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Response to Hearing the Cries: Faith and Criminal Justice

[1] The recently released study Hearing the Cries is an extraordinarily thoughtful and useful reflection on a subject of social concern that is touching the ministry of many of our congregations. In an urban metropolitan setting, prison ministry, court advocacy, employment after release, and community watch programs are all becoming more central, particularly for ministry among people in poverty. A discussion and reflection resource of this quality will be a great asset for inviting and preparing additional congregational involvement around these important issues.

Responses to Hearing the Cries: Faith and Criminal Justice

[2] The carefulness and accessibility of the study, both in its content and in its presentation, may also encourage a larger conversation within the ELCA as to whether social statements are still a necessary consequence of inquiry and study, or if the study itself provides sufficient grounding for policy resolutions, without trying to reach definitive but also divisive conclusions on ambiguous and complex ethical questions.

The Structure of the Study
[3] The use of stories and cases to illustrate the human impact of issues related to criminal justice is dramatic and compelling. This approach immediately pulls learners and teachers out of the realm of the abstract and into the relational and personal arena. It is relatively easy to reject ideas, principles, and concepts. It is much harder to casually dismiss human stories.

[4] The study, however, would be significantly strengthened by integrating discussion questions into the discursive text rather than presenting pages and pages of instructive text followed by a single list of discussion questions. Process is as important as content in effective pedagogy. It is a chronic problem with ELCA study material that information and interaction are presented serially rather than integratively. A simple rearrangement of the material already developed, or perhaps even cautious use of programmed instruction, immediate reinforcement techniques, would greatly improve the educational impact of the study.

[5] The sequence of the chapter topics was excellent. Not only did the topics cover the broad range of significant questions, their arrangement led the learner toward a place of hope and constructive engagement rather than simply leaving them mired in the moral ambiguities of the subject.

Informational and Theological Content
[6] This entire study was filled with important statistical information that is not readily retrievable for most of us. I found that I was continually surprised and sometimes alarmed by the reality underneath popular perception.

[7] The use of biblical and theological material as an interpretive lens was very useful. I think even more exploration into the application of Lutheran understandings of the law, and the concept of "two-kingdoms" theology would have been helpful.

[8] A very interesting question is raised by the study concerning whether the gospel applies to the question of law enforcement. "Law" means something very different in ecclesiastical circles from what it means in civil circles. The danger is that "gospel" will become a synonym for "leniency," which is not necessarily correct. In Reformation Protestant theology the law of God has three functions: 1) to structure social order, 2) to convict sinners of their guilt and their powerlessness over sin, and 3) to provide a guide or template for an amended life. "Gospel" is a gift from God given to set the convicted sinner free. It doesn't seem to be directly connected to civil law in which conviction implies an external determination of guilt rather than an internal recognition of powerlessness.

[9] "Two-kingdoms" theology is often understood in our social context as being roughly equivalent to "separation of church and state." But for Luther the two kingdoms served two purposes under the sovereignty of the same God. The notion of a secular democracy was not quite in Luther's experiential vocabulary. Do we consider civil law, law enforcement and punishment to be under the sovereignty of God or under the sovereignty of the constitution? If it is under the sovereignty of God, what is the appropriate relationship in criminal justice between justice and mercy, which in the prophetic tradition are almost always paired concepts? Does Romans 13 have anything important to contribute to this discussion?

[10] This last point brings me to an increasingly frustrating issue for me. The word "justice" is central to this entire area of inquiry. But "justice" is very nearly a ruined word. It means too many different things to different people in different contexts, and so, means practically nothing to anyone. The Old Testament references in the study seem to suggest that justice is about objectivity, so that rich and poor are treated equally. Is that what it means? What happens, then, to Liberation Theology's notion of God's preferential bias toward the poor? For those in positions of privilege, justice is an ordering principle; for those on the outside of privilege, justice is an upheaval of the order. Karen LeBacqz wrote a wonderful study some years ago called Six Theories of Justice. Justice was clearly not the same thing for Niebuhr, Rawls and John Stuart Mill. How might that apply to the conversation about criminal justice?

[11] I do not think that it is wise or even possible to have a helpful conversation about justice without exploring what might be meant by the term. This is particularly true when a major part of the conversation is about the contrast between restorative and retributive justice. As a suggestion for further thought, it might be useful to develop a third category in criminal justice called "transformative justice." It is doubtful that in biblical Christianity, justice can ever be reduced to vengeance and punishment. And it is at least questionable whether Christ's redeeming love is about restoring what was. Resurrection faith implies movement into something completely new. The question then for criminal justice becomes how to challenge and inspire the criminal and the community into a new future together.

More Attention Needed
[11] I was intrigued by the questions raised in the study concerning private for-profit correctional facilities. This is a potential area for a good deal more thought. One thing worth examining with regard to the for-profit prisons is the question, "What is their business plan?" All businesses exist to generate profit. What is the profit center of a private prison? Are there incentives in keeping the population high? Where is the justice in this? Are there incentives for high turn-over and quick release? This suggests more emphasis on an effective restorative process. Businesses are inherently neither more nor less moral than public agencies. They are often more efficient ... but how does one define efficiency? Efficiency can be measured in terms of the economy of scale for keeping the prison full, or in terms of efficient process for converting criminals into productive citizens.

[12] The one area of exploration that I found significantly lacking in this study was the psychology of crime and the equally important psychology of law enforcement and congregational involvement. The study seems to presume that criminals have essentially normal well-integrated personalities that have just gotten tripped up. This would be a remarkably naïve assumption.

[13] The real problem is not so much with psychotic behavior (though that is certainly an important issue). The subtle demon is what the DSM IV would call "personality disorders." Congregations already tend to be favorite hangouts for borderlines, depressed-dependents, histrionics, narcissists and more. I would guess with some confidence that the criminal population has an even greater occurrence of these things, plus other more egregious antisocial and sadistic personalities. And none of this even touches the question of the psychological issues that might disproportionately plague law enforcement. A sadistic narcissistic ex-offender coming to a small group Bible study with one or more depressed dependent personalities could be very dangerous.

[14] It may be wise to emphasize the importance of clear and healthy boundaries for anyone who is doing ministry in the criminal justice arena. The church still has to be safe for everyone. Perhaps it would be good to offer some additional study resources on healthy boundaries as suggestions for congregations interested in criminal justice ministry.

[15] Also closely related to the intra-psychic dynamics, the question of "what motivates change" is an important discussion in connection with correctional methodology. For example, our punishment structure seems to assume that punishment stretched out over a longer period of time is a greater and more effective punishment. What is the psychological data to back this up? Does grounding a teenager for three weeks create greater transformation than grounding a teenager for two weeks? Punishment changes by creating the greatest intensity of adverse stimulus in the shortest time possible and in closest proximity to the offending event. This is classic operant conditioning. So perhaps neither current retributive nor restorative practice maximizes real change. Perhaps short, sharp, shock punishment followed by a long consistent schedule of positive re-socialization is a more effective course. The latter may be a place where the church has a distinctively important role. Also interesting in this regard is the possible application of farming camps and military contexts as part of the socialization process.

Gratitude for Work Well-done
[17] Despite room for continued inquiry, this study represents Lutheran theology in the public square at its best. I am deeply grateful for the work and the faithfulness reflected in this resource and look forward to encouraging its use in the congregations of our synod.

Wayne N. Miller is Bishop of the Metropolitan Chicago Synod of the Evangelical Lutheran Church in America.

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