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Response to Hearing the Cries: Faith and Criminal Justice

Paul R. Hinlicky
03/01/2011
 
 
[1] Years ago when I was a graduate student at Union Theological Seminary in New York, my wife Ellen appeared breathlessly in our apartment doorway at noon; she regularly would walk home from work at the "Godbox" (the National Council of Churches headquarters) to join me for lunch. She had just been robbed at knife point. But, she gasped, "Come quick, I think they threw my purse into the park when they found nothing in it." When we exited the apartment building, coming down the sidewalk right at us were the thugs. She clutched my arm. "That’s them." "Are you sure?" "Yes." I saw red. Literally. A surge of adrenaline had me running at them full speed with a string of curses from my mouth that would shame a sailor. Lucky for me, they outran me. If I had caught them, I would have been sliced to ribbons. They were, to all appearances, Hispanic teenage males.

[2] On another occasion I had taken my preschool daughter to the swings at Grant’s Tomb when I heard the shots, then moments later the sirens. When we returned to our apartment building, the bleeding corpse was still uncovered on the sidewalk two doors down. I quickly averted her eyes and ushered her indoors. One last anecdote from pre-Guiliani New York City days (see the discussion on p. 25; all references in parentheses are to page numbers in Hearing the Cries). I had business in Brooklyn and was returning on the subway to Manhattan. On the last stop in Brooklyn a gang of African-American youth entered, dressed in intimidating costume. They loudly bantered about the joys of cutting people up. As often happens, the train stopped dead still under the East River and the lights went out for what seemed an eternity. The verbal terrorism went up a notch or two. When the train at last reached the first stop in Manhattan, everyone — black, white, yellow, brown — exited. Our persecutors remained, laughing at their power over us. During these years, I was an assistant pastor in Harlem. What I learned then has stayed with me all these years: no one suffers from criminal violence more than the poor. We as a family were able to move away and leave the fear of violent crime behind. The poor are not.

[3] This study comes as a breath of fresh air. It invites the sharing of personal testimony without the strictures of political correctness and structures the discussion of varied experience by the normative terms of Lutheran theology. It does not try to dictate political solutions to a complicated social problem, compounded by the volatile American intersections of class and race and gender. Rather, by the careful introduction of solid social scientific research and impeccable evidence about the troubled state of the U.S. criminal justice system drawn from reliable sources (i.e., the FBI and the Bureau of Justice Statistics), it informs and enlightens, leaving to readers the freedom to respond as I have done in the preceding paragraph with the incorrigible facts of personal experience. It really tries and largely succeeds in "hearing the cries" of all involved: victim and perpetrator, family and police officer, prosecutor and defender, judge and corrections officer. And it does this by constantly reminding us of the context of this discussion in the Christian community of faith, normed by the Scriptural witness and the Reformation heritage.

[4] After the questioning of Scriptural authority that occurred in the previous social statement process, and in particular of its Old Testament witness, and especially of the imago Dei text of Genesis 1:26–7, it is really stunning to see how such Scripture is used authoritatively to structure this discussion of criminal justice. Indeed, the imago Dei text is employed to ground Christian concern for all involved, perpetrator too (18). The covenantal and prophetic understandings of justice from Leviticus, Deuteronomy and the writing prophets are richly and deftly deployed (p. 36, 57) to explore its various aspects: public security (14), retribution (47), and restoration (48) — themes that are not played off against each other (47–8). These Scriptural foundations are plumbed with the great truths of Lutheran confessional theology: the classical distinction and relation of God’s Law and God’s Gospel (46) stands behind the analysis of the various aspects of justice and correlates with an admirably non-dualistic use of the Two Kingdoms doctrine (21, 26, 28, 37). Our condition of sinfulness is frankly acknowledged (26), including the sinful neglect of the incarcerated by the safe and secure. Best of all in this reviewer’s opinion, the named Trinity of Father, Son and Holy Spirit is said to ground the fundamental truth that we are created for community (21), which is the Christian perspective on matters of "creation" in any non-dualistic use of the Two Kingdoms doctrine. The only thing I would add explicitly is to acknowledge the role played in these pages by Luther’s notion (derived in part from Aristotle) of "equity," i.e., not abstract equality before blindfolded Lady Justice, but concrete equality before the wide open eyes of judges who take circumstances into account (30, 47, 49; but any further discussion of equity should be coupled with the perceived problem of activist judges legislating from the bench which elicited mandatory sentencing laws in the first place).

[5] The result is a very helpful discussion document. Yet several matters "cry out" for further attention, even though they are very sensitive. The privatization of prisons is reported with significant criticism, but we do not hear any other side of the story (44–5) — a rare instance of lack of balance in this document. The racism that de facto, if not de jure runs through the American system is well documented (27) and rightly highlighted (26), as is the fact of the overwhelmingly disproportionate percentage of males in jails and prisons (15, 24, 41). What that information indicates about the socio-economic system which generates it, however, is not well developed, specifically, the increasing alienation of the American male, black, brown, red and white. The male pathologies of pornography and drug abuse and flight from commitment are hardly mentioned (along with their devastating effects on child-bearing and -nurturing women), nor do we hear a word about the significant Evangelical and Muslim prison ministries which actually engage these male problems (remember The Autobiography of Malcolm X?). "Communities" (49, 56) can hardly be expected to carry the burden in restorative justice when they themselves are devastated by the social pathology of angry and alienated men. Connected to this oversight is the virtual absence in the document of so-called "white-collar crime," in my view an unforgivable omission after Wall Street greed and Federal pork almost sent the world into a dangerous global depression. Why have men in our social system (poor and rich, white and black) become thieves, willing to harm others to get their piece?

[6] The omission of this more penetrating analysis is due, theoretically, to the absence of property rights in the analysis of Hearing the Cries. Certainly, the document wants to focus on violent crime (only 12% of reported crime according to Endnote # 2), in order to expose the human destruction caused by punishing non-violent offenders in the same way as violent ones. But even this lacks boldness. The failure of the so-called "war on drugs" to stem the American appetite for narcotics and the vast, violent and lucrative black-market this appetite creates cry out for attention. With regard to property rights, however, the absence of analysis here means that the greed of the rich and the envy of the poor are never broached, even though the Ninth and Tenth Commandments, the preaching of the prophets and the Sermon on the Mount would all so direct us.

[7] Finally there is an objection to the document’s evangelical vision of restorative justice from the side of the Social Darwinists (both on the left and on the right). The document itself points out the correlation of the declining crime rate with the increasing incarceration rate (42), which is the Social Darwinist point loved by the right. But I have also read arguments on the left that the large abortion rate, especially in African-American communities, is to be thanked for current lower crime rates. Surely a Christian theological interpretation would want to take up and counter these objections to its call for a fundamental reconsideration of our criminal justice system.

[8] One final comment. As said above, the document is remarkably balanced and theologically deft. I only dissent a little from its treatment of retributive justice, which it sometimes treats as an objectively fallacious belief in an abstract moral order demanding satisfaction. No doubt, there are such beliefs in abstractions which blind us to the real human persons of both victim and perpetrator (though they are in our culture more likely to be Kantian rules of procedure than obsessions with blood vengeance). But abstract or philosophical order to fend off chaos is not biblically the theology of retribution, which is rather based upon the very imago Dei text which is foundational for the good theology in this study, as Genesis 9:6 amply demonstrates. The one who takes life forfeits life, because in destroying what belongs to God (God’s "property") they have in the act removed themselves from God’s own dominion, delivered to the consequences of their own desires (as in "the wrath of God revealed from heaven" in Romans 1:18ff). I do not introduce this thought in order to argue for capital punishment, which in our system is so arbitrarily and prejudicially carried out that prudence alone argues for its indefinite suspension. Rather, I bring it up because the theological purpose of retributive justice (Romans 13:1–7) is to keep the public peace, not to inflict "revenge," which belongs to God alone (Romans 12:19).

[9] A defense of such retribution was famously made by Hannah Arendt in the case of Adolph Eichmann;1 this is a sober reminder not to dismiss "retribution" as a "remnant of Judaism" (a terrible habit of modern Lutheran theology2). Rather it is with Luther3 to recognize, in the provocative words of Rabbi Meir Y. Soloveichik, the "virtue of hate."4 The opposite of agape is not "hate," but apathy, indifference, mere tolerance. Against every version of Christian sentimentalism, and any "romanticizing of danger" (48), Christians are with Paul "to hate what is evil" (Romans 12:9) as the very test of the genuineness of their love. There was nothing "abstract" about the moral order to which Arendt appealed when she judged that he who would not share the world with Jews and others can no longer be allowed to continue to share that world. This exclusion is the reality of punishment. It is, to be sure, a defeat for the God of grace and reconciliation and for the Beloved Community. Theologically, it is the reality of hell. The God of the gospel surely wants to empty hell, but not even God can abolish its reality. Neither can we. The sober recognition of that fact is the Christian realism of the tradition of Lutheran ethics. The document, as I read it, is well aware of this reality but does not say it. Whether it needs to be said in such a document is an open question. But it certainly needs to be thought.

Paul R. Hinlicky is Tise Professor of Lutheran Studies at Roanoke College and Docent at Evanjelicka Bohoslovecka Fakulta, Univerzita Komenskeho, Bratislava, Slovakia.

 

 
Endnotes

 

1. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, Revised and Enlarged Edition (Penguin Books, 1994).

2. See Susannah Heschel, The Aryan Jesus: Christian Theologians and the Bible in Nazi Germany (Princeton, NJ: Princeton University Press, 2008).

3. See Paul R. Hinlicky, "God Surpassing God by Christ Made to be Sin," Chapter 3, in Luther and the Beloved Community: A Path for Christian Theology after Christendom, with a Foreword by Mickey L. Mattox (Grand Rapids, MI: Eerdmans, 2010).

4. Meir Y. Soloveichik, First Things (February 2003) accessed online February 7, 2011 at www.firstthings.com/article/2007/05/the-virtue-of-hate-26.

 

 

© March / April 2011
Journal of Lutheran Ethics
Volume 11, Issue 2

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