By Ted Grimsrud

When we think of criminal justice primarily in terms of punishment and when the system remains vulnerable to political manipulation, we are bound to have major problems.  Such an approach directly violates Tolstoy’s law that mutual love is the fundamental law of human life.  As is to be expected when fundamental laws are disregarded, destructive consequences follow.

Let’s consider some of the ways criminal justice practices in the United States have evolved into our current crises.

The Rush to Punish

In July, 1997, the state of Virginia executed Joseph O’Dell.  According to Helen Prajean’s book, The Death of Innocents, Joseph O’Dell almost certainly did not commit the crime for which Virginia killed him.

When O’Dell went to trial, he realized that the court-appointed lawyer had no interest in defending him, so out of desperation he defended himself—though he had no legal training.  After O’Dell’s conviction and death-sentence, he did get help from professionals.  This help included a DNA test that undermined the state’s scantly evidence allegedly linking him to the crime.  But the legal system did not allow this new evidence to be considered.  The state and the courts wanted a conviction and an execution.

Our system rewards prosecutors who gain capital convictions; people in power make it harder and harder for those convicted of crimes to gain a new hearing.  This is true even as dozens upon dozens of convicted people have been shown to be innocent due to DNA testing in recent years.  We now know for sure just how shoddy the process of defending those accused of crime is in so many places.

What undergirds these dynamics of state-sponsored killing?  A general sensibility in our society that “justice” requires punishment, even death in face of violent crime.  Our society’s urgency makes it impatient with delays to the “satisfaction” that comes from retribution.  This urgency almost guarantees the kinds of abuse that happened with Joseph O’Dell.

O’Dell’s cause had been taken up by the city of Palermo, Italy.  After his death, the Italians asked that he be buried in Palermo.  His gravestone says: “Joseph Roger O’Dell, honorary citizen of Palermo, killed by Virginia, USA, in a brutal and merciless justice system.”

I have become convinced that these words do not belong together: “brutal and merciless” with “justice.”  What we call our “criminal justice system” is, to an unconscionable degree, “brutal and merciless.”  To the extent this is so, though, we have a system not of genuine justice but rather a “criminal injustice system.”

In recent years, America has expanded the destructive dynamics of retribution.  Forty years ago, our rate of imprisonment was about 100 per 100,000 people in the population—one of the highest in the world, but in the same ballpark as most of the West.  Now, our rate is off the charts in relation to these other countries—over 700 prisoners per 100,000 and still growing.

Not only has it been good politics to send people to prison, it has also been big business.  Increasingly, prison systems are privatized—providing great incentive to build more prisons, to send more people to jail, to make it harder to get out, and to make the prison experience more devastating.  When more prisoners mean more profits, why should the prison-industrial complex seek to rehabilitate and restore?

Retributive Justice in America

Though criminal justice practices in the early years of the United States tended toward a retributive approach, between the mid-1800s and the 1970s, we, in some respects, did move away from strictly retributive justice.  David Garland, in The Culture of Control, argues that a “penal-welfare” model gained ascendancy, with a concern for rehabilitating offenders. Politicians found it disadvantageous to try to intervene in criminal justice issues due to seeing criminal justice as a no-win issue with which to be identified.  Hence, the prison system was allowed to pursue its own agenda.

However, with a significant increase in the crime rate following World War II, politicians discovered that “law and order” rhetoric would gain popularity.  Because the modern criminal justice system did not have a wide constituency, and, probably more importantly, because the modern criminal justice system tended to be centralized and bureaucratic and not noticeably effective in reducing crime, when strong critiques were raised in the 1960s and 1970s, the somewhat ineffective focus of rehabilitation soon decreased.

As a consequence, the logic of retribution returned with a vengeance in the last quarter of the twentieth century and the early years of the twenty-first.  Our contemporary paradigm of retributive justice:

1. We see crime mainly as violating the law and the state, the keeper of laws, as crime’s victim.

2. The state must give offenders what they deserve: pain commensurate with the harm they have done.  Justice establishes blame and administers pain, satisfy the demands of the moral balance that the violation be countered by the punishment.

3. We achieved justice through an adversarial process between prosecutors and defense that pits the offender against the state.  One side wins; the side loses.

The paradigm of retributive justice is a recipe for alienation.  By making the “satisfaction” of impersonal justice the focus of our response to criminal activity, the personal human beings involved—victims, offenders, community members—rarely find wholeness.

Moreover, the larger community’s suffering often only increases.  Many victims of violence speak of being victimized again by the impersonal criminal justice system. Offenders, often alienated people already, become more deeply alienated by the punitive practices and person-destroying experiences of prisons.

David Garland portrays the “culture of control” in criminal justice as a new form of social segregation.  We no longer focus on rehabilitating and reintegrating offenders.  To the contrary, criminal justice practices now focus on identifying and then isolating offenders.  “The prison is used today as a kind of reservation, a quarantine zone in which purportedly dangerous individuals are segregated in the name of public safety” (Culture, 178).

We emphasize the difference between offenders and law-abiding citizens.  “Being intrinsically evil or wicked, some offenders are not like us.  They are dangerous others who threaten our safety and have no call on our fellow feeling.  The appropriate reaction for society is one of social defense: we should defend ourselves against these dangerous enemies rather than concern ourselves with their welfare and prospects for rehabilitation” (Culture, 184).

James Gilligan, for many years director of psychiatry for the Massachusetts state prison system, strongly critiques retributive justice.  In his book, Violence, Gilligan asserts, “a society’s prisons serves as a key for understanding the larger society as a whole” (185). When we look through the “magnifying glass” of our prison system, we see a society trying to control violence through violence, inflicting incredible suffering on ever-more desperate people.

Gilligan writes, our prisons have become “cruel, inhumane, and degrading, with severe overcrowding, frequent rapes and beatings, prolonged and arbitrary use of solitary confinement, grossly unsanitary, disease-inducing living conditions, and deprivation of elementary medical care” (Violence, 23-24).

Underlying our society’s tolerance of these conditions is what Gilligan calls the “rational self-interest” theory of violence (Violence, 94-95).  For this theory, human beings decide to use violence based on a rational calculation of costs and benefits.  If the costs of wrongdoing are high enough, that should deter such wrongdoing.  Hence, allowing our prisons to be hellholes should serve to prevent violence by deterring would be wrongdoers.

A Story from Australia

Robert Hughes, in The Fatal Shore: The Epic of Australia’s Founding, illustrates this “rational self-interest” theory.  The British founded Australia as a penal colony in the late 18^th century and fostered for it a terrible reputation to deter crime.  Over time, though, life in Australia proved to have its attractions, so officials sought to establish a prison within the prison that would indeed frighten even the most hardened criminal.

Norfolk Island sits some 1,000 miles east of the Australian mainland.  Though scenic, this island had attributes of a natural prison—no harbor, cliff-bound and girdled with reefs.  In 1824, Thomas Brisbane, Australia’s governor, under orders from Britain to “prepare a place of ultimate terror for the incorrigibles of the System” (Fatal, 455) made plans to establish on Norfolk Island a prison of last resort from which no escape would be possible.  “Although no convict could escape from it, rumor and reputation would.  In this way, the ‘Old Hell,’ as convict argot termed it, would reduce mainland crime by sheer terror” (Fatal, 456).

No attempt would be made to reform prisoners. The island’s prisoners must be the worst of those convicted of crime in Britain and then again in Australia.  Brisbane wrote, “the felon who is sent there is forever excluded from all hope of return” (Fatal, 456).

Norfolk Island became, in Robert Hughes’ words, “the worst place on earth.”  It became a the common practice for a group of prisoners to draw straws, one become the murderer, the second the victim, and the rest of the group witnesses.  The commander of Norfolk Island did not have the authority to try capital crimes; the murderer and the witnesses had to be sent to Sydney for trial.  The prisoners yearned for the meager relief of getting away from the “ocean hell,” if only to a gallows on the mainland.

Alexander Maconichie, Professor of Geography in London, in 1837 investigated the treatment of prisoners in Australia.  His report condemned the System, which he believed “debased free and bond alike.” John Russell, the British governmental official in charge of the British penal system who himself opposed the System of transportation of convicts to Australia, saw Maconochie’s report as ammunition for reform, so he saw that it was widely distributed.

In 1840 Russell appointed Maconochie head of Norfolk Island with the chance to try out his philosophy that prisons should seek to rehabilitate more than punish.  Maconochie’s initial encounter with the prisoners gave him hope.  As he explained to the prisoners that his role was not to be their torturer but to help them change their lives, they began to cheer.  According to one witness, “from that instant all crimes disappeared.  The Old Hands from that moment were a different race of beings” (Fatal, 502-03).

Maconachie got rid of the special whips used by the floggers.  The island had never had a church, but now Maconachie built two, one for the Catholics and the other for the Protestants.  He gave every man a plot of rich soil, set up classes in vegetable and fruit gardening, and encouraged them to sell their surplus to the officers.  Under his administration, 920 prisoners were discharged to freedom in Syndey.  As of 1845 (two years after Maconochie’s leadership of Norfolk Island had ended), only 20 of them had been convicted of new crimes.

However, this success did not insure Maconochie’s continued role.  The British recalled him in 1843.  An increase in crime rates in Britain during the 1830s and early 1840s led to more harsh prison practices, increasing support for having a symbol of the threat of extreme terror as a crime deterrent.  Norfolk Island filled this requirement.  The prison returned with a vengeance to its brutalizing ways for more than a decade until Britain’s practice of sending convicts to Australia began to wind down.

The story of Norfolk Island shows how the logic of retribution links with belief in the deterrent impact of the promise of terrible punishment for wrongdoers.  Norfolk Island, as seen in the rejection of Maconochie’s fruitful efforts to rehabilitate the prisoners, did not have the purpose of reforming offenders or protecting society from the dangers of recidivistic convicts.  Rather, it served as the symbol of ultimate terror—regardless of the costs to the actual prisoners who suffered mightily at the hands of the brutal punishments of the Island.

Social Consequences

Ironically, treating prisoners with brutality and other dehumanizing tactics actually serves to put the broader society more at risk.  Gilligan, “if the purpose of imprisonment were to socialize men to become as violent as possible – both while they are there and after they return to the community—we could hardly find a more effective way to accomplish it than what we do” (Violence, 155).  Treating people violently makes them more violent.  When we realize that nine out of every ten prisoners eventually does return to society, we cannot escape the suspicion that treating prisoners violently and thereby making them more violent endangers all of us.

Gilligan asserts, “violence does not occur spontaneously or without a cause, it only occurs when somebody does something that causes it.  Therefore, all we need to do to prevent violence is to stop doing what we have been doing to cause it” (Preventing, 20).  The logic of retribution is not an answer to the problem of violence; it is one of the central causes.

Nonetheless, we remain in the grip of that logic in our criminal justice practices—with many negative consequences.

1) Our society’s growing social fragmentation is exacerbated by the “othering” of convicted criminals.  “To treat them as understandable is to bring criminals into our domain, to humanize them, to see ourselves in them and them in ourselves.  The criminology of the other encourages us to be prepared to condemn more and understand less” (Garland, Culture, 184).

2) We pour an ever-higher amount of governmental resources into our prison system.  Ironically, as we reduce public investments in education, job creation, and other ways to heighten the stake citizens have in our society we make crime more attractive for needy people.

3) With the growing privatizing of prisons, we are fostering a more austere system with fewer resources available to make prison life humane and a means for rehabilitation – plus, we are making corruption and profiteering more likely.

4) The combination of the growing imprisonment rate with laws that permanently, in many states, disenfranchise convicted criminals, leads to a growing segment of the population that has no sense of being vested in the wider society.  This sense of alienation, ironically fostered in the name of public safety, actually makes all of us less secure.

5) All convicts receive lifetime stigma few escape.  They will spend the rest of their lives with the identity of “ex-con” living with a “debt to society” they are never allowed to repay.

6) The prison system serves as a breeding ground for more violence.  The reduction of the role of prisons as a context for education in usable life skills (apparently the best predictor that convicts will not return to prison after release is if they have earned a college degree while in prison) directly parallels the increase in the role of prisons as a context for education in violence.

7) Our present prison population is becoming a ticking time bomb due to high incidents of communicative diseases that will likely spread to the wider population.  Journalist Wil Hylton gives details for one example of a major public health problem within the prisons likely to spread to the broader society.  Hylton details how health care for prisoners has been poor, in part due to privatization of the health care and other cost cutting measures.  So, a Hepatitis C epidemic in the prisons may spread to the wider society (remember that nine out of ten prisoners will eventually be released).  “Somewhere between 20 and 40 percent of American prisoners are, at this very moment, infected with Hepatitis C, and therefore quite contagious” (“Sick,” 45).

However, Hylton points out that prisons do little to screen for the disease.  And even for the few diagnosed, treatment is difficult to obtain.  As infected prisoners are released, we may face a drastic increase in Hepatitis C infections in the broader society—in part due to the retributive philosophy of punishing rather than healing convicts.

The Costs of Punishment

James Gilligan concludes that nothing stimulates crime as effectively as punishment (or, we could say, nothing fosters violence like violence).  “Punishment is a form of violence in its own right, but it is also a cause of violence.”  Punishment makes people more violent (Violence, 184).  Punishment has this impact because it humiliates its recipient, having the ironic impact of fostering shame in a way that actually reduces a person’s sense of guilt and responsibility.  People who feel profound shame are especially prone to acting violently, especially when the inhibiting influence of guilt is absent.

Gilligan describes this dynamic: “Man’s greatest pain, whether in life or in prison, is the sense of personal insignificance, of being helpless and of no real value as a person, an individual – a man.  Imprisoned and left without any voice in or control over the things that affect him, his personal desires and feelings regarded with gracious indifference, and treated at best like a child and at worst like an animal by those having control of his life, a prisoner leads a life of acute deprivation and insignificance.  The psychological pain involved in such an existence creates an urgent and terrible need for reinforcement of his sense of manhood and personal worth.  Unfortunately, prison deprives those locked within of the normal avenues of pursuing gratification of their needs and leaves them with no instruments but sex, violence, and conquest to validate their sense of manhood and individual worth” (Violence, 181).

The spiral of violence intensifies—people hurt others, then the state hurts the violator, setting the violator in a culture of extreme violence (the prison) that further socializes the violent person to be violent.  Eventually, often more severely damaged than when entering prison, the violator returns to society primed for more violence.

Such consequences are to be expected when we so blatantly violate Tolstoy’s law.  If all human beings are to be treated with love, we may expect that a culture that practices the kind of mistreatment I have described will enter into a spiral that dehumanizes the punishers as well as those punished.  This spiral must be broken.  However, before reflecting on how to break this spiral, we must look more closely at the theology that undergirds it.

[3. The Logic of Retribution and Its Consequences]