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Religious Foundations of Criminal Justice Policy

As my last post makes clear, I do not believe religion ought directly dictate secular criminal justice policy.  I am very much of the view, however, that it is the moral anchor of many people's view of wrongdoing, error, punishment and redemption.

One of the most insightful thinkers on these subjects is my friend Will Haun, a certain leader in the next generation of conservative legal analysts.  I want to bring you his keynote remarks at the Napa Institute Symposium on "Public Policy and our Catholic Faith," held last March.  It was sponsored in part by the Koch Foundation, an organization I often oppose on policy specifics but greatly admire for its consistent stand for freedom.

Will started out:

Thank you very much for inviting me to speak at this excellent symposium on such an important topic.  And thank you, Jenny, for such a kind introduction.  It reminds me of one of my favorite New Yorker cartoons.  Pictured in the cartoon is a towering statue of a well-dressed man boldly pointing toward the horizon.  Below the man is an inscription that says "Solider, Statesman, Author, Patriot," and then, in smaller font below, it, "But Still a Disappointment to His Mother." 

I thought I would devote my opening remarks to the scripture passage that, in my view, best encapsulates the moral concerns that should preoccupy criminal justice reform initiatives:  The parable of the Good Thief. 

In Luke's Gospel, 23:39-43, we read:


One of the criminals who were hanging [on their crosses] kept deriding him and saying "Aren't you the Messiah? Save yourself and us!" But the other rebuked him, saying, "Don't you fear God, since you are under the same sentence of condemnation. And we indeed have been condemned justly, for we are getting our due for our actions, but this man has done nothing wrong." Then he said, "Jesus, remember me when you come into your kingdom."  Jesus answered him, "Truly I tell you, today you will be with me in paradise." 

Reintegrating the "Good Thiefs" of today into society is no doubt a goal of many criminal justice reform advocates, and so are many of the moral principles imbued within the Good Thief's words:  A recognition that there is an objective right and wrong communicated by criminal law; a true justice achievable when the punishment fits the crime; and that genuine mercy is not a demand for the one with power to act, but the result of genuine contrition.  

I stand for a criminal justice reform that furthers the laudable maxims evoked by the Good Thief.  This sort of criminal justice reform seeks reform precisely because it wants justice to possess the very integrity evoked by the Good Thief.  By limiting criminal punishments to only those behaviors that are, indeed, morally blameworthy; by returning the vast majority of criminal laws to the local level where communities can enforce them with their known members in mind; by requiring that those who are held criminally culpable know they committed a wrong act, I think we learn the right lessons from the Good Thief--lessons consonant with our nation's commitment to federalism, self-government (meaning both that the people know their government's laws and that they have mastered themselves), and the moral confidence needed to ensure government's first priority: public safety. 

Of course, there's an alternative view of criminal justice reform in the Good Thief parable too--but it's not the one invoked by the Good Thief.  Rather, it's the one invoked by his, shall we say, not-so-good thief companion.   The companion's communication with Jesus is not one preoccupied with justice, but with power.  He does not acknowledge the justness of his condemnation; there is no contrition, there is not even, really, a plea for mercy.   All the Good Thief's companion seems to recognize is that Christ purports power, and power can "save," or perhaps more appropriately, "cheat" him, out of his action's consequences.  He sets forth no moral vision, no concern for the common good.  "Justice," to the companion, is simply being released from his punishment.  

While some advocates of criminal justice reform may not be as overt as the Good Thief's bad companion, we must take care to avoid the outcomes their cries can permit.   No one, for example, advocates for emptying the nation's prisons--but does the rhetoric about "mass incarceration" in the United States, much of which is supported by factual misperceptions about the prison population, eschew punishment as a legitimate goal of government?  No one, I don't think, seriously advocates for the abolishment of all criminal law.  

But in an era where the justice system is discussed simply as a bludgeon of "oppression" against the "powerless," do we not risk undermining the moral confidence that is required to have a criminal law in the first place?  No one, I don't think, seriously doubts that eschewing rehabilitation for all offenders can create a vicious cycle: taking fathers away from homes only contributes to the family's near-collapse in inner-city America and other pathological outcomes.  But when rehabilitation is pursued without any sense of retribution--without any recognition that, as CUNY Professor Michael Fortner and many others have observed, it was these very inner-city parents, shop-keepers, and educators that advocated for tough sentences and "broken windows" policing to stem the destruction in their own communities--we risk letting the relatively low crime rates of the past few decades lull us into putting these very same communities back at risk with the pretense that we have "evolved" beyond human nature's fallen state. This is particularly troubling now, when crime rates are heading back up--dramatically--after a generation of decline, and this increase coincides with a reduction in the prison population and heightened criticism of the police.


More than any other body of law, the criminal law is how society communicates its values.   As Professor John Coffee once said, "the criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance."  I submit that we all benefit when criminal law is appreciated that way.  

To ensure we appreciate it that way, criminal justice reform should recognize that: (1) What is needed for the offender in the long run is something the government cannot provide: moral formation.  Even as virtue is not virtue when it is coerced, that does not mean freedom alone will preserve virtue.  Moral formation from stable, intact, families, neighborhoods, and friendships are what is needed.  Moral ambivalence in criminal law and sentencing will do nothing to further moral formation; (2) A system that is respectful of the integrity of criminal convictions is respectful of both victims and the perpetrator.  

Yes, we should be appalled to learn that a number of persons have been wrongfully convicted--but we should be equally appalled to learn that people were stigmatized as criminals for committing crimes they didn't know were crimes, or crimes that are, in fact, not morally blameworthy.  Yes, we should seek opportunities for rehabilitation, but we should not mistake compassion for cheap grace--letting, for example, judicial discretion extend mercy without any basis for contrition.  Even the prodigal son had to, as the Bible says, "come to his senses," before his father welcomed him from afar.  As the sacrament of reconciliation teaches us, coming to terms with one's guilt and the justness of punishment is a precondition for forgiveness.  To truly begin reforming the criminal justice system, I think we should reform how we talk about crime and justice, with these foundational moral principles foremost in our minds.  I believe those principles will keep proposed reforms in balance and improve public debate on them.  I hope to help further those aims today.  


I agree with every word.

The key to The Good Thief is this. Jesus forgave him for the afterlife because of his contrition but that did not mean that the thief escaped his earthly debt to society.

My guess is that it's later in life when those with relatively less religious training come to understand that, for them, there are very important lessons yet unlearned.

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