Human and Divine Justice in America’s Criminal Justice System
by Derek R. Nelson
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from LF Summer 2015
The criminal justice system in America is crumbling as untold millions of dollars are wasted; waning confidence in the credibility of the system erodes our fragile democracy; and countless lives are ruined not just by crime but by our faulty responses to crime. And yet most of the basic principles of our system of criminal justice pass muster on the closest scrutiny and in fact have been copied across the world. There is, clearly, a gap between justice-in-principle and justice-in-real-life. This is a chasm very hard to leap across.
The difficulties of saying something theologically reliable about so complicated a system are astonishing. There is a vast network of enforcement agencies in the U.S.—about 20,000 in number, each enforcing its own laws—as well as courts and correctional facilities. The support structures correlative to the system are countless, such as bail bond agencies, offender re-entry programs, and victim advocate groups. How complicated and confusing the system is, and how many theological pitfalls await its well-intentioned interpreters, have been made clear to me over the last several years.
I was a member of the task force that prepared a draft of a Social Statement for the elca on criminal justice, entitled “Hearing the Cries: The Church and Criminal Justice.” I am proud of the Statement, its unquestioned orthodoxy, its wise and practical recommendations, and the role that it has played in fostering ministry across the churches. It has even helped heal (some) divisions within the church itself. It is a stereotype-buster, not easily placed in a “liberal” or “conservative” camp (as if such modifiers even mean very much; I think they do not). Those preferring the conservative label will happily cite the statement’s insistence that retribution is a defensible rationale for punishing offenders and that personal responsibility for crime is necessary for justice. Those more comfortable with the liberal tag might quickly point to the strong critique of the move to privatization of prisons and the insistence that children in the criminal justice system be treated as children.
But this article is not an apologia for, nor an explanation of, that Social Statement. The Statement is the occasion for this article, not its subject. Or better: the mounting crisis that occasioned the writing of the Statement is in fact the occasion for this essay.
Let me tell you how I first got involved with thinking about the system. I was a college student who was talking a big game in class one day about “Christian social witness” on some issue or another. My professor, noted for his coolness toward religion, challenged me on my blustering by asking, “Oh yeah? And what are you doing about it?” I could only answer, sheepishly, “Well, nothing, really.”
He said that if I wanted to get involved, I should talk with his wife, who coordinated a tutoring program at a local jail where some inmates were working toward their GED. I did, and soon was working with some incarcerated men on learning fractions and lowest common denominators in one-on-one math classes. One man I worked with was resistant and aggressive. During our tutoring sessions he would berate me, belittle me, curse and carry on. He developed elaborate and vulgarly detailed theories as to the circumstances of my conception. I tried to be patient, but patience soon wore thin. After a few weeks I told the jailer as I left that I was done, that we were making no progress, and that Brian (not his real name) hated me, anyway. The jailer’s response haunted me: “He doesn’t hate you.”
“Um, yes he does, and for some reason he seems to hate my parents, too.”
“Derek,” the jailer continued, “you’re his only friend. No one else will talk to him. You come here every Tuesday. Know what he does on Monday nights? He takes his jumpsuit and puts it between two pieces of cardboard and puts that between his mattress and box spring. He wants to look his best when you come in.”
This was, needless to say, a shock. And a confusing one. How does a person become so distorted that the only way he knew how to relate to his only friend was through insults and abuse? Brian had a long list of offenses, and I have no doubt that, by and large, he needed to be separated from the rest of society, at least for a time. Yet as I got to know the horrific backstory of his childhood, first from Brian and then from his boyhood friend, I could not shake the sense that very much of his identity, and consequently his choices and actions, was “determined” by forces very much outside his control. If selves are relational beings—and I think they are—then how do we make sense of sin and personal responsibility? What about crime?
I tell this story not to personalize an impersonal system but rather to introduce how very complex and theologically rich a reflection on the criminal justice system can be. Brian’s guilt was doubtless, but his responsibility was complicated. The rationale for his incarceration was fuzzy. Was it retribution? Was I there to help rehabilitate him? Was he incarcerated so that he would be incapacitated from further harm? Was it deterrence? If so, was it specific deterrence, so that Brian himself would be less likely to commit crimes upon release, or general deterrence, so that others, seeing Brian suffer, would be less likely to commit a crime?
Some, even many, prisoners are wrongly incarcerated and should be released. The United States is grossly overusing incarceration as a corrections strategy. We incarcerate more people per capita than any other society in world history. That includes the Soviet Union! One in thirty-one adults in the United States is under “correctional control,” either in jail, in prison, or on bail, probation, or parole. I report this not to elicit sob-stories of a wicked system oppressing the innocent masses. It is true, scandalously true, that our prisons are overrepresented by minority populations and that the general populations of our prisons are unmanageably and unjustly high. Yet the real problem, it seems to me, is not that we have prisons at all but that we have become too comfortable with the incarceration of people like Brian as a default strategy for what we do with people who break laws.
As unfashionable as it may be in the twenty-first century to say so, I think that one of the most helpful ways to think theologically about the criminal justice system is through the lens of the twofold justice of God, sometimes called the Two Kingdoms doctrine. I hasten to add that, when thinking of two kinds of justice, we ought not default to a problematic separation of the two kinds of justice, a mistake that leads to quietism in the face of injustice and an enfeebling of the church’s witness in the world. Rather, the two kinds of justice espoused by the twofold distinction of classical Lutheranism should be dynamically and eschatologically related to each other.
“Justice” is a notion so broad that it can be hard to get a handle on it. Many of us think of different things when we hear the word. Its relation to “justification” cannot be missed by Lutherans. It implies punishment to some, distribution of goods and services to others, equality to others still.
To get a foothold on this mountain, let us begin with a distinction. Let’s think of two different-but-related forms of justice. For lack of better words, let’s call one of them the justice of the law, or human justice. And let’s call the second the justice of the gospel, or divine justice. Christian theology speaks to the justice of the law, but it speaks from the justice of the gospel. That is, we who have been claimed by God in baptism and who have experienced the forgiveness of sins know a richer, deeper justice than we can ever hope to see in this world. And yet glimpses of that fullness help us to speak with compassion and clear heads to the needs of the world.
The justice of the law—the kind of justice that we must demand and expect from our civil institutions—is real justice. Sometimes it is not done; that is true. But the abuse of justice does not mean that our civil institutions of justice are shams to be avoided any more than the proper administration of justice in institutions makes them altars before which we should bow. Civil order is good, because it protects the vulnerable and uses God-given reason to improve our lives. This is why twofold justice matters: it helps us to remember that we must not demand too little from our systems of justice.
But it also reminds us that we must not expect too much. The justice of the law is finite. The justice of the gospel is infinite. When Troy Davis was executed in Georgia in 2011 for the murder of police officer Mark MacPhail, the officer’s mother was interviewed by a television news program and asked how she felt. “Well, justice was finally done. So I guess I should feel satisfied.” Now, it is a genuinely open question whether, in that instance, justice really was done. But even if it was, Mrs. MacPhail and many like her knew that something deeper and truer was needed.
Consider an analogy. The justice of the law is just as real as is the love that we experience and share every day. That love is finite, because we are finite people. Think of people you love, and ask yourself, “Do I love them enough?” The answer to that has to be no, because we can always think of more and deeper ways of loving. We can conceive of more ways to love than we can do. We are not able to love as completely and unconditionally as God does. This does not cheapen our sense of human loves but instead puts them in the divine light.
In a similar way, the justice that comes from civil institutions, like our courts and government, is real. It is the justice of law. When laws are made and enforced appropriately, and the ways we organize our civic lives are done in accord with reason and basic human compassion, we are made safer and our human needs can be met.
How do these two forms of justice connect to each other? The biblical notion of yearning seems to be the answer. Yearning is not a wistful, disempowered emotion. Yearning is a sense in your bones that there is something more out there. Even when the justice of the law is done, our hearts ask us: is that all there is? And thus our search for justice takes on an eschatological dimension. If justice is not done on earth, or even if it is, we wait for that day when God “will wipe away every tear from their eyes, and death shall be no more, neither shall there be mourning, nor crying, nor pain anymore, for the former things have passed away” (Revelation 21:4).
To speak as the church of Jesus Christ on this matter therefore means to take into account that blessed future that God promises to us, of which Christ’s resurrection from the dead and to which the offer of the forgiveness of sins bear witness. The church is known by its “marks.” The marks of the church are indicators that, when present, Christ is also there. Martin Luther named seven of these, but here consider just three: holy communion, the possession of the sacred cross, and the work of public ministry.
Holy communion is the church’s meal of yearning. In it we remember that Christ has died, is risen, and will come again. We share with him in this foretaste of the feast to come. We are strengthened by its nourishment, but our appetite for greater justice is sharpened in the feeding. It provides us a momentary glimpse of that greatest justice that is the forgiveness of sins and the promise of new life in God.
To possess the sacred cross is a bit harder to understand than the others. If you’re a visual learner, think of the Luther rose. It has a heart in the middle of a rose, but right in the middle of the heart is the cross. It has been stamped on it, tattooed on it, the stigmata of God set in our very core. It means that we suffer with those who experience injustice, and triumph with others when justice is done.
To do public ministry in criminal justice is to do the work of bearing the cross: we tear open our hearts to the cries of others and in so doing help them bear the burdens of crime. Whether the ones to whom we minister are victims of crime, their families, offenders, or those who work in the system, the process is the same. The Social Statement describes this in a helpful way. The movement is the intensification of empathy, moving from the outer circle of hearing the cries through hospitality and accompaniment to the inner circle of advocacy. In doing this, we follow what Paul teaches in Galatians: “Bear one another’s burdens, and so fulfill the law of Christ” (6:2).
First we hear the cries. Many of us, for a long time, have ignored or not even noticed the pleas that came from the criminal justice system. As it has become more apparent that our country is approaching astronomical levels of incarceration, that justice seems to be very much for sale, that victims of crime and their families cannot find the help they need, the time has come to listen more intently and open ourselves to their pain. Cries of pain come from everywhere within and outside the system.
To listen to someone’s cry is important, but it tends to keep them on the outside. Hospitality takes the next step of welcoming them in. Rooted in the great biblical tradition, the ELCA Social Statement shares many ways that congregations and people can render hospitality to those harmed by crime and its system of adjudication.
Drawing nearer to the cross-stamped heart, accompaniment makes the pains of the victims of crime or of the incarcerated more fully our own. We try to walk with those who are hurt. To accompany—the root word means “to share bread with”—is to sit alongside someone in need, whether in a jail cell, a bereavement group, or a public forum. Finally, in advocacy, we add our voices to the voices of those crying out, making a whimper for help into a great chorus for justice.
Many more concrete measures are suggested in “Hearing the Cries,” but this is the framework that stands behind those recommendations: the burdens of crime are too heavy to be borne by those who are harmed alone. The world needs our witness, and more than that it needs our strong shoulders. For Christ’s sake, we need us do our part.
Christian congregations who want to get the most “bang for their buck” in ministry should seriously consider getting involved with the justice system. And they should not shy away from thinking theologically about what they’re doing. Persons harmed by a serious crime, or incarcerated and repentant offenders, are at a very vulnerable point in their lives when loving intervention can make the difference between life and death.
But ministry in criminal justice does not necessarily need to be high-stakes and scary. Not everyone is ready to go into a holding cell with someone like Brian. So consider just a few ways that some Christians are making a huge difference in bringing mercy and love to people who need it. Here are three examples.
I recently met a man in Texas who shared with me the first step his Lutheran congregation had taken in getting involved with the criminal justice system. Their small church was on a highway that led to—actually, terminated at—a medium security system. The congregants knew the prison was there, because everyone did, but had not been particularly involved with what went on there. Some members started to hear stories about visitors to the prison who were being turned away from visiting their loved ones because they could not meet the rather exacting dress code required of visitors. The people visiting had come great distances, at considerable expense in money and time. They wanted to see their loved ones, their fathers and husbands. Imagine their disappointment at being turned away because their shoes or hems did not make the cut. This man realized that there was no shortage of long-hemmed skirts among the ladies of his congregation, nor of modest, closed-toes shoes. A handy fellow in the congregation made a wooden sign facing the road leading away from the prison. “Turned Away for Dress-Code Violation? Stop at the Lutheran Church.” They maintained a closet of acceptable clothes that anyone and everyone in need could borrow and then turn around and make their visit after all. This ministry led to more, and more in-depth, encounters with the justice system. But it was this relatively simple beginning that got them started on their way.
A second story. The regions where prisons are located rarely match up with regions where crimes are committed. You can imagine where most of the crimes are committed in New York State, for instance. But Manhattan real estate is not where you build a prison. This leads to further isolation for those incarcerated, including juvenile offenders. Studies have shown how harmful isolation is for those in the juvenile justice system. One study found that just two hours of contact per week with someone from “the outside” without correctional control over the juvenile offenders decreased the likelihood of attempted self-harm by 400%. In other words, just playing cards or chatting with a young person about life, weather, or sports could mean the difference between life and taking it by their own hand.
A third story. Those who are victims of crime, or their families, feel squeezed out of the justice system. If Smith kills Jones, the trial is the u.s. versus Jones, not the family of Smith vs. Jones. This depersonalization is a good thing in that it reduces the likelihood of a blood vendetta and equalizes the extent to which prosecution can go. Yet the Smith name, and often presence, is absent. My friend Jack’s stepdaughter was murdered. Her killer was brought to trial and convicted of the murder years later, after considerable effort was expended on the stepdaughter’s behalf by her family and countless law enforcement officials. Jack and his wife’s congregation was with them every step of the way, even as they rented a motorhome to be able to camp out near the courthouse where the lengthy trial took place. Of his experience, Jack wrote:
During the trial, we sent messages to our friends and church family. In one message, we apologized for being morbid in what we wrote. A reply simply said: “Please do not apologize for ‘morbid’ news. By sending your pain to us, perhaps we can then share some of the burden and that, of course, is what we are called to do. I’m reminded of ‘The Servant Song’ we sing at church…: ‘I will weep when you are weeping. When you laugh, I’ll laugh with you. I will share your joy and sorrow till we see this journey through.’ Know that your faith community is very much with you.”
The burdens of the criminal justice system and the crimes it seeks to address are great. They are often unfairly borne, and they are the business of everyone who claims the identity of Christ, crucified as a criminal and the victim of a great crime himself. I urge people of good will to seek out someone who carries such a burden and offer to share it. You do not need to know the end in order to start walking alongside the burden-bearer in faith.
Derek R. Nelson is Associate Professor of Religion at Wabash College in Crawfordsville, Indiana.Subscribe now to enjoy great content like this delivered quarterly to your door!
1. One insightful report of the severity of the crisis facing our nation is the work of William J. Stuntz, The Collapse of American Criminal Justice (Cambridge: Harvard University Press, 2011). People as eminent and different as John Paul Stevens on the left and Richard Posner on the right have praised the book for its brilliance.
2. Bureau of Justice Statistics, “U.S. State and Local Law Enforcement Agencies Census 2008,” Alaska Justice Forum 28/3 (2011): 8–9.
3. “A Social Statement on the Church and Criminal Justice: Hearing the Cries” (2013), available online.
4. I wrote a book that tries to make some sense of this question and the related issue of “structural” or “social” sin. Derek R. Nelson, What’s Wrong with Sin: Sin in Individual and Social Perspective from Schleiermacher to Theologies of Liberation (London: T & T Clark, 2009).
5. One in Thirty-One: The Long Arm of American Corrections (Pew Charitable Trusts, 2009).
6. Michele Alexander’s recent bombshell book The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010) perhaps overstates the case, but its analysis cannot be ignored.
7. For this reason I find lines of argument such as those advanced by Angela Davis in Are Prisons Obsolete? (New York: Seven Stories, 2003) to be far-fetched and unhelpful.
8. For more on this particular story, see Moni Basu, “Even after Execution, No Finality for Mother,” CNN, available online.
9. Luther gives multiple examples of what the marks of the church are, but the best-known one comes in “On the Councils and the Church,” in Luther’s Works, American Edition, 55 vols., eds. J. Pelikan and H. Lehmann (St. Louis and Philadelphia: Concordia and Fortress, 1955ff.), 41:9–178.
10. D. G. Parent et al., Conditions of Conﬁnement: Juvenile Detention and Corrections Facilities (Washington dc: u.s. Department of Justice, Ofﬁce of Juvenile Justice and Delinquency Prevention, 1994).
11. John S. Munday, Justice for Marlys: A Family’s Twenty Year Search for a Killer (Minneapolis: University of Minnesota Press, 2006), 178–9.