Duc was 16 years old when he entered the criminal justice system. Whether or not he came from a good home is arguable because of some physical abuse he received from his father. He ended up in foster care, trying to push ahead the best he could. No prior arrests, relatively good kid with aspirations of going to college. He was driving with some friends in the backseat of his car when one of them fired a gun out the window. On the stand, he claimed to have not known the minor who actually pulled the trigger, instead saying that it was the friend of a friend. Although no one was injured in the shooting, he was tried as an adult and eventually convicted of attempted first degree murder. Because the attempted shooting was found to be gang affiliated, Duc ended up with a harsher sentence and is now serving 35 to life. Is that really justice?
In this context, can we even decide what justice really is? This semester, we have been struggling to put a proper definition to “justice,” and I think we are still hard pressed to say what it definitively should look like even if we could agree on one. However, given my English background and my obsession with the use of words, the very least I can do is lay out what will be the first of many definitions for the purposes of this paper. The most prevalent forms of the word “justice” and “just” in the Old Testament are derived from the primary root tsâdaq, which generally means to be or make right in a moral or forensic sense; to cleanse or clear the self; to be just or do justice; to justify self; and/or to be or turn to righteousness. The word for “just” used in the New Testament mean equitable in character or act; by implication innocent; holy. Given these two definitions, while we cannot fully merge them, to act justly seems to require both inward character and outward actions. By our own means, we can only try to make right our wrong, attempting to create order and place things back into their proper place. So, at the risk of stating the obvious, real justice is something man can aspire to, but never fully attain.
As important as justice for the victim is, I feel that we can lose our focus if we only seek the justice for those who are wronged when we discuss the criminal justice system. In her book Lying, Sissela Bok argues that lying harms both the liar and the one being lied to. There is no doubt that a sin, regardless of the target, ultimately harms the sinner and takes him/her further away from God. Jesus chastised the Pharisees, telling them that they had “neglected the weightier matters of the law: justice and mercy and faith.” While it is not always feasible for the justice system to show mercy to criminals, we can certainly combine justice and faith and see where such a mindset leads us.
We know that punishment must play a role in this equation. There are consequences for every action, and the Lord disciplines those He loves. However, punishment, whether divine or secular, is more the natural course of action. A society without consequences for disapproved behavior can only end in chaos, so criminal punishment must be present in some form, regardless of whether one cares for the well being of the criminal on any level. As Christians, we have been called to a higher standard than just playing by the rules the world sets in place. When asked why He chose to associate with sinners, Christ's response was that it is those who are sick who need the physician, that it is the sinners who need the call to repentance. If Christ laid the ultimate example for His disciples, present and future, then what do His words mean for us? What do we owe, if anything, to the sick and the sinner?
Defining Rehabilitation
You'd be hard pressed to find the word “rehabilitate” in that exact form within the Bible, so I'll have to turn to the generic dictionary for help with this one. To rehabilitate can be to “restore to a condition of good health, ability to work or the like; to restore formally to former capacity, standing, rank, rights, or privileges.” The concept of restoration is a key part of rehabilitation. Two of the definitions of restore are to “bring back to a formal, original or normal condition” or “bring back to of health, soundness or vigor.” Simply put, rehabilitation is restoration with a specific purpose or goal in mind.
Restoration is a concept that is near and dear to God's heart. One could very well argue that since the Fall, God has set things into motion to restore mankind to its intending place – an intimate relationship with Him. Looking at Genesis and Revelations, the similarities between Adam's position with God and the Church's position with God can be seen. God walked with Adam in the cool of the day, and when there is a new heaven and a new earth, God will again dwell among His people. Everything in between demonstrates, in various ways and with various words, that God has man's original position in mind. Christ did many miracles during His time on earth, most of the more well known ones in the forms of restoring either health, life or sanity to people. Christ did not discriminate between those who were in that state perhaps because of their sin and those who were in that state so that Christ would demonstrate His power; He performed His miracles through the faith of those that requested to be healed. During His time with His disciples, He tells them that whoever believes in Him will do greater works than those He did during His time on the earth. A very strong argument could be made that all Christians have access to the restorative power that Christ displayed through the power and giftings of the Holy Spirit. However, the choice is ultimately ours regarding whether or not we decide we want to exercise that power, as is the case with so many gifts from God.
The concept of restoration undoubtedly has a place within Christianity. There can be quite a difference between the one-on-one interactions that we have with those that God places into our path and the large structure that is the criminal justice system. While we can choose to exercise mercy whenever and however (in terms of how much mercy to extend to the trespasser) to whoever, we almost do not expect our justice system to do the same thing. At the very least, we certainly expect the system to punish those who commit crimes, regardless of whether the crime is a sin on its face or we believe it is so by virtue of the secular law. So can there be a secure place for focused restoration in the form of rehabilitation within the criminal justice system? While the answer was once found to be no, this paper will briefly explore the former justification for punishment and the ensuing shifts that came within the criminal justice system. Next, it will reconsider rehabilitation within the criminal context. Finally, it will ask what role Christians should and can play within the realm of criminal rehabilitation.
Three Strikes: Shifting Justifications and Multiple Offense Statutes
Once upon a time, the primary goal of criminal punishment was rehabilitation. The new found faith in the sciences resulted in the prevalent viewpoint of the criminal as the mentally or physically sick individual, requiring treatment in the form of incarceration. Statutes allowed for indeterminate sentences in order to allow the criminal enough time to be “cured,” the parole boards serving the function of deciding when the criminal was well and could be again released into the general population.
In due time, the pendulum began to sway once more, having apparently reached its peak with the marriage of rehabilitation and the criminal justice system. The shift away from the rehabilitative model started to pick up speed during the 1970s, at least in some small part due to the decision in Powell v. Texas. While the case did not directly relate to the rehabilitative model of criminal punishment, it does demonstrate a prevalent mindset that existed in the nation as well as the concerns about that pattern of thinking. The case revolved around Powell who was arrested for being intoxicated in public. His defense was that since he suffered from the disease of alcoholism, he did not appear in public out of his own free will, and therefore, punishing him for being diseased was cruel and unusual punishment in violation of the 8th Amendment. The court issued a plurality opinion, determining that the conviction was not cruel and unusual punishment. In the discussion about how to deal with the details of alcoholism within the context of the case, Justice Marshall wrote that there are “conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions.” Furthermore, he stated that “this Court has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects, and it can hardly be said with assurance that incarceration serves such purposes any better for the general run of criminals than it does for public drunks.” The concurring opinion continues the critique of the presumed goal of rehabilitation by recognizing that criminal law has other purposes.
Some of the criticisms of applying medical concepts of rehabilitation to criminal punishment made within this decision already existed in other conversations about the rehabilitative model. Voices, conservative and liberal alike, complained about everything from how the current model did not include a concept of moral accountability to the cruelty of indeterminate sentencing to the criminal. Vitiello gives the reader a picture of a system where judges were given broad discretion to determine the sentence of a criminal but next to no guidelines on how to make that decision. A man-made system of justice is inherently flawed and prone to both abuse and incorrect judgments, but one without clear guidelines can only be more so. Ultimately, the cry for a more evenhanded system of sentencing seemed to be the last straw against the rehabilitative model.
The death of this model of criminal punishment was imminent with the passing of the Sentencing Reform Act in 1984, which was a part of the larger Comprehensive Crime Control Act. This act eliminated parole in the federal system and established the United States Sentencing Commission. Under the USSC, determinate sentencing based on the seriousness of the crime began in the federal system. It was merely a matter of time before the states began to follow suit, at the very least doing away with indeterminate sentencing and moving to a more concrete set of guidelines.
Although it is clear that the shift was away from the rehabilitative model, there is still a fair amount of debate on what the current model is and should be founded upon. The development of habitual offender statutes has only added more fodder to that discussion. Most states have enacted some sort of version of this law, and California's is commonly known as “Three Strikes.”
Three Strikes was codified in California Penal Code § 667 in 1994, and the name derives from 667(e)(2)(A), which states that a defendant with two or more prior felony convictions covered by the statute will receive an indeterminate term of life imprisonment. Three strikes, and you're out. The statute covers what it labels serious or violent felonies, including mayhem, lewd or lascivious acts, arson, extortion, burglary and carjacking. The California law does not allow for consideration of the length of time between the prior and present conviction, requires certain defendants to serve consecutive rather than concurrent terms and increases the jail time of the second conviction that falls within the guidelines of the statute, strike number two.
Vitiello mused that the appearance of and interest in habitual offender statutes “signals another dramatic shift from retribution to incapacitation and, to a lesser degree, deterrence as the primary justification for punishment.” He goes on to say that from a utilitarian point of view, both incapacitation and deterrence are valid reasons. The advent of other laws, such as the increased sentence time that a judge is required to place on cases where the crime was gang-affiliated, seems to support the idea that the shift is heading towards incapacitation and deterrence as the primary goal of punishment. The unspoken question within his observation is can we settle for a “greatest good for the greatest amount of people” rationale when we're talking about punishing people, sometimes for life. Even if we concede that Three Strikes has accomplished the goal of deterring crime from happening, I still think that we are challenged with the question of whether or not we could make the system more “just,” particularly in the Biblical sense.
Second Chances: Another Glance at Rehabilitation
The concern with bringing up the term “rehabilitation” within the context of criminal punishment is that it also tends to bring into mind images of leniency on the criminal. Some key concerns with the rehabilitative model were those of providing systematic fairness for that same criminal. I believe that both can be addressed without necessarily losing the retributive aspect of criminal punishment.
One British study done examined the question of whether rehabilitation and retribution were as opposed as people seem to make them out to be. The authors came to the conclusion that they are not, and in fact share some similarities in that both focus on the inner nature of the criminal.
[...R]epression rests on the assumption that human beings are evil by nature, whereas rehabilitation's ambition to socialize people into new identities and lifestyles relies on the assumption that human nature is essentially pliable, open and undetermined. Repression assumes that the causes of crime reside within the criminals, who are seen as essentially evil people who need to be punished for their misdeeds. Rehabilitation instead assumes that criminals can be reformed, because human nature is essentially open and pliable: bad social circumstances can make any person a criminal, just like favourable conditions can transform a criminal into a decent citizen. Those contrasting beliefs about human nature underlie the deep-rooted conviction that repression is the converse of rehabilitation.
While debating whether the premises laid out here line up with the ideas of retribution and rehabilitation, we as Christians can at least agree with the premises themselves. All have sinned and fallen short of the glory of God, but we can also do all things through Christ who strengthens us. Man is capable of great evil but can also be pushed towards a life of nobility, and any number of factors can and do play a role in determining which path an individual will take at any given moment. Agreeing that the inner man inherently drives the outer man seems to be the easiest hurdle to jump over in this discussion.
I would argue that rehabilitation and retribution could coexist, so long as we would be willing to acknowledge the fact that not everyone can be rehabilitated. Even Christ did not force Himself on anyone, giving the freedom to refuse to answer His call. There will be those whom, through their actions or their own mouths, would refuse a chance at rehabilitation. Habitual offenders may well fall into that category, as would those warranting the death penalty. Still, in a world where peer pressure and the desire to live up to arbitrary standards can weigh heavily on the hearts and minds of the masses, rehabilitation could be a key role in keeping small-time criminals out of the prison system once and for all by providing a clearly valid alternative to the life that the criminal may have been living.
Jordan J. Ballor discussed a particular theory, that of restorative justice, as one that embraces rehabilitation. He explains that “restorative justice is a theory of justice that emphasizes concepts such as reconciliation, forgiveness and healing,” continuing to say that if the theory fits in with classical definitions of justice, then these concepts are owed to people left in the aftermath of a crime. If perhaps that statement felt a little strong to you, we can shift to the perspective offered from a Catholic standpoint. In 2000, the United States Conference of Catholic Bishops issued Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice, and Joseph L. Falvey, Jr. wrote an article critiquing the statement, which argued that protecting society and rehabilitation are the primary purposes of punishment. He argued that the traditional Catholic viewpoint of the “principal and justifying aim” of punishment rested on retribution. Relying on Aquinas and natural order, Falvey goes through four ends of punishment in order from greater to lesser.
The primary end of punishment is to redress the disorder the offense introduced in the moral order as a whole. The secondary end of punishment is the restoration of the public and civil order. The tertiary end of punishment, which is closely related to the second, is the defense of public safety. Finally, punishment offers the rehabilitation of the offender himself, which is the restoration of the order within the criminal soul.
His primary gripe with the statement by the USCCB was that he felt they did not affirm traditional Catholic teaching and placed too much emphasis on the individual's good rather than the common good.
I believe that a major problem with the previous rehabilitative model of criminal punishment was the fact that rehabilitation was the primary goal. Placing retribution as the primary goal allows for a theoretically equal playing field for all who enter the system. However, leaving rehabilitation out of the picture entirely results in a rather dire situation for the one punished, as there is no chance or concern for the criminals reformation.
The documentary, Juvies, looks into the lives of several youth who were tried and convicted as adults. Elizabeth, a girl who had already been in adult prison for seven years, talks about the difficulties of growing up in the prison system. She briefly explains how she ended up dealing in drugs and being sexually involved with another woman, both activities she'd never done prior to being incarcerated. She tells the camera “I am what I swore I wouldn't be.” The narrator states that men sent to prison tend to look to gangs and violence to cope while the women tend to look to drugs and lesbian relationships to maintain their grip on reality. Given the advent of habitual offender statutes and the imposition of harsher punishment on gang-affiliated crime, more and more youth are being caught into this system and this world behind bars.
Now, we could spend time arguing over being the masters of our own fate and accepting the consequences of our actions, all which would include many valid points. However, while society and the victim may have received some form of justice, should a Christian be content with leaving a person in the squalor of not only their own sin, but perhaps sanctioning the immersion of the sinner into even more sinful conditions than the criminal could ever have imagined. While we know that blessed is he who endures temptation, it is undoubtedly that much more difficult to guard one's mind and heart when one is up to the proverbial neck in sin. That thought leaves us with the question of what, if anything, should or can Christians do for those who have violated laws and deserve punishment. Is there a proper Christian perspective on criminal rehabilitation?
First Stones: A Call to Restoration?
If both God and Christ were concerned about the restoration of man, then can we construct a valid argument that Christians should not be? If justice, mercy and faith are crucial aspects of the law, and Christ did not abolish but fulfill the law, should we not still be concerned with all three? Well, enough of the rhetorical questions.
The Book of John gives us the story of the adulteress. The scribes and Pharisees brought forth a woman caught in adultery, attempting yet again to test Jesus. He tells them “He who is without sin among you, let him throw a stone at her first.” While ultimately a lesson in mercy and just one example of Christ handling those who sought to challenge him, there is, as with most stories in the Bible, many deeper layers. The first worth pointing out here is that the punishment could have gone forward, so long as a sinless man cast the first stone. As He phrased it, the sentence could have been carried out should He have chosen to cast that stone. However, He did not. He waited until those who would stone her had left before speaking with the woman. Telling her that He would not condemn her, He instructed her to go and sin no more.
The word “condemn” used here means to “judge against” or “sentence” as well as the actual word for condemning and damning. If the system was under Christian control, then I believe we would have the same authority to condemn or not, to find guilty or acquit as the case warranted it. While only Christ knows what exactly was within the heart of the adulteress in that moment, there was the clear call to sin no more. If she was under our criminal system, she would have simply been given her sentence and sent to jail with no concern for her spiritual well being. This example is only one of many within the Bible of a moment when punishment is withheld so that mercy can be given and a call to live to a higher standard is issued.
Rehabilitation could provide us with a framework in which we could extend a form of mercy and/or call the criminal to a higher standard, so I stand firmly in view of support for criminal rehabilitation. The real debate is how that rehabilitation should look. Let us revisit the theory of restorative justice. Ballor suggested that there are generally four basic positions that seem to represent how Christians view restorative justice in conjunction with the criminal justice system: complementarian reformists, instrumentalist reformists, separate radicalists and abolitionist radicalists.
I will briefly sum up each position as put forth by Ballor. Complementary reformists want the criminal justice system to move towards restorative goals while not necessarily doing away with the punitive aspects. At the very least, retribution and restoration should coexist, although some under this position may argue that restoration can even take the place as the primary aim of punishment. Instrumentalist reformists believe that punishment is only valid if restorative justice is the primary focus. Any punishment that is not designed with the goals of restorative justice in mind is not legitimately administered. Separatist radicalists stand firmly on the belief that “punishment, retribution, coercion or force” are at odds with “the principles and practice of restorative justice” and would prefer a system apart from the current criminal justice system to dole out restorative justice. Abolitionist radicalists take that concept to the next step and argue that...you guess it...the criminal justice system should be dismantled, with all that such a position would imply.
These positions can translate themselves into how we feel about the role of rehabilitation within the current justice system. Should it be incorporated, placed in a position of primacy, dealt with apart from the State or drive the destruction of the status quo? A separate paper would be needed to fully explore the Biblical (and otherwise) arguments for and against each position as well as how each position might translate into a practical application. What I can do is touch on some practical suggestions and some practical movements that have been made regarding criminal punishment and rehabilitation.
In his article Reconsidering Rehabilitation, Vitiello argues “an offender's transformation, like his culpability, is relevant to morally appropriate punishment. If that conclusion is sound, then consideration of an offender's transformation is not impermissible on equality grounds.” The concerns with playing fair that existed in the previous rehabilitative model could be rectified by carefully constructed guidelines. Unfortunately, Vitiello does not follow up the statement with any ideas of how such consideration would look in regards to the punishment aspect of the criminal justice system. Theoretically, it could be done, using a system of recommendations, observations about behavior post-arrest and possibly during incarceration to establish a fair system of evaluation that would recognize a criminal's potential to be reintroduced to society as a law-abiding citizen.
Another movement regarding rehabilitation and criminal punishment is the rise of faith-based prisons and religious programming with in the prison setting. Lawtey Correctional Institution in Florida was converted in 2004 to an institution focused on cultivating faith and character within the male prison population. All the prisoners were informed and given the option to transfer, and prisoners from other institutions were given the chance to transfer to the newly established prison provided that they had been “without any discipline problems for a least a year prior to the transfer” and were approaching their release date. The institution offers programming in all faiths, but most of the inmates and volunteers are Christian. A female version was soon set up at Hillsborough Prison, also located in Florida.
Other than converting entire institutions to a faith-based model, there is the other option of designating an area of the existing institution to a faith-based focus. InnerChange Freedom Initiative (IFI) occupies an entire wing of the institution, putting into place religious programming using private donations and volunteers. IFI exclusively teachers Christian doctrine and also a “reentry program”, and the inmates that participate receive greater resources and are subject to greater disciplinary requirements, including a rigid schedule which starts with praise and worship at 6am.
Both of these models have come under heavy criticism, including questions of Constitutionality and whether inmates are professing conversion simply to escape the environments of the rest of the criminal system. While not discrediting either question, given the context of the paper, my primary concern with these models is that they only reach a small portion of the criminal population. Both programs only handle prisoners who are approaching release. Prison Fellowship, the organization which heads IFI, does have a prison outreach ministry, and such programs can certainly be a solution. This still leaves the question of what to do for those who may not be approaching release anytime soon. The old saying goes that an ounce of prevention is worth a pound of cure, and it is undoubtedly better to keep those not already inclined to misconduct from engaging in it once within prison. As mentioned above, the environment can be toxic and corrode the spirit of those within it. Undoubtedly there will be those that bite the hand that feed them and those that will outright refuse rehabilitation from any perspective, let alone a Christian one. Still, I strongly feel that merely telling prisoners to stay out of trouble and not give into the darkness is like telling the poverty-stricken to be warm and filled. Faith and love are both empty without actions that confirm it and I believe that both call us to do more for those that are incarcerated. We can point at all the wrong that a person has done, but we as Christians should pause and consider that there was a time when we all were lost, awaiting to be found. Perhaps we should let the system throw the first stone, which it certainly loves to do, instead of being so quick to follow up with our own.
Conclusion
Rehabilitation and criminal punishment certainly experienced a rough breakup. Perhaps the system was indeed broken and needed some readjustment. However, if the system is still seeking justice for all, then it may well be time to reintroduce rehabilitation to criminal punishment. Regardless of which theory of Christian restorative justice you may subscribe to, there is no reason that many of the options discussed here could not coexist within our current system. If someone was feeling particularly ambitious, they could tackle the entire system. Christ tells us that we are no better than the rest of the world if we only love those who love us. He challenges us to a higher standard, to love those who wrong us, those who would be our enemies.
When asked what he wanted people to know about him, Duc responded with this statement:
What do I want people to know about me? There's not much to know. You know, I'm human just like you. Just because I'm locked up doesn't mean I'm just some, like, horrible guy. I like to read. I like to write. I want people to love me for me. Not because of what people tell them, but to give me the opportunity to sit down with me, and just to get to know me and talk to me. If so, maybe you'll find out that I'm really not a bad guy after all. That I'm not a lost cause.
I cannot help but feel that when we simply refuse criminals a chance at rehabilitation, systematically or otherwise, we are telling them that they are a lost cause. Even in the midst of His punishments, God extended mercy and showed immeasurable patience with His people. Cain received a second chance at life; although condemned to never enter the promised land, God still provided for Israel with manna and quail; despite handing Israel over to her enemies, He promised to make her prosper even in captivity. We should all understand that God is a God of second chances. He may have a special heart for the widowed and the orphan, but we know that God's heart goes beyond just those two groups. It certainly does not mean that we are allowed to write off the incarcerated just because they have committed a crime.
Debates will undoubtedly happen over what form rehabilitation should or can take, but in order to get to a point where such debates could even be fruitful, we must reach an understanding that rehabilitation is a goal of punishment worth keeping in mind. If we believe that it is God's desire that no one should perish, but that all should come to repentance and be part of what could arguably be the greatest rehabilitation program in the history of mankind, then perhaps at least a chance at rehabilitation is something that we, at least from the Christian perspective, do owe criminals.
