“Reform or Revenge – The Penal Challenge” Dr. Roger Ray Community Christian Church of Springfield, MO
Justice, as much as we claim to prize it, is hard to define. Justice is, in fact, a constantly moving target. What is fair? What is compassionate? What is good for the individual and what is good for the maintenance and prosperity of the society.
The Ten Commandments, in spite of what either the Old Testament or Cecil B. DeMille said about them, were not laws written by God on tablets of stone. They were a brief summation of what a certain Palestinian tribe decided three thousand years ago would help them to maintain both their religion and their civil society. The whole, don’t kill, steal, lie, or envy, and make sure that your naughty bits do not encounter the naughty bits pledged to someone else’s naughty bits thing was crucial to make it possible for a few thousand people to live within close proximity to one another.
The Hebrew Bible’s books of Leviticus and Deuteronomy build on the Ten Commandments to issue decrees regarding both religious observances and social practices. The punishments could be shockingly severe. For example, in Deuteronomy 25, we are told that if two men are fighting and the wife of one gets involved by grabbing the testicles of her husband’s opponent, the woman’s hand is to be cut off.
As you might imagine, a great deal of these laws had to do with sex and the punishments for most involved being stoned to death… especially women. Sexual infidelity on the part of a man was often punished with a fine that would amount to about $25 but women were put to death. This was considered to be justice in ancient Israel.
But let’s bring this conversation onto our own continent: After 1600 of Christianity in the west, in Colonial America, pastors were required to read a rather lengthy statement of 37 laws every Sunday, a list composed by the colonial governor of Virginia that also included this rather strict rule about sex:
No man shal commit the horrible, and detestable sins of Sodomie upon pain of death; and he or she that can be lawfully convict of Adultery shall be punished with death. No man shall ravish or force any woman, maid or Indian, or other, upon pain of death, and know that he or shee, that shall commit fornication, and evident proofe made thereof, for their first fault shall be whipt, for the second they shall be whipt, and for their third they shall be whipt three times a weeke for one month, and aske publique forgivenesse in the Assembly of the Congregation.
Of course, they devised several forms of punishment that seemed to suit their fairly primitive circumstances. A thief might be forcibly branded
with a “T” on their hands to warn people that they were never to be trusted.
Pilgrims brought with them from England the use of the pillory and the stocks.
In most cases, the convicted would be put in jail and publicly paraded to either the seated stocks or the standing pillory at noon when merchants would close their shops for a couple of hours. The public was allowed to torment the publicly published felons both by hurling insults and by throwing rotten vegetables or even rocks at the defenseless convicts.
The pillory was often combined with a whipping post because flogging was a regular form of punishment for most offenses. What could get you locked up and pilloried in colonial America? Well, as you might guess, there were the standard offenses of theft, violence, or dishonesty… including cheating at cards, but they included several aspects of church infractions… like not going to church or falling asleep in church.
But a lot of what concerned them was sexual, particularly homosexuality or men dressing like women, or women dressing like men….
And in an age when men wore long curly wigs and high-heeled boots, you had to really know your fashion to be able to tell who was breaking the rules. But, folks, you could also wind up being pilloried if you were caught masturbating.
From the distance of 3000 years or even from 300 years we can easily see that what often passed for justice in distant societies had little to do with what was fair, or compassionate, or even what was good for society but often had a great deal to do with just how neurotically nervous and guilty we are about sexual issues.
Looked at across a distance of millennia or of centuries, we marvel at how cruel and irrational our ancestors were. What is harder is for us to be able to look into the mirror and accurately assess our own irrational cruelty. While none of us would want to live in a world where there are no laws we often have difficulty in coming up with a criminal code that is either fair or good for society.
When my daughter went off to college at the age of 18, I did my best to emphasize that if she drank alcohol at all before she was 21 that she would endanger her college scholarships and I made her lie to me and swear that she would not touch a drop of any intoxicant before her 21st birthday.
I happen to know that she didn’t adhere to my commandments but if she had, the way the law reads, at the age of 20 and 11 months, a sip of wine is a criminal offense. On her 21st birthday, her so-called friends from her sorority, escorted her on a bar hopping, 21 shot, celebration of her now entirely legal but certainly potentially lethal freedom. This is clearly crazy but it is nothing compared to how we treat sex offenders.
Again, no one wants to live in a world where there are no laws. What we want is more fairness, more compassion, more equality, frankly; more sanity in our justice system.
I am a pastor. I have people on both sides of this divide. Within one week I was at a federal prison visiting a convicted sex offender and then I was at a mental hospital visiting a now suicidal teenaged victim of sexual abuse. I’m a father of a daughter, believe me, I feel the rage and defensiveness that our society feels about sexual abuse, exploitation, and human trafficking. But there is room in our hearts and minds for compassion for those who are on the sex offender list as well.
I meet with a group of parents every Wednesday evening whose sons are in prison and who, when they are released, will spend the rest of their lives on the registry of sex offenders with all of the problems with housing, employment, and public humiliation that entails. We passed around a newspaper article about a local teacher who had pled guilty to statutory rape of a special needs student. The teacher had repeated sexual encounters with the girl and after pleading guilty, he was given five years of probation…. No jail time.
Sitting at the table with me were the parents of a 20 year old man who has Asperger’s, a form of autism. This young man whose social skills are very limited was found to have asked his 16 year old girlfriend to send him nude photos of herself….sexting, if you don’t already know, is now about as common among young people as French kissing was when I was young. This young man has spent 30 months in a county jail awaiting trial on the charge of producing child pornography and he will likely get about an 8 year sentence in federal prison for having asked for and received a nude photo of his girlfriend.
He shouldn’t have done it. Frankly, she shouldn’t have done it. But neither was doing anything that isn’t being done thousands upon thousands of times by young people all around us. I am certain that there is an appropriate way of dealing with this behavior that would include such things as not getting to have a smart phone, taking some classes to raise awareness, and possibly even some community service. But he has been in a cage for nearly three years and has not seen the sky during that time. He has not had a piece of fresh fruit nor eaten any fresh vegetables. His education has ended. His medical treatment is spotty, and his psychological problems…. Well, you don’t need me to spell out everything for you do you?
I have three problems that I want to address about this: The first is that our sentencing is unfair, capricious, illogical, and cruel.
In 1970 we had about 300,000 Americans in jails and prisons. That number has increased nearly 10 fold in our day with 2.5 million Americans living in crowded cages and nearly 9 million on parole. Here in the United States we have about 5% of the world’s population but we have ¼ of the world’s total number of prisoners. This astronomical number of prisoners has almost nothing to do with crime but it has a great deal to do with politics and profit.
Richard Nixon’s war on drugs was a barely disguised attack on the black population of nation to help stem the advances of the civil rights movement. That is a horrible thing to have to say but folks, what I am saying is well documented history. This isn’t Communist China. This isn’t the repressive government of the Soviet Union… this is America, a constitutional democracy, that imprisons millions and ruins the lives of millions more with parole and criminal record laws that disproportionately keeps minorities locked in multiple generations of poverty. The almost accidental byproducts of this insane and inexcusable mass incarceration are that it reduces the excess workforce and creates a for-profit industry of building, supplying, and staffing prisons. And in 35 states, people with a criminal record cannot vote which helps to keep the reigns of government in the hands of the wealthy and the white.
Other nations that have decriminalized drug use and addiction, such as Portugal, have seen a precipitous reduction in drug use, which dramatically reduces their prison population while enjoying a huge reduction in crime.
Our Attorney General, Jefferson Beauregard Sessions, has instructed federal prosecutors to seek the most harsh sentences for drug offenders, reversing the Obama administration’s lightening of sentences and the same time that Trump has reversed the Obama decision to no longer use for-profit prisons.
The way to change our judicial system is not only known, it is in practice in many western European countries. We are just doing everything wrong and we are doing it on purpose and we are doing it for political gain and profit.
My second point is that our treatment of sexual transgressions is inexcusably primitive, harkening back to ancient fears rather than embracing modern medicine and psychology.
Like what I said about drinking being totally illegal at the age of 20 years and 11 months but totally unrestricted on your 21st birthday, the numbers assigned to when a person is a consenting partner to sexual contact is equally absurd. And if you whinced when I showed you the picture with a T deeply branded on the palm of a thief in colonial America, if you find it hard to believe that our deeply Christian founders regularly put people in the stocks in the public square and allowed them to be publicly tortured, what do you think about a teenager who was watching illegal porn on his computer being put on a sex offender list for the rest of his life, perpetually on parole, subject to being arrested for having a drink in a bar or for handing out candy in the neighborhood on Halloween?
Is a college kid who relieves himself on a tree in the park while drinking beer with his friends a sex offender just because someone saw him? Isn’t that public drunkenness or at best lewd behavior? But over zealous prosecutors are making their careers by defining minor offenses as major offenses. Lives and careers and families are being destroyed because our judicial court officers are turning normal, curious, people into criminals who will forever be branded as sex offenders when their offenses absolutely do not merit the abuse our country is heaping onto them.
And thirdly, our penal system is set up to exact a kind of social revenge rather than to rehabilitate, reform, literally salvage human lives.
1) Our Judicial system’s sentencing is unfair, capricious, illogical, and cruel.
2) Our treatment of sexual transgressions is inexcusably primitive, harkening back to ancient fears rather than embracing modern medicine and psychology
3) Our penal system is set up to exact a kind of social revenge rather than to rehabilitate, reform, literally salvage human lives.
Norway’s prison system is based on rehabilitation, not revenge. Most prisons are in isolated places. The only punishment is their freedom is restricted but they live on a campus with small cottages on a lake where they are treated with respect, taught job skills, and they are rewarded for their good behavior. Even their maximum security prisons there are private rooms with their own shower and refrigerator and TV. And their recidivism rate is half of what ours is. The goal of the penal system in most of western Europe is to turn a criminal into a good neighbor. In our country, it appears to have much more to do with some twisted sense of social revenge.
We claim that our judicial system is intended to prevent crime but in the USA, we will take someone who has watched an illegal video on their computer in their bedroom and then we put them in a cage where they are subjected to repeatedly being raped, beaten, forced to bathe, urinate and defecate in the presence of other people. Now, you tell me, who is the criminal?
Is the curious young man watching a video the criminal or is the real crime at the feet of a society that will lock two and a half million citizens in cages for years, depriving them of a meaningful life, and in many cases even appropriate medical care and decent food. We cage them like animals and allow guards to turn their backs on repeated rapes, beatings, and even murders?
Who is the criminal in that scenario? We take away their freedom. They don’t want to live in a cage. But we force them to and then we fail to treat them like humans, no, not humans, we don’t treat farm animals or dogs and cats and the Humane shelter with this kind of deprivation and violence.
Americans are famous for doing hard things. We invented the telephone, the steam engine, cars, airplanes, radios, TV, movies, computers, cell phones, the internet, we flew the moon and ended polio. But judicial reform is not hard. In fact, it would be easy, if only enough people cared. We create the problem every day, by electing mean politicians and empowering greedy corporations but we hold the leash. All we have to do is care enough to act, to protest, to vote, even to file law suits if we have to. What we cannot do is allow it to go on.
