish in order that they feel the harm they caused. We punish so they feel shame. The problem is that shame is the motive for violence.
So by incarcerating folks-by subjecting them to terror within the institution, to physical force, sexual violence- we've produced shame which is the tinderbox of violence. Why doesn't the system work? The system doesn't work because the offenders in the end are made to worship power. The criminal justice system is a religion, and its belief is that power is the ultimate reality. That's the goal of the retributive system.
So we have to answer with Christ once and for all: there are only two ways in life, to love power or to love God. We can't have both. And redemption means to love God and to reject power.
THE RESPONSIBILITIES OF FAMILIES, SCHOOLS, AND COMMUNITIES
When I was a kid, I believed if I worked in the criminal justice system I could save my people. I was wrong for many of the reasons that we criticize the criminal justice system. But part of what we complain about is something that is not the fault of the criminal justice system. The system has its problems and many of them have been discussed already this evening, but a huge problem is that many of our institutions have abandoned their responsibilities in our community. We have allowed the criminal justice system to embrace and take responsibility for the things that we're not doing. Our criminal justice system has suddenly taken the place of our schools. It's taken the place of our families.
I represent young men who carry guns, and they're carrying guns as I speak. And when I ask-and frankly I confess I don't ask a lot anymore-but when I do ask, "Why do you carry a gun?," I am told, "Ms. Roberts, it makes me feel powerful. I'm no longer afraid." And you know what? That same young, probably in my case, black man, doesn't have a daddy who helps him feel powerful. Doesn't have a male adult that helps him not to feel afraid. Family is not available to give him the feeling of power and courage that will prevent him from needing to carry guns. People who are happy don't use drugs. "I'm having a great life, I think I'll use some crack." It doesn't happen if you're happy. It happens when you're sad. It happens when you're illiterate. It happens when you're uneducated and have no sense of God and tomorrow, and future. And that's why I see them.
When I was growing up in the South Bronx, aware that young black men, my brothers' friends, were going to jail, it occurred to me that I had a mission in life. I was going to save poor black men from being caught up in the criminal justice system. Well I haven't done that, and the reason I haven't done that is because it was a foolish wish. I think I've done a great job in providing good counsel to people who needed it. But to the extent I entered the system believing that the criminal justice system was a way to make things equal, I was wrong. Other institutions have that responsibility, and I at least would like to expend some energy outside of the criminal justice system, in those institutions, to make them do their job.
At the same time, the criminal justice system does have a responsibility that it can't relinquish. It's this: it cannot punish for the sake of punishment. I've seen the men and women who come out. It's true, we lock them up for a long time, but most of them come out. And they come out with rage, and fear. I don't want them living next door to me, and they're my brothers and sisters. I'm afraid that when they're reminded of that felony conviction, when they can't vote, can't get that job because of the conviction, that rage will erupt in my neighborhood. Next door to me. So I don't completely exonerate the criminal justice system because it cannot simply punish for the sake of punishment. Yet at the same time we have a responsibility to do our jobs and not expect the criminal justice system to solve it for us.
SELECT BIBLIOGRAPHY ON CRIMINAL JUSTICE