Response to Hearing the Cries: Faith and Criminal Justice

Other responses to Hearing the Cries James Samuel Logan Bradley R. E. Wright Wayne N. Miller Ned Wisnefske

[1] The fact that the Evangelical Lutheran Church of America has invested its time and resources into a statement on faith and criminal justice is itself worth commendation. The fruit of that labor earns further and earnest congratulations. It is a comprehensive treatment with judicious presentation that invites its readers to appropriate this knowledge and act accordingly. In my comments here, I offer general commendations and identify some important contributions regarding the meaning of justice. In the following two sections, I address areas that may warrant further development in such a study: collateral consequences of incarceration and the link between criminal justice and social justice. I conclude, as Hearing the Cries does itself, by considering some concrete proposals for moving forward.



General commendations
[2] The format of the ELCA study is itself a significant contribution, having been crafted not only as an invitation to study and discussion but also to prayer. Indeed, there can be no greater test of the rectitude of our approach to criminal justice than whether we can, in good faith, ask that our approach be the will of God. It is a test that lays bare our convictions about the depths of divine mercy and the enduring dignity of all people. Thus, with the opening prayers and extended faith reflections, each chapter effectively confronts us as both citizens and Christians. In doing so, the study also remembers the needs of its readers. It is only through particular stories and personal accounts that any of these facts and numbers can become real. The brief narratives that begin each chapter are crucial for demonstrating the complexity and humanity of the challenge before us as we confront criminal justice in the United States.

[3] The content of the study is likewise commendable in both its breadth and sensitivity. For example, in the chapter on corrections (Chapter 4), the study rightly points our attention to the integral role of sentencing policies. Still, before the chapter is through, we are also confronted with the incarceration of the mentally ill and the rise of corporate prisons. The care in presenting the data is perhaps most notable when the study describes the racial disparities that plague all aspects of the criminal justice system. Without attempting to offer overly simplified explanations of prejudicial trends, the facts pose an unnerving question about the excessive vulnerability and suffering of minority communities. The ELCA study avoids the mistake of reducing racism and classism to specific elements of our criminal justice system, thereby inviting readers to consider their own subtle contributions to these devastating social sins.

The meaning(s) of justice
[4] Over the course of several chapters, Hearing the Cries develops a rich understanding of justice. Justice expresses the worth of each person (Chap. 1, p. 18). Justice preserves equality and yet considers the unique nature of situations and offenders (Chap. 4, p. 47). Justice is directed toward the vulnerable and marginalized (Chap. 3, p. 36). It is quickly apparent that merely "giving each one's due" lacks the full color and texture to paint a true picture of justice. To enhance this presentation further, I suggest more direct engagement with the tension between need and desert.

[5] While it is true that justice concerns both principle and solidarity (p. 48), the scriptural basis for justice presented in Chapter 3 seems to suggest that solidarity must ultimately trump principle. In other words, need has priority over desert. It is this notion that ought to be made more explicit in the study. The deep connection between justice and "getting what one deserves" can only be uprooted by a devastatingly explicit reminder that Jesus of the New Testament did not condition his responses to those in need depending on their guilt or innocence. Indeed, like the tax collectors and adulterers, a person's suffering may be a direct result of their own sin. Regardless, the justice of God heals and restores.

[6] At one point the study makes the beautiful claim that memory is a basis for justice (p. 48). The theological turn of this assumption ought to be made crystal clear: the fundamental memory is God's original purpose for creation. Indeed, what is most truly "due" to each person is action that moves toward realizing God's will for that person and for the community as a whole. Considering what a person deserves is not irrelevant, but neither is it the ultimate aim. To ground justice in theology requires a clear and unabashed claim that God makes a preference for need over desert. Otherwise, not a one of us would have reason to hope.

[7] There is an implication about the purpose of prisons and jails when we claim that justice prioritizes need over desert. When the ELCA study helpfully notes that reentry efforts ought to begin long before release (p. 55), it is a gesture toward this implication. In short, I argue that the foundational purpose of correctional custody is always and everywhere to integrate and empower all persons as full participants in the community. Justice cannot be about imposing marginalization some of the time and redressing marginalization at other times. It is crime and injustice that create marginalization. The criminal justice system ought to be the one who, from beginning to end of a sentence, is in the business of restoring the community and all of its members.

Collateral consequences of incarceration
[8] One of the key limitations of the retributive framework was left unmentioned. The moral clarity of holding an offender responsible for her crimes is diminished when the punishments spread to the innocent. In various places throughout the study, there is some acknowledgment of the burden placed on families of the incarcerated. In Chapter 1, it is noted that communities are made less economically viable, social networks are made fragile, and already-weakened family structures are further devastated (p. 15). In a later chapter, it is noted how families of incarcerated women especially suffer from the long distances to travel to visit the facility (p. 43). However, these quick notes seem to miss the fact that justice itself may be undermined by what scholars call the "collateral consequences" of imprisonment.

[9] Families and communities are not only impacted but often severely harmed by incarceration. For example, 1.7 million children have an incarcerated parent, representing 2.3% of minors in the United States.¹ In 2008, while 1.75% of white children had an incarcerated parent, 11% or 1.2 million African American children had a parent behind bars.² These children suffer both tangible and intangible deprivations and are six times more likely than other children to be incarcerated themselves.³ These and other collateral consequences must be carefully considered as we ponder how to do justice in the aftermath of crime. If nothing else, these consequences highlight the inevitable relationality of those involved in the criminal justice system.

[10] The ELCA study waits until the end to speak of persons as constituted by their relationships (p. 58). This is a crucial insight that should appear earlier in the report so that it can fully animate the conception of justice developed through the various chapters. The theological lens offered in Chapter 1 is grounded in persons bearing the image and likeness of God. It is this image that connects us to one another and this image that is violated by crime and injustice. While this theological lens does much to assert the dignity of each person, it also can distract us from the interdependence and participation that is critical for human flourishing. When we understand ourselves to be constituted by our relationships (with God, self, and others), the task of justice becomes the reincorporation of the outcast and isolated into community. It is a framework that speaks both to the isolation of victims, families, and offenders.

[11] This approach refers us back to a justice that privileges need (the need for reincorporation) over desert (often the basis for marginalization). When we see the various elements of criminal justice — law enforcement, judiciary, corrections — as responsible for maintaining and restoring the participation of all members in society, we can adequately respond to the deeply relational character of the human person. Indeed, in this vein, preparation for reentry is not an optional effort at the end of the prison sentence, but the very purpose of the sentence itself. It ought to be the goal of corrections — and the judicial system and law enforcement — from the very beginning.

Criminal justice and social justice
[12] A final recommendation stems from the suggestion that the ELCA study ground its theological lens in human relationality. In short, I suggest that the connections between criminal justice and social justice be made more explicit. Put another way, is it more accurate to begin the story of criminal justice with the commission of a crime or with the factors that contribute to and generate criminal acts? It seems the answer is "both." Yet, Hearing the Cries would benefit by paying more attention to the latter version of the narrative (i.e., attending to criminogenic factors). For example, when discussing responsibility (p. 47), little mention is made of the ways a person's moral agency can be diminished by social injustice. Yet, if we take seriously the great harm that results from isolation and lack of full participation, we should not quickly dismiss the effects of social inequities.

[13] There are realities of unemployment, poor education, inadequate health care, and substandard housing, realities that are often concentrated in certain minority communities. These factors do not excuse criminal activity. On the other hand, these factors themselves are inexcusable. These social inequities are injustices that often precede the injustice of crime. This does not eliminate culpability; rather, it expands it. The harm and tragedy of crime is real, but let us not forget that there are other social harms and tragedies — more difficult to arrest and prosecute — that are equally a disruption of a just society. If we understand isolation and marginalization to be an affront to justice, then criminal justice and social justice are not so very different. Indeed, a small recommendation to help destabilize the categories of culpability and victimization is to recognize that many offenders in the criminal justice system are also victims of crime (apart from my claims of the harms of social injustice).

Concluding remarks
[14] The most encouraging and inspiring aspects of the ELCA study, for all its work in raising awareness, are the invitations to concrete action for the congregations and people of faith who are studying the document. The suggestions are excellent: to create a welcome space for restorative justice sessions (p. 49), to mentor those who are on the way to release or recently released (p. 56), and to be present to victims of crime and families of the incarcerated (p. 60).

To these varied proposals, I add another: to proactively address root causes of crime and to reincorporate those who are marginalized in our communities — especially according to race and socioeconomic status. It is an extraordinary thing that groups of Christian citizens will examine the often-invisible workings of the criminal justice system in the United States. This is justice being done in all of our names. As Christians, we must ask if this is truly our — and God's — justice.

Kathryn Getek Soltis is the Catherine of Siena Fellow in Ethics at Villanova University.

© May / June 2011
Journal of Lutheran Ethics
Volume 11, Issue 3