Criminology and Public Theology: On Hope, Mercy and Restoration 9781529207415

Citation preview

CRIMINOLOGY AND PUBLIC THEOLOGY On Hope, Mercy and Restoration Edited by Andrew Millie

First published in Great Britain in 2021 by Bristol University Press University of Bristol 1-9 Old Park Hill Bristol BS2 8BB UK t: +44 (0)117 954 5940 e: [email protected] Details of international sales and distribution partners are available at bristoluniversitypress.co.uk © Bristol University Press 2021 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978-1-5292-0739-2 hardcover ISBN 978-1-5292-0742-2 ePub ISBN 978-1-5292-0741-5 ePdf The right of Andrew Millie to be identified as editor of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved: no part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without the prior permission of Bristol University Press. Every reasonable effort has been made to obtain permission to reproduce copyrighted material. If, however, anyone knows of an oversight, please contact the publisher. The statements and opinions contained within this publication are solely those of the editor and contributors and not of the University of Bristol or Bristol University Press. The University of Bristol and Bristol University Press disclaim responsibility for any injury to persons or property resulting from any material published in this publication. Bristol University Press works to counter discrimination on grounds of gender, race, disability, age and sexuality. Cover design: Liam Roberts Front cover image: iStockphoto-139679988 Bristol University Press uses environmentally responsible print partners. Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY

For Ernest and Martha x

Contents Notes on Contributors vii Acknowledgements xi Foreword by Shadd Maruna xiii 1

Introduction: Public Criminology Meets Public Theology Andrew Millie

PART I A Place for Hope: Criminology Meets Public Theology 2 Criminal Justice and the Ethics of Jesus Anthony Bottoms 3

1

21

Three Intersections in Criminology and Public Theology 45 Jonathan Burnside

4

St Paul among the Criminologists

71

Aaron Pycroft

5

Interpreting the Cross: Religion, Structures of Feeling, 93 and Penal Theory and Practice Tim Gorringe

6

Sin, Shame and Atonement: A Challenge for Secular Redemption Christopher D. Marshall

111

Criminology, Public Theology and Hope

145

7

Andrew Millie

PART II Criminal Justice, Mercy and Restoration 8 Mercy Triumphs over Judgement: Intrusive or Enabling Mercy? Richard Bourne

v

167

CRIMINOLOGY AND PUBLIC THEOLOGY

9

The ‘Quality of Mercy’ in Probation Practice

195

Lol Burke

10

Loving the Neighbourhood, Loving Enemies: Towards a Theology for (and from) Policing Alistair McFadyen

217

11

Persecuting the Prophets: Inequality, Insanity and Incarceration Andrew Skotnicki

247

12

The Ins and Outs of Signals of Forgiveness in Restorative Justice Joanna Shapland

273

The Restorative Gaze

295

13

Eric Stoddart

14 Conclusions Andrew Millie

319

Index

331

vi

Notes on Contributors Sir Anthony Bottoms is Emeritus Wolfson Professor of Criminology at the University of Cambridge and Honorary Professor of Criminology at the University of Sheffield. He is also a Fellow of the British Academy. He was knighted in 2001 for services to the criminal justice system. Richard Bourne is Head of the School of Humanities, Religion & Philosophy at York St John University, UK. He is a committee member of the Society for the Study of Christian Ethics and a member of the Centre for Religion in Society at York St John University. His current research focuses on the political theology of criminal punishment and on consumerism, biopolitics and radical political action. He is the author of Seek the Peace of the City (Cascade, 2009), co-author of A New Introduction to Theology (with Imogen Adkins; T&T Clark, 2020), and author of numerous articles and chapters across themes in political theology. Lol Burke is Professor in Criminal Justice at Liverpool John Moores University (UK) and specialises in the areas of probation research, policy and practice. He has a particular interest in the way that occupational culture acts out in probation settings and resettlement provision for released prisoners. As a former probation practitioner, he has considerable experience of working in both community and custodial settings. He is co-author of Redemption, Rehabilitation and Risk Management (with George Mair; Routledge, 2012), Delivering Rehabilitation: The Politics, Governance and Control of Probation (with Steve Collett; Routledge, 2015) and Reimagining Rehabilitation: Beyond the Individual (with Steve Collett and Fergus McNeill; Routledge, 2019). Jonathan Burnside is Professor of Biblical Law at the Law School, University of Bristol, UK. His research interests integrate law, theology and criminology and his books include God, Justice and Society: Aspects of Law and Legality in the Bible (Oxford University Press, 2011), My Brother’s Keeper: Faith-based Units in Prisons (with Nancy Loucks, Joanna R. Adler

vii

CRIMINOLOGY AND PUBLIC THEOLOGY

and Gerry Rose; Willan, 2005) and The Signs of Sin: Seriousness of Offence in Biblical Law (Sheffield Academic Press, 2003). Tim Gorringe is Emeritus Professor of Theological Studies at the University of Exeter, UK. He taught in India, Oxford and St Andrews before that. His most recent book is The World Made Otherwise (Cascade, 2018) and a book on Christian Dogmatics, Word and Silence, is in press with Fortress. Christopher D. Marshall holds the Diana Unwin Chair in Restorative Justice at Victoria University of Wellington, New Zealand. Prior to taking up this post in 2014, he taught New Testament theology and ethics for nearly thirty years. He is author of seven books and over a hundred articles, book chapters, reference work entries and research reports dealing with biblical exegesis, restorative justice theory and practice, religious violence, peace theology and human rights. His best-known work lies at the intersection between theological ethics and criminal justice theory and practice, in which he sets up a dialogue between biblical teaching on law, crime, justice, violence and punishment on the one hand, and the insights of restorative justice theory, legal philosophy and the social sciences on the other. He is the author of Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment (Eerdmans, 2001) and Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice (Cascade, 2012). Alistair McFadyen is Senior Lecturer in Systematic Theology at the University of Leeds, UK. He writes (and teaches) mainly on themes related to theological anthropology, being especially drawn towards those often complex and ambiguous situations where humanity is threatened, vulnerable, at risk or somehow in question. Throughout his career he has grounded this theological work in non-academic vocations (psychiatric nursing, suicide counselling, youth work, and since 2002, policing) in a kind of triangulation between academy, church and the ‘world’. His main publications are Bound to Sin: Abuse, Holocaust and the Christian Doctrine of Sin (Cambridge University Press, 2000) and The Call to Personhood: A Christian Theory of the Individual in Social Relationships (Cambridge University Press, 1990). In 2014 Alistair was awarded an MBE for services to policing and the community. Andrew Millie is Professor of Criminology at Edge Hill University, UK. Andrew’s work is interdisciplinary, drawing on criminology, philosophy and theology. He is also known for work on policing. Andrew is editor

viii

Notes on Contributors

of the Bristol University Press series New Horizons in Criminology. His previous publications include Philosophical Criminology (Policy Press, 2016), Securing Respect (Policy Press, 2009) and Anti-Social Behaviour (Open University Press, 2009). Aaron Pycroft is Reader in Criminal Justice and Social Complexity in the Institute of Criminal Justice Studies at the University of Portsmouth, UK. The current focus of his work is on forgiveness within criminal justice, and the interface of criminology, theology and hermeneutics in developing new resources for practitioners. He is co-author (with Clemens Bartollas) of Redemptive Criminology, forthcoming as part of the Bristol University Press series New Horizons in Criminology. Joanna Shapland is the Edward Bramley Professor of Criminal Justice at the University of Sheffield, UK. She has directed the national evaluation of restorative justice for the Ministry of Justice in England, including conferencing and mediation used with both adult and young offenders, in relation to serious and more minor offences. She has also directed an evaluation of restorative justice in three police forces in England and compared conferencing and mediation for the European Union. She is Chair of the Restorative Justice Forum (Scotland) and has advised the Ministry of Justice in England, as well as being the executive editor of the International Review of Victimology. Andrew Skotnicki teaches theological and criminological ethics at Manhattan College in New York City, where he is Professor in Religious Studies. He is the author of numerous articles on the theological and ethical implications of criminal justice. He is also the author of four books, the latest of which, Conversion and the Rehabilitation of the Penal System: A Theological Rereading of Criminal Justice (Oxford University Press, 2019) has been awarded the Aldersgate Prize for excellence in public theology. Eric Stoddart is Associate Director of the Centre for the Study of Religion and Politics at the University of St Andrews, UK, where he also teaches practical theology and directs the distance learning ‘Bible and the Contemporary World’ postgraduate programme. He has published widely in the field of surveillance studies and is co-organiser of the international Surveillance and Religion Research Network. He wrote the first major monograph on Christian theology and surveillance, Theological Perspectives on a Surveillance Society, in 2011 (Ashgate). The Common Gaze, considering surveillance and the common good, is in preparation.

ix

Acknowledgements I started to consider the scope for greater crossover between criminology and theology while researching my book Philosophical Criminology, published in 2016. I’d come across a text from 1980 co-edited by the criminologist Anthony Bottoms and theologian Ronald Preston that made clear that theology could usefully contribute to debates about justice; yet since then theology has been a discipline largely overlooked by criminologists. In exploring what theologians had to say on the subject I found insights that questioned fundamentally the retributive orthodoxy of contemporary criminal justice practice. It seemed that theology and criminology had much to say to one another, and that a return to that conversation was long overdue. With this in mind, on 26  April 2018 I organised a seminar titled Criminology and Public Theology, bringing together criminologists and theologians to see where the conversation would take us. For the seminar I acknowledge the financial support of the North West Branch of the British Society of Criminology and the Institute for Public Policy and Professional Practice (I4P) at Edge Hill University (it has since changed its name to the Institute for Social Responsibility). I am also grateful to Franco Rizzuto, my head of department, and my colleagues in the Department of Law and Criminology. I want to thank those who attended the 2018 event, especially the speakers: Myra Blyth, Richard Bourne, Lol Burke, Jonathan Burnside, Tim Gorringe, Aaron Pycroft and Eric Stoddart. Many were able to contribute to the current volume and others have been added, namely Anthony Bottoms, Christopher D. Marshall, Alistair McFadyen, Joanna Shapland and Andrew Skotnicki. I am delighted with the result, which I believe has something quite challenging to say about the place of hope, mercy and restoration in criminology and in criminal justice practice. The final verdict, of course, lies with you, the reader. While developing initial ideas for this book, I was invited to give guest lectures at the Institute of Criminal Justice Studies, University of Portsmouth (March 2017) and the Institute of Criminology, University of Cambridge (November 2017). I am grateful for these invitations and

xi

CRIMINOLOGY AND PUBLIC THEOLOGY

the conversations that followed. Also, in 2017, I presented some ideas on public theology and criminology at the British Society of Criminology annual conference at Sheffield Hallam University, and at the conference of the Society for the Study of Christian Ethics at Westcott House, Cambridge. The feedback I received at each of these events has been used to inform my contributions to this book. At Bristol University Press I need to thank Rebecca Tomlinson and Freya Trand. As always, you have been a great publishing team to work with. Away from the day job I wish to thank those who have supported me or provided the encouragement to explore this area further. In particular, thank you to David Banbury, Simon Glynn, Richard Jones, Elliott Ireton, Jo Smith, Joan Millie, Ruth Marshall and Ken Marshall (I shall always try to be ‘a bit more Ken’). And finally, of course, I am eternally grateful for the love and support I have from the rest of the Millie family. Love and thanks to Lesley, Ernest and Martha.

xii

Foreword Shadd Maruna Professor of Criminology, Queen’s University Belfast

This is the second major cross-disciplinary work produced by Andrew Millie in the past few years, but it is neither a sequel nor a prequel; it is something altogether different and indeed radical. As he demonstrated in his last publication, Philosophical Criminology (2016), Millie is an expert at unearthing the roots of criminological debates in older disciplinary fields. In that previous book, he reflected on the philosophical origins of so many of the contemporary debates happening in the field, illuminating and complicating criminological arguments. In this second volume, inspired by the previous one, contributors explore links and overlaps with the related but rather more controversial field of public theology, specifically Christian theology. Here, Millie finds something even more deeply buried in the criminological soil. These are not roots, so much, as bones – bones that were purposefully hidden away, out of sight, meant to be forgotten and never mentioned. The corpses are familiar though, even disturbingly so. They are not the bones of strangers, the bones of the enemy or a foreign species; they are family, they are us. How uncomfortable that the graves are not marked, that there were no maps or markers or memorials to acknowledge what lies beneath. Resurrecting these ideas (apologies, I could hardly resist) is a risky, dangerous thing. The theological origins (and indeed nature) of criminology have been essentially ignored by generations of criminologists. To clarify, it appears from these pages that there is actually no shortage of theological engagement with criminological issues. That is, theologians have long wrestled with issues of sin, punishment, stigma, forgiveness, and the like, and have not missed the obvious application of these issues to criminal justice matters in the contemporary world. This is

xiii

CRIMINOLOGY AND PUBLIC THEOLOGY

the ‘public’ aspect of public theology – the effort to apply theological lessons to pressing social problems and concerns. Far less common is criminological engagement with these theological theories and writing, which is primarily the terrain of this thoroughly insightful volume. The contributors here discuss links between theology and criminological theory, of course, including John Braithwaite’s reintegrative shaming and, yes, theories of desistance. Yet, readers may be particularly jolted to see actual research by Alison Liebling, Mark Halsey, Lawrence Sherman and many others discussed alongside theological interpretation of the likes of Jesus, St Paul or St Augustine. But why? Surely the most tiresome cliché among criminologists is that ours is a ‘rendezvous discipline’ – a place where other disciplines meet and come together around a relatively narrow set of ideas. We often conjure the image of the blind scientists and the elephant, suggesting the more different angles we approach our field’s elephant of crime and justice the closer we will get to understanding it. So, we welcome contributions from sociology, economics, geography, history, politics, linguistics, even literary criticism, genetics and biology in our efforts. This makes us unusual as an academic area of study, and we are frequently reminded that we are not a ‘real’ discipline but rather a mongrel one, consisting of the DNA of a dozen or more proper disciplinary traditions. The early philosophers, of course, saw no difference between these disciplinary silos. Plato was happy enough to contribute to research on mathematics, metaphysics, politics, love and sexuality, art criticism and the immortality of the soul. Of course, we cannot all aspire to be Plato, and there is something very comforting about staying in one’s narrow area of specialism. Yet, when that specialism is something as complex as understanding crime or justice, we need all the help we can get. Why turn to Christian public theology in this regard? Well, for one thing, the British system of criminal justice is itself as much a product of theology as it is of science. For instance, Burke (this volume) explains: The creation of the Probation Service in England and Wales could be seen as an expression of public theology in action involving a heady mix of evangelism and philanthropy. The importance of the Evangelical movement in penal reform generally throughout the 19th  century is demonstrated by Martin Weiner (1990) and it is perhaps no coincidence that prison reformers John Howard and Elizabeth Fry were closely associated with the Evangelical movement (Ignatieff, 1978) as was Mary Carpenter whose pioneering work established the reformatory school system to deal with the issue of juvenile delinquency (Radzinowicz and Hood, 1986).

xiv

Foreword

Likewise, Marshall (this volume) writes that a core Christian conviction is that ‘Christ Jesus came into the world to save sinners’ (1 Timothy 1:15). This would support the theologian Chris Wood’s (1991: 72) argument that, ‘At the heart of the Christian tradition is a radical critique of the concept of punishment’ (cited in Millie, this volume). In that case, it seems a rather stunning oversight that there would be so little engagement with Christian theology by criminologists. The reason, of course, is that criminology fancies itself a science, if a social science, and science is not meant to be faith-driven – we are rational, empirical, always questioning and probing the social world. In truth, criminology’s dream of being a ‘real science’ will always remain aspirational and out of reach, by the nature of our subject matter and our limitations as human beings no different from the ones we are trying to research. Instead of some fantasy of enlightenment rationality, the criminal justice system and the field of criminology have simply developed other faiths and religions (including faith in something called ‘evidence-based practice’) complete with minor deities and devils to believe in. The real risk, however, of our pretensions to objective scientism is that in order to achieve this, we need to separate ourselves as ‘scientists’ from our subject (‘the subjects’) of our research, and in doing so we necessarily dehumanise and objectify them. The beauty of this volume (and theological thinking in general) is that it returns the subject matter from ‘them’ to ‘us’. As Gorringe (this volume) and surely a few others before him have pointed out, we are all sinners. Unlike the so-called offenders of criminological research, to be a sinner is a universal condition. Hence, it makes sense why confession, atonement, forgiveness, hope, mercy and restoration play such a central role in this volume and in religions in general. If we are all sinners, we had best agree on some structure for dealing with sin, and putting it behind us. Such issues have risen to the foreground of criminology as well with recent engagement with restorative justice, desistance from crime, and moral emotions like shame and remorse. For researchers interested in these issues to fail to engage with an entire professional discipline (theology) that is arguably devoted to those issues, seems itself like a crime, or at least a sin. This is not the first time these linkages have been raised in criminology. Millie acknowledges a debt to a 1980 volume by the theologian Ronald Preston and the criminologist Sir  Anthony Bottoms, who is a very welcome repeat offender in this volume. Yet, unlike that previous work, hopefully this one will catalyse further cross-fertilisation between these two fields. Not least, this work screams out for a comparative discussion of conceptions of mercy, hope and restoration in other long-established faith traditions (Islam, Hinduism, Buddhism, Judaism and beyond) and

xv

CRIMINOLOGY AND PUBLIC THEOLOGY

their comparative impact on justice systems internationally. I would also add atheism to that list of -isms as well. In his introduction, Millie writes, ‘The book takes the position that secular criminal justice and criminology can draw on the non-secular without necessarily adopting specific beliefs about the existence of God.’ Indeed, the chapters in this book should be of considerable interest to readers from every faith background or indeed for those of us who have no faith background at all.

xvi

1

Introduction: Public Criminology Meets Public Theology Andrew Millie

Introduction Criminal justice systems across the world are almost universally in a poor state. There are exceptions and offenders can and do desist from crime; but prisons are often understaffed and overcrowded, thereby negatively affecting prisoner safety and opportunities for rehabilitation. According to Nick Hardwick, former HM Chief Inspector of Prisons for England and Wales (2015: 10), ‘staff shortages, overcrowding and the wider policy changes […] have had a significant impact on prison safety’. Hardwick further stated: overcrowding is not simply a matter of two prisoners sharing a cell designed for one with an unscreened toilet – undesirable though that is. It means that a prison will not have the activity places, the support mechanisms or the rehabilitation programmes it needs for the size of its population. More prisoners cannot simply be crammed into the available space. […] overcrowding was sometimes exacerbated by extremely poor environments and squalid conditions. At Wormwood Scrubs, staff urged me to look at the cells. ‘I wouldn’t keep a

1

CRIMINOLOGY AND PUBLIC THEOLOGY

dog in there’, one told me. (HM Chief Inspector of Prisons for England and Wales, 2015: 11–12) Those incarcerated can also be exposed to high levels of violence and drug use (Kinner and Rich, 2018; McGuire, 2018). Despite the inherent problems with imprisonment, changes in legislative frameworks and sentencing guidance, and a more punitive climate of opinion informed by penal populism and a politics of mass incarceration (in the US in particular) have seemingly led to greater use of custody rather than less (Garland, 2001a; Millie et al., 2003; Pratt, 2007; Hinton, 2016). In the US mass incarceration is also distinctly racial (Wacquant, 2002; Hinton, 2016). And while the number of countries with the death penalty may be shrinking, capital punishment also persists in too many jurisdictions (again, particularly in the US, and again with racial overtones – see for example, Walker et al., 2017). Radical alternatives such as restorative justice programmes (for example, Shapland et al., 2011) or truth and reconciliation commissions (for example, Tutu, 1999) are tried but do not make the inroads into mainstream criminal justice practice that they could. This is not a new story. Go back four decades and Western criminal justice systems were turning their backs on the rehabilitative ideal (Bailey, 2019), the idea that ‘the criminal law should or must be employed to achieve fundamental changes in the characters, personalities, and attitudes of convicted offenders, not only in the interest of the social defense, but also in the interests of the well-being of the offender himself ’ (Allen, 1978: 148). Nothing appeared to work and so in its place retribution and just deserts were emphasised (von Hirsch, 1976; Garland, 2001b). A just deserts model became an attractive option as it at least meant that offenders were (hopefully) given sentences that matched the severity of their offence, even if meaningful rehabilitation while incarcerated was unlikely. In this context, in 1978 a meeting between criminologists and theologians was organised by the Department of Social and Pastoral Theology at the University of Manchester in England. The meeting led to a volume edited by the criminologist Anthony Bottoms and the theologian Ronald Preston (1980). On the book’s back cover, it was claimed as ‘one of the very rare attempts in the post-war period to consider the relevance of Christian theology to issues of crime and punishment’. In the 40 years since there has been only limited crossover between the two subjects.1 In 1978 the context was a ‘coming penal crisis’. Today the penal crisis appears permanent. In 2018 a seminar2 was arranged that again brought together criminologists and theologians. Like the meeting 40 years previously this was in the North West of England, but this time hosted by the Department

2

Introduction

of Law and Criminology, Edge Hill University in Lancashire. Many of the contributors to this volume spoke at the Edge Hill event, although a few others have been added along the way. The starting point for the 2018 seminar – and for this book – was that the dominance of retributive punishment needs to be challenged, and this challenge could be informed by Christian theology. According to the theologian Chris Wood (1991: 72), ‘At the heart of the Christian tradition is a radical critique of the concept of punishment.’ It is argued in this volume that such critique is informed by theological ideas concerning hope, mercy and restoration, rather than the norms of punishment, pain and retribution. The aim of the book is to provide a timely challenge to criminal justice orthodoxy. The collection is novel as it again brings together leading criminologists and theologians. Contributions focus on punishment, although wider criminal justice concerns in policing and probation, as well as mental health and surveillance are also considered. The collection aims to promote crossdisciplinary learning that will be of interest to criminology and theology; but it is hoped that it is also of interest to other academics and students of law, socio-legal studies, legal philosophy and religious studies, as well as interested practitioners and policy makers. I became interested in potential overlaps between criminology and theology when researching for a previous book on philosophical criminology (Millie, 2016). The more philosophy that I read, the more I found myself also drawn to theology, a discipline that appeared to offer much to those interested in fundamental questions concerning crime and justice. The social sciences – including criminology – have for many years been suspicious of religion and only rarely interact with theology. Yet theologians have written on themes of criminological concern, including issues of criminal justice (for example, Wood, 1991; Gorringe, 1996; Forrester, 1997; Newlands, 2006; Stoddart, 2011; Marshall, 2012; Skotnicki, 2012). This book provides an opportunity for the two subjects to speak to one another, to critique retributive punishment and present new thinking on the place of hope, mercy and restoration in secular criminal justice settings. The focus is on learning from Christian theology and it is acknowledged that there may be much to learn from other faith traditions as well. For instance, a peace-making criminology (Quinney and Pepinsky, 1991; Klenowski, 2009) has drawn inspiration from ‘[t]he doctrines and the teachings of the Buddhists, Taoists, Confucists, and others [who] laid the foundation of what many call the mindful and peaceful way of life’ (Klenowski, 2009: 207). According to Paul Klenowski some Christian denominations could be added to this list who have ‘preached ways of being and doing peace for hundreds of years’ (Klenowski, 2009: 208).

3

CRIMINOLOGY AND PUBLIC THEOLOGY

More recently Natti Ronel and Y. Ben Yair (2018: 2096) have proposed a Jewish criminology ‘that is focused on the relation with God, and interprets interpersonal and everyday situations, decisions, and activities accordingly’. Furthermore, in exploring Islamic criminal law, Luqman Zakariyah (2017) has talked of an Islamic theory of criminology. For Ronel and Ben Yair (2018) an overarching spiritual criminology is possible, one that considers intersections between criminology and various religious perspectives. Their focus is Judaism, but they believe there could also be ‘parallel sub-fields such as Buddhist, Christian, and Islamic spiritual criminology, and also a spiritual criminology, as represented by the 12Step Program, that is not confined to a particular religion’ (2018: 2096). The reason this volume is focused on Christian theology is twofold. First – for good or ill – much Western criminal justice has historically drawn inspiration and justification from interpretations of Christian theology, doctrine and tradition. While it is hoped that discussions in this book have global relevance, this is as good a place to start as any. Second, the book takes the view that secular criminal justice has specific lessons to learn from Christian ideas on hope, mercy and restoration. The book takes the position that secular criminal justice and criminology can draw on the non-secular without necessarily adopting specific beliefs about the existence of God. The focus throughout is ‘public theology’ that aims not to proselytise, nor to promote the interests of the church, but to actively engage with, and contribute to, public practice (for example, Hollenbach, 1976; Kim, 2011; Graham, 2013). In many ways public theology is like public criminology, that aims to ‘engage with and influence public responses to crime’ (Loader and Sparks, 2011: 2). The crossover between public criminology and public theology is considered further in this opening chapter. The rest of the volume is then introduced. Some readers will find it difficult to contemplate learning from one of the world’s great religions, either because they do not believe in God, or because the church’s influence has declined following greater secularisation across many aspects of society (see for example, Boutellier, 2019). For Chris Wood (1991: 67), the problem of trying to bring a theological perspective is that ‘theology is a minority interest. We live in a secular pluralist society, in which there is a great diversity of beliefs and values.’ According to the legal philosopher Anthony Duff (2003: 295), ‘The thought that religious ideas could have any place in a normative theory of criminal punishment will be anathema to many liberals.’ The reader may know of abuses perpetrated by religious figures in positions of power (see for example, Death, 2016), or regard religion as a causal influence in much historical and contemporary conflict (for example, Durward and Marsden, 2009). The social sciences have regarded religion ‘as a force

4

Introduction

for integration – and deviance – by definition a force for fragmentation’ (Hoffmann and Bahr, 2000: 256). Critical scholars, especially those who draw inspiration from Marxist thinking, can regard religion as a negative source of social control. According to Rodney Stark and William Sims Bainbridge this was the view of sociology from the very beginning: As the social sciences emerged from philosophy at the end of the eighteenth century, their founders were unanimous in their assertion that religion reinforced the moral order. Despite this, many of these same founders eagerly awaited the collapse of religion, some because they were equally eager for an end to the prevailing moral order (down with ‘false consciousness’), and many others because they despised religion, regarding it as a bundle of irrational superstitions incompatible with enlightened thought. Indeed, in his The Positive Philosophy (1830–42), Auguste Comte proclaimed that a new science, to be called ‘sociology,’ would replace religion as the basis for morality. (Stark and Bainbridge, 1997: 1) Stark and Bainbridge (1997: 1) went on to note that, ‘Of course, nothing of the sort took place’. Neither was the assumed secularisation of the 20th  century as simple as might be imagined. According to Duncan Forrester (1997: 15), ‘We tend to read back too easy an account of the cumulative triumph of the secular.’ As Jürgen Habermas (2008) has highlighted, the secularisation thesis was largely Euro-centric, and religion (in various guises) has survived, if not thrived, elsewhere, especially in the global South. In the 21st century, given the growth of Islam in popular consciousness alongside the endurance of Christianity3 and more general interest in spirituality, it may be possible to label the current age as postsecular (Habermas, 2008; Graham, 2013). According to José Casanova (1994: 3) religion ‘went public’ during the 1980s in that it entered the public sphere in various dramatic ways and the public started paying more attention. This could lead to positive influence, but also harmful effects (that would interest the criminologist), with Casanova citing the Islamic Revolution, the growth of Protestant fundamentalism in the US and the role of the Catholic Church in the Sandinista revolution in Nicaragua. The Christian church similarly does not have an unblemished history when it comes to the treatment of offenders, from the inquisitions of Spanish Catholicism in the 15th to 19th centuries, through to enthusiasm for capital punishment among certain US evangelical groups today. Politicians and voters can draw on this history to construct a God that is a ‘judgmental moral authority’ to

5

CRIMINOLOGY AND PUBLIC THEOLOGY

justify retributive punitiveness (Thomson and Froese, 2016: 839). Such a view is aided by a particular reading of Scripture that translates the lex talionis, or an ‘eye for an eye’ (for example, Deuteronomy 19:21), as applicable to modern sentencing theory. But this is not the only way of reading Scripture and the assumed punitiveness of Christian groups is not straightforward. For instance, in 2015 the US National Association for Evangelicals (NAE) ‘acknowledged for the first time grounds in Christian ethics for both opposing and supporting the death penalty – after 40 years of an entirely pro-death penalty position’ (Jones, 2018: 238). According to the NAE (2015), ‘We affirm the conscientious commitment of both streams of Christian ethical thought.’ Writing in the US journal Criminology and drawing from the 2004 US General Social Survey, James Unnever et al. (2006: 835–6) have claimed that ‘Controlling for a range of religious factors and other known predictors of death penalty attitudes, the results show that Americans with a personal relationship with a loving God are less likely to support capital punishment for convicted murderers.’ According to Unnever et al. (2006: 835) ‘support for capital punishment is problematic because it contradicts the image of a merciful, forgiving deity’. The idea of a merciful, forgiving deity – rather than a judgemental moral authority – is central to discussions in this volume. While criminology has not engaged openly with theology to any great extent, it has still drawn on Christian ideas. In particular, desistance theory often uses the language of repentance in talking about people needing to turn their lives around (as considered by Anthony Bottoms in Chapter 2). Anthony Duff (2003: 295) has talked of criminal punishment as a form of ‘secular penance’. And at the critical or ultra-realist end of the spectrum, criminologists may draw indirectly on Pauline theology as interpreted by self-confessed Leninist Slavoj Žižek (2001:2), who has claimed ‘there is a direct lineage from Christianity to Marxism’ (see Løland, 2018). This claim may be debated; but what this book hopefully demonstrates is that closer engagement between criminology and public theology can be beneficial for both parties. The space where this has the potential for greatest impact is that between public criminology and public theology and this space is considered next.

Public criminology In his 2004 American Sociological Association Presidential Address, Michael Burawoy identified four types of knowledge within sociology, these being professional, critical, policy and public (see Burawoy, 2005). According

6

Introduction

to Burawoy, the fourth of these – public sociology – is there to address the ‘growing gap between the sociological ethos and the world we study’ (2005: 4). A public sociology must be accessible and relevant and engage the public in dialogue. Soon after, this simple idea was adopted by a public criminology (for example, Currie, 2007; Loader and Sparks, 2011; Uggen and Inderbitzin, 2010; Ruggiero, 2012; Rock, 2014). According to Elliot Currie (2007: 175), ‘Despite its accumulated theoretical and empirical heft, the discipline of criminology has had distressingly little impact on the course of public policy toward crime and criminal justice.’ For a subject with such an obvious public policy application this was a depressing observation. The aim of public criminology has been to reverse this position. In unpacking a public criminology, for Ian Loader and Richard Sparks (2011: 2) their chief concern was to ‘examine those ways in which criminologists, and those who produce knowledge about crime and its control under allied banners, have sought, and might in future seek, to engage with and influence public responses to crime’ (emphasis in original). In short, the public criminologist is interested in policy making and public debate on crime and justice. This may be through direct engagement with governments and policy makers, or for those with ‘more radical and oppositional political persuasions’ they may operate ‘at the service of pressure groups and new social movements’ (Loader and Sparks, 2011: 3; see also Cohen, 1988). When talking about a public criminology it is useful to consider what we mean by ‘public’ (Loader and Sparks, 2011). Rather than a single ‘public’, a public criminology engages with numerous diverse publics including national and trans-national policy makers, various moral entrepreneurs (cf. Becker, 1963), pressure groups and new social movements, as well as the numerous groups (for example, social, cultural, political, ethnic, religious and so on) and individuals that make up ‘the public’. Just as there are diverse publics there are also diverse criminologies, including some that turn their backs on the criminology label altogether. For instance, at one end there are the self-styled crime scientists (for example, Laycock, 2005) who have a very practical focus on crime reduction. At the other end are zemiologists who regard crime as socially constructed and that it is instead more useful to focus on social harm rather than crime (for example, Hillyard et  al., 2004). Of course, a decision to define something as harmful is as much a social construction as defining something as criminal, and there may equally be issues of power over who is doing the defining. I have previously noted that, ‘it is possible that one contested concept (crime) is simply replaced by another’ (Millie, 2016: 5). Between crime science and zemiology is a host of other approaches including critical, realist, ultra-realist, green, cultural, feminist, experimental and numerous other criminologies. The danger is

7

CRIMINOLOGY AND PUBLIC THEOLOGY

a form of ‘Balkanisation within the subject with a degree of intolerance of other positions’ (Millie, 2016: 112). It is much more positive to have informed debate, find commonality where we can, and agree to disagree where we cannot. There is something useful to be found in each of these perspectives – none has got it totally right; but similarly, none has got it totally wrong. According to Loader and Sparks (2011: 6) common ground might be found in a desire to engage with public debate; that ‘this responsibility to engage in public life is one thing that criminologists who agree on little else tend to share in common’. My own view is that, while adherents to many of these differing criminological perspectives would question the usefulness of ‘crime’ as a defining category (with behaviour defined as crime changing over time, and between different jurisdictions), it is still a useful place to start for the study of ‘the criminal question’ (Pitch, 1995; Loader and Sparks, 2011). Criminologists can then move away from this core to consider harms, deviancy, non-normative behaviour, incivility or other categories of unwanted behaviour (Millie, 2016). The definition of criminology offered by Edwin Sutherland and Donald Cressey back in 1955 is as good as any; that criminology is concerned with ‘the processes of making laws, of breaking laws, and of reacting towards the breaking of laws’ (1955: 3). This was later reworded by Stanley Cohen (1988: 9) as: ‘Why are laws made? Why are they broken? What do we do or what should we do about this?’ In terms of the current volume, public theology has something useful to say about each of these questions. Regarding why laws are made, lessons can be drawn from biblical law concerning seriousness of offence, wrongfulness or harm, for instance as considered by Jonathan Burnside in Chapter 3. Regarding why laws are broken, Christian theology may be more associated with the language of ‘sin’ (see for example, Chapter 6 by Christopher D. Marshall), but laws are broken nonetheless, be they criminal, normative or religious laws for living. The imprecise crossover between criminal law, norms and religious notions of sin, means that adherence to the criminal law may not always be regarded as the morally right thing to do. In terms of the third question – ‘what do we do or what should we do about this?’ – this is the main focus for the current volume with public theology usefully contributing to debates on all aspects of criminal justice.

Public theology According to David Tracy (1981, cited in Forrester, 1997), theology needs to be sensitive to three publics, these being the church, the academy and wider society. Each requires a distinctive approach. It is the role of public

8

Introduction

theology to communicate with wider society and to ‘present arguments and conclusions which may be examined by anyone independently of the specifics of a particular faith’ (Forrester, 1997: 32). For Elaine Graham (2013: xviii), public theology is simply ‘the study of the public relevance of religious thought and practice, normally within Christian tradition’. For David Hollenbach (1976: 299), public theology ‘attempts to illuminate the urgent moral questions of our time through explicit use of the great symbols and doctrines of the Christian faith’. Similarly, according to Sebastian Kim (2011: 3), ‘Public theology is Christians engaging in dialogue with those outside church circles on various issues of common interest.’ The emphasis is on engagement with the world beyond the church, not with an aim to evangelise, but as an outward expression of God’s love for His creation – hence a desire to address issues such as poverty, injustice, environmental harm and climate change. As expressed in Micah 6:8: ‘And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.’ The motivation may be different, but like the public criminologist, the public theologian is interested in justice and mercy. Of equal importance, according to the book of Micah, is the need for humility. The focus on justice, mercy and humility is illustrated in the story of Jesus and the adulteress, as retold in the gospel of John (8:2–11).4 Jesus was in the Temple when the Pharisees brought ‘a woman caught in adultery’ to him saying, ‘In the Law Moses commanded us to stone such women. Now what do you say?’ The writer recognised this as a trap. One can imagine the picture with the accused at the centre of calls for retribution and blood. The scene has been reproduced in numerous works of art. In a painting by Lucas Cranach the Elder (1472–1553) it is notable that Jesus takes the adulteress by the hand. In the story, Jesus’ response was to bend down and write on the ground with his finger. Jesus demonstrated compassionate humility in taking the Pharisees’ attention away from the accused and firmly onto himself, with those around wondering what he was writing. With the Pharisees still questioning him, ‘he straightened up and said to them, “Let any one of you who is without sin be the first to throw a stone at her.”’ Jesus returned to writing on the ground while each of the Pharisees left one by one. With only the accused left, Jesus stood up and asked, ‘“Woman, where are they? Has no one condemned you?” “No one, sir,” she said. “Then neither do I condemn you […] Go now and leave your life of sin.”’ Not only did Jesus demonstrate compassion and humility, but he showed the women mercy and quite a different vision of justice from what the Pharisees expected. For Jesus, strict adherence to the biblical law – as interpreted by the Pharisees – was not the morally just thing to do.

9

CRIMINOLOGY AND PUBLIC THEOLOGY

This is where public theology might have something useful to contribute to debates within criminology, especially concerning criminal justice theory and practice. Jonathan Burnside has written about the need for a relational justice (Burnside and Baker, 1994), putting relationships at the centre of justice (see also his contribution to this volume in Chapter 3). Similarly, Christopher D. Marshall (2012) has called for a compassionate justice (see also his Chapter 6). In Marshall’s 2012 book Compassionate Justice he focused on Jesus’ parables of the Good Samaritan and the Prodigal Son, which he believed could be read from a restorative justice perspective. The Good Samaritan demonstrated compassion for the injured victim of robbery (who was also an enemy of the Samaritan), and the prodigal son – who had squandered his inheritance – was welcomed home by his father: ‘while he was still a long way off, his father saw him and was filled with compassion for him; he ran to his son, threw his arms around him and kissed him’ (Luke 15:20). The relationships demonstrated in these parables are challenges to existing criminal justice processes (see also Neville, 2014). We are left questioning whether we should also treat our enemies with compassion, including those who have committed crimes against us. And following the father’s exuberant welcome of the prodigal son, how do we welcome offenders back into community? The space where such discussions can be had is between public criminology and public theology. Not all theologians take such a compassionate or relational view of justice. For instance, according to Martin Luther (1523, cited in O’Donovan, 2005: 105): If anyone attempted to rule the world by the gospel and to abolish all temporal law and sword […] pray tell me, friend, what would he be doing? He would be loosing the ropes and chains of the savage wild beasts and letting them bite and mangle everyone. Like Thomas Hobbes’ (1651/1990) ‘war of all against all’ a century later, Luther’s was a pessimistic view. Yet it is always possible that the alternatives of grace, mercy, restoration, and even forgiveness, might result in different outcomes. According to Oliver O’Donovan (2005: 233): The cross challenges the exclusion by which the rulers and authorities define their identities. Representative political authorities include only by excluding. They exclude those that do not belong to them, and they exclude those who, while belonging, incur their condemnation. Restrictive immigration

10

Introduction

on the one hand, penal exclusion from society on the other, are not occasional illiberal lapses, but brute conditions of political order […] But in the reconciling cross God has taken upon himself the ‘reproach’ of the political authorities, ‘outside the gate’ (Hebrews, 13:125). He has exposed the limits of their just order; he has shown up the restrictions of their sympathies, asserting in their place a kingdom truly universal in its scope. (emphasis in original) By drawing inspiration from Christian public theology, the current volume presents an inclusionary, relational alternative to the exclusion offered by contemporary criminal justice. More specifically, the contributors have considered the place of hope, mercy and restoration.

Structure of the book After this introductory chapter the rest of the book is divided into two main parts, followed by a concluding chapter. The title for Part I is ‘A place for hope: Criminology meets public theology’. Here six chapters consider the scope for greater crossover between the two subjects. It is suggested that where criminology and public theology meet can be characterised by ‘hope’ rather than the alternatives of ‘despair’ or ‘pain’. Criminologists have long talked of the pains of punishment or pains of imprisonment (Sykes, 1958; Dubber, 1996; Crewe, 2011). It is suggested that lessons can be drawn from Christian theology that offer a fundamental alternative. In Chapter 2 Anthony Bottoms considers ‘criminal justice and the ethics of Jesus’. As co-editor of the original volume that sparked my interest in this topic (Bottoms and Preston, 1980) I was especially pleased that he was able to make this contribution. Bottoms considers Jesus’ attitude to the law, his call for repentance – what Bottoms highlights as metanoia or a turning around – and his acceptance of sinners. Implications for criminal justice are considered, that we should expect to be punished but also to be welcomed back fully as persons, as illustrated in the story of the prodigal son. In Chapter  3 Jonathan Burnside focuses on three intersections between criminology and public theology – these being consideration of seriousness in biblical law, the development of faith-based units in prison, and the prospect of a relational emphasis to justice versus imprisonment, which he argues ‘acts like a sledgehammer on relationships’. Aaron Pycroft considers ‘St Paul among the criminologists’ in Chapter 4. Continuing the theme of relationship, he highlights the gospel responsibility to carry each other’s burdens, and that this is ‘completely at odds with individualistic

11

CRIMINOLOGY AND PUBLIC THEOLOGY

and reductionist conceptions of modern justice’. Pycroft looks at Paul’s conversion experience, from murderer to saint, and notes how he was not asked to atone for his sins, and neither did he deny his past. So far, the contributors to this volume highlight Jesus’ acceptance of sinners, a turning around from an old way of living, while also not denying our pasts. There is an emphasis on relationship and of needing to carry each other’s burdens that might offer hope to those who are caught up in the criminal justice system. For Chapter 5, theologian Tim Gorringe focuses on the cross in considering religion, structures of feeling, and penal theory and practice. He looks at the gap between sin and crime and, drawing on Karl Barth, acknowledges that we are all offenders. Gorringe explores the influence of satisfaction theory of atonement on penal practice that ‘legitimated the idea that people have to suffer for their offences’. Yet, as Gorringe highlights, this interpretation was never hegemonic and alternative ways of understanding the cross have persisted that may feed into ‘a more reconciliatory understanding of society’. The notion of sin is taken up by another theologian in Chapter  6. Here Christopher D. Marshall focuses on the complex way shame functions, from the entrenched shame of human transgression, through to Christ identifying with ‘the most dishonoured groups in society’. Christ then dies the most shameful death, and in so doing, dying to ‘the power of sin and shame, once and for all’ and fundamentally subverting social shaming and stigmatisation. Marshall proposes that atonement has the capacity to ‘expose, absorb and disrupt the tyranny of shame’. The discussion is related to secular justice, in particular ‘secular narratives of redemption’ and prisoner ‘redemption scripts’. The theme of hope has been a common thread through the first part of the book, and in Chapter 7 my own contribution to the volume continues this focus by considering relationships between criminology, public theology and hope. The chapter draws on Kantian ethics and Jesus’ Sermon on the Plain, especially its emphasis on love for enemies. Paul Ricoeur’s reading of the Sermon is highlighted as demonstrating an economy of gift and a logic of superabundance. By adopting a logic of superabundance an offender does not get what they deserve but instead is generously given a gift of hope as opposed to the pain more typically associated with contact with the criminal justice system. Part II comprises a further six chapters that develop some of these ideas and consider the relevance of Christian theology for contemporary criminal justice, with particular reference to notions of mercy and restoration. In Chapter 8 Richard Bourne takes a detailed exploration of mercy and its relationship to understandings of retributive justice. Drawing on Karl Barth and others, Bourne sees mercy as associated with

12

Introduction

justice, but that through Christ’s gift of grace justice takes on a different meaning from what we might expect. There is an ‘utter repudiation of retribution by Jesus’. And drawing on Pauline theology, justice is instead seen as relational. Bourne applies this focus on relationship to literature on desistance. He considers the relevance of asceticism within Christianity which he sees as ‘not the denial of desire, […] [but] a gracious work of the education of desire’. Bourne sees ascesis as a challenge to the consumerist and emotional desires of late modernity that can fuel criminality, but that it is possible to change the script. The next three chapters look at specific learning for different aspects of criminal justice practice. Lol Burke looks at the quality of mercy in probation practice in Chapter 9. He draws our attention to Christian influence in the birth of probation in England and Wales and then asks whether there is a case for mercy in contemporary probation context. Burke highlights how mercy is harder to prioritise in an era of cost cutting, public protection and risk management. Yet he suggests the need for a renewed language, perhaps centred on mercy and recognising individual dignity and moral agency. The focus shifts in Chapter 10 to the application of Christian theology to policing. Alistair McFadyen is well positioned to consider this, being both a theologian and a serving officer with the Special Constabulary. McFadyen considers the place of love for enemies and love for neighbour within policing practice, with the latter interpreted as love of neighbourhood. He highlights a lack of comprehensive theological engagement with policing beyond suspicion of ‘its confrontational and forceful nature’. The question for McFadyen is whether Christian love can ‘be combined with practices that are coercive, forceful and exercise control’. This is a difficult question to answer. For McFadyen the police need ‘to take control, to investigate, to secure others’ safety’, but this can be from a position of love that limits ‘the use of force to what is necessary, reasonable and proportionate’. For Chapter 11 Andrew Skotnicki looks at mental illness and incarceration, and the possibility that those who are mentally ill that we lock up are truly prophets. Skotnicki is well qualified to contribute to this volume as both theologian and teacher of criminological ethics. The prophecies of incarcerated people who are mentally ill are often inadvertent and may be expressed through their anger and/or schizophrenia. Skotnicki notes that this does not excuse anti-social or violent behaviour, but that ‘voices of acrimony become unwitting mouthpieces’ of God’s indictment of hyperincarceration, social control and neoliberal individualism. Skotnicki quotes Foucault (1973: 81) who observed that ‘Madness is the lowest point of humanity to which God submitted in His incarnation, thereby showing that there was nothing inhuman in man that could not be redeemed and

13

CRIMINOLOGY AND PUBLIC THEOLOGY

saved.’ Perhaps greater mercy can be shown to people who are mentally ill rather than routine incarceration. For Chapter 12 Joanna Shapland draws our attention to processes of restorative justice and the place of forgiveness. She argues that forgiveness is fundamentally social and may aid in the restoration of relationship. While discussions of forgiveness are often past-oriented, forgiveness also looks to future relations and ‘the wish of both to see each other functioning as full members of society’. Shapland notes how forgiveness is not dependent on apology or remorse, giving the example of a victim of IRA terrorism who forgave his daughter’s killers. Forgiveness does not deny the harm done but is a message of hope. Shapland sees forgiveness as having multiple audiences, with a ripple spreading from the initial act of forgiveness, demanding a response from those who hear. In Chapter 13 Eric Stoddart takes the theme of restoration further by considering ‘the restorative gaze’. Stoddart’s focus is the surveillance of restorative justice processes. He brings a theological perspective in proposing a cruciform surveillance where, rather than supervision from above, surveillance is from the cross offering ‘solidarity with all under unjust and discriminatory surveillance.’ According to Stoddart, instead of the oppression offered by retributive justice, cruciform surveillance is shaped by ‘servanthood, friendship and agape as self-giving, unconditional love.’ Again, the emphasis is on relationship, a ‘[g]race-full solidarity, possibly at a cost to oneself ’. For Stoddard, rather than a depersonalised contractual relationship, the emphasis is on covenant which repersonalises. A concluding chapter brings together the main messages from the different chapters in proposing a way forward for greater cross-disciplinary learning between criminology and public theology. The expectation is that this is not a one-off collaboration, but the start of greater crossover between the two subjects. If the ideas discussed in this book are taken seriously then they offer a fundamental challenge to the contemporary view of criminal justice, shifting focus from individualised punishment, pain and retribution to an emphasis on relationship centred on hope, mercy and restoration. The challenges of such a shift are discussed. Notes 1

2

3

There have been few other crossovers between theology and criminology, although there was a concerted effort at theological engagement with issues of justice at the Centre for Theology and Public Issues in Edinburgh in the late 1980s and early 1990s (CTPI, 1986, 1990, 1992). The seminar was co-funded by the British Society of Criminology and Edge Hill University. Albeit with some shifts from established denominations to newer expressions of church (for example, Moynagh with Harrold, 2012; Marti and Ganiel, 2014).

14

Introduction

4

5

The earliest manuscripts do not include this story as part of the gospel of John, but biblical scholars generally ‘believe that the story is a truly ancient one with all the earmarks of an authentic incident from Jesus’ life’ (Taylor Gench, 2009: 398) ‘And so Jesus also suffered outside the city gate to make the people holy through his own blood.’

References

Allen, F.A. (1978) ‘The decline of the rehabilitative ideal in American criminal justice’, Cleveland State Law Review, 27(2/3): 147–56. Bailey, V. (2019) The Rise and Fall of the Rehabilitative Ideal, 1895–1970, Abingdon: Routledge. Becker, H.S. (1963) Outsiders: Studies in the Sociology of Deviance, New York: The Free Press. Bottoms, A.E. and Preston, R.H. (1980) The Coming Penal Crisis: A Criminological and Theological Exploration, Edinburgh: Scottish Academic Press. Burawoy, M. (2005) ‘For public sociology’, American Sociological Review, 70(1): 4–28. Burnside, J. and Baker, N. (eds) (1994) Relational Justice: Repairing the Breach, Winchester: Waterside Press. Casanova, J. (1994) Public Religions in the Modern World, Chicago, IL: University of Chicago Press. Cohen, S. (1988) Against Criminology, New Brunswick, NJ: Transaction. Crewe, B. (2011) ‘Depth, weight, tightness: revisiting the pains of imprisonment’, Punishment and Society, 13(5): 509–29. CTPI (Centre for Theology and Public Issues) (1986) Law and Order: Prospects for the Future, Edinburgh: CTPI. CTPI (1990) Justice, Guilt and Forgiveness in the Penal System, Edinburgh: CTPI. CTPI (1992) Penal Policy: The Way Forward, Edinburgh: CTPI. Currie, E. (2007) ‘Against marginality: arguments for a public criminology’, Theoretical Criminology, 11(2): 175–90. Death, J. (2016) ‘Child sexual abuse and the church’, in K. Sadique and P. Stanislas (eds) Religion, Faith and Crime: Theories, Identities and Issues, Basingstoke: Palgrave Macmillan, pp. 191–210. Dubber, M.D. (1996) ‘The pain of punishment’, Buffalo Law Review, 44(2): 545–611. Duff, A. (2003) ‘Penance, punishment and the limits of community’, Punishment and Society, 5(3): 295–312. Durward, R. and L. Marsden (2009) Religion, Conflict and Military Intervention, Farnham: Ashgate.

15

CRIMINOLOGY AND PUBLIC THEOLOGY

Forrester, D. (1997) Christian Justice and Public Policy, Cambridge: Cambridge University Press. Foucault, M. (1973) Madness and Civilization, translated by R. Howard, New York: Vintage. Garland, D. (ed.) (2001a) Mass Imprisonment: Social Causes and Consequences, London: Sage. Garland, D. (2001b) The Culture of Control, Oxford: Oxford University Press. Gorringe, T. (1996) God’s Just Vengeance, Cambridge: Cambridge University Press. Graham, E. (2013) Between a Rock and a Hard Place: Public Theology in a Post-Secular Age, London: SCM Press. Habermas, J. (2008) ‘Notes on post-secular society’, New Perspectives Quarterly, 25(4): 17–29. Hillyard, P., Pantazis, C., Tombs, S. and Gordon, D. (eds) (2004) Beyond Criminology: Taking Harm Seriously, London: Pluto Books. Hinton, E. (2016) From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America, Cambridge, MA: Harvard University Press. HM Chief Inspector of Prisons for England and Wales (2015) HM Chief Inspector of Prisons for England and Wales Annual Report 2014–15, London: HM Inspectorate of Prisons. Hobbes, T. (1651/1990) ‘Leviathan’, in S.M. Cahn (ed.) Classics of Western Philosophy (third edn), Indianapolis, IN: Hackett, pp. 447–507. Hoffmann, J.P. and Bahr, S.J. (2000) ‘Crime/deviance’, in H.R. Ebaugh (ed.) Handbook of Religion and Social Institutions, New York: Springer, 241–63. Hollenbach, D. (1976) ‘Public theology in America: some questions for Catholicism after John Courtney Murray’, Theological Studies, 37(2): 290–303. Jones, B. (2018) ‘The Republican Party, conservatives, and the future of capital punishment’, Journal of Criminal Law and Criminology, 108(2): 223–52. Kim, S. (2011) Theology in the Public Sphere: Public Theology as a Catalyst for Open Debate, London: SCM Press. Kinner, S.A. and Rich, J.D. (eds) (2018) Drug Use in Prisoners: Epidemiology, Implications, and Policy Responses, Oxford: Oxford University Press. Klenowski, P.M. (2009) ‘Peacemaking criminology: etiology of crime or philosophy of life?’, Contemporary Justice Review, 12(2): 207–22. Laycock, G. (2005) ‘Defining crime science’, in M.J. Smith and N. Tilley (eds) Crime Science: New Approaches to Preventing and Detecting Crime, Cullompton: Willan, pp. 3–24. Loader, I. and Sparks, R. (2011) Public Criminology?, Abingdon: Routledge.

16

Introduction

Løland, O.J. (2018) The Reception of Paul the Apostle in the Works of Slavoj Žižek, London: Palgrave Macmillan. Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice, Eugene, OR: Cascade Books. Marti, G. and Ganiel, G. (2014) The Deconstructed Church: Understanding Emerging Christianity, Oxford: Oxford University Press. McGuire, J. (2018) Understanding Prison Violence: A Rapid Evidence Assessment, HM  Prison & Probation Service Analytical Summary, London: HMPPS. Millie, A. (2016) Philosophical Criminology, Bristol: Policy Press. Millie, A., Jacobson, J. and Hough, M. (2003) ‘Understanding the growth in the prison population in England and Wales’, Criminal Justice, 3(4): 369–87. Moynagh, M. with Harrold, P. (2012) Church for Every Context: An Introduction to Theology and Practice, London: SCM Press. NAE (National Association for Evangelicals) (2015) ‘New NAE resolution recognizes different views on death penalty’, Press release, 19 October, www.nae.net/new-nae-resolution-recognizes-different-views-on-deathpenalty/ Neville, D.J. (2014) The Bible, Justice, and Public Theology, Eugene, OR: WIPF & Stock. Newlands, G. (2006) Christ and Human Rights, Aldershot: Ashgate. O’Donovan, O. (2005) The Ways of Judgment, Grand Rapids, MI: Eerdmans. Pitch, T. (1995) Limited Responsibilities: Social Movements and Criminal Justice, translated by J. Lea, London: Routledge. Pratt, J. (2007) Penal Populism, Abingdon: Routledge. Quinney, R. and Pepinsky, H. (eds) (1991) Criminology as Peacemaking, Bloomington, IN: Indiana University Press. Rock, P. (2014) ‘The public faces of public criminology’, Criminology and Criminal Justice, 14(4): 412–33. Ronel, N. and Ben Yair, Y. (2018) ‘Spiritual criminology: the case of Jewish criminology’, International Journal of Offender Therapy and Comparative Criminology, 62(7): 2081–102. Ruggiero, V. (2012) ‘How public is public criminology?’, Crime, Media, Culture, 8(2): 151–60. Shapland, J., Robinson, G. and Sorsby, A. (2011) Restorative Justice in Practice, London: Routledge. Skotnicki, A. (2012) The Last Judgment: Christian Ethics in a Legal Culture, Abingdon: Routledge.

17

CRIMINOLOGY AND PUBLIC THEOLOGY

Stark, R. and Bainbridge, W.S. (1997) Religion, Deviance, and Social Control, New York: Routledge. Stoddart, E. (2011) Theological Perspectives on a Surveillance Society: Watching and Being Watched, Abingdon: Routledge. Sutherland, E. and Cressey, D. (1955) Principles of Criminology, fifth edn, Chicago, IL: Lippincott. Sykes, G. (1958) The Society of Captives: A Study of a Maximum Security Prison, Princeton, NJ: Princeton University Press. Taylor Gench, F. (2009) ‘John 7:53–8:11’, Interpretation: A Journal of Bible and Theology, 63(4): 398–400. Thomson, R.A. and Froese, P. (2016) ‘God versus party: competing effects on attitudes concerning criminal punishment, national security, and military service’, Journal for the Scientific Study of Religion, 55(4): 839–58. Tracy, D. (1981) The Analogical Imagination: Christian Theology and the Culture of Pluralism, New York: Crossroad. Tutu, D. (1999) No Future without Forgiveness, London: Rider. Uggen, C. and Inderbitzin, M. (2010) ‘Public criminologies’, Criminology and Public Policy, 9(4): 725–49. Unnever, J.D., Cullen, F.T. and Bartkowski, J.P. (2006) ‘Images of God and public support for capital punishment: does a close relationship with a loving God matter?’, Criminology, 44(4): 835–66. von Hirsch, A. (1976) Doing Justice: The Choice of Punishments, New York: Hill and Wan. Wacquant, L. (2002) ‘From slavery to mass incarceration: rethinking the ‘race question’ in the US’, New Left Review, 13(January/February): 41–60. Walker, S., Spohn, C. and DeLone, M. (2017) The Color of Justice: Race, Ethnicity, and Crime in America (sixth edn), Boston, MA: Cengage Learning. Wood, C. (1991) The End of Punishment: Christian Perspectives on the Crisis in Criminal Justice, Edinburgh: St Andrew Press. Zakariyah, L. (2017) ‘Al-Shāfi’ī’s position on analogical reasoning in Islamic criminal law: jurists debates and human rights implications’, International Journal for the Semiotics of Law, 30(2): 301–19. Žižek, S. (2001) The Fragile Absolute – or Why Is the Christian Legacy Worth Fighting for?, London, Verso.

18

PART I

A Place for Hope: Criminology Meets Public Theology

2

Criminal Justice and the Ethics of Jesus Anthony Bottoms

The distinguished legal theorist Neil MacCormick once wrote that being a critical moralist1 ‘can be a risky job […] the two most notable in Western history were executed, one by hemlock and the other by crucifixion’ (MacCormick, 1981: 54). If this assessment is right, and Jesus is indeed one of the Western world’s leading moralists, it seems reasonable to ask whether his ethics might have something of value to contribute to discussions of criminal justice policies in 21st-century democracies. This chapter will attempt to address that question.

Preliminary issues The question is intriguing and important, but it cannot be satisfactorily answered without first tackling two other questions. They are: first, whether it is possible to identify with reasonable precision what main ethical principles Jesus embodied and taught; and second, whether the teachings and example of any religious leader can appropriately contribute to the formation of official policies in a modern pluralistic liberal-democratic state that is committed to the principle of the equal treatment of every citizen – of any faith or none. I shall tackle these necessary preliminaries before turning to the substance of the chapter.

21

CRIMINOLOGY AND PUBLIC THEOLOGY

Identifying ‘the ethics of Jesus’ is not a straightforward matter, because Jesus wrote nothing, and our main sources for his ethics are the four canonical gospels, which were written some forty to sixty years after his death by four different authors, each with a communicative purpose of his own. Given this, can we reliably uncover Jesus’ own ethical principles? This is a very large question, and not one within the scope of my own academic expertise. The question has, however, been tackled at some length by Richard Burridge (2007) of King’s College London, and I shall follow his analysis by focusing on three topics that Burridge identifies as central to (although not exclusive of) Jesus’ ethics. These topics are Jesus’ attitude to law, his call to repentance, and his ‘open pastoral acceptance of sinners, with whom he spent his life and for whom he died’ (Burridge, 2007: 79).2 As will become apparent, discussion of these matters will require attention both to Jesus’ oral teaching and (especially as regards the third topic) to the example that he gave through the way that he lived his life. A convincing central claim in Burridge’s book is that, in seeking to identify the ethics of Jesus, we need to consider both of these matters.3 But some will ask, is it appropriate, in a modern pluralistic liberaldemocratic state, to press the case for criminal justice policies to take account of the teachings of any particular religious leader? The answer to this question is surprisingly straightforward, given the tenets of liberal democracy. Provided that the teachings of the religious leader can command assent within the democratic process, and are formulated as principles of general application, of course they can be considered. (If it were otherwise, the state would not be treating religious leaders equally with non-religious thinkers such as Jeremy Bentham). That being the case, in each of the following sections I shall first seek to set out Jesus’ ethical stance on the point in question, and then consider whether, within a modern liberal-democratic state, that stance has normative merit when modified so as to remove its specifically faith-based connotations. There is however one significant complication in applying this approach to the teachings of Jesus. An important element within his ethics is a set of what have been described as ‘strenuous commands’ (Harvey, 1990), which include sayings that people should forgive others ‘not seven times, but […] seventy-seven times’; that they should love their enemies; and that ‘if anyone strikes you on the right cheek, turn the other also’ (Matthew 18:22, 5:44, 5:39).4 Such sayings have inspired many people, from St Francis to Gandhi, but they have also been seen as problematic within the Christian church, because although they are ‘expressed in the imperative mode […][they] cannot be totally and generally “obeyed” by any community of people living real lives in the real world’ (Harvey, 1990: 22,

22

Criminal Justice and the Ethics of Jesus

emphasis added). After a detailed study, Anthony Harvey (1990: 210) has offered the following interpretation of this kind of teaching:5 [This element within Jesus’] ethical teaching was not intended to provide a set of rules to regulate the moral conduct of his followers, but rather to challenge us to live ‘as if ’ the kingdom [of God]6 were already a reality. And since the values of the kingdom correspond to some of the deepest and most constant yearnings of humanity […] it is not surprising that [Jesus’] maxims, for all their uncompromising directness and radicalism, have haunted the conscience and inspired the imagination of innumerable human beings through every century since they were first uttered and recorded. We shall return to this issue in the final section of this chapter.

Jesus’ attitude to law Jesus was a Jew, and for Jews the Torah (the first five books of the Hebrew Bible) is, now as in the first century, of great ethical significance. ‘Torah’ primarily means ‘teaching’, but this is a wide term which is understood to include ‘doctrine and practice, religion and morals’. Also, within this framework, ‘the Torah prescribes two sets of laws, religious and moral’ (Epstein, 1959: 23). Accordingly, in considering Jesus’ attitude to law, we need to pay close attention to the Jewish background. In an important passage within the Torah, Moses speaks to the people of Israel as follows: So now, O Israel, what does the Lord your God require of you? Only to fear the Lord your God, to walk in all his ways, to love him, to serve the Lord your God with all your heart and with all your soul, and to keep the commandments of the Lord your God and his decrees that I am commanding you this day, for your own well-being. (Deuteronomy 10:12–13) A little later in the same passage, we are told that, in his dealings with his people, God is ‘not partial’; moreover, he ‘executes justice for the orphan and the widow’ – that is, he has a special concern for those who are vulnerable (verses 17–18). These texts must be read within the conceptual framework of the theology of the Book of Deuteronomy, which articulates the notion

23

CRIMINOLOGY AND PUBLIC THEOLOGY

of a covenant between God and Israel. This covenant is crucial to the interpretation of the ‘commandments’ of the Torah, such as the Ten Commandments, which – as is well known – include the kinds of prohibition familiar to all criminal lawyers – ‘you shall not murder […] neither shall you steal […] neither shall you bear false witness’ (Deuteronomy 5:17–20).7 In popular thinking about biblical commandments, there is, as John Barton of Oxford University has pointed out, a perception that ‘the Old Testament God simply shouts at people and orders them about’ (Barton, 2014: 137). But this is incorrect: the concept of a covenant provides ‘a sophisticated foundation for ethics’, and while the Old Testament does indeed ‘see obedience as the dominant feature in ethics, […] this is softened and nuanced in many ways by presenting such obedience as flowing from gratitude for benefits conferred’ (Barton, 2014: 137). Within such a context, we should also note that, in the passage cited above, it is claimed that the commandments were formulated ‘for your own well-being’. What was Jesus’ attitude to obedience to Torah? The resolution of this question is complicated by the fact that the four gospels offer somewhat different pictures, with Matthew being the most keen to portray Jesus’ teaching as being ‘in strong continuity with the written Torah and the prophets’ (Loader, 2002: 260). But despite this variety of emphasis in the sources, there is a scholarly consensus that Jesus endorsed most of the main teachings of the Torah. For example, he is recorded in two gospels as proclaiming – following aspects of Torah teaching – that the two greatest commandments are to love God with all one’s heart, and to love one’s neighbour as oneself.8 There is also little doubt that Jesus approved of the Deuteronomic claim that God ‘executes justice for the orphan and the widow’, since in his own ethical teaching – for example in the ‘Beatitudes’ of Matthew Chapter 5 – he went out of his way to emphasise God’s blessing on the poor in spirit, the meek and those who mourn. Yet it is also clear that Jesus did not teach or practise total obedience to Torah, as is indicated, for example, by his healings on the sabbath, and his reported saying that ‘the sabbath was made for humankind, and not humankind for the sabbath’ (Mark 2:27).9 The reason for his stance on this issue can be traced to the facts that ‘at the centre of the teaching of the historical Jesus’ was his proclamation of ‘the kingdom or reign of God’, and that this teaching was characterised by an ‘urgency’ which emphasised both the nearness of the kingdom, and the need to sacrifice some other things ‘to gain the treasure of entering’ it (Burridge, 2007: 43). In relation to law, this urgency sometimes required ‘the priority of compassion for human need’ above laws relating to ritual and cultic practice (Loader, 2002: 519).

24

Criminal Justice and the Ethics of Jesus

A reasonable summary is therefore that: ‘Jesus seems to have “relaxed” some aspects of the law […] perhaps through an appeal to its “inner meaning” or love, [although] on other occasions he appears to radicalize or intensify it,10 and he never really abrogates it’ (Burridge, 2007: 53, emphasis added). Or, as William Loader (2002: 518–19) has put it, ‘the earlier forms [of material relating to Jesus’ teaching] […] indicate an attitude towards the Law which upholds it, but changes the emphasis in interpreting it’. In light of this biblical analysis, let us now try to consider what (if any) principles could be suggested for adoption by the criminal justice system of a modern, secular, liberal-democratic state. I would suggest that three such principles could be put forward: • First, that a system of laws embodying prohibitions against murder, theft, false witness and so on should not be seen as arbitrary, but rather as something that can and does provide ‘for [the] well-being’ of humankind (Deuteronomy 10:13); • Second, that the administration of a legal system must not be ‘partial’, and it must ensure that those who are vulnerable are not excluded from justice (Deuteronomy 10:17–18); and • Third, that the provisions of an existing legal system should not be regarded as necessarily sacrosanct, but must always be subject to criticism in light of the ‘inner meaning’ of the law, and its wider purposes. The third of these principles can be quickly dealt with, since an approach of a similar kind is widely accepted in contemporary legal theory. I shall therefore focus attention on the other two principles. As regards the first principle, this is solidly supported by modern social scientific research. For example, the distinguished Cambridge social anthropologist Meyer Fortes (1983: 6) concluded in his last published paper that ‘the capacity and the need to have, to make [and] to follow […] rules are of cardinal importance for human social existence […] for without rules there can be neither society nor culture’ (emphasis added). The reason for this is that humans, are, by evolution, social creatures (they never live alone: see Dunbar, 2014), and, as the sociologist Dennis Wrong (1994) has convincingly argued, a functioning social order needs both regularity (people need a degree of routine in order to pursue their lives without undue stress)11 and rule (all stable groups need some understanding of how decisions are to be made within the group). Indeed, and probably surprisingly to some, findings of this kind have also been confirmed from research in prisons. One might think that all prisons are lawless places which resemble Hobbes’ (1651/1996: 84) nightmare vision of ‘war, where every man is enemy to every man [and] men live without

25

CRIMINOLOGY AND PUBLIC THEOLOGY

other security than what their own strength and their own invention shall furnish them withal’. Some prisons, sadly, do have some of these attributes; but in her sustained and highly original work on ‘prisons and their moral performance’, Alison Liebling (with Arnold, 2004, chapter 10), Britain’s leading prisons researcher, has shown empirically that most prisoners look for something very different. In short, they particularly value regimes that embody a clear and consistent sense of purpose, where staff are competent and confident in their use of authority, and which deliver safety, order and fairness to prisoners, along with a real concern for them as individuals and for their personal needs. Liebling has also shown empirically that prison regimes that embody these characteristics produce better outcomes for prisoners on a range of matters including ‘levels of distress, suicide rates, disorder, and, to some extent, reconviction rates’ (Liebling, 2015: 21). Rules and practices promoting these values can therefore be confidently advocated as being (as the Deuteronomist long ago claimed) for the good of humankind. I turn now to the second suggested principle set out above – namely, that law should be impartial, with a special concern that socially disadvantaged people are not denied justice. At a theoretical level, it is difficult to see how anyone could reject this principle if, first, they are committed to the concept of the equal treatment of citizens, and, second, if they are aware of the many ways in which power structures can, deliberately or otherwise, make disadvantaged people invisible and therefore vulnerable. Given this, the principle seems likely to find ready formal acceptance in a liberal democracy. But the formal acceptance of a principle is one thing; practical implementation is another. Unfortunately, given the hiddenness of many acts of injustice against disadvantaged people, even well-meaning managers and social analysts can fail to notice them. This point was forcefully brought home to me in a study of two high-security prisons that colleagues and I carried out some years ago. Our research was commissioned by the then UK government, which was concerned about a recent spate of ‘control problems’ (loss of control of parts of prisons; hostage takings and so on) within high-security prisons in England and Wales. Against this background, our task was to study in detail the social order of two such institutions, with contrasting regimes. One of these establishments (Long Lartin) was generally considered to be a ‘good’ prison. It ran a relatively ‘relaxed’ regime which staff strongly supported, and which most prisoners regarded as legitimate; unlike several other high-security prisons, it had experienced no significant collective unrest, and there was a widespread acceptance that ‘a number of prisoners who had […] been reckoned unmanageable [at other long-term prisons] had settled successfully at Long Lartin’ (Sparks et al., 1996: 318). But

26

Criminal Justice and the Ethics of Jesus

despite these undoubted strengths, our research uncovered a significant weakness. We found that the relaxed regime ‘gave rise to opportunities for […] predation on fellow-inmates not found to the same degree’ in other prisons, and that ‘some of the victims of [this] predation’ (inevitably, the more vulnerable prisoners, such as sex offenders) ‘felt not only afraid but angry and unsupported’ (Sparks et  al., 1996: 318). There were relatively few such men, and they tended not to complain because of their vulnerability. Nevertheless, they experienced the prison as both unsafe and frightening; and sadly, the injustices they were suffering had not been fully identified by prison managers. Similar stories can be told in relation to many other social institutions;12 there is therefore a strong case for the development of safeguards to try to ensure that such sufferings happen less often in future.13

Jesus’ call to repentance At the beginning of Mark’s gospel, the first words attributed to Jesus are ‘The time is fulfilled, and the kingdom of God is come near; repent, and believe in the good news’ (Mark 1:15). As a leading commentator points out, this is clearly a summary – ‘Jesus himself must have spelt out his message at much greater length than this’ (Hooker, 1991: 53). Nevertheless, the summary is helpful in pointing readers to what are universally regarded as two key features of Jesus’ teaching, namely his proclamation of the nearness of the reign of God (see previous discussion) and his call for a response from his audience. In this section, I shall focus on the main aspect of the suggested response, that of ‘repentance’. However, as I have argued more fully elsewhere (Bottoms, 2019), it is necessary to clarify the meaning of this concept in Jesus’ teaching, since in the modern world most people’s understandings of ‘repentance’ seem to be primarily past-oriented. That is, they seem to envisage that a repentant person will seriously reflect on a past wrong act, accept that this act was wrong, and then attempt (if possible) to make amends, or at least to express deep regret to the person wronged. By contrast, the Greek word translated as ‘repent’ in Mark 1:15 is metanoia, which has the primary meaning of ‘a change of mind or purpose’, and can therefore be understood, in colloquial speech, as a process of ‘turning around’. This different connotation does not, of course, preclude regret for the past, but it is a much more future-oriented idea, looking towards a different future. Following this approach, the entry for ‘repentance’ in a 1967 Dictionary of Christian Ethics begins by saying that the Christian understanding of repentance can be illustrated by ‘the figure of a man

27

CRIMINOLOGY AND PUBLIC THEOLOGY

with his back turned to God and moving away from him; the figure stops still, and then turns to face God and begins to move towards him’ (Browne, 1967).14 In the criminological paper previously mentioned, I argued that, within a justifiable state criminal justice system, it is appropriate for authorities to adopt a secular version of metanoia by encouraging sentenced offenders to ‘turn away’ from crime. I further argued that this makes better sense, as a normative principle, than either the encouragement of ‘deep’, pastoriented repentance (as advocated by Antony Duff, 2001: 107–8)15 or simply offering the offender the opportunity to reflect on his past actions, with no particular recommendations about his or her future (as suggested by von Hirsch, 1993). In effect, therefore, my 2019 paper makes the philosophical case as to why contemporary criminal justice systems should accept this aspect of Jesus’ teaching, when suitably secularised and adapted to a criminal justice context.16 I will not here repeat that technical argument, but instead I will illustrate its potential practical significance by discussing some contemporary empirical research on what is called ‘desistance from crime’ among so-called volume offenders; that is, those who repeatedly commit the most common crimes, such as theft, burglary, robbery, fraud, criminal damage and offences relating to drugs. It has of course been known for a long time that crimes of this kind are disproportionately committed by youngish men. But only in the last twenty years or so have criminologists fully realised that even persistent volume offenders usually slow down, or even stop, their offending at a fairly young age. Indeed, the fastest deceleration in the frequency of such offending occurs in the early twenties (Piquero et al., 2007: 136). Of those who continue beyond that, most stop in their thirties; and only a small minority continue beyond forty. In other words, almost all such offenders, even persistent offenders, eventually desist from crime. How does this process of desistance happen? This is not the right occasion on which to discuss the technical research, but here are a few highlights.17 For persistent offenders, desistance is usually a gradual, not a sudden process. They have been committing offences regularly; almost all of their friends have criminal records; particularly when they are young, they get a buzz out of offending; and they rely on the proceeds of crime to support their lifestyle, which often (although not always) includes drugtaking and plenty of alcohol. Changing all that takes time, and desistance is, basically, a process of learning to live a non-criminal life when one has been leading a largely criminal life. In other words, desistance is indeed a kind of metanoia, a (usually gradual) process of ‘turning around’. To achieve that kind of turnaround in their lives, people need first of all to decide to try to change – decisions that are usually motivated by a wish

28

Criminal Justice and the Ethics of Jesus

for a more positive future. Would-be desisters also almost always need support, maybe from a partner, or from their family of origin, or from statutory or voluntary agencies – but interestingly, it is usually the informal rather than the formal support that is the most important. Along the way, they will almost certainly encounter some significant obstacles and setbacks, which will need to be overcome. A case history from research which I conducted with Joanna Shapland illustrates some of these processes at work (for further details see Bottoms and Shapland, 2014: 324–5). When we first met him, 20-year-old ‘Len’ (a pseudonym) had been convicted on eight separate occasions, and he had spent time in a young offender institution. His offences were mostly drugrelated, and he had recently been ‘sleeping rough’, because his relationship with his mother had broken down. He wanted to stop offending because he was sick of being homeless: “waking up, trying to find money, trying to find something to eat, stuff like that, day in, day out”. In short, he had had enough. His subsequent journey was complicated, and it included one major setback involving a fresh conviction; but his relationship with his mother had been improving, and after the reconviction he moved back to her house, came off drink and drugs, did his best to avoid his old group of friends, and stopped offending – at least for the duration of our research project. Desistance had been a gradual and a difficult process, but it had happened. And that is the point; empirically speaking, desistance can and often does happen, very frequently on the initiative of the offender, and with the support of his or her loved ones. In short, the metanoia-based understanding of repentance, derived from the gospels but suitably secularised, seems to provide not only a defensible normative approach to punishment in a modern state (Bottoms, 2019), but also a good theoretical description of what most who have been convicted of volume crimes try to achieve, and which they sometimes succeed in achieving – a turning around of their lives.18 I have so far spoken of repentance (or metanoia) only as an individual response, but it seems probable that, in Jesus’ original preaching, the need for personal repentance was couched within a broader context: namely, a call to the people of Israel as a whole to repent. As the leading New Testament scholar Tom Wright (1996) has argued, that collective repentance would establish ‘a different way of being Israel’, in a way that would ‘restore [Israel’s] fortunes at last’.19 Obviously, the specifics of that call do not apply in Britain today, but the concept of ‘collective repentance’, when applied to the criminal justice context, does appropriately lead one to consider whether we need to ‘turn around’ some of the ways in which we formulate criminal justice policies, and deliver criminal justice. That question could of course be asked in

29

CRIMINOLOGY AND PUBLIC THEOLOGY

relation to not a few substantive policies, but here I want to focus on a recent example relating to an equally important matter, namely how the state goes about fashioning and delivering its policies in the field of criminal justice. A few years ago, the then UK government formulated a policy concerning probation practice in England and Wales called ‘Transforming Rehabilitation’ which was brought into force by the Offender Rehabilitation Act 2014. In summary, this radical reform divided the traditional work of the probation service between, on the one hand, the National Probation Service and, on the other, various private-sector community rehabilitation companies (CRCs) who offered successful bids to run services in 21 regional areas.20 Unfortunately, however, this reorganisation very quickly ran into difficulties, and only five years after the 2014 Act the government had already announced plans to scrap key aspects of the original structure. It did so following some strongly critical reports from independent bodies. One of these, the National Audit Office (2019: 10) concluded that ‘Transforming Rehabilitation has achieved poor value for money for the taxpayer’. Another, the House of Commons Justice Committee (2018: 3) reported that ‘many serious issues […] have arisen […] [and these] are of great concern to us given that evidence suggests that if probation services are delivered well they can have a positive impact’. Very importantly, the committee also concluded that ‘it was a mistake to introduce [these] reforms without completing thorough piloting’ (2018: 15). In a third report, the Chief Inspector of Probation, Dame Glenys Stacey, focused especially on more professional and human issues: To implement government policy, capable probation leaders were required to deliver change they did not believe in […] On inspection, we now find probation supervision provided under contract [by private providers] to be sub-standard, and much of it demonstrably poor. Judicial confidence in community sentencing is now at serious risk […] There has been a deplorable diminution of the probation profession and a widespread move away from good probation practice. (Chief Inspector of Probation, 2019: 3) When mistakes of this magnitude have been made, it seems reasonable to argue that the public is entitled to expect a process of collective metanoia, or ‘turning around’, in the processes of criminal justice policy making. To adapt Tom Wright’s phrase, this unfortunate example suggests the need to develop ‘a different way of being government’.

30

Criminal Justice and the Ethics of Jesus

Jesus’ ‘open pastoral acceptance of sinners’ In Jesus’ parable of the Prodigal Son (now sometimes called the parable of the Two Sons: Luke 15:11–32), the younger son’s selfishness and pleasure seeking eventually led him to hit rock bottom in his life, at which point he decided, in penitent mood, to return home to his father.21 When he was still some distance from home, his father saw him, ran towards him and embraced him. His elder brother was not so welcoming, but the father explained his approach by saying: ‘we had to celebrate and rejoice, because this brother of yours was dead, and has come to life; he was lost, and has been found’ (Luke 15:32). This parable exemplifies in narrative form what Richard Burridge (2007: 79) has called Jesus’ ‘open pastoral acceptance of sinners’. As Burridge emphasises, according to the gospel accounts Jesus certainly practised what he preached: Jesus accepts many and various people who would have had […] problems in the areas of money, sex, violence, the state and power […][But] not only does he not spell out concrete and specific changes of behaviour in the lives of the people with whom he associated, he also requires none of the [standard] ritual or other demonstrations of repentance. […] When criticized for this, he said that God accepted them. […] No wonder the religious people with the high ethical standards objected and accused him of being ‘a glutton and a drunkard, a friend of tax collectors and sinners’ (Matthew 11:19). (Burridge, 2007: 65, 70–1) How, if at all, might a notion such as ‘the acceptance of sinners’ be thought about, and made practical, within the context of a modern criminal justice system? There are perhaps two issues of particular importance here: one concerns what should happen to ex-prisoners when they have completed their sentences, and the other concerns the more general question of how society should view those who have the official status of ‘offenders’. Drawing on the ethics of Jesus, it might seem that, at least in principle, reasonably clear policy guidelines can be offered with respect to each of these issues. As regards the first issue, ex-prisoners should be welcomed back as full and potentially valuable members of society, at least if (as most do) they choose the path of metanoia, or intended desistance (‘he was lost, and has been found’). As regards the second issue, Jesus clearly went out of his way to treat gluttons, drunkards and (hated) tax collectors as, in the full sense, people, and not as individuals who were defined by their

31

CRIMINOLOGY AND PUBLIC THEOLOGY

social reputation; accordingly, criminal justice policies and practice should adopt a similar stance towards ‘offenders’. However, anyone familiar with contemporary penal policy will find herself insistently asking the question: can such policies be realistically advocated in the contemporary world? This question arises so insistently because of a set of developments in modern penal systems that have been characterised, in shorthand, as ‘the new penology’.22 Two of the central features of the ‘new penology’ are actuarialism (the development and use of formal risk indicators) and systemic managerialism (a greater emphasis on management, focused on the efficiency and effectiveness of criminal justice agencies, and – among other things – the use of performance indicators to assess success or otherwise in achieving these goals). These features have led to a particular focus on risk, which is typically assessed actuarially and deployed at various points within managerial systems. For example, in England and Wales the National Probation Service routinely uses actuarial instruments to assess the risks posed by those offenders who are placed on statutory supervision in the community. These risk assessments are then used as the basis for a set of tiered categories of risk, with different policy prescriptions applied to the supervision of each tier (National Probation Service, 2016). Notice however that these tiers are based on group risks, with only limited scope for individual exceptions.23 In addition to these actuarial issues, the organisational focus of managerialism can also inhibit the individualisation of services: as one senior criminal justice manager is reported as saying, ‘when you are designing a system […] there is pressure to design something that is organisationally convenient, [but] individualisation is not’ (Moffatt, 2014: 9).24 There is, therefore, some tension between the system-focused priorities of the ‘new penology’ and the more individualised and person-focused approach adopted in the ethics of Jesus. Against this background, let us consider more fully the two ethical issues raised earlier in this section – those of post-prison acceptance and treating offenders as, in the full sense, persons. To begin with the former, a recent publication by experienced prisons researchers reports on an intensive short study of an English prison called Warren Hill (Liebling et al., 2019). This is a low-security closed prison for males, the population of which, at the time of the research, consisted mainly of long-term prisoners who were approaching their release date. Most of the men were, however, not eligible either for transfer to an open prison or for a short period of release on temporary licence (ROTL), because of the restrictions created by a 2015 government policy that prohibited such benefits to anyone with any history of escape/absconding from prison custody, or any ROTL failure, during their current sentence. That policy was created in the wake

32

Criminal Justice and the Ethics of Jesus

of three serious incidents that occurred in 2013–14, when prisoners on ROTL committed fresh offences; its intention was to reduce risks to the public arising from the temporary release of prisoners.25 The abstract of the paper by Liebling and her colleagues tells its own story: [Warren Hill was found to be] inspirational in its ethos, relationships and mission. Prisoners talked passionately about their experiences in it and its impact on their personal development. But prisoners received very little resettlement support, and things sometimes went wrong, not because of any ‘moral failings’ on their part, but because they could not even navigate the journey ‘home’. [The prison] looked like everything we know cumulatively about ‘better prisons’, but its prisoners were failed as they transitioned out. (Liebling et al., 2019: 104) So here was a truly excellent prison regime, yet one where the staff were not able to prepare prisoners for release as they would have wished, in large part because of the restrictive national 2015 policy. As the authors point out, this restricted eligibility was applied to any history of absconding or ROTL failure during the current sentence, ‘even if this was many years ago, or while young offenders’ (Liebling et al., 2019: 124 n7). Unfortunately, the restrictions had some tragic consequences: the authors describe one instance where two prisoners who had made real progress in the prison were devastated to find themselves failing quickly after ‘what sounded like anxiety attacks as they attempted to catch trains, deal with road traffic, or otherwise navigate their way in the world outside after more than 16 years inside’ (p. 119). The central policy tension here is, as the authors point out (Liebling et  al., 2019: 124 n7), between a wish to reduce the risk of offences being committed by prisoners on home leave, and the advantages of phased release for people who have spent very long periods in institutional seclusion. These are both real issues: past behaviour is usually an indicator of enhanced likelihood of future behaviour of the same type; and the evidence from a recent research analysis by the Ministry of Justice is ‘consistent with the conclusion that ROTL reduces reoffending’ (Hillier and Mews, 2018: 7). So, the policy question is: how does a responsible government balance this tension? The thinking leading to the restrictive 2015 policy seems to have focused only on the risks of offences on home leave. In so doing, it failed to consider adequately the need to assist the reintegration of

33

CRIMINOLOGY AND PUBLIC THEOLOGY

long-term prisoners who are coming to the end of their sentences, and the potential importance of phased release as a part of this process. Since the publication of the Warren Hill research, the 2015 policy has been modified by the UK government,26 but Liebling and colleagues’ paper remains highly relevant in policy terms as a poignant reminder of what can go wrong when a risk-averse penal strategy is given too much weight. Of course, in a complex modern society risk must be taken carefully into account,27 but it can be argued that the concept of acceptance of the wrongdoer after the completion of his/her punishment also requires serious ethical attention. Such a view has recently been put forward by Antje du Bois-Pedain (2017: 200) who argues that, in a liberal constitutional state, punishment should be conceptualised as ‘setting the terms of our continued relations with the perpetrator of a crime in the light of his deed’. The implication of this approach is that, for all but a few very serious offenders, among these ‘terms for continued relations’ is that the perpetrator will return to the community with full rights when his or her punishment is complete; hence, the author challengingly titles her paper ‘Punishment as an Inclusionary Practice’ (emphasis added). As previously indicated, such a position is congruent with that of the ethics of Jesus. However, his ethics (as exemplified in the parable of the Prodigal Son) also offer a ‘strenuous command’ that challenges societies to think beyond issues concerning the rights of ex-prisoners, and to consider also the concepts of ‘full acceptance’ and ‘reintegration’, with their more personal and relational connotations. Could such an ethical approach be incorporated into the penal system of a modern state? The short answer seems to be ‘perhaps, but not without qualification’. But let us pause that thought for now, and turn to our final question: namely, whether it is possible, in a modern risk-oriented criminal justice system, for offenders to be treated as, in the full sense, persons, given that both actuarialism and managerialism seem – at least in practice – to place some limits on individualised approaches? There is no doubt that modern managerial systems do sometimes fail to treat those with whom they deal with appropriate respect as persons. This point is well illustrated by an example from research by Mark Halsey (2016: 214) in South Australia. Halsey describes how a parolee visited the state drugs agency (DASSA) for a routine urine-based drugs test, which was clean. While he was there his parole officer telephoned to say that he also needed to visit the parole board office, where (among other things) he would be required to take another drugs test in an hour’s time. As he had just urinated at DASSA, the parolee drank water to enable him to take the test at the parole office (under the South Australian system, not being able to urinate for a drugs test counts as a breach of parole).

34

Criminal Justice and the Ethics of Jesus

After taking the second test, he was told that the result was ‘a bit clear’, which according to the manual was a risk indicator.28 He was therefore told that if his urine ‘keeps coming [back] like this we can [write up] your diluted [urine] as a dirty [urine]’. Fortunately, he was not on this occasion sanctioned by the parole office; but given the clean results of the test at DASSA, the whole of the rest of the incident is an illustration of managerial requirements overriding common sense and humanity. (Why did two different state agencies need to drugs-test an individual on the same morning?). Understandably, the parolee was angry that he was not being treated with appropriate respect as a person. This is a bad example, but as an illustration of the ways in which unthinkingly applied managerial protocols can dehumanise, it is by no means unique.29 Alison Liebling (2015) has conceptualised tensions of this kind by drawing on a distinction made by the Jewish philosopher-theologian Martin Buber between ‘I-Thou’ and ‘I-It’ relationships. For Buber (1970: 59–60), there is a fundamental difference between an objectified way of seeing another person (‘I-It’) and a fully human relationship (‘I-Thou’): as he puts it, ‘when I confront a human being as my Thou and speak the basic word I-Thou to him, then he is no thing among things […] [rather] I stand in relation to him’. Liebling (2015: 27) reports that in one high-security prison, given the prevailing ethos, even she as a very experienced prisons researcher found herself beginning to ‘carry risk thinking’ into the prison with her, in ways that were disorienting for productive research relationships. Accordingly, she says, ‘meeting people, in their wholeness, was more difficult than at any other time’ in her research career (emphasis added). As with the Warren Hill example, what is seen here is the potential for some features of the ‘new penology’ to override a concern for individuals – including their needs, their hopes, their fears and their sense of personal integrity and identity. Of course, unpopular decisions must sometimes be made, and appropriate personal distance must also be maintained between the officials of the criminal justice system and those whom they are supervising.30 But the ethics of Jesus once again offer a challenge in the form of a ‘strenuous command’ that society’s relationships with those who have offended should always include a significant ‘I-Thou’ element. So, we are left with the question whether a modern penal system, incorporating reasonable elements of risk and managerialism, can also accommodate such a ‘strenuous command’ (as well as one of acceptance after punishment, as previously discussed). A recent theoretical analysis of punishment offers a constructive framework with which to tackle this question. Leo Zaibert (2018: 2) argues that most contemporary punishment theory ‘is unable to cope

35

CRIMINOLOGY AND PUBLIC THEOLOGY

with the complexity of moral thought and moral life’ (emphasis added). In an effort better to capture this complexity, he draws a distinction between what he describes as the axiological and deontic dimensions of moral theory. The axiological dimension ‘is concerned with theoretical questions about value’, while the deontic dimension refers to ‘considerations that lead us to act in certain ways’ (Zaibert, 2018: 13, emphasis in original). Given his concern with appropriate complexity in moral analysis, Zaibert further suggests that we need a ‘new map’ of justifications of punishment, in which the ‘central distinction’ will be that between monistic and pluralistic justifications (p. 18) – with only the latter seen as being able to take fully seriously the complexity of moral life. In such pluralistic analyses, much attention must be paid to the axiological dimension of the moral topic in question, to ensure that all values appropriate to that topic have been included – and Zaibert (2018: 147) contends that most punishment theorists ‘do not take [this] axiological turn seriously enough’.31 Of course, as one moves from the axiological to the deontic (action) element within a specific situation, it becomes necessary to prioritise the various values that are in play at the axiological level. According to Zaibert (2018: 175), this is a complex process which can yield different results in different specific situations; and ‘one can be a pluralist […] without having to provide a precise rule as to when and why one of these values defeats [another] and without one’s approach thereby becoming incoherent or otherwise unmanageable’. What follows if we apply a framework of this kind to the topics under discussion in this section? Briefly, within the axiological dimension, ‘attention to risks’ and ‘effective management’ will certainly be appropriate values to consider in relation to the community supervision of offenders. So too, however, will the principles (derived from the ethics of Jesus) of acceptance after punishment and treating people in a full sense as persons, with identities, hopes and needs. If a pluralistic axiological approach of this kind were adopted and fully applied, it would then be the case that when formulating general policies (such as the 2015 ROTL policy) or when dealing with specific cases (such as the South Australian example), it would always be necessary to take into account the importance of treating people as people, and of acceptance, even if – at the deontic or action level – it was considered necessary for these values not to be fully acted on because of competing considerations. Such an approach seems to be wholly congruent with Anthony Harvey’s (1990: 22, 210) suggestions that, while the ‘strenuous commands’ of Jesus ‘cannot be totally and generally obeyed by any community of people leading real lives’, yet in their ‘uncompromising directness and radicalism’ they constantly challenge human beings to live ‘as if ’ the world can be a better place. Moreover,

36

Criminal Justice and the Ethics of Jesus

individuals and societies can do something about making the world a better place in the here and now.

Conclusion It can, I believe, reasonably be argued that a thread of continuity and congruence has emerged in the course of the analysis in this chapter. That thread can perhaps be identified from the following summary points: • Systems of laws should not in principle be seen as arbitrary, but as necessary for the wellbeing of humankind. • The administration of a legal system must not be partial, and it must ensure that the vulnerable are not excluded from justice. • Those who break laws can (usually) expect to be punished; but penal systems should encourage metanoia (a ‘change of mind or purpose’) among offenders, with a view to their potentially being accepted as full members of society at the end of their sentence. • Those with power in relation to criminal justice systems sometimes make serious mistakes, and where this occurs the encouragement of collective metanoia is appropriate. • The principles of acceptance of offenders after punishment, and of treating offenders in the full sense as persons, merit full inclusion among the values to be applied within a penal system, even if on occasion other values must take priority in decisions made on specific occasions. The analysis of the chapter has tried to show that this set of values can be derived from the ethical teaching and practice of Jesus, and of the Jewish legal and moral context within which he exercised his ministry. Crucially, Jesus’ teaching and practice focused both on the importance of ethical standards and on the importance of the principle of inclusivity for marginalised and vulnerable people. His teaching was, of course, strongly religious in orientation, but one can nevertheless argue (and this chapter has sought to make such an argument) that, suitably adapted, these ethical principles have an enduring relevance to the criminal justice policies and practice of contemporary secular states. Moreover, some of these principles are in danger of being neglected in some legal jurisdictions; and where that is so, serious attention to them would significantly improve current practice. Notes 1

In speaking of ‘critical moralists’, MacCormick is referring to the distinction, used in the work of the legal theorist H.L.A. Hart, between ‘positive morality’ and

37

CRIMINOLOGY AND PUBLIC THEOLOGY

2

3

4 5 6

7 8

9

10

11

12

13

14

‘critical morality’. ‘Positive morality’ is defined as ‘the morality actually accepted and shared by a given social group’, whereas ‘critical morality’ refers to ‘the general moral principles used in the criticism of actual social institutions including positive morality’ (Hart, 1963: 20). I first focused on these three topics in a sermon on ‘Christianity and crime’, delivered in the chapel of Trinity College Cambridge in 2015 at the invitation of the Dean of Trinity, Dr Michael Banner (see Bottoms, 2015). The present chapter is a significantly extended version of some of the arguments of that sermon, developed with an eye to a secular as well as a Christian audience. I am most grateful to Michael Banner for his constructive comments on an earlier draft of this chapter, but he is of course not to be held responsible for its imperfections. This dual emphasis is derived by Richard Burridge (2004) from his previous and influential comparison of the four gospels with features of GraecoRoman biographies. All biblical quotations in this chapter are from the New Revised Standard Version. This interpretation is endorsed by Burridge (2007: 61). As described more fully later in this chapter, the coming of the ‘kingdom’ or ‘realm’ of God was a central feature of the teaching of Jesus. Another version of the Ten Commandments is found in Exodus chapter 20. Mark 12:28–31; Matthew 22:34–40. The commandment to love God appears at Deuteronomy 6:4–6 as well as at 10:12; the commandment to love one’s neighbour is found in Leviticus 19:18. In approaching this topic, however, one needs to be aware that traditional Christian scholarship often drew ‘too easy a contrast between Jesus and other Jews, with the latter [seen as] being concerned only for casuistry … [recent scholarship] has changed this caricature of Jewish legalism, hopefully for ever’ (Burridge, 2007: 53). Examples where Jesus intensified the law include his sayings in the form ‘you have heard […] but I say’ as regards anger, adultery, divorce and the swearing of oaths (Matthew 5:21–2, 27–8, 31–2 and 33–7). These are among his ‘strenuous commands’, and are discussed in Harvey (1990: 76–91). See further Giddens (1984: 60–4), who describes how the extreme disruption of ordinary routines of life in Nazi concentration camps, and notably the ‘general unpredictability of events’ there, resulted in many prisoners feeling a sense of ‘radical ontological insecurity’ (p. 62). This has been described as the underenforcement of laws and regulations. Alexandra Natapoff (2006) has argued that a recurring structural feature of underenforcement is that the victims are socially powerless and vulnerable people. Shamefully, Christians of the present era will be very conscious that, within various churches, institutional structures have in the recent past been used to suppress what turned out to be true claims of sexual and physical abuse by priests and others in authority. In these situations, there was frequently a turning of a blind eye to the sufferings of victims, and an ethical preference for preserving the reputation of Christian institutions. Where that was done deliberately, matters were clearly significantly worse than what my colleagues and I observed in Long Lartin, where the suffering was not deliberately caused by the institution. It is important that Christians writing about ethics should be willing to acknowledge serious church failings of this kind. Given this different focus, some contemporary scholars have, when writing in English, chosen to use the word metanoia rather than ‘repentance’, on the grounds

38

Criminal Justice and the Ethics of Jesus

15

16

17 18

19

20

21

22

23

that ‘the former means something entirely different from the latter’. However, others argue that, while metanoia is indeed the broader of the two concepts, it can include dimensions of regret and remorse, so it would be unwise ‘to completely disassociate’ the two words (Torrance, 2006: 10). I am here adopting the second of these views. Of course, I do not suggest that offenders who wish to go through a process of ‘deep’ repentance should be discouraged; indeed, in such circumstances prison or probation staff should actively support them. The argument is simply that it is not appropriate for the state formally and routinely to expect offenders to act in this way. The case was summarised technically in the following way: ‘Communicative censure is theorised as intrinsically including an illocutionary message that the action in question was wrong, and a perlocutionary message to the wrongdoer to change his/her behaviour. There is, however, no explicit focus on remorse or regret’ (Bottoms, 2019: 129, emphasis in original). For a recent overview of desistance research, see Shapland and Bottoms (2017). It needs to be added, however, that state agencies have sometimes been slow to adapt their policies and practices in the light of the rapid increase in research-based understandings of the processes of desistance: see further Bottoms and Shapland (2019). See Wright (1996: 246–58); the specific quotations are respectively from pp. 258 and 249. Broadly speaking, the CRCs were given the responsibility of supervising cases thought to involve lower risk, while the National Probation Service retained responsibility for more serious cases, and also for all probation-related court duties such as the preparation of pre-sentence reports. As Franklin (2001: 947) has noted, the younger son’s change of heart was motivated, at least in part, by self-interest: ‘my father’s hired hands have bread […] but here I am dying of hunger’ (v. 17). Interestingly, an implication of this seems to be that God doesn’t mind too much if people start ‘turning around’ for instrumental (self-oriented) reasons, as long as the wish to change is genuine. This term was introduced in a seminal article by Malcolm Feeley and Jonathan Simon (1992: 450), who identified three important then-recent policy shifts in many jurisdictions. These shifts can be summarised as (1) an increased focus on risk; (2) the formation of some ‘newly “systemic”’ objectives for the criminal justice system and (3) the deployment of techniques targeting offenders in aggregate in place of traditional techniques of individualisation. For a more recent summary account of the new penology, see Brown (2014). From a system perspective, this makes good sense because research evidence has consistently demonstrated that actuarial predictions of future offending are, in aggregate, more accurate than the predictions made by clinicians or supervisors. It must however always be borne in mind that group predictions are not intended to, and do not, predict outcomes for individuals. For example, the research population of which Len was a member had a predicted reconviction rate (using a standard instrument) of 78  per cent, which in the event was very accurate (that is, to within two percentage points). However, if one knows about such a predicted reconviction rate, it is very easy to treat all members of the group as high risk, whereas in fact one in five of individuals within the group will not be reconvicted (but no one knows in advance who they are).

39

CRIMINOLOGY AND PUBLIC THEOLOGY

24

25

26

27

28

29

30

31

It should be emphasised that this is not an inevitable consequence of a managerialist policy approach. For example, a colleague and I recently argued (with support from relevant empirical research) that ‘it is possible [for managers] to train supervisors and develop policy which embodies steps that can be taken to create an individualised response that fits individual offenders’ circumstances and goals’ (Bottoms and Shapland, 2019: 265). Yet despite such possibilities, in practice managerialism more usually results in the adoption of the kind of thinking expressed by the manager quoted in the text. The 2015 ROTL policy is set out in Prison Service Instruction (PSI) 13/2015; the restrictions mentioned in the text are in para.7.3. ‘ROTL failure’ includes both failure to return from ROTL and conviction for an offence committed while on ROTL. The background to the 2015 policy is more fully explained in Beard (2019). See Ministry of Justice and HM Prison and Probation Service (2019), para. 5.3. The revised policy retains the reasons for exclusion set out in the 2015 policy, but now limits non-eligibility for open conditions or ROTL to prisoners who have attempted escape or had a ROTL failure within the most recent two years, or who have more than one such incident within the current sentence. This is not a platitudinous statement. The author, who is a retired staff member of the Cambridge Institute of Criminology, is completing this chapter in the aftermath of an unexpected terrorist attack in London in November 2019, which began at a conference organised by the Institute. Tragically, this resulted in the deaths of two former students, and in serious injuries and trauma to others associated with the Institute. Because the person giving the sample might have ‘swamped’ an underlying drugs intake by recently drinking large amounts of water. For a more technical discussion and critique of risk-focused supervision practice, see Porporino (2018). See also Halsey et al. (2017), who provide examples from three different jurisdictions of would-be desisters who on occasion feel themselves to be ‘boxed in’ to a difficult situation – sometimes by the bureaucratic rules of the agency assigned to help them – and who respond to this situation by deliberately reoffending. See for example Liebling (2011: 491) on the importance of staff-prisoner relationships being ‘right’ rather than simply ‘good’ – that is, they are not ‘right’ if they are ‘too close or too informal, lacking boundaries and professional distance’. In particular, Zaibert argues that many punishment theorists move too quickly to a justification of punishment. In so doing, they do not give sufficient weight to the fact that punishment involves the deliberate infliction of suffering, and that in value-based (axiological) terms the deliberate infliction of suffering is normally treated as a moral wrong.

References

Barton, J. (2014) Ethics in Ancient Israel, Oxford: Oxford University Press. Beard, J. (2019) Prisoners’ Release on Temporary Licence, Briefing Paper CBP6878, London: House of Commons Library. Bottoms, A.E. (2015) ‘Christianity and crime’, sermon preached in Trinity College, Cambridge, 26 April, http://trinitycollegechapel.com/media/ filestore/sermons/2015-4-26-AnthonyBottoms.pdf

40

Criminal Justice and the Ethics of Jesus

Bottoms, A.E. (2019) ‘Penal censure, repentance and desistance’, in A. du Bois-Pedain and A.E. Bottoms (eds) Penal Censure: Engagements within and beyond Desert Theory, Oxford: Hart Publishing. Bottoms, A.E. and Shapland, J.M. (2014) ‘Can persistent offenders acquire virtue?’, Studies in Christian Ethics, 27(3): 318–33. Bottoms, A.E. and Shapland, J.M. (2019) ‘Introducing “desistance” into criminal justice supervision policies and practices: possibilities and challenges’, in S. Farrall (ed.) The Architecture of Desistance, London: Routledge. Brown, M. (2014) ‘New Penology’ in G. Bruinsma and D. Weisburd (eds) Encyclopedia of Criminology and Criminal Justice, New York: Springer. Browne, R.E.C. (1967) ‘Repentance’, in J. Macquarrie (ed.) A Dictionary of Christian Ethics, London: SCM Press. Buber, M. (1970) I and Thou, edited and translated by W. Kaufman. Edinburgh: T&T Clark. Burridge, R.A. (2004) What Are the Gospels? A Comparison with GraecoRoman Biography (revised edn), Grand Rapids, MI: Eerdmans. Burridge, R.A. (2007) Imitating Jesus: An Inclusive Approach to New Testament Ethics, Grand Rapids, MI: Eerdmans. Chief Inspector of Probation (2019) Report of the Chief Inspector of Probation, London: HM Inspectorate of Probation. Du Bois-Pedain, A. (2017) ‘Punishment as an inclusionary practice’ in A. du Bois-Pedain, M. Ulväng and P. Asp (eds) Criminal Law and the Authority of the State, Oxford: Hart Publishing. Duff, R.A. (2001) Punishment, Communication and Community, Oxford: Oxford University Press. Dunbar, R. (2014) Human Evolution, London: Penguin Books. Epstein, I. (1959) Judaism: A Historical Presentation, Harmondsworth: Penguin Books. Feeley, M.M. and Simon, J. (1992) ‘The new penology: notes on the emerging strategy of corrections and its implications’, Criminology, 30(4): 449–74. Fortes, M. (1983) Rules and the Emergence of Society, London: Royal Anthropological Society. Franklin, E. (2001) ‘Luke’ in J. Barton and J. Muddiman (eds) The Oxford Bible Commentary, Oxford: Oxford University Press. Giddens, A. (1984) The Constitution of Society, Cambridge: Polity. Halsey, M. (2016) ‘In search of desistance: notes from an Australian study’ in J. Shapland, S. Farrall and A.E. Bottoms (eds) Global Perspectives on Desistance, London: Routledge.

41

CRIMINOLOGY AND PUBLIC THEOLOGY

Halsey, M., Armstrong, R. and Wright, S. (2017) ‘“F*ck it”: Matza and the mood of fatalism in the desistance process’, British Journal of Criminology, 57(5): 1041–60. Hart, H.L.A. (1963) Law, Liberty and Morality, London: Oxford University Press. Harvey, A.E. (1990) Strenuous Commands: The Ethic of Jesus, London: SCM Press. Hillier, J. and Mews, A. (2018) The Reoffending Impact of Increased Release of Prisoners on Temporary Licence, Analytical Survey 2018, London: Ministry of Justice. Hobbes, T. (1651/1996) Leviathan, J.C.A Gaskin (ed.), Oxford: Oxford University Press. Hooker, M.D. (1991) A Commentary on the Gospel According to St Mark, London: Continuum. House of Commons Justice Committee (2018) Transforming Rehabilitation: Ninth Report of Session 2017–2019, London: House of Commons. Liebling, A., assisted by Arnold, H. (2004) Prisons and Their Moral Performance, Oxford: Oxford University Press. Liebling, A. (2011) ‘Distinctions and distinctiveness in the work of prison officers: legitimacy and authority revisited’, European Journal of Criminology, 8(6): 484–99. Liebling, A. (2015) ‘Description at the edge: I-It/I-Thou relations and action in prisons research’, International Journal for Crime, Justice and Social Democracy, 4: 18–32. Liebling, A., Laws, B., Lieber, E., Auty, K., Schmidt, B.E., Crewe, B., Gardom, J., Kant, D., and Morey, M. (2019) ‘Are hope and possibility achievable in prison?’, Howard Journal of Crime and Justice, 58(1): 104–26. Loader, W.R.G. (2002) Jesus’ Attitude towards the Law: A Study of the Gospels, Grand Rapids, MI: Eerdmans. MacCormick, N. (1981) H.L.A. Hart, London: Edward Arnold. Ministry of Justice and HM Prison and Probation Service (2019) Release on Temporary Licence (ROTL) Policy Framework, London: Ministry of Justice. Moffatt, S. (2014) Prospects for a Desistance Agenda, London: Criminal Justice Alliance Natapoff, A. (2006) ‘Underenforcement’, Fordham Law Review, 75(3): 1715–76. National Audit Office (2019) Transforming Rehabilitation: Progress Review, Report by the Comptroller and Auditor General, London: House of Commons. National Probation Service (2016) NPS Operating Model, Version  1.0, London: National Probation Service.

42

Criminal Justice and the Ethics of Jesus

Piquero, A., Farrington, D.P., and Blumstein, A. (2007) Key Issues in Criminal Career Research: New Analyses of the Cambridge Study in Delinquent Development, Cambridge: Cambridge University Press. Porporino, F.J. (2018) ‘Developments and challenges in probation practice: is there a way forward for establishing effective and sustainable probation systems?’, European Journal of Probation, 10(1): 76–95. Shapland, J.M. and Bottoms, A.E. (2017) ‘Desistance from crime and implications for offender rehabilitation’, in A. Liebling, S. Maruna and L. McAra (eds) The Oxford Handbook of Criminology (sixth edn), Oxford: Oxford University Press. Sparks, R., Bottoms, A.E. and Hay, W. (1996) Prisons and the Problem of Order, Oxford: Clarendon Press. Torrance, A. (2006) Repentance in Late Antiquity, Oxford: Oxford University Press. von Hirsch, A. (1993) Censure and Sanctions, Oxford: Clarendon Press. Wright, N.T. (1996) Jesus and the Victory of God, London: SPCK. Wrong, D. (1994) The Problem of Order: What Unites and Divides Society, Cambridge, MA: Harvard University Press. Zaibert, L. (2018) Rethinking Punishment, Cambridge: Cambridge University Press.

43

3

Three Intersections in Criminology and Public Theology Jonathan Burnside

The intersection of criminology and public theology is inevitably concerned with our ideas about the ultimate things, including our ultimate ideas about human nature and our ultimate ideas about humanity’s relationship to the spiritual. They include the mystery of our sense of obligation (why should I behave in a particular way?), the relationship between law and morality, as well as perpetual questions of guilt and innocence, of desistance and change and of legitimacy and judgment. My own explorations in criminology and public theology formally began when Nigel Walker set Heinrich Heine’s dying words as an assignment for a penology module (‘Dieu me pardonnera, c’est son metier’1) couched in a friendly warning that I should not be ‘too theological’.2 I am not sure how well I have adhered to his advice since then; for better or worse, my research has included the moral question of ‘seriousness of offence’ which undergirds the sanction of imprisonment; the role of faith-based units in prisons and the development of ‘relational justice’ as a Christian-inspired dynamic for criminal justice and prison reform. These three strands are interrelated but, whether singly or collectively, I hope they show not only the different ways in which criminology and public theology challenges criminal justice orthodoxies but also, as I will suggest towards the end, some Christian conventions as well.

45

CRIMINOLOGY AND PUBLIC THEOLOGY

Public theology, sentencing and ‘seriousness of offence’ The first intersection of criminology and public theology I consider is the problem of ‘seriousness of offence’. In England and Wales, under section 1(2)(a) of the Criminal Justice Act 1991, this is the primary ground, in practice, for determining who is sent to prison.3 According to the Court of Appeal in Baverstock [1993] and Cox [1993]4 seriousness of offence refers to ‘the kind of offence which when committed […] would make all right thinking members of the public, knowing all the facts, feel that justice had not been done by the passing of any sentence other than a custodial one’. But there are problems with this formulation. Most obviously, as Andrew Ashworth (1997: 7) asked, ‘[w]ho are these people, if not the judges and magistrates themselves?’ If sentencers effectively keep the content of the test to themselves (Ashworth and Hough, 1996) then the question of moral seriousness risks becoming a virtually unreviewable discretion. How can we know whether the Act is being correctly applied? This is an urgent question given that in England and Wales imprisonment is the worst form of pain that the state is legally allowed to inflict on its citizens.

The problem of ‘seriousness of offence’ Related to this problem is the fact that seriousness of offence is a normative issue. It assumes ‘[v]ices are all alike as they are vices […] but though they are equally vices, yet they are not equal vices’ (Montaigne, 1613/1931: 2). It also assumes we can agree on differences in moral turpitude. But is this confidence justified? Which is worse: pouring paint over someone else’s car or killing a suspected burglar in your home? In the US, where surveys of crime seriousness can influence the scaling of punishment, respondents averred that pouring paint over someone else’s car was more serious than killing a suspected burglar (Cullen et al., 1982). Another US survey (in fact, the largest of its kind ever conducted) found that robbing a victim of $1,000 at gunpoint was equal to walking into a public museum and stealing a painting worth $1,000 (Hoffman and Hardyman, 1986). For these US respondents, the salient factor seems to be the amount of money involved. Such responses indicate that a society’s views of seriousness are ultimately shaped by its underlying values. It is because perceptions of seriousness reflect differing worldviews that seriousness is an ‘essentially contested concept’.

46

Three Intersections in Criminology and Public Theology

One way around this might be to define ‘seriousness’ without recourse to morality. In fact, one pragmatic definition of seriousness can be found in the Home Office’s decision, in the early 1980s, to develop a blueprint on ‘seriousness’ based on a statistical analysis of current court practice. ‘Seriousness’ was defined in terms of the status quo. There was nothing normative about this definition of seriousness. It was simply a matter of ‘what the courts do’. Needless to say, such definitions do not satisfy because they do not provide the criminal justice process with a ‘general justifying aim’ (Hart, 1968) in regard to punishment. Ultimately, seriousness of offence tells us what society sees as most threatening to its survival, and what penalties are appropriate for offending. To this extent it holds up a mirror to the criminal justice process and challenges the law to identify its underlying values. This is not straightforward in a postmodern culture.

Seriousness of offence in biblical law One way of addressing this, from the perspective of public theology, is to look closely at the conception of seriousness of offence in biblical law. This is because biblical law has a strong conception of seriousness of offence. For while it is true, in general terms, that ‘sin is sin is sin,’ the punishment for sin in biblical law varies. In addition, biblical law highlights relative rank, significance and primacy in its individual commandments; so much so that the later Rabbinic distinction between ‘light’ and ‘heavy’ commands gave rise to a whole exegetical tradition that distinguished between lighter and weightier, smaller and greater commandments. The question of ‘seriousness’ demonstrates precisely what the prophets5 and Jesus6 taught: namely, there are priorities to be observed in responding to God’s law. Space prohibits detailed consideration but, in this section, I provide some pointers of how public theology might reflect on seriousness of offence, drawing on my monographical study The Signs of Sin (2003).

1. The semiotics of seriousness First, biblical law has many different ways of punishing offenders, including capital punishment, corporal punishment, social exclusion, reparation and restitution, as well as a wide variety of shaming ceremonies and sacrificial rituals (Burnside, 2003). This means that the concept of seriousness of offence can be expressed in a variety of ways. Even within a particular type of sanction, such as capital punishment, there were a range of registers (such as burning and stoning). This is significant from

47

CRIMINOLOGY AND PUBLIC THEOLOGY

a semiotic perspective since semiotics is concerned with how meaning is constructed and with the study of sign structures and sign processes. What is communicated by the choice of one form of punishment over another and what underlying values are thereby expressed? The precise form of the penalty is important in biblical law. It conveys powerful messages to the person on the receiving end of the punishment, as well as to the wider audience who either see or hear about it. The range of punishments meant there was ample room to match the seriousness of the punishment to the seriousness of offence with considerable finesse. Something specific was expressed by the choice of a particular penalty for a given offence. By contrast, in modern law, ‘type of punishment’ is not a nuanced register of seriousness, given our heavy reliance on imprisonment as a form of punishment. Of course, when both fine defaulting and mass murder are dealt with by means of custody, we express the difference in terms of length of imprisonment. But this is not a salient register for most lay people, or even for many judges (Fitzmaurice and Pease, 1986). Modern law thus lacks the range of expression that gives seriousness of offence in biblical law its semiotic power. The need to develop other registers is increasingly recognised by penal philosophers (for example, Kleinig, 1991). Reflecting on the different forms of punishment in biblical law and what these communicate about the seriousness of the offence may assist the contemporary search for alternatives to custody.

2. Use of descriptive registers Second, biblical law employs a wide range of descriptive registers to communicate seriousness of offence. These include characterising certain offences as ‘abominations’ (for example, Leviticus 18:26) or ‘wickedness’ (for example, Leviticus 18:17; Deuteronomy 12:29); the use of ‘publicexample’ formulae (for example, Deuteronomy 21:21); statements as to the purpose of the sanction (for example, Deuteronomy 21:21); and some indication as to whether it is a repeat offence (Deuteronomy 21:18–21, 25:8f; Leviticus 21:9). The range of descriptive registers well illustrates the biblical practice of communicating the seriousness of the offence to as wide an audience as possible, in as many different ways as possible. By contrast, modern law assumes that statutes are written for legal specialists and not for the general public. This limits the communication of legal values. Unlike biblical law, there is not the same expectation that legal values will have an impact on the general public. This suggests ways should be found to maximise the communication of legal values in modern society (for example, through the ‘two-document’ solution; in which one statute is written for lawyers and another is written for the general public).

48

Three Intersections in Criminology and Public Theology

3. Use of multiple jurisdictions Third, the use of different jurisdictions in biblical law (for example, parents, elders, judges, the King) (Burnside, 2003) to communicate different senses of seriousness suggests there is room for greater diversity of authority in modern law. We should not assume the state is always the best punitive agent (Kleinig, 1991: 420) or that the spectrum of behaviour currently addressed by the criminal justice process is appropriate. Such diversity is a limiting factor in semiotic terms. If the same system deals with trivial matters that are not regarded as morally very bad, this will affect how seriously we regard its treatment of the non-trivial.

4. ‘Harm’ and ‘wrong’ Fourth, seriousness of offence is usually seen as comprising two main dimensions: factual ‘harmfulness’ and normative ‘wrongfulness’. Some offences are typically seen as ‘more wrong than harmful’ (for example, stealing a bicycle from a drive) while others are perceived as ‘more harmful than wrong’ (for example, a teenager hitting an old woman in the street). In biblical law, however, seriousness of offence is primarily defined in terms of wrongfulness rather than harmfulness. The use of descriptive registers for what would nowadays be regarded as ‘victimless’ crimes (for example, ‘wanton folly’ for promiscuity in Deuteronomy 22:13– 21) indicates the biblical tendency to express normative, as opposed to purely factual, judgements. For example, the vision of the prophet Ezekiel expresses the horror of idolatry in terms of its wrongfulness rather than its harmfulness (Burnside, 2003, chapter 6). While normative and factual judgements cannot be wholly separated in the Bible (not least given the strong Wisdom belief that all sin has harmful consequences), nonetheless the defining feature of seriousness in biblical law is its wrongfulness rather than harmfulness. By contrast, the results of modern seriousness studies suggest that ‘wrong’ is defined in terms of ‘harm’. Therefore, if an offence does not appear to result in measurable harm, it is not regarded as being wrong or serious.

5. Extent of impact Fifth, the impact of a crime in biblical law is felt more widely than just its immediate victims. All offences are regarded as crimes against the God of Israel not just those that appear to be directed primarily against Him (such as idolatry and blasphemy). Offences are also regarded as serious if they pose a threat to the wider community (for example, Achan’s offence

49

CRIMINOLOGY AND PUBLIC THEOLOGY

in Joshua 7) or pollute the Land (Numbers 35:33) or affect arrangements for its division (Deuteronomy 25:5–10), or its inheritance (1 Kings 21). By contrast, modern seriousness studies emphasise the effect of the crime on the victim, to the extent that victimless crimes (for example, narcotics, drunkenness) are not considered serious (O’Connell and Whelan, 1996). Indeed, some offences that warranted the death penalty in biblical law (for example, false worship, dishonouring parents and promiscuity) would today be regarded as victimless crimes.

6. Stigma and character Finally, in biblical law, seriousness of offence appears to be related to some inherent quality or ontology of the individual. Legal charges and punishments in the Bible frequently stigmatise the offender’s character (for example, the accusations in Deuteronomy 21:18–21 of being ‘stubborn and rebellious’ and ‘a glutton and a drunkard’) (Burnside, 2003). The offender is not merely punished for what he has done but for who he is. In Deuteronomy 25:5–10, the offender is punished by a change of name which signifies the degeneration of his character (Deuteronomy 25:114–19). By contrast, in modern law, only the deed is criminalised and character is merely a matter of mitigation.7 Under s.66(6) of the Criminal Justice Act 1993 judges are allowed to take an offender’s previous offending history into account in determining seriousness. This may or may not be similar to the charge on which he is convicted. However, the language of s.66(6) is, conceptually at least, ‘actoriented’ rather than ‘person-oriented’. This may perhaps be the main difference between biblical and modern conceptions of punishment. There is a contrast between the person-oriented punishment of biblical times and the act-oriented punishment of modern law. Biblical law is interested in character and directs punishment against the character of the offender or, to put it another way, it holds the offender responsible for the moral choices he makes that mould his character (cf. Pincoffs, 1973). Modern law, at least in theory, looks at the seriousness of the offence itself and is not interested in the character of the offender.8 Some penal philosophers and criminologists have argued that character should play an increased role in modern criminal law (for example, Bayles, 1982). In practice, however, it may be argued that all punishment makes intimations concerning a person’s character. After all, in punishing, there is an implicit or explicit denunciation or condemnation of the punishee who is deemed to have acted in a morally discreditable manner (Kleinig, 1991: 402).

50

Three Intersections in Criminology and Public Theology

Public theology and sentencing Does it matter if seriousness of offence is couched in a moral framework or not? Why can it not be a purely pragmatic exercise, to be applied by judges as they see fit? But attempts to define seriousness without reference to morality leave the question of who is sent to prison extremely vulnerable to political pressure and the pressure of public opinion. Similarly, political statements to the effect that ‘prison works’ have power to redefine the meaning of seriousness; here, seriousness of offence becomes equated with the number of people the prison service can, or ought, to hold. It is an ironic development given that the idea behind putting seriousness at the heart of the criminal justice process in England and Wales was originally to reduce the prison population. Prior to the implementation of the Criminal Justice Act 1991 (in 1992) the prison population stood at 45,800. Now it stands at 82,748 (as of 2 August 2019).9 Is this increase of 80 per cent the result of more people committing ‘serious’ crimes? Or are judges and magistrates sending more people to prison for crimes that would not have attracted a prison sentence nearly thirty years ago (Hough et al., 2003)? If the latter, it underlines the fact that the size of the prison population is a matter of political choice; not of justice, nor of seriousness. The problem of seriousness therefore underlines the need for transcendent values in the sentencing process. Public theology has a role to play if we are not to be left merely with a programme of social exclusion and social engineering.

Public theology, prisons and the development of faith-based units Another intersection between criminology and public theology is the emergence and growth of faith-based prisons and special prison units. Their existence shows the readiness of prison departments to turn to faith-based communities to assist in finding solutions to the problem of how to manage expanding prison populations in ways that are safe and humane. At the same time they raise a number of questions for national governments and domestic prison services, including the proper aims of punishment in a legitimate and legitimating criminal justice process; the scope for developing more constructive prison regimes; making prisoners more responsible; the degree of permissible contact with prisoners’ families and outside volunteers; and finally the relationship of the prison to the community of which it is a part. In Western countries, including

51

CRIMINOLOGY AND PUBLIC THEOLOGY

the US and the UK, additional concerns are raised regarding human rights and equal opportunities. There are many fruitful points of contact here between public theology and criminology, although in this section I limit myself to two questions. The first is theological and arises from what is, on the face of it, the unusual fact that the vast majority of faith-based units (FBUs) have a Christian basis. This is despite the fact that the term ‘faith-based’ can, in principle, be applied to any faith. Several multifaith and interfaith units in the US include faiths such as Judaism and Islam yet, even here, the overwhelming majority of prisoners describe themselves as Christians. In addition, multifaith and interfaith units are managed by Christian staff and depend for their viability on a volunteer force that is almost entirely Christian. The first, theological, question therefore is: what is it about Christianity, specifically, that leads to this interest in building FBUs in prisons? The second question is criminological and asks: what do such units contribute, if anything, to the running of prison regimes?

Relevance of Christianity Certain concerns, deeply rooted in the heart of Christian doctrine, may help us to explain the overwhelming dominance of Christianity within FBUs. For although the practice of developing FBUs is a recent development, the following concerns have been a long-standing part of traditional Christian social action (this section draws on Burnside et al., 2002, 2005).

1. Concern for prisoners No other founder of a world religion identified with criminals in the way Jesus of Nazareth, the founder of Christianity, did. Shocking as it was, Jesus chose to be classed with criminals and to suffer the fate of a criminal. The New Testament describes how the vocation of the Messiah,10 when fully played out, was to be identified with lawbreakers in his life and to be counted among them in his death. Revealingly, when Luke describes the Crucifixion in his gospel, he refers to Jesus and ‘the two other criminals also’ who were crucified (Luke 23:32, italics added). The only individual to whom Jesus promised eternal life during his own earthly life was a violent robber who was crucified with him: ‘[…] Today you will be with me in paradise’ (Luke 23:43). A pair of criminals on a hill outside Jerusalem formed one of the first Christian communities. Jesus warned his followers to be ready to meet a criminal’s end (Mark 8:34–5). In fact,

52

Three Intersections in Criminology and Public Theology

so thoroughly does Jesus identify with prisoners that Jesus nominates caring for the imprisoned as a criterion of judgement and one of the ways in which Christians may encounter his presence (Matthew 25:31–46). Christianity thus has a deep-rooted affinity with prisoners and hence with the idea of establishing ‘communities in prisons’.

2. Concern for human decency This distinctively Christian concern for prisoners as such is part of a more general conviction that human beings are ‘awesomely [and] wondrously made’ (Psalm 139:14) in ‘the image of God’ (Genesis 1:27). This belief, also common to Judaism, is further enhanced by the New Testament claim that, in Jesus Christ, God ‘appeared in the flesh’ (1 Timothy 3:16). This hallowing of our humanity means that Christianity must be critical of policies and institutions that violate the imago Dei (image of God) in the human person. While there is debate as to precisely what the imago Dei means (Westermann, 1994) it is frequently taken to include human qualities and capacities, including relationships, choice and responsibility. Imprisonment is designed to take away relationships, choice and responsibility, at least those that might endanger the public (cf. Pryor, 2002). ‘[Imprisonment] is therefore necessarily de-humanising. That must sit uneasily with the professed aim of prisons to treat those sent by the courts with humanity’ (Pryor, 2002:1) In addition, imprisonment may also take away human qualities unnecessarily and to a greater degree than is necessary to ensure that prisons can be run safely. This raises the broader question of whether the practice of imprisonment is consistent with government claims to protect the public and to deliver justice (Pryor, 2002). The Christian obligation to see the imago Dei in all others, including prisoners, may thus make it difficult for Christians to accept aspects of modern penal practice as legitimate. It certainly provides stimulus for Christians to develop prison regimes that promote relationships, choice and responsibility.

3. Concern for relationships As hinted at already, Christianity is a ‘relational’ religion, with relational presuppositions and relational doctrines (Cole, 2005). The distinctively Christian belief that God is a Trinity of Persons underscores the conviction that reality involves relationships. As Knox (1988) writes: The doctrine of the Trinity is the glory of the Christian religion. It tells us that ultimate reality is personal relationship.

53

CRIMINOLOGY AND PUBLIC THEOLOGY

God is ultimate reality and is the ground of all other reality, and yet God is not a single monad or an impersonal absolute, but God is relationship […] Father, Son and Holy Spirit […] Through the revelation of the Trinity we learn that the living God […] is a God who has relationship within Himself and that the values of relationships ultimately belong to reality in its most absolute form. As already noted, imprisonment takes away opportunities for relationships and, even where opportunities for relationships remain, imprisonment tends to inhibit real relating, including vulnerability and self-disclosure. Consequently, Christians may seek FBUs as a means of promoting more ‘relational’ prison regimes where prisoners’ relationships with their children, families, representatives of the community and one other are developed appropriately.

4. Concern for spiritual transformation The fourth concern is perhaps the most important, although it cannot be separated from the others. This is the distinctive Christian belief that spiritual transformation is possible through faith in Jesus the Messiah. Christians believe that in the life, death and resurrection from the dead of Jesus of Nazareth, the purposes of God for his chosen people, Israel, and through Israel, to the world, reached their climax. Christians believe that, in the Crucifixion, Jesus freely identifies himself with the plight of sinful humanity under the reign of death and pays the price for doing so. They believe that on the cross God absorbed the sin, rebellion, pain, suffering, shame and guilt of the world. The New Testament claims that those who stake their lives on Jesus’ accomplishments will experience deliverance from evil and from the judgement of God. ‘For the wages of sin is death, but the free gift of God is eternal life in Christ Jesus our Lord’ (Romans 6:23). Tom Wright (2004: 174) explains that ‘Eternal life’ does not mean simply ‘existence continuing without end’ but ‘the life of the age to come’, the latter referring to the time when God ‘would at last act decisively to judge evil, to rescue Israel and to create a new world of justice and peace’. Christians also believe that the resurrection and ascension of Jesus provides proof that Jesus has made a unique way into the presence of God. Those who follow him belong to a new and different way of living that is empowered by the gift of God’s Spirit. ‘Being himself freed from the chains of death, [Jesus] now lives to free others from all that enslaves them’ (Wright, 1999: 100). With this in mind, it is understandable why Christians are motivated to provide an

54

Three Intersections in Criminology and Public Theology

environment where this spiritual transformation can take place and where prisoners can be encouraged to ‘walk out’ their healing.

5. Concern for justice Finally, Christians may offer a distinctive perspective regarding justice and just punishment. Modern political debates are dominated by questions about public management, efficiency and accountability. ‘Justice’ is styled as a ‘commodity to be measured and delivered, like healthcare and education’ (Stern, 2004). From a managerialist perspective the function of this service is to serve ‘customers’ in the form of victims and witnesses. Thus conceived, justice becomes synonymous with prosecution and punishment (Stern, 2004). Escalating the number of sanctions increases the quantum of justice. In this context, criminal justice is dominated by ‘the familiar instruments of government policy or public management – legislation, circulars, directories, targets, performance indicators, contracts, systems of inspection and audit’ (Faulkner, 2002: 1). Such an approach tends to exclude ‘organic […] dynamic and more inspirational’ (Faulkner, 2002: 1) beliefs about justice, including those found in the Bible. For example, the Hebrew prophet Amos speaking c.  760  BC said: ‘let justice roll down like waters, and righteousness like an ever-flowing stream’ (Amos 5:24). The belief in justice here is organic and dynamic, like the Jordan River in full flood. It is not a static state but an intervening power: it strikes and changes, restores and heals, and brings life to a parched land. Justice is an active power that breaks into situations of evil to bring freedom. It is a rescuing action by God that puts things right.11 Justice involves retribution on the sources of oppression, but it is not complete without the liberation and restoration of the oppressed. The New Testament affirms this picture of justice by describing the crucifixion of Jesus as the fullest expression of God’s justice (Romans 3:25–26). The cross is understood as the ultimate act of God’s justice in the Bible because it deals with oppression and restoration in the broadest possible sense. The New Testament understands the cross as the place where God wins the victory over evil and everything that holds his good creation in bondage to corruption and decay. It is also understood as the place where Jesus is enthroned as King. Christians believe that on the cross Jesus successfully overthrew the ultimate oppressor of humankind (namely, ‘the Satan’,12 who is opposed to God’s good purposes) and bestows freedom from Satan’s tyranny (Romans 8:14–17; Hebrews 2:15– 16). The cross itself cannot be separated from Jesus’ resurrection and ascension which together amount to God’s ‘vindication’ of his people and his purposes.

55

CRIMINOLOGY AND PUBLIC THEOLOGY

Finally, the Last Judgement described in the book of Revelation is presented as an act of divine justice that finally brings the victory of Israel’s Messiah on the cross to bear eternally on the whole of creation. In the Last Judgement there is both eternal retribution and eternal restoration. There is judgement on evil (the ‘lake of fire’: Revelation 19:20–1, 20:10, 14–15) which paves the way for healing, transformation and restored relationships, in the closest possible sense: ‘And I saw the holy city, new Jerusalem, coming down out of heaven from God, prepared as a bride adorned for her husband’ (Revelation 21:2). Everything that oppresses God’s creation is overthrown and everything that seeks freedom from bondage is fully liberated. In these and other ways, the Bible presents Christians with a challenging picture of justice that invites critical reflection on some of the narrower ideas about justice in modern public services. Justice is thus increased not by building more prisons but by rebuilding more prisoners. Christians are thus motivated to take part in faith-based prison regimes which they believe offer the chance of change, healing and restoration.

A signpost for correctional services Turning from the theological to the criminological we can also ask what such units contribute to the running of prison regimes. Despite the growth of FBUs little detailed, empirical research has been published to date. This section draws on a pioneering empirical evaluation conducted by a team headed by the author, with Sir Anthony Bottoms as independent adviser, of four-FBUs (Kainos Community) operating in England and Wales.13 This took place in 2000/01 when the units were operating at HMPs The Verne, Swaleside, Highpoint North (now Edmunds Hill) and Highpoint South (now simply Highpoint). What follows is a small penportrait; further details can be found in the original evaluation (Burnside et al., 2002). In general terms we found that religion is an intensely personal experience and that the manner and extent to which it forms the basis of programmes in prisons must always be handled with extreme care. There were a number of risks: vulnerable prisoners may be exploited (deliberately or otherwise), and lack of sufficient informed consent may violate prisoners’ conscience and freedom of religion, leading to accusations of ‘brainwashing’ and favouritism. Equality of opportunity can be violated. The personal nature of faith-based programmes also means they risk unearthing sensitive issues that staff and volunteers are not best qualified to deal with. Non-uniformed unit staff and outside volunteers

56

Three Intersections in Criminology and Public Theology

risk being seen by uniformed staff and management as well-meaning but potentially dangerous amateurs. Volunteers and ex-offenders used as part of such programmes are potential security risks. There may be a high risk of tension with the prison chaplaincy. Programmes can also be vulnerable to the individual personalities involved in running them and their relations with key people in the rest of the prison. At the same time, and at their best, FBUs could be ‘the home from which prisoners took on prison life and in which they established and took responsibility for love and forgiveness’ (Burnside et  al., 2005: 354). They can help to foster a sense of maturity and responsibility and encourage prisoners to take more responsibility for themselves, their families and their communities, as well as greater responsibility with staff. Instead of apathy, stagnation and a fear of deterioration, they offer a place for reflection and the possibility of inner development, in terms of character, creativity, morality and spirituality. They consider what prisoners’ strengths are, as well as their weaknesses. They are a chance to reorder personal values and to reconstruct a new identity. They can resymbolise the meaning of imprisonment. They can also be places of safety and ‘real relating’ in the often frightening and artificial world of prison. They offer humanity in the face of a dehumanising prison environment, reinforcing pro-social attitudes and behaviours traditionally regarded as weaknesses in prisons. Beyond this, they can be a kind of ‘counter-culture’, challenging and subverting the prison ‘honour code’ whereby the strong subdue the weak. Intimidation can be replaced with vulnerability, hostility with friendship, suspicion with trust, and isolation with community. They provide an approximation to living as ‘family’, often for those lacking any such experience. They provide more opportunities for interaction with people on the outside. They help to create ‘permeable institutions’, where society can assume visible responsibility for prisoners. They provide opportunities for benefiting others, building social capital within and without the prison walls. They increase the capacity of both churches and prisons to show compassion, humanity and mercy. Above all, FBUs have not merely individual but organisational implications. They have the potential to reform the nature of the traditional prison environment; individual change and institutional change are complementary. The following remark from a former Kainos governor applies to FBUs as a whole: Ignore the spiritual aim, and Kainos can become a selfperpetuating, narrow, target-snatching, defensive and institutionalised corral. Some might say that this should fit

57

CRIMINOLOGY AND PUBLIC THEOLOGY

it nicely for today’s prison world. But pay attention to it, challenge it, inject good staff, align its legitimate targets with those of the prison and the community, work hard at getting prisoners to do their own work and realise their spiritual worth, and you have a unique residential community which works as one for others including victims and those who are damaged by crime. (Respondent J, cited in Burnside et al., 2005: 353–4) On the basis of the positive results gained from the evaluation (including its attitudinal study; Burnside et al., 2002), we concluded that, overall, FBUs ‘may act as a signpost to the [England and Wales] Prison Service in terms of promoting standards of decency, humanity and order in prisons’ (Burnside et al., 2002: 13), a recommendation quoted on the floor of the House of Commons.14 Space precludes consideration of other FBUs around the world, including APAC (Association for the Protection and Assistance to the Convicted), Horizon Communities and the InnerChange Freedom Initiative, which I addressed in subsequent studies, although these too provide fascinating avenues for theological and criminological exploration.15

Public theology, criminal justice reform and relational justice A third point of intersection between public theology and criminology is to relate biblical and modern ideas about justice. This was precisely the thrust of the Relational Justice project which I developed for the Jubilee Policy Group in the early 1990s and which became the launch project for the Relationships Foundation, still going strong 25 years later.16 The Relational Justice project was launched by the then-Director General of the Prison Service, Joe Pilling (at the Tower of London, of all places), and developed the argument that criminal justice was best served when viewed through a relational lens.17 How might the criminal justice process look if we consistently put relationships at the heart of justice? The relational question (‘what impact is this likely to have on relationships?’) is one that is asked alongside, and not instead of, what ‘works’, what is measurable, or ‘what value do we get for how much money’? Pointedly, a relational approach may make it hard for us to reconcile current practices with what we claim to do to protect the public and to deliver justice. The criminological, sociological and theological contours of Relational Justice were outlined in Relational Justice: Repairing the Breach (Burnside and

58

Three Intersections in Criminology and Public Theology

Baker, 1994a) and specific policy recommendations for a UK context were advanced in Relational Justice: A Reform Dynamic for Criminal Justice (Burnside and Baker, 1994b), while both were developed further in editions of the Relational Justice Bulletin.18 Space precludes an overview of the project; instead, since this volume is concerned with the crossover between criminology and public theology, this section will focus on the biblical roots of relational justice.

Relational character of biblical law Lord Woolf described Relational Justice, at the time, in his Foreword to the book, as ‘a radical new approach about which anyone with any concern about our criminal justice system needs to be aware’ (Woolf, 1994: 14). The direct inspiration for this radicalism was the relational character of biblical law. Given the interdisciplinary nature of this volume, it is worth sketching briefly what is meant by this. At Mount Sinai, God’s chosen people, Israel, are called not only into covenant relationship with God but also (and as a consequence) to right relationships within the body of the people. Israel’s vocation to be ‘the people of God’ is by definition something that ‘comes into being as the precipitate of innumerable well-conducted relationships between individual and individual’ (Harrison, 1999: 218), as well as between each individual and God. This is reflected in the law of Leviticus 19:17–18, which includes the command to ‘love your neighbour as yourself ’ (19:18). Jesus’ summary of Torah in the New Testament confirms that asking the relational question is a valid way of understanding the biblical laws: One of them [the Pharisees], a lawyer, asked him [Jesus] a question, to test him. ‘Teacher, which is the great commandment in the law?’ And he said to him, ‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind’ [quoting Deuteronomy 6:5]. This is the great and first commandment. And a second is like it, ‘You shall love your neighbour as yourself ’ [quoting Leviticus 19:18]. On these two commandments depend all the law and the prophets. (Matthew 22:35–40; narrator speaking) It is not surprising, then, that biblical law should be everywhere concerned with promoting the quality of relationships in society. This is reflected in Hebrew terms such as tsedaqah (‘righteousness,’ although the word itself is not restricted to a concern for right relationships); thus ‘[w]hen people

59

CRIMINOLOGY AND PUBLIC THEOLOGY

fulfil the conditions imposed on them by relationships, they are righteous.’ (Malchow, 1996: 16). Tsedaqah is the goal of mishpat (justice), and both ‘justice and righteousness’ (mishpat utsedaqah) are major concerns of the prophets (for example, Isaiah 56:1). Israel’s righteousness is to be seen in her relationship with God, the nations, and at the level of relationships between individual Israelites. At the same time, the relational character of biblical law is not merely an agenda for improved interpersonal contact; it is also an agenda for institutions. In biblical law, love for God and love for neighbour are meant to influence the design of financial and lending relationships, political relationships, conditions of employment and impact on the environment. Love is institutionalised. The challenge is to see how biblical law advances more than an interpersonal agenda, important though that is, to inform the whole of politics and public administration.

Relational character of biblical justice Relational justice has its roots in biblical justice. This section provides some examples of the connections that can be made between biblical and contemporary practice (drawing on Burnside, 2005, 2010). The implications of a relational approach for a given criminal justice process at a given point in time depend on current practices and previous penal history. Accordingly, the reform possibilities for those who wish to edge their penal practice closer to a more relational approach will vary. This section primarily references outputs from the Relational Justice project – not to overlook relevant academic criminological literature, but simply to illustrate the links to that project.

1. Seeking justice is part of the vocation of humanity as a whole The Bible presents the quest for justice as part of the vocation of humanity as a whole. Justice is in the hands of the many, not the few. And since all Israel experienced divine justice first-hand in the form of the Exodus, biblical justice is characteristically ‘grass roots.’ The people receive the same general instructions to avoid partiality and bribes as do the appointed judges (Exodus 23:1–8). Justice is a communal responsibility (Zechariah 7:9–10). Leviticus 5 suggests that a curse be pronounced against the witness who withheld testimony. In biblical law, witnesses do not simply give evidence or report facts but take responsibility. From a biblical perspective, therefore, people are reduced from their full humanity when their involvement in the call to justice is taken away

60

Three Intersections in Criminology and Public Theology

from them. The same is true of communities. No institution can survive without a function, chief among which is the function of doing justice (and providing welfare). Communities are also diminished when they have no role to play in adjudication. Access to justice in biblical law was local, except for certain categories of cases which were dealt with centrally (for example, Exodus 18:26; Deuteronomy 17:8-9; 2 Chronicles 19:10–11). The biblical emphasis on the value of grassroots justice, particularly when it acts as a check on the abuse of centralised power, is relevant in England and Wales. Here, the justice system has become increasingly centralised and susceptible to political control. The introduction during the 1980s and 1990s of the Crown Prosecution Service, the Courts Services Agency, and the Legal Aid Board, combined with the transfer of all responsibility for magistrates from localities to the Lord Chancellor’s department (now part of the Ministry of Justice) means that ‘what had been a pluralist, localised and part privatised judicial system was now a national industry’ (Jenkins, 2007: 186). There is now a need for greater local accessibility and accountability of the justice process, including courts, affiliated services and local prisons (see Compston, 1994).

2. Seeking justice is a national priority Following on from the assertion that seeking justice is part of the vocation of humanity as a whole, biblical law emphasises that the pursuit of justice must be a national priority. Moses charges the Israelites thus: ‘Justice, justice shall you pursue [tirdof], that you may thrive and occupy the land that the LORD your God is giving you’ (Deuteronomy 16:20). The verb ‘to pursue’ (radaph) is used of Pharaoh’s pursuit of the Israelites across the Red Sea (Exodus 14:8). It speaks of the single-mindedness (and even the military precision) that is necessary to secure justice in every generation. In many parts of the world, however, social, economic and political forces push the quest for justice down the national agenda. Garland (2001) argues that the social organisation of Western societies (notably the US and the UK) has moved away from a more inclusionary ‘solidaristic’ culture to a more exclusionary and controlling one. This is reflected in institutions of crime control and criminal justice, and the result has been a shift away from what has been termed ‘penal welfarism’ (the prevention of crime, individual correction and social reform) and toward a ‘culture of control’. The latter approach identifies an underclass as the source of the problem and suggests progressively punitive ways of excluding and controlling it. Garland argues that this change is not entirely due to rising crime, linking it to a civic culture that has become increasingly less tolerant, less inclusive and less capable of trust: ‘The risky,

61

CRIMINOLOGY AND PUBLIC THEOLOGY

insecure character of today’s social and economic relations is the social surface that gives rise to our […] concern with control and to the urgency with which we segregate, fortify and exclude’ (Garland, 2001: 194). The result is that issues such as ‘crime control and criminal justice have come to be disconnected from the broader themes of social justice and social reconstruction’ (Garland, 2001: 199). The need to reconnect them is illustrated by criminological studies which have shown how, for example, police interventions can be counterproductive when criminal justice is not interleaved with social justice (see Sherman, 1992).

3. Popular knowledge of the law Following on from this, biblical law was in the hands of the people. It was addressed to everyone (Exodus 24:3, 7; Deuteronomy 1:1) and subsequently given wide publicity (Deuteronomy 27:1–3, 31:9–11). All Israel is required to approve the laws and judgments presented to them at the covenant ratification ceremony at Sinai (Exodus 21:1). Likewise, the whole people are taught the law (Exodus 24:12; Deuteronomy 17:10–11) and ‘all the statutes’ (Leviticus 10:11). The biblical ideal of popular knowledge of the law, combined with a widespread capacity to adjudicate, contrasts with the modern acceptance of law as a highly technical and professionalised enterprise that is focused on the courts. Devolving responsibility to citizens and communities is a major challenge, given the huge presence that is nowadays assumed for the state in criminal justice and which grows continually. Government needs to recognise its inadequacy and the need to draw on the strengths of local communities. There needs to be a formal recognition that the criminal justice process can have, by itself, only a limited effect on the general level of crime. Action is needed by communities, and between individuals as citizens, and that is beyond the scope and capacity of formal criminal justice agencies (Faulkner, 2002). This approach also means that communities need to have more realistic expectations of the justice system and must be prepared to take more responsibility. This means recognising that the official police are only a part of the overall policing of a modern society (for example, Neyroud, 2002). In some democratic countries, expectations of the ability of the state to deal with every social problem need to be scaled down – with agencies working ‘with’ rather than ‘at’ troublesome communities (for example, Bowes, 2001). Crime prevention, for example, should flow from engaging people and communities in finding solutions to problems of alienation and dysfunction. At the same time, the challenge is to harness this correctly: increased public participation is not a self-evident good (Crawford, 2002).

62

Three Intersections in Criminology and Public Theology

4. Social order is founded on the family Biblical adjudication sees social order as founded on the family. This is the context for developing wisdom, informal social controls and self-restraint. The biblical approach is consistent with the notion that the purpose of government is self-government, in every area of life. By contrast, modern approaches to justice, and especially criminal justice, ‘offer an approach to social order that is, for the most part, amoral and technological’ (Garland, 2001: 183). Social order is seen to emerge, not from ‘moral discipline and obedience to authority […] [but] smart arrangements that minimise the opportunities to disruption and deviance’ (Garland, 2001: 183). We have lost sight of the need for more relational strategies.19 There is value in seeing crime, as Emile Durkheim (1972) suggested, not just as a crisis but as an opportunity to rebuild relationships and informal social controls. Everyone affected by crime has an interest in the outcome, and so we are required to take account of the needs of the wider community in which the offence occurred. This wider community may include the school, workplace, housing estate, faith group, ethnic group, or whatever other context(s) the victim or the defendant operates while recognising that some of these communities may be in conflict with others.

5. The proactive role of the victim Fifth, the proactive role of the victim in biblical Israel is different to the place of victims in the modern criminal justice process. There has been a ‘victimological turn’ in criminal justice policies in many jurisdictions since about 1960, as seen in such initiatives as victim support and victim impact statements (Bottoms, 2003). This means that victims have a greater public profile than has previously been the case. However, this does not necessarily mean that increased value is being placed on victims themselves, for several reasons. If ‘the offender’s perceived worth tends towards zero, victim’s interests expand to fill the gap’ (Garland, 2001:181). Victims may also serve a useful function in a pluralistic moral order where we do not agree on right and wrong; ‘collective moral outrage more easily proceeds from an individualised basis than from a public one’ (Garland, 2001: 200). In addition, emphasising the suffering of victims reflects the values of mass media news coverage. It also helps to drive punitive policies and to sustain the ‘war on crime’. Seeking justice for those who are oppressed means ensuring that the criminal justice process and, as far as possible, its outcomes, take sufficient account of the needs and interests of victims of crime, although this may not always be reflected in victimrelated policies. There is still scope for increased contact or negotiations

63

CRIMINOLOGY AND PUBLIC THEOLOGY

between victims and offenders (for example, family group conferences and community group conferences) where this is both possible and desirable (see for example, Pennell and Burford, 1998). It may also involve giving a much greater role for (imaginative) forms of reparation and (multiple) restitution.

6. Punishment in the Bible is carried out by the community, in their sight and in their midst Finally, punishment in the Bible is carried out by the community, in their sight and in their midst. Biblical law emphasises sentencer accountability (‘Consider what you do, for you judge not for man but for the LORD; he is with you in giving judgement’; 2 Chronicles 19:6). Where the sentence takes the form of corporal punishment, the judge must witness the administration of the punishment at first-hand (Deuteronomy 25:1–3). The sentencer is immediately confronted with the consequence of his sentence. Modern-day communities need to be better informed about criminal justice (for example, levels of actual crime and the effectiveness of different kinds of penalties). They also need to know what sentencing options are currently available and what they mean (for example, mistaken assumptions that modern ‘community penalties’ means ‘planting flowers’). Nor should prisons be ‘invisible institutions’. What is done in them is done in our name. The central principle should be that prisons are part of society and not set apart from it; that they exist for the benefit of society as a whole and should contribute actively to its health and well-being; that prisoners deserve its compassion and staff should receive its respect. (Faulkner, 2002: 2) Citizens need to feel ‘some sense of ownership for their prisons, and some responsibility for their prisoners, as they often do for their schools and hospitals […] [rather than] a means by which that responsibility can be avoided’. (Faulkner, 2002: 3) Policy makers and sentencers should recognise the built-in hunger of the incarceration industry, especially where new prison places are provided by private enterprise. This is particularly urgent where, as in England and Wales, there are large disparities in the ratio of custodial to community penalties. Individual sentencers should know the consequences of their sentences – for example, in the form of court digests (Curtis, 2002) – and,

64

Three Intersections in Criminology and Public Theology

as the former Lord Chief Justice Lord Woolf suggested, judges should occasionally visit those whom they sentence to custody.

Conclusions: has Christianity been hijacked by imprisonment? We have seen that ‘criminology and public theology’ challenges criminal justice orthodoxies in a variety of ways, including the need for transcendent values in the sentencing process, making religious faith the cornerstone of prison units and regimes and drawing on biblical ideas about justice to stimulate criminal justice reform. In these ways, the integration of criminology and public theology challenges the split-level Enlightenment worldview which keeps apart the subjects of ‘God and crime’ and instead brings them into conversation. This crossover also challenges some Christian conventions, including general acceptance among Christians of imprisonment as a primary form of punishment. Of course, it is true that Christian attempts to develop FBUs in prisons are pioneering and counter-cultural. Yet even here such initiatives confirm the durability of imprisonment in concept and practice. Although FBUs try to turn prisons inside-out by involving people from the outside such as Christian volunteers and civilians, prisons, as institutions, are resistant to such dynamics. It was for this reason that those in charge of such units had to address the dissent they engendered as well as the suspicion – and, in some quarters, paranoia – of having ‘a community within a community’ or ‘a prison within a prison’. My researches in the US found that maintaining programme integrity in the face of the controlling influence of the correctional institution was a recurring battle;20 likewise, the early experience of FBUs in England and Wales showed that the prison service saw them as a tool that could be used in places where they were most convenient, rather than in places where they would be most successful.21 This is not surprising given that prisons are increasingly about management – and we have become very good at managing and controlling prisoners. But it also points to the limits of Christian ability, and perhaps even willingness, to subvert imprisonment as an institution. So, at the point where public theology is at its most counter-cultural, we are entitled to ask: has Christianity been hijacked by imprisonment? This question gains added significance in the light of our consideration of seriousness of offence. There we saw that biblical law has a broad range of punishments and descriptive registers. Yet the one form of punishment biblical law does not have at its disposal is imprisonment. The only penalty

65

CRIMINOLOGY AND PUBLIC THEOLOGY

that comes close is the ‘city of refuge’ (Deuteronomy 19:1–13) but this is a form of asylum. The absence of imprisonment in biblical law is even more telling when we realise it was used by Israel’s neighbours over a long period; famously Joseph was imprisoned by the Egyptians (Genesis 39:20) and Samson was imprisoned by the Philistines (Judges 16:21). Like the dog that did not bark, the silence speaks volumes. Perhaps (and this is pure speculation on my part) the sanction of imprisonment was thought to violate the concern for freedom that is the hallmark of biblical law (and which is why it has had such impact on Western civilisation).22 Prisoners are made in the image of God and so are volitional, choosing beings. Yet prison takes away choice and we control almost every aspect of their lives. Finally, in view of the concerns raised by relational justice, Christians must also come to terms with the fact that imprisonment is a highly unrelational form of punishment. Prison acts like a sledgehammer on relationships. Yet in the year ending June 2018 (the latest year for which figures were available at the time of writing) in England and Wales 28,913 people entered prison to serve sentences of six months or less (constituting 47  per cent of all sentenced offenders entering prison during that time) (Beard et al., 2019). This is not to say there are not some offenders, at present, whose crimes are so grave that we think they must be taken out of circulation. But the thrust of the biblical texts should cause us to reflect on whether we have become desensitised to the relational fallout of mass imprisonment. Even in the cases where we feel we must imprison, relational justice reminds us that we cannot deny our relationship with those in prison. As iron sharpens iron, so the contact between criminology and public theology renews and refines our critique of imprisonment. Fittingly, this was the stimulus to Bottoms and Preston’s (1980) ground-breaking volume over forty years ago. May the present volume, like its predecessor, inspire the recovery of tools for the task. Notes 1 2

3

4

5

Translates as ‘God will pardon me, that’s His job.’ He was, of course, as helpful as could be in seeing it published as ‘Pardoning and mercy’ in the Denning Law Journal (Burnside, 1993). Less prevalent grounds for justifying a custodial sentence are found in section 1(2) (b) (where the offence is of a sexual or violent nature) and section 1(3) (where the offender has refused to agree to a community service order that requires his consent). Baverstock ([1993] 14 Cr. App. R. (S.), 477); Cox ([1993] 14 Cr. App. R. (S.), 481). Micah 6:6–8, Amos 5:21–4, Hosea 6:6, Isaiah 1:11–17, 43:22–4, Psalm 51:16–19 and 1 Samuel 15:22.

66

Three Intersections in Criminology and Public Theology

6

7

8

9 10 11

12 13

14 15

16 17 18

19 20 21 22

For example, Mark 12:28–34. Jesus instructs the Pharisees to go home and reflect on Hosea 6:6 if they wanted to understand the requirements of the law of Moses (cf. Matthew 9:13 and 12:7). For example, Attorney-General’s References Nos. 3, 4 and 5 of 1992 (Stephen Boyd and others) (1993) 14 Cr. App. R. (S.), 191–5. Although Michael D. Bayles (1982) argues that a Humean view of criminal responsibility is compatible with current criminal law. In the Humean view, blame and punishment are meted out, not directly for acts, but for character traits, where ‘character traits’ refers to any socially desirable or undesirable disposition of a person. This is compatible with mens rea and with the distinction between acting purposely, knowingly, recklessly and negligently (Bayles, 1982: 8–11). He argues that it is also compatible with the law of attempts and abandonment, while also providing a rationale for the conviction and punishment of impossible attempts as well as providing the broad outlines of a basis for the excuse of mistake (pp. 1415). It may also help to explain the requirement of ‘reasonableness’ in defences of mistake of law (pp. 16-17). www.gov.uk/government/statistics/prison-population-figures-2019 Literally, ‘the anointed one’ or God’s ‘king’. For this reason, some versions of restorative justice acknowledge biblical justice as their source of inspiration (for example, Van Ness and Strong, 2002). Literally, ‘the Accuser’. The research was conducted for the Home Office, prison service and Kainos Community. For updated accounts of the work of Kainos Community and the findings of reoffending studies conducted in 2012 and 2016 see https:// kainoscommunity.org/research-shows-kainos-impact-improving-prison-safety/. House of Commons Hansard Debates for 9 Nov. 2001, col. 538. See chapters 7 and 8 of Burnside et al. (2005). Horizon Communities (the subject of Burnside et al., 2005, chapter 7) have since been the focus of doctoral research by Abigail Wild (2011). https://relationshipsfoundation.org For an updated account see Ashcroft et al. (2016). https://relationshipsfoundation.org/category/publications/uncategorized/ relational-justice-bulletin/ See, for example, the introduction of parenting orders (Robson, 2000). See chapters 7 and 8 of Burnside et al. (2005). See chapter 3 of Burnside et al. (2005). For recent accounts see Berman (2011) and Hazony (2012).

References

Ashcroft, J., Childs, R., Myers, A. and Schluter, M. (2016) The Relational Lens: Understanding, Managing and Measuring Stakeholder Relationships, Cambridge: Cambridge University Press. Ashworth, A. (1997) ‘Sentencing in the ’80s and ’90s: the struggle for power. The Eighth Eve Saville Memorial Lecture given on 21st May 1997 at King’s College London’, London: Centre for Crime and Justice Studies.

67

CRIMINOLOGY AND PUBLIC THEOLOGY

Ashworth, A. and M. Hough (1996) ‘Sentencing and the climate of opinion’, Criminal Law Review, November: 761–848. Bayles, M.D. (1982) ‘Character, purpose, and criminal responsibility’, Law and Philosophy, 1(1): 5–20. Beard, J., Sturge, G., Lalic, M. and Holland, S. (2019) ‘General debate on the cost and effectiveness of sentence under 12 months and consequences for the prison population’, Debate Pack Number CDP-2019-0063, 1 March, London: House of Commons Library. Berman, J.A. (2011) Created Equal: How the Bible Broke with Ancient Political Thought, Oxford: Oxford University Press. Bottoms, A.E. (2003) ‘Some sociological reflections on restorative justice’, in A. von Hirsch, J. Roberts, A.E. Bottoms and M. Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?, Oxford: Hart, pp. 79–114. Bottoms, A.E. and Preston, R.H. (1980) The Coming Penal Crisis: A Criminological and Theological Exploration, Edinburgh: Scottish Academic Press. Bowes, D. (2001) ‘The real kindergarten cop’, Relational Justice Bulletin, 12: 4–5. https://relationshipsfoundation.org/wp-content/uploads/2014/03/ Relational_Justice_Bulletin_Dec2001.pdf Burnside, J. (1993) ‘Pardoning and mercy’, The Denning Law Journal, 8(1): 13–21. Burnside, J. (2003) The Signs of Sin: Seriousness of Offence in Biblical Law, Library of Hebrew Bible 364, Sheffield: Sheffield Academic Press. Burnside, J. (2005) ‘Criminal justice’, in M. Schluter and J. Ashcroft (eds) Jubilee Manifesto: A Framework, Agenda and Strategy for Christian Social Reform, Leicester: InterVarsity Press. Burnside, J. (2010) God, Justice and Society: Aspects of Law and Legality in the Bible, Oxford: Oxford University Press. Burnside, J. and Baker, N. (eds) (1994a) Relational Justice: Repairing the Breach, Winchester: Waterside Press. Burnside, J. and Baker, N. (1994b) Relational Justice: A Reform Dynamic for Criminal Justice, Cambridge: Jubilee Centre. Burnside, J., Adler, J., Loucks, N. and Rose, G. (2002) Kainos Community in Prisons: Report of an Evaluation, London: Home Office. https:// webarchive.nationalarchives.gov.uk/20110218141536/http://rds. homeoffice.gov.uk/rds/pdfs/kainos_finalrep.pdf Burnside, J. with Loucks, N., Adler, J.R. and Rose, G. (2005) My Brother’s Keeper: Faith-Based Units in Prisons, Cullompton: Willan. Cole, G. (2005) ‘Christianity as a relational religion’, in M. Schluter and J. Ashcroft (eds), Jubilee Manifesto: A Framework Agenda and Strategy for Christian Social Reform, Leicester: InterVarsity Press.

68

Three Intersections in Criminology and Public Theology

Compston, C. (1994) ‘Local justice’, in J. Burnside and N. Baker (eds) Relational Justice: Repairing the Breach, Winchester: Waterside Press, pp. 83–92. Crawford, A. (2002) ‘In the hands of the public?’, Relational Justice Bulletin, 13: 6–8. https://relationshipsfoundation.org/wp-content/ uploads/2014/03/Relational_Justice_Bulletin_Jan2002.pdf Cullen, F.T., Link, B.G. and Polanzi, C.W. (1982) ‘The seriousness of crime revisited: have attitudes toward white-collar crime changed?’, Criminology, 20(1): 83–102. Curtis, S. (2002) ‘Lepers or learners’, Relational Justice Bulletin, 16: 4–5. https://relationshipsfoundation.org/publications/relational-justicebulletin-16-nov-2002/ Durkheim, E. (1972) Selected Writings, edited with an introduction by A. Giddens, Cambridge: Cambridge University Press. Faulkner, D. (2002) ‘Turning prisons inside-out’, Relational Justice Bulletin, 16: 1–3. https://relationshipsfoundation.org/wp-content/ uploads/2014/03/Relational_Justice_Bulletin_Nov2002.pdf Fitzmaurice, C. and Pease, K. (1986) The Psychology of Judicial Sentencing, Manchester: Manchester University Press. Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press. Harrison, B. (1999) ‘The strangeness of Leviticus’, Judaism, 48(2): 208–28. Hart, H.L.A. (1968) ‘Prolegomenon to the principles of punishment’, in Punishment and Responsibility: Essays in the Philosophy of Law, Oxford: Clarendon Press, pp. 1–27. Hazony, Y. (2012) The Philosophy of Hebrew Scripture, Cambridge: Cambridge University Press. Hoffman, P.B. and Hardyman P.L. (1986) ‘Crime seriousness scales: public perception and feedback to criminal justice policymakers’, Journal of Criminal Justice, 14(5): 413–31. Hough, M., Jacobson, J. and Millie, A. (2003) The Decision to Imprison: Sentencing and the Prison Population, London: Prison Reform Trust. Jenkins, S. (2007) Thatcher & Sons: A Revolution in Three Acts, London: Penguin. Kleinig, J. (1991) ‘Punishment and moral seriousness’, Israel Law Review, 25(3–4): 401–21. Knox, D.B. (1988) The Everlasting God: A Character Study of God in the Old and New Testaments, Homebush: Lancer. Malchow, B.V. (1996) Social Justice in the Hebrew Bible, Collegeville, MN: The Liturgical Press. Montaigne, M. (1613/1931) de. Essais Livre Second, Paris: Fernand Rockes, Chapitre II.

69

CRIMINOLOGY AND PUBLIC THEOLOGY

Neyroud, P. (2002) ‘The thick blue line’, Relational Justice Bulletin, 14: 6–7. https://relationshipsfoundation.org/wp-content/uploads/2014/03/ Relational_Justice_Bulletin_May2002.pdf O’Connell, M. and Whelan, A. (1996) ‘Taking wrongs seriously: public perceptions of crime seriousness’, British Journal of Criminology, 36(2): 299–318. Pennell, J. and Burford, G. (1998) Family Group Decision Making: After the Conference; Progress in Resolving Violence and Promoting Well-Being, Outcome Report, 2 vols., St Johns, Newfoundland: Memorial University of Newfoundland. Pincoffs, E.L. (1973) ‘Legal responsibility and moral character’, Wayne Law Review, 19: 905–23. Pryor, S. (2002) ‘The responsible prisoner’, Relational Justice Bulletin, 15: 1–3, https://relationshipsfoundation.org/wp-content/uploads/2014/03/ Relational_Justice_Bulletin_Jul2002.pdf Robson, L. (2000) ‘How not to raise a juvenile delinquent’, Relational Justice Bulletin, 6: 6–7. https://relationshipsfoundation.org/wp-content/ uploads/2014/03/Relational_Justice_Bulletin_Apr2000.pdf Sherman, L.W. (1992) Policing Domestic Violence: Experiments and Dilemmas, New York: The Free Press. Stern, Baroness (2004) Drummond Hunter Memorial Lecture 2004: ‘International perspectives on criminal justice’, Howard League for Penal Reform, Scotland, 6 January. Van  Ness, D.W. and Strong, K.H. (2002) Restoring Justice, Cincinnati, OH: Anderson. Westermann, C. (1994) Genesis 1–11: A Continental Commentary, translated by John J. Scullion, Minneapolis, MN: Fortress Press. Wild, A. (2011) ‘Inner transformation and social order in faith-based prison units’, PhD thesis, Prisons Research Centre, University of Cambridge. Woolf, Lord (1994) ‘Foreword’, in J. Burnside and N. Baker (eds) Relational Justice: Repairing the Breach, Winchester: Waterside Press. Wright, T. (1999) The Myth of the Millennium, Glasgow: Caledonian. Wright, T. (2004) Paul for Everyone: Romans Part 1, London: SPCK.

70

4

St Paul among the Criminologists Aaron Pycroft1

Introduction Within criminology, the theological foundations of contemporaneous criminal justice are under-researched, and this book is a timely reminder of the importance of those relationships in both understanding the development of modern justice systems and creating new resources for practice. This is essential as the failures of justice, and a penal crisis, are ongoing. In the UK this crisis is obvious (see Prison Reform Trust, 2019) and shocking. Despite this knowledge, there is little change. An absolute belief in the necessity of punishment, retribution and deterrent sentencing is hard wired into our socio-political DNA, so much so that at the time of writing the solution for the Conservative government under Boris Johnson is to recruit 20,000 new police officers and build 10,000 new prison places: just more of the same failed policies. The purposes and justifications of punishment are at worst unquestioned and taken for granted and at best based on a fallacy that if we give the correct punishments (in the medico-scientific sense of dosage) then rehabilitation would follow (Stalin had the same view about ideology and transforming society). Many developments in the criminal justice system with respect to rehabilitation support this utilitarian and reductionist logic in the form of merging treatment and punishment. The ‘rebalancing’ of the criminal justice system in the favour of victims has made that system

71

CRIMINOLOGY AND PUBLIC THEOLOGY

more punitive, to the disadvantage of both victims and those who have broken the law. There is an escalation to extremes with each part of the criminal justice system rivalling the others within the neoliberal market where people and organisations are competing for scarce resources (see Gough, 2019; Pycroft, 2019). The marketplace is the space of insecurity and anxiety. Both Jesus of Nazareth and Paul of Tarsus understood this, as demonstrated by the amount of time they both spent talking about buying and selling, debt and the relationship with communal violence. The gospel that they promoted is a skandalon (a scandal, literally a ‘stumbling block’) as it revealed the responsibility that we all have in carrying each other’s burdens. The gospel is therefore completely at odds with individualistic and reductionist conceptions of modern justice. We need a new conceptual basis for addressing the whole system failures of the criminal justice system and which counters ‘administrative criminology’ in the service of state power and its servant’s reductionist positivism and utilitarianism. However, in developing a critical perspective we also need to counter problems raised by the postmodern turn in criminology (and reflecting the linguistic turn in social theory more broadly) and the hyper-individualism (see Hall and Winlow, 2015) that mitigates against being able to speak universally as a basis for collective action. We no longer have a framework from which not only to speak truth to power, but also to suggest meaningful alternatives. In criminology, the de Sade-Nietzsche-Heidegger-Foucault genealogy is problematic; it valorises will to power and locks in cruelty (see Miller, 1990). In looking for alternatives and a way out of our own tendency to cruelty, I to some degree agree with Hall and Winlow (2015) in their call for ultra-realist criminology (although the use of the adjective (or maybe verb) ‘ultra’ has disturbing connotations). Also, with Alain Badiou (2003) in seeking for ‘new’ sources of universalism in an age increasingly fragmented by identity-based demands and politics; and Slavoj Žižek (for example, 2009) in proposing a dialectic of life and death and the possibility of a radically New Beginning. Badiou and Žižek particularly have looked to the person and character of Paul of Tarsus as a locus of inquiry. They are not alone as there is a large and growing literature on Paul who has become a key figure in contemporary philosophical and theological debates. While an object of scorn for Nietzsche in the death of God debate (Nietzsche, 1883/2003), Paul has re-emerged as a locus of inquiry in the death of the death of God discourse and the so-called ‘religious turn’ in Continental philosophy. Thus far, these debates have not significantly influenced criminology and, as a criminologist, I am conscious of the words of the theologian and philosopher Stanislas Breton (1988: 33) who states ‘For the bold, the immense literature on the apostle

72

St Paul among the Criminologists

Paul is inspiring. It also provokes a certain unease: the one who dares to add to it risks contributing a discourse in which a sense of awe combines with discouragement.’ There are no easy deus ex machina (literally the arrival of a god to resolve an intractable situation) solutions to complex social problems; to the contrary, I will argue that the Pauline story reveals anthropic responsibility towards mercy rather than abdicating to metaphysical judgement and punishment. In addition, a hermeneutic of suspicion reveals Christianity’s own historical ‘will to power’ through justifying repressive and violent state power including in the practices of justice (see Gorringe, 1996; and Chapter 5, this volume). The critical tradition has been essential in exposing the lies and deceits of history, but its solutions are inherently conservative and elitist. In the same ways that Platonic thought seeks to return to an imaginary pre-existent beginning (the article of faith for rehabilitation), Nietzsche’s eternal recurrence of the same claims the same. Nietzsche (1883/2003) argues this as his most important thought with the idea that events in the world repeat themselves through an eternal series of cycles. For Nietzsche (1883/2003), each recurrence requires a will to power that surpasses the former affirmations of itself expressed as a mastermorality that is noble, grand and virile, producing an aristocracy that challenges the slave-morality of Christian ethics. Nietzsche saw Christianity as being nothing more than the revenge of the weak against the strong and the negation of life itself. A transvaluation of values is required that reinstates everything the Jewish-Christian God has denounced. Nietzsche’s concept of the ubermensch (the man who reaches over and beyond) clearly reinstates inequality and thus the violence of the strong against the weak. To the contrary, Saint Paul through promoting a gospel of radical equality, inclusion and love before God and Man is offering a radical, and creatio ex materia (creation out of something) development of the Jewish tradition, but which brings a genuinely new perspective. As Sampley (2016: 136) states, ‘Gone are the distinctions that our culture has always honoured where ethnicity was definitional (Jew and Greek), where social standing (slave and free) and gender made all the difference (male and female).’ Neither the state crimes of 20th-century totalitarianism, the Holocaust and neoliberalism nor the ‘crimes of the everyday’ are countered by hyperindividualism in a post-truth world. Žižek, for example, argues that Christianity alone can articulate a universal logic but only in an atheistic mode, (he will go as far as Easter Saturday but not the resurrection on Easter Sunday (Žižek, 2009)). The revisiting of ancient sources of justice in the light of modern scholarship reveals both the historical appropriation of the Christian tradition to justify harsh penal practices but also the

73

CRIMINOLOGY AND PUBLIC THEOLOGY

untapped resources and practices that this tradition offers in transforming human violence. To borrow a quote from the historian Simon Schama (1995: 14), what this chapter argues for is ‘a way of looking; of rediscovering what we already have, but which somehow eludes our recognition and our appreciation. Instead of being yet another explanation of what we have lost, it is an exploration of what we may yet find.’ The debates in this chapter exist against the backdrop of two interdependent issues: ‘the relation between reason and myth in the epoch called modernity and the breakdown of modernity’s coherent thought structure in the wake of post-modernism’ (Davis, 2009: 5). In addressing those issues from within a criminological perspective, one deceptively simple question needs asking: why was Paul not required to repent or atone for the harms (including death) that he wrought on the early Christian community as a requirement either before or after joining that community? What follows is an attempt to address that question and to suggest that the answers provide both a critique of the development and practices of modern justice and a basis for new resources for a genuinely transformative justice.

Saul: from murderer to saint Saul2 was complicit in murder and terrorised the early Jesus movement. Following a conversion event, he went on to become the architect of the Christian Church and arguably Western Europe (see Siedentop, 2015). Bartollas’ and my research on forgiveness within the criminal justice system (see Pycroft and Bartollas, 2018) has focused on the person of Saul. From a phenomenological perspective, we were interested in his own lived experience of change from being complicit in murder and violence to that of becoming Apostle to the Gentiles. We were intrigued that at no point during or following his conversion did the narratives indicate that he was asked to repent or make atonement for his past, and likewise in dealing with the communities that he had previously repressed did he ever deny his past. It would appear that his past was essential to becoming who he was (in some respects, this resonates with Maruna’s (2001) work on ‘redemption scripts;’ in desisting from crime, people became who they always knew that they were). This argument departs from the dialectics of Žižek, as there is no ‘negation of the negation’ that produces a ‘new man’ (new synthesis); just as the risen Christ is both alive and dead and bears the stigmata of his torture and execution, so Paul is simul justus et peccator (simultaneously justified and a sinner, to use Luther’s term). Likewise, in contrast to Badiou (2003) I am arguing that Paul’s

74

St Paul among the Criminologists

conversion event emerges ex materia from his Judaic past, rather than ex nihilo (out of nothing) as a pure truth event. He is a radical Jew and his gospel needs to be understood within that context by phenomenologically interpreting his religious interpretation to understand what happened to him and his emerging behaviours. However, in interpreting the Scriptures then we are interpreting the faith community’s interpretation of Paul’s experience. It is this developing understanding and emergent theology that provides us with the answers that we seek. I agree with Žižek (2003) who argues that we need to read Paul within the Jewish tradition. He argues that this reveals the true radicalism of Christianity’s break with Judaism, but I argue for a continuity of Judaism revealed in the work of René Girard (discussed later) with respect to scapegoat mechanisms and the scholarship of Margaret Barker (also discussed later) on the Jewish Temple roots of Christian liturgy. I argue that the biblical narratives about this man, understood within their wider theological and anthropological context, demonstrate a ‘whole systems’ structure revealing new resources for working with the relationships between transgression, forgiveness, identity change and rehabilitation in criminal justice for victims, those who break the law and communities. These relationships are unique (in comparison with other religions) as they are based on Jewish rites that maintain community cohesion rather than promoting exclusion (Douglas cited in Barker, 2004). The Pauline story also demonstrates a non-linear understanding of creatio ex materia; namely, who he was does not determine who he will become, but who he was is constitutive of who he becomes. This lack of a binary before (Saul) and after conversion (Paul) is clearly demonstrated by the Scriptures. Ananias addresses him as Saul (Acts 9:17), the Holy Spirit refers to him as Saul (Acts 13:2) and he is referred to as Saul on 11 other occasions following the conversion. Likewise, there is no reference to the ‘ex-offender Saul’ or ‘the violent religious zealot made-good Saul’ and this is an important point; his personal history and story were known through his own preaching and writing. His violence and transgression were borne by the community (as the atoning body of Christ) that he had violated (to be discussed later). Saul was born at Tarsus in Cilicia (modern day Turkey) about 10 CE to a Jewish family. As he says3 in his own words, ‘Circumcised on the eight day, a member of the people of Israel, of the tribe of Benjamin, a Hebrew born of Hebrews, as to the Law a Pharisee’ (Phillipians 3.4–9). He was also a (proud) Roman citizen and educated in Jerusalem by Gamaliel, one of the most distinguished teachers of his generation (also making him thoroughly Hellenised) and says, ‘[…] I advanced in Judaism beyond many of my peers among my race, being especially zealous for the traditions of our ancestors’ (Galatians 1:13–14).

75

CRIMINOLOGY AND PUBLIC THEOLOGY

The Pharisees were the most influential of three sects among the Jews (the others being Sadducees and Essenes) and believed in resurrection, providence, reward and punishment (Zeitlin, 1941). He was a contemporary of Jesus of Nazareth, but other than in the circumstances of his conversion ‘event’ probably never met him. The point is made by Breton (1988: 34) that when ‘Pilate had a title written and put on the cross “Jesus of Nazareth King of the Jews” written in Hebrew, Latin and Greek’, then it is tempting to think of Saul’s background. Further, Jesus of Nazareth had spent the whole of his short life in the same geographical region, but Paul by his educated background and social/ religious status was a cosmopolitan to Jesus’ parochialism. With this background and by his temperament he was ideally suited to exporting the gospel message to the wider Roman Empire. The consensus is that Jesus had died circa 30 CE with Paul’s conversion occurring on the road to Damascus circa 34 CE. The vision he had of Jesus during this event changes both his life and the course of world history. The Acts of the Apostles is very clear about the religious persecution of the Jesus movement by the religious authorities of the day and the role of Saul. His words ‘as to the Law a Pharisee, as to zeal, a persecutor of the church, as to righteousness under the Law, a blameless man’ (Philippians 5:9) tell us interesting things both about his energy and motives in and for his mission, but also that he was justified and had a clear conscience in what he was doing (a key Girardian point, discussed later). The Temple Guard, following the events surrounding the judicial trial and execution of Jesus of Nazareth, imprisoned various Apostles and a period of unrest seems to have culminated in the stoning to death of Stephen, in which Saul was complicit. Following this religious execution ‘a great persecution broke out against the church at Jerusalem […] Saul began to go from house to house, he dragged off men and women and put them in prison’ (Acts 8:1–3). Saul seems to have been deeply affected by the stoning to death of Stephen, one of the members of the Jesus movement. The people who were carrying out the stoning laid their cloaks at the feet of Saul, who approves of the stoning (Acts 7:58). Interestingly the people who laid the cloaks were false witnesses who had lied about Stephen’s activities. A rigged religious trial was brought against Jesus and likewise for Stephen. In the same way that Jesus as he was being crucified says, ‘Forgive them Father, for they know not what they do’ (Luke 23:34),4 Stephen then says, ‘Lord do not hold this sin against them’ (Acts 7:60). The two events clearly parallel each other and demonstrate an excess of forgiveness from innocent victims. The text refers to the religious clampdown led by Saul following Stephen’s stoning:

76

St Paul among the Criminologists

Meanwhile Saul was still breathing threats to slaughter the Lord’s disciples. He went to the High Priest and asked for letters addressed to the synagogues in Damascus, that would authorise him to arrest and take to Jerusalem any followers of the Way, men or women that he might find. (Acts 9:1–2) Whatever the exact events, what follows on the road to Damascus changes world history. There are three conversion accounts in Acts 9:22, 26:12–18 and Galatians 1:12–17, but we will focus on Acts 9:3–19: It happened that while he was travelling to Damascus and approaching the city, suddenly a light from heaven shone all around him. He fell to the ground, and then he heard a voice saying, ‘Saul, Saul why are you persecuting me?’ ‘Who are you Lord?’ he asked, and the answer came, ‘I am Jesus whom you are persecuting. Get up and go into the city, and you will be told what you are to do.’ The men travelling with Saul stood there speechless, for though they heard the voice they could see nothing at all, and they had to lead him to Damascus by hand. For three days, he was without his sight and took neither food nor drink. There was a disciple in Damascus called Ananias and he had a vision in which the Lord said to him, ‘Ananias!’ When he replied, ‘Here I am Lord,’ the Lord said ‘Get up and go to Straight Street and ask at the house of Judas for someone called Saul, who comes from Tarsus. At this moment he is praying, and has seen a man called Ananias coming in and laying hands on him to give him back his sight. But, in response, Ananias said, ‘Lord, I have heard from many people about this man and all the harm he has been doing to your holy people in Jerusalem. He has come here with a warrant from the chief priests to arrest everybody who invokes your name.’ The Lord replied, ‘Go for this man is to be my chosen instrument to bring my name before gentiles and kings and before the people of Israel. I myself will show him how much he has to suffer for my name.’ Then Ananias went. He entered the house, and laid his hands on Saul and said, ‘Brother Saul, I have been sent by the Lord Jesus, who appeared to you on your way here, so that you may recover your sight and be filled with the Holy Spirit.’ It was as though scales fell away from his eyes and immediately he was able to

77

CRIMINOLOGY AND PUBLIC THEOLOGY

see again. So he got up and was baptised, and after taking some food he regained his strength. (New Jerusalem Bible, 1985) The narrative goes on to describe how only a few days later he begins preaching in the synagogues the gospel that he had violently repressed, and by proclaiming Jesus as the Christ threw the Jews in Damascus into complete confusion. He goes back to Jerusalem with Barnabas who has taken charge of him (intriguingly, Bar-Nabas translates as both Son of Consolation and Son of Encouragement). But the apostles (church leaders) there were all afraid of him, questioned his authenticity and would not accept him (in effect, they carried out a risk assessment and got a false positive!). He carries on preaching his ‘new gospel’ anyway and so the Jews hatch a plot to kill him. He leaves Jerusalem to go back to Tarsus and a lull in the panic and chaos ensues. He realises that he is the cause of the problem and leaves – a voluntary exclusion. The lull in the chaos demonstrates that he was correct. Returning home is a very human behaviour, but as with the Apostles who decided to go back to fishing after the resurrection (John 21), he realises that things have changed, there is no return with the arrow of time only going forwards not backwards (contra both Platonism and Nietzscheism). After spending time in Arabia, he becomes an itinerant tent maker and preacher and during his first missionary journeys (45–49 CE) starts using the Latin name Paul instead of Jewish Saul. He is a person of great dedication, and argues a gospel based on Christ crucified and resurrected as universal saviour. In 58 CE, he is arrested in Jerusalem, and sent to Rome two years later by Festus the procurator to stand trial, as is his right as a Roman citizen. While in prison, he continues to write epistles to the various churches that he has founded to provide guidance and encouragement. It is unclear what happened to him, though tradition holds that martyrdom followed in Rome in 67 CE.

Interpreting myth In examining the relationships between reason and myth, we could take the Scriptures and their content at face value and in so doing raise some objections to this account. Ehrman (2018) argues for the implausibility of much of this account of violence; for example, the Romans would not have allowed this extent of disorder and we know of no prisons that would have been used for these purposes. Clearly, the Scriptures are not written as historical accounts but we need to use developments in scholarly resources to interpret them. The Catholic5 perspective has a

78

St Paul among the Criminologists

human bias towards peace and order […] also the human bias towards reason. Reason, for Catholic tradition, ‘goes all the way down’ – it is consistent with the infinite and it leaves behind no residue of chaos. For this reason, a full ‘rationalism’ is linked with a Biblical mythos alone. (Milbank, 2006: XVII) A rational interpretation of mythos both provides us with a structure for dealing with the aftermath of crime, and opens up new lines of inquiry for developing new practices in criminal justice and human flourishing. Girard (1978) argues that the biblical story is a text in travail, not only revealing real violence to real people but also presenting an excess of forgiveness from innocent victims and the consequent development of new identities for ‘undeserving’ people. In this respect, it is the same as other myths containing fantastic accounts of accusations and violence where people are scapegoated because of internal tensions and societal disasters for which they are held responsible by their persecutors. In this sense, the scriptural accounts of Paul indicate an ongoing collective madness following the trial and execution of Jesus of Nazareth resulting in real events and real scapegoating, in real communities. Girard’s (for example, 1978, 2007) scapegoating thesis charts the ways in which groups, communities, and societies achieve equilibrium through the scapegoating mechanism. Faced with some crisis the use of violence against the apparent perpetrator of the crisis restores equilibrium to the community. Scapegoating serves as a fundamental cultural attractor that arises from our evolutionary inheritance. Girard’s is a theory grounded in the mimetic nature of desire and human passions. His idea is that in desiring what others have then we model ourselves on those people who then become our rivals, which leads to periodic outbreaks of mimetic violence; this violence is constrained in unequal societies but particularly comes to the fore when dominant groups find themselves in positions of economic and social equality with minority groups. Girard (1978) identifies the scapegoat mechanism as being behind every ritual including those of justice, punishment and denunciation. What is significant and controversial about Girard’s theory, and what differs from traditional anthropological accounts of scapegoating (for example, Frazer, 1922), is his psycho-analytically informed argument that scapegoating should not be seen as a conscious activity based on a conscious choice. The process is effective precisely because there is an element of delusion to which we are all susceptible, so all of us can condemn examples of scapegoating yet none of us can identify our own involvement in it. Girard (1999) argues that the scapegoat is a coherent enough interpretation of all rituals that resemble the Leviticus ritual. In the Mosaic ritual of

79

CRIMINOLOGY AND PUBLIC THEOLOGY

the Day of Atonement (Leviticus 16) the scapegoat is one of two goats chosen by lot to be sent alive into the wilderness, the sins of the people having been symbolically laid on it, while the other was appointed to be sacrificed. Whether physical or psychological the violence directed at the victim appears to be justified because the scapegoated person has brought about some evil that must be avenged, resisted and oppressed. History and contemporaneous societies are replete with examples and in addressing mimetic violence and social disorder, the scapegoat restores order through becoming the focus for retribution and denunciation. A social dimension is always present, with persecutors a majority and their victims a minority. A process of displacement or transference is implied and reveals the unconscious dimensions of social order. This is expressed by both Jesus and Stephen in their deaths. Girard (2014) argues that in scapegoating the victim is always innocent in the face of the violent collective, and that Christianity has taken the side of innocent victims (for example in the judicial execution of Jesus of Nazareth who was innocent but was the chosen scapegoat to restore social order in a Jerusalem at threat of violent unrest). A utilisation of Girard’s scapegoat thesis demonstrates the ways in which human motives are both hidden and revealed. In this sense, the lived experiences of victims, communities and perpetrators of crimes when expressed as ‘myth’, both religious and secular, is essential ‘data’ for criminologists. This structuralist approach to, and conscious (phenomenological sense-making) engagement with, the relationships between religion and reason at a cultural level reveals the relationships between violence, faith, forgiveness and the practices of retributive justice in modern democracies that play out through the scapegoat mechanism.

Understanding the Jewish rite of atonement The criticism of Girard’s work is that it is simplistic and reductionist. Perhaps due to the ubiquity and similarity with scapegoating rituals in other cultures (for example, Frazer, 1922) Girard seems to overlook the fact that within the Levitical rite of atonement there are two goats and a sacrificial bull. He focuses on expulsion and assumes that the goat, normally, is killed. In his seminal work Things Hidden since the Foundation of the World (1978) Girard argues for reductionism as being definitive of scientific method in anthropology. However, there has been an increased interest in the development of complexity theory (non-reductionist, whole systems approaches) in Girardian thinking (see Dupuy, 2013; Pycroft and Bartollas, 2018). In this light we can re-read the Levitical

80

St Paul among the Criminologists

text to account for the relationships between the parts of the rite and the whole and its nesting in the wider Jewish context to identify a creative space of potentiality. A reductionist approach would seek to identify the individual components of the rite rather than understanding the dynamic interaction of the different parts. This approach also helps to address the key problem for criminal justice, namely that although penal policy clearly scapegoats prisoners and those on probation (see Gorringe, 2002) and who are usually marginalised groups anyway, there have still been crimes committed. Forgiveness is a space offering a dynamic process to address healing that is not a single static point or even a binary dialectic. This new and enabling space is central to Judaism and its practices of atonement, and universalised in the life and teaching of Jesus. I will explore this in some detail through the work of Margaret Barker (2004) to draw out the links with New Testament writing to develop the necessary heuristic based on an understanding of the Pauline experience and its theology. Leviticus 16 states that on the Day of Atonement, a number of sacrifices are required to make atonement by the high priest. First, he has to sacrifice a bull for his own sin and to make expiation for himself and his family. This is an explicit statement that the high priest is not above the religious law and that he is complicit in sin and must be ritually purified before carrying out the actions on behalf of the community. The community will then provide two identical he-goats and lots will be drawn to determine which goat will be offered as a sacrifice for sin, and which will be driven out into the desert carrying the sins of the community (the scapegoat intended for Azazel). The term Azazel is used to indicate both a demon, and a rocky, barren desert both of which are beyond the mercy of God. Barker (2004) argues that for the early Christians the death of Jesus was interpreted immediately in terms of atonement based on traditional temple rituals and myths of atonement. She makes the crucial observation that following the destruction of the Temple in Jerusalem by the Romans in the year 70 CE understandings of temple practices and meanings of atonement within these traditions were lost. So, while the word atonement translates the Hebrew kpr, its meaning within a ritual context is now not known; for example, Leviticus 16 outlines the actions to be taken by the high priest, but we do not know what those actions were intended to affect. Barker argues that to achieve this understanding then we need to understand the faith community’s beliefs about those actions and she identifies a number of key issues. First, the action of kpr protected against divine wrath and destruction which indicated the breakdown of the divine order. Crucially, this ritual was associated with the covenant of peace (the priestly, eternal covenant) with God (covenant is associated with atonement in the New Testament).

81

CRIMINOLOGY AND PUBLIC THEOLOGY

This covenant maintained creation by ordering and binding the forces of chaos. With the re-establishing of the covenant through atonement then creation was renewed. Barker quotes from Mary Douglas that according to illustrative cases from Leviticus, to atone means to recover, cover again, to repair a hole, cure a sickness, mend a rift, make good a torn or broken covering […] atonement does not mean covering a sin so as to hide it from the sight of God; it means making good an outer layer which has been rotted or pierced. (Douglas cited in Barker, 2004: 45) Second, atonement was effected in the Temple, which was the meeting place of heaven and earth, with the holy of holies being simultaneously heaven and earth. Rituals of atonement were also creation and covenant rituals. The role of the high priest was significant. He wore a gold plate on his forehead showing the name yhwh, a name that only the purified could speak. Further, Barker argues that the evidence suggests the high priest in this context functions as the LORD, who as the author of creation is making atonement to prevent his own wrath bringing about disastrous consequences. For Barker the incarnation of Jesus as the son of God is understood in this sense, but historically has been interpreted differently with the idea of atonement as giving satisfaction to an angry and demanding God becoming the basis of criminal justice since the middle ages (see Gorringe, 1996; also Chapter 5, this volume). Prior to this concept a Christus Victor view of atonement had identified with a loving God who comes to save humankind from their own failings (see Aulen, 2010; Pycroft and Bartollas, 2018). In the former, violence and apocalypse come from God; in the latter, it comes from humans. Third, in the symbolism of temple atonement, blood is life (see later, in respect of Jesus’ teaching). Fourth, when the actions of kpr were performed, the object was not a person but a place or a thing – that is, places were sprinkled with blood to cleanse, to consecrate from the uncleanliness of the people. Barker (2004: 46) quotes from the Jewish Encyclopaedia: ‘In the prophetic language, however, the original idea of the atonement offering had become lost, and instead of the offended person (God) the offence or guilt became the object of atonement’ (emphasis in original). Barker argues that the upshot of kpr is that the role of the priests, the LORD and the scapegoat is to ‘carry’ the iniquity of the people. The Hebrew can be translated as bear, carry or forgive. The iniquity was carried (absorbed) through eating the flesh of the sin offering whose blood had been used for kpr and through the high priest functioning as the LORD. The latter indicates that the role of the priest/LORD was

82

St Paul among the Criminologists

to hold his people together rather than separating on the basis of ritual impurity. By extension when Jesus says, ‘If you do not eat the flesh of the Son of Man and drink his blood, you have no life in you’ (John 6:53) then he is fulfilling the same function, but the Greek translation for flesh that is used is sarx. Sarx refers to all that is carnal, lustful, and literally refers to animal nature and the meat of an animal. Therefore, at the last supper and the institution of the eucharistic meal (Luke 22:14-20) the invitation is to participate in absorbing, bearing and carrying the transgressions (mimetic desires) of the community through eating the body and blood (sarx) of Christ. Barker is very clear that both goats involved in atonement were two aspects of one ritual and cannot be separated (they are identical in a literal sense). She argues that the first Christians immediately identified Jesus with both goats as sacrifice and scapegoat. Jesus as high priest takes his own blood into the heavenly sanctuary and mediates a new covenant; ‘the self-emptying of the Servant would have been symbolic life-giving, when the blood, the life, was poured out by the high priest on the Day of Atonement to heal and restore creation’ (Barker, 2004: 55). In criminal justice terms, there is no longer scope for justice based on exclusion, but justice based on a concept of carrying burdens (forgiveness and healing) of victims, perpetrators and communities.

Interpreting Saul’s experience Saul’s dilemma is that the Jesus whom he knows to have been crucified is alive and reveals himself to him. He has an overwhelming experience in his Christophany and needs to make sense of it. The way that he would make sense of it (and how we need to interpret his understanding) is through his own background as a Jew and Pharisee. We are told that immediately after the event that he was in prayer and he was fasting (purifying himself) in keeping with religious observance. He knows that anyone who dies on a tree is cursed (Deuteronomy 21:23) and yet this Jesus is clearly blessed by God and consequently been resurrected from the dead despite being crucified. This immediately calls into question the link between ritual purity and sin, part of the rationale for his repression of the new Christians. Then, a representative of the very community that he has been persecuting comes to him, not even expressing a conditional approval but excessive affirmation (and despite Ananias’ own misgivings). He names him a brother and embraces him. This would reinforce what Paul had witnessed at the execution of Stephen, namely, a forgiving victim. This unconditional forgiveness

83

CRIMINOLOGY AND PUBLIC THEOLOGY

allows Saul to see that he had been complicit in violence, and wrong in his actions, despite being justified by the law and therefore his conscience. He was then baptised and little is known about the Apostle Paul’s own baptism but his theological writings about baptism are marked by belief in the super-abundant grace of God that overwhelms the human deficit of sin. Offered without regard to birth, ancestry, social status or behaviour (Romans 9:6–18), baptism was the church’s witness to the indiscriminate, unconditional, unconditioned, uncontingent, unmerited and unstinting gifting of God for the beginning of a new life. Perhaps conceived by Paul as like the clothing of young people at coming-of-age ceremonies (Harill, 2002), baptism marked an undeserved new start. No one was deserving of the grace of God. Everything in this new life, even faith itself, must be attributed to God’s ‘gratia gratuita’.6 Sampley (2016) deduces from Paul’s letters what the rite of baptism might have looked like in the early church and therefore for Paul too. Sampley identifies four practices: first, there was the symbolic removal of some garment; second, there would have been either immersion in or pouring of water over the person; third, the newly baptised would have made a confession that ‘Jesus is Lord’; fourth, a structured declaration that ‘There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female; for you are all one in Christ Jesus’ (Galatians 3:28). This declaration of fundamental identity in Christ removes all distinctions and is the basis for a radical equality before God and man. In following Barker’s (2004) logic of tracing the temple roots of Christian liturgy, it is also informative to consider the rite of baptism (particularly child baptism) where the community make promises on behalf of the child. In all of these examples of baptism, there is no repentance as baptism removes all sin. Or to put it another way, it is acceptance into the community that removes sin, rather than the removal of sin being a prerequisite for acceptance into the community. The answer, then, to the question of why Paul was not required to atone, repent or make good for his wrongdoing to the Christian community would have been so obvious that it is not written down in what became the Scriptures in the following century, and thus becomes lost in plain sight. In the emerging practices of the eucharistic meal, understood within the context of Judaism, the community did not focus on his crimes but on creating a new and communal space of potentiality. This is the truth (the thing in itself) of forgiveness (see Pycroft and Bartollas, 2018); it is a beginning rather than an end state and is the true monstrosity of Christ (see Davis, 2009) and his demonstration to the world of being wrong about sin and judgement based on exclusion and death (John 16:8–9).

84

St Paul among the Criminologists

The communal basis of justice is turned on its head. In the New Testament Epistle of James (2:13), we find a remarkable statement, ‘Whoever acts without mercy will be judged without mercy but mercy can afford to laugh at judgement.’ This is a reference to the Mercy Seat, which is on top of the Ark of the Covenant (Exodus 25:22). The Ark contained the tablets with the Ten Commandments (the law), the Rod of Aaron (the first high priest) and a pot of manna from the desert. The Mercy Seat is where God appeared, was a key part of the rite of atonement, and mercy itself rather than the letter of the law seemed to be the logic of that atonement. The Christian community understands that the flesh and blood of Jesus had perfected that atonement for all and not just the Jewish community. It is now universal. There is nothing beyond the mercy of God and thus the community; Azazel is defeated with Jesus saying, ‘I see Satan fall like lightening’ (Luke 10:18). Girard (1999) takes this as the title of one of his books, arguing that Jesus is saying that Satan as the embodiment of mimetic rivalry and violence no longer has any objective reality, that there has been a rupture in human understanding and practices. This understanding includes the realisation that what is truly damaging to human communities is the withholding of access to the resources of those communities to enable forgiveness and healing.

Implications for justice Any new approach, or revisiting of the relationship between theology and criminal justice needs to be able to acknowledge both the problems that have emerged over the course of history through the combined ‘will to power’ of both church and state, and also develop new ontological, epistemological and methodological resources to reread foundational texts. In approaches to desistance from crime the issue of identity change (that Paul exhibits) from criminal to ex-offender, and then to law-abiding member of the community has been a central feature (see for example, Maruna, 2001). How these processes of desistance are ‘operationalised’ or even desirable is a contested issue as it directly links to our philosophical (ethical) and theological justifications for punishment. What the Pauline story reveals is creatio ex materia, and creatio continua dependent on community rather than a creatio ex nihilo. He uses his own human, social and religious capital to develop a new identity but realised in a community founded in gift. He does not think himself into a new way of being. The latter is an impossibility but is the basis of the modern penitentiary underpinned by narrowly defined individualistic cognitive and behavioural methods. This cognitivism and its cold rationality is how

85

CRIMINOLOGY AND PUBLIC THEOLOGY

the soul now traps the body (Foucault, 1977). The utilitarian calculus and its formulae of deterrence sentencing and risk management pulls the rug from under the feet of those promised rehabilitation by the violence of modern prison and probation (eternal return of the same, par excellence). This cycle of mimetic violence reveals the lies and failings of both the modern state justice in appealing to metaphysical justification for punishment and the postmodern reification of la différence. Neither provides a solution to our own violence. Girard argues that the gospels are primarily about humanity rather than God, and that they reveal the ways in which we are saved from our own violence, both personal and communal, through God’s revelation of that violence in the gospel narratives (see for example, Girard, 2007). This anthropological approach allows us to develop both a hermeneutic of suspicion and a hermeneutic of affirmation in understanding the relationships between punishment, rehabilitation and the role of religion in those processes. In taking a hermeneutic of suspicion to recover lost historical meanings then we can affirm new and creative practices in justice. Theses creative practices are the embodiment of flesh, in the form of community that is aware of its own capacity for complicity and is able to mediate between victims and perpetrators, however serious the crime through working with the natural desires for retribution. The Scriptures are relentlessly honest about the difficulty of achieving this, and the uncertainty and time-consuming work that counters our preoccupations with utility, budgets, value for money and so on. But it is our responsibility and not God’s. In the words of Merleau-Ponty who was not a Christian: Christ attests that God would not be fully God without becoming fully man […] God is not above but beneath us – meaning that we do not find Him as a suprasensible idea, but as another ourself which dwells in and authenticates our darkness. Transcendence no longer hangs over man; he becomes, strangely, its privileged bearer. (cited in Kearney, 2010: 91) The gift of the flesh-bearing community is to transubstantiate the needs of the community into concrete actions and outcomes. Specifically, the desistance literature is clear about the importance of housing, employment and stable relationships in developing a non-criminal identity (see Brayford et al., 2010), which we need to understand as gift within social and criminal policy (see Titmuss, 1970; Mauss, 1977; Barclay, 2015). In breaking self-perpetuating cycles of violence, it is incumbent on all the key stakeholders to find a language of giving. Jean-Luc Nancy (2000: 3) expresses this clearly in saying ‘Being cannot be anything but being-with-

86

St Paul among the Criminologists

one-another, circulating in the with and as the with of this singularly plural coexistence’ (emphasis in original). In the tradition of Catholic social teaching this gift and ‘being-withone-another’ is expressed in the language of inalienable natural human rights that exist by virtue of the dignity of the individual which human authorities cannot disregard even with a democratic mandate to do so. Rights imply obligations but the obligation to guarantee those inalienable rights to housing, food, medical care and so on is rarely promoted. This thinking is being revisited; Pope Francis (2015: 2) has asked that the catechism of the Catholic Church be reformulated to reflect that ‘today capital punishment is unacceptable, however serious the condemned’s crime may have been […] no matter how serious the crime that has been committed, the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person’. This developing position by the Roman Catholic Church on capital punishment, demonstrates the importance of having a tradition that can rectify historical problems and errors that have emerged (see for example, MacIntyre, 1990). This can allow us to dismantle the tradition of harsh punishments underpinned by Christian theology. With respect to capital punishment, Catholic judges in the US Supreme Court and politicians can no longer rely on church teaching to support the death penalty and harsh penal measures. In the case of Paul and the way that he was dealt with by the authorities, he both relied on Roman due process to guarantee his rights as a citizen, but also his right as a member of the church to have his sin carried and forgiven to realise a new way of living. In the criminal justice system and social welfare there are local examples of good practice based on theologies of potentiality and gift. I take gift to include affirmation, covenant and creation in material form. I worked for 15 years for the Society of St Dismas with homeless street drinkers and addicts. The Society was founded by the then Catholic chaplain to Winchester Prison Fr Pat Murphy O’Connor and the first director was Fr  Andrew McMahon OFM (and was awarded an MBE for his work). The principles were Pauline in accepting people where they were, without judgement, and to provide housing and support services and continuity of care. The Society founded the first community alcohol detoxification and aftercare centre in the UK where people could walk in off the street and undergo detoxification. This centre eventually closed through the imposition of ‘managed care’ (see Pycroft, 2010) with its rationality undermining creativity to the detriment of people who were much marginalised. Homeboy Industries in Los Angeles is the largest gang re-entry programme in the world. They operate the same principles as St Dismas did with a radical ethic of acceptance. People simply turn up

87

CRIMINOLOGY AND PUBLIC THEOLOGY

and are provided with employment, and usually in jobs alongside rival gang members. They are community based, with people continuing to reside in their own homes but having to cross gang boundaries to get to work. These examples of excessive giving are of course applauded and valorised in society but only as long as they are not mainstream practice. The language of tougher prison and community sentences continue to be promoted to the detriment of all.

Conclusion The monstrosity and the scandal of the Christian tradition is in its excess rather than reduction and in its universality rather than particularism. Paul’s guarantee (covenant) of equality before people and thus God is the truth in itself, likewise of our guaranteed (covenanted) equality before people and thus God. This is enabled because when the community bears our transgression, guarantees our dignity and provides for the needs of our flesh (expressed as the natural rights of human beings) we are thus provided a way out of violence. This dynamic phase space constituted by people, construed as forgiveness and healing but not focused on individuals or their transgression, enables people to apologise, realise potential and the possibility of new identities for victims, perpetrators of crimes and communities. This was Paul’s experience, which was authentically Jewish and perfected in the forgiveness of his innocent victims. Notes 1

2

3

4 5

6

In 2019, I gave two presentations on the themes covered in this chapter, to Father Mark Whiting and parishioners of St Patrick’s Catholic Church, Hayling Island. I would like to thank them for the generosity of their discussion in helping me to tease out some of the key arguments, but the responsibility for everything written is entirely mine. Also, I am indebted to Fr James Alison for introducing me to the work of Margaret Barker. Saul and Paul are the same person, but Saint Paul is the usual designation. The significance of this is discussed later in the chapter. I will use the name interchangeably. There is dispute about which of the 13 epistles can be attributed to Paul. Modern scholarship attributes seven (see Ehrman, 2018). Not all early manuscripts include this sentence. See, for instance, Eubank (2010). I do not mean in the qualified sense of ‘Roman’ Catholic but rather catholic in the sense of universal or whole. It is this sense in which the debates between key thinkers in this chapter are discussed in the face of hyper-individualisation and the failures of justice, but also the failures of critical criminology in addressing those failures. Professor Esther Reed, private correspondence.

88

St Paul among the Criminologists

References

Aulen, G. (2010) Christus Victor: An Historical Study of the Three Main Types of the Idea of Atonement, London: SPCK. Badiou, A. (2003) Saint Paul: The Foundation of Universalism, Stanford, CA: Stanford University Press. Barclay, J. (2015) Paul and the Gift, Grand Rapids, MI: Eerdmans. Barker, M. (2004) The Great High Priest: The Temple Roots of Christian Liturgy, London: T&T Clark. Brayford, J., Cowe, F. and Deering, J. (2010) What Else Works? Creative Work with Offenders, Cullompton: Willan. Breton, S. (1988) A Radical Philosophy of Saint Paul, New York: Columbia University Press. Davis, C. (2009) (ed.) The Monstrosity of Christ: Paradox or Dialectic, Cambridge, MA: Massachusetts Institute of Technology. Dupuy, J.P. (2013) The Mark of the Sacred, Stanford, CA: Stanford University Press. Ehrman, B. (2018) The Triumph of Christianity: How a Forbidden Religion Swept the World, St Ives: One World Publications. Eubank, N. (2010) ‘A disconcerting prayer: on the originality of Luke 23:34a’, Journal of Biblical Literature, 129(3): 521–36. Foucault, M. (1977) Discipline and Punish: The Birth of the Prison, London: Allen Lane. Francis, Pope (2015) ‘Letter to the President of the International Commission against the Death Penalty’, L’Osservatore Romano, 7. Frazer, J. (1922) The Golden Bough: A Study in Magic and Religion, London: Macmillan. Girard, R. (1978) Things Hidden since the Foundation of the World, London: Continuum. Girard, R. (1999) I See Satan Fall like Lightening, Leominster: Gracewing. Girard, R. (2007) Evolution and Conversion: Dialogues on the Origins of Culture, London: Continuum. Girard, R. (2014) The One by Whom Scandal Comes, East Lansing, MI: University of Michigan Press. Gorringe, T. (1996) God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation, Cambridge: Cambridge University Press. Gorringe, T. (2002) ‘The prisoner as scapegoat: some skeptical remarks on present penal policy’ in T. O’Connor and N. Pallone (eds) Religion, the Community and the Rehabilitation of Criminal Offenders, London: Haworth Press, pp. 249–57.

89

CRIMINOLOGY AND PUBLIC THEOLOGY

Gough, D. (2019) ‘Multi-agency working and the governance of crime control’, in A. Pycroft and D. Gough (eds) Multi-Agency Working in Criminal Justice: Theory, Policy and Practice (second edn), Bristol: Policy Press, pp. 5–24. Hall, S. and Winlow, S. (2015) Revitalizing Criminological Theory: Towards a New Ultra-Realism, Abingdon: Routledge. Harill, J. (2002) ‘Coming of age and putting on Christ: the toga virilis ceremony, its paraenesis, and Paul’s interpretation of baptism in Galatians’, Novum Testamentum, 44(3): 252–77. Kearney, R. (2010) Anatheism (Returning to God after God), Chichester, NY: Columbia University Press. MacIntyre, A. (1990) Three Rival Versions of Moral Enquiry, London: Duckworth. Maruna, S. (2001) Making Good: How Ex-Convicts Reform and Rebuild Their Lives, Washington, DC: American Psychological Association. Mauss, M. (1977) The Form and Reason for Exchange in Archaic Societies, London: Routledge. Milbank, J. (2006) Theology and Social Theory: Beyond Secular Reason (second edn), Oxford: Blackwell. Miller, W. (1990) ‘Carnivals of atrocity: Foucault, Nietzsche, cruelty’, Political Theory, 18(3): 470–91. Nancy, J.L. (2000) Being Singular Plural, Stanford, CA: Stanford University Press. New Jerusalem Bible (1985) London: Darton, Longman and Todd. Nietzsche, F. (1883/2003) Thus Spoke Zarathustra, St Ives: Penguin Books. Prison Reform Trust (2019) Prison: The Facts, Bromley Briefings Summer 2019, www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley %20Briefings/Prison%20the%20facts%20Summer%202019.pdf Pycroft, A. (2010) ‘Consensus, complexity and emergence: the mixed economy of service provision’, in A. Pycroft and D. Gough (eds) MultiAgency Working in Criminal Justice: Care and Control in Contemporary Correctional Practice, Bristol: Policy Press, pp. 7–20. Pycroft, A. (2019) ‘From a trained incapacity to professional resistance in criminal justice’ in A. Pycroft and D. Gough (eds) Multi-Agency Working in Criminal Justice: Theory, Policy and Practice (second edn), Bristol: Policy Press, pp. 25–40. Pycroft, A. and Bartollas, C. (2018) ‘Forgiveness as potentiality in criminal justice’, Critical Criminology, 26(2): 233–49. Sampley, J. (2016) Walking in Love: Moral Progress and Spiritual Growth with the Apostle Paul, Augsburg, MN: Fortress. Schama, S. (1995) Landscape and Memory, London: Harper Perennial.

90

St Paul among the Criminologists

Siedentop, L. (2015) Inventing the Individual: The Origins of Western Liberalism, St Ives: Penguin Books. Titmuss, R. (1970) The Gift Relationship, London: George Allen & Unwin. Zeitlin, S. (1941) ‘The Crucifixion of Jesus re-examined’, The Jewish Quarterly Review, 31(4): 327–69. Žižek, S. (2003) The Puppet and the Dwarf: The Perverse Core of Christianity, Athens, GA. Massachusetts Institute of Technology. Žižek, S. (2009) ‘The fear of four words: a modest plea for the Hegelian reading of Christianity’, in C. Davis (ed.) The Monstrosity of Christ: Paradox or Dialectic, Cambridge, MA: Massachusetts Institute of Technology, pp. 24–109.

91

5

Interpreting the Cross: Religion, Structures of Feeling, and Penal Theory and Practice Tim Gorringe

At the end of his General Theory of Employment, Interest and Money John Maynard Keynes (1954: 383) wrote ‘Practical men who believe themselves to be quite exempt from any intellectual influences, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.’ Keynes is recognising the role ideas play in culture. Since the end of the 19th century this has taken the form of a discussion about ideology. Karl Marx in particular wanted to insist on the dialectic between ideas and modes of production. In the German Ideology he noted that morality, religion, and so forth, no longer retain the semblance of independence. They have no history, no development: but men, developing their material production and their material intercourse, alter, along with this their actual world, also their thinking and their modes of thinking. It is not consciousness which determines life, but life which determines consciousness. (Marx and Engels, 1976: 37) In the third of his theses on Feuerbach Marx puts this more dialectically, reminding materialists inclined to read off the human condition simply

93

CRIMINOLOGY AND PUBLIC THEOLOGY

from circumstances and upbringing that it is ‘human beings who change circumstances’ (Marx and Engels, 1976: 3). Just to spell this out: theologies, like all other forms of discourse, change as modes of production and material intercourse change, but equally human beings, believing thus and thus, celebrating the eucharist thus and not otherwise, change circumstances. As an example of how religious ideologies bear on human circumstances E.P. Thompson (1968) (following Marx) cited Andrew Ure’s Philosophy of Manufactures (1835/1967), to show how Christianity was used in industrial capitalism. Ure argues that religion is necessary to create a well-disciplined work force. Some power is needed to turn recalcitrant workers into docile wage slaves: Where then shall mankind find this transforming power? – in the cross of Christ. It is the sacrifice which removes the guilt of sin: it is the motive which removes love of sin: it mortifies sin by showing its turpitude to be indelible except by such an awful expiation; it atones for disobedience; it excites to obedience; it purchases strength for obedience; it makes obedience practicable; it makes it acceptable; it makes it in a manner unavoidable, for it constrains to it; it is, finally, not only the motive to obedience, but the pattern of it. (Ure, 1835/1967: 435) In commentary Thompson turned to the Methodist hymns he knew from his childhood: ‘True followers of our bleeding Lamb, Now on Thy daily cross we die’. He commented: ‘Work was the Cross from which the “transformed” industrial worker hung’ (Thompson, 1968: 406).1 With heavy irony he titled his account ‘The transforming power of the cross’. In understanding the way in which religion bears on social practice we need to go beyond ideology, however. We need to turn to something like Raymond Williams’ idea of a ‘structure of feeling’, the sum of all those things which tell us what it is like to live in a particular society, its emotional undertow, ‘a very deep and very wide possession, in all actual communities, precisely because it is on it that communication depends’ (Williams, 1965: 64–5). Abstract treatises spell out, more or less imperfectly, the implications of this structure of feeling. Ritual plays a key part in expressing and maintaining such structures. Rituals ‘provide a kind of didactic theatre through which the onlooker is taught what to feel, how to react, which sentiments are called for’ (Garland, 1990: 67, emphasis added). As an example, think of the significance of the celebration of the mass, all over Western Europe, throughout the Middle Ages, and think

94

Interpreting the Cross

of its recalling at its centre the death of Christ. In this and countless other ways the cross constituted a structure of feeling which generated particular cultural and political outcomes; and if it is the case, as Steven Runciman (1951) argued, that the Byzantine Empire was less bellicose than the West, it is not ridiculous to look at the way different construals of the symbolic centre of Christianity, between East and West, generated different structures of feeling and therefore different outcomes.

Sin and crime Every Christmas when English-speaking Christians sing the carol ‘In Dulci Jubilo’ they come across the line ‘Deeply were we stained per nostra crimina’. The Latin word crimen means charge, accusation, reproach, fault, guilt, scandal. It is, of course, the word from which we derive our word ‘crime’. In the carol it obviously means ‘sin’. How are they related? If a man commits adultery with the wife of his neighbour, both the adulterer and the adulteress shall be put to death. (Leviticus 20:10) This is an example of something which, in post-exilic Israel, seems to have been both a sin and a crime but in present day Western society remains a sin but is no longer a crime. In some Muslim societies, as we know, it remains both. In common parlance people commonly conflate sin and crime, even at a sophisticated level. Thus, the former Master of the Rolls in Britain, Lord  Denning, wrote: ‘In order that an act should be punishable it must be morally blameworthy. A certain kind of immorality should be a necessary, though not sufficient, condition of criminality. It must be a sin’ (Denning, 1953: 112). Turning that around, the theologian Hastings Rashdall wrote: ‘A crime is a sin it is expedient to repress by penal enactment’ (Rashdall, 1907: 296). This seems to be saying that some sins so affect the wider community that they have to be proscribed by law, and thereby become crimes, while other sins may be the target of disapprobation but are not penalised. But of course, unjust states may criminalise moral forms of behaviour, as 18th-century England criminalised ancient traditions of using the commons, or apartheid South Africa criminalised mixed race marriages, while society may sanction and even reward forms of behaviour that many might consider sinful and might perhaps want criminalisation, such as some forms of financial trading, arms trading and gambling. The gap between sin and crime indicated by these distinctions can also be seen by the fact that while,

95

CRIMINOLOGY AND PUBLIC THEOLOGY

according to Scripture, all humans are sinful, only a tiny percentage come through the criminal justice system. The relation between sin and crime, therefore, is not one of identity, but common issues are involved in both. Both ‘sin’ and ‘crime’ describe patterns of behaviour that damage human society, and therefore the possibility of being human, to varying extents and which therefore constitute boundaries that need marking. In early modern Europe the criminal was the paradigm sinner and, because all humans were sinners, the paradigm human being. Looking at the criminal, people said ‘There, but for the grace of God, go I’. Charles Wesley could draw on prison imagery in his redemption hymns: Long my imprisoned spirit lay Fast bound in sin and nature’s night; Thine eye diffused a quickening ray, I woke, the dungeon flamed with light; My chains fell off, my heart was free, I rose, went forth and followed Thee. (‘And can it be’, 1738, verse 4) To look at the criminal was to acknowledge the sin we both shared. In a talk with chaplains Karl Barth insisted on this over and over again, alluding to a wonderful story about Martin Niemöller. When Niemöller was locked up for opposing the German Christian movement, the prison chaplain met him and asked in surprise, ‘My Brother, why are you in prison?’ To which Niemöller replied, ‘My brother, why are you not in prison?’ (Barth, 1995: 82). Barth uses the story, tongue in cheek, to suggest that we are all offenders. We are all unclean. Hence the fundamental presupposition of prison chaplaincy is ‘an unreserved solidarity’ with inmates (Barth, 1995: 63).

Ways of dealing with sin and crime There are three broad ways of dealing with sin and crime. The first is to seek to protect society at large, often by sequestration. Punishment is not the issue but protection. This is the view most commonly associated with utilitarianism. It has a theological response in understandings of scapegoating, but I shall not pursue it here. The second way is to deal with sin or crime by punishment. On this view wrongdoing requires retribution. Our own societies are profoundly retributive, and thus this response might seem self-evident, and belief in the necessity of punishment lies deep in the biblical and theological

96

Interpreting the Cross

imagination. The extensive debate on the theory of punishment, however, amply demonstrates that the need for punishment cannot be taken for granted. A whole variety of reasons for punishment are adduced: because society cannot turn a blind eye to the assumption that ‘crime pays’; because offenders deserve it; because we have to stop people committing further crimes; because crime should be denounced; because we have to reassure the victim that society cares about what has happened; because we have to protect society from dangerous or dishonest people; because we have to allow offenders to make amends for the harm they have caused; because we have to ensure that the laws are obeyed; because criminals have to repay their debt to society; because sin or crime upsets a balance which must be restored; because sin or crime require expiation, atonement or annulment in order to wipe the slate clean, to start afresh. These various reasons draw on very different understandings both of society and of how society should deal with offenders. We cannot adopt them all, because some – for example the utilitarian and the expiatory – are mutually contradictory. How should we decide between them?

Punishment in Scripture All Western cultures have been deeply influenced by Christianity, though I take it for granted there never was a ‘Christian culture’ in the sense of a culture which fully instantiated the demands of the gospel. A large part of this influence is the shaping of culture by the biblical narratives, in which, of course, we find a great deal about punishment. Cain is punished for killing Abel, and because his punishment is more than he can bear some provision is made for him (Genesis 4:13); God destroys all creatures except Noah and the creatures in the ark, because of the violence which characterises the earth (Genesis 6); God punishes Sodom for its offences (Genesis 19); the nations and then Israel are threatened with divine punishment by Amos (Amos 1–4); Jeremiah 15  times warns of God’s punishment of Judah, and then of the nations; Torah includes long lists of crimes which are punishable by anything from death to the award of damages – these include idolatry, blasphemy, murder, assault, theft and adultery. Deuteronomy (29: 20–3) warns those who do not heed its address that: All the curses written in this book will descend on them, and the Lord will blot out their names from under heaven. The Lord will single them out from all the tribes of Israel for calamity, in accordance with all the curses of the covenant written in this book of the law.

97

CRIMINOLOGY AND PUBLIC THEOLOGY

The ‘fierce anger’ of God will descend on them. In Revelation (6:10, 19:2) the saints look for God’s vengeance. Matthew (25:46) talks of eternal punishment (kolasis – restraint, translated in the Vulgate2 as supplicium – suffering or punishment). It would not be much of an exaggeration to say that our Scriptures are saturated with the idea of punishment for offences. Paul Ricouer (1970: 33) famously describes Marx, Nietzsche and Freud as ‘three masters of suspicion’, because they teach us to think critically, and the latter two both reflected on the relation between religion and punishment. Nietzsche argued that religion began with the divinisation of ancestors, towards whom we feel a sense of debt. The guilt this engenders is turned inward. A notion of irredeemable debt is answered only by God’s self-sacrifice, a ‘mystery of an unimaginable ultimate cruelty’ (Nietzsche, 1887/1967: 35). What we call ‘God’ is in actual fact the projection of our feelings of guilt. Law and religion belong together at the level of punishment and cruelty. Religion lies at the origin of culture, in the need for memory, and since memory ‘must be burned in’, ‘all religions are at the deepest level systems of cruelties’ (Nietzsche, 1887/1967: 61). Law, meanwhile, originates in substituting the pleasure of punishment for a debt. In ‘punishing’ the debtor, the creditor participates in a right of the masters: at last he, too, may experience for once the exalted sensation of being allowed to despise and mistreat someone as ‘beneath him’ […] the compensation […] consists in a warrant for and title to cruelty. (Nietzsche, 1887/1967: 65, emphasis original) Like religion the sphere of legal obligations has its beginnings ‘soaked in blood thoroughly and for a long time’ (Nietzsche, 1887/1967: 65). In a devastating aperçu about the Enlightenment he sees that ‘even in good old Kant […] the categorical imperative smells of cruelty’ (Nietzsche, 1887/1967: 65). Freud too read religion and punishment together. Religions, he said, ‘have never overlooked the part played in civilization by a sense of guilt’ (Freud, 1961/2001: 136). In his view human beings have an instinctive aggression which has to be suppressed for civilised society to be possible. The work of the ‘super ego’ is to internalise aggression which then manifests itself as guilt and a need for punishment. All this begins, he believes, with the primal murder of the father, but it manifests itself in daily life. When things go well a person’s conscience is lenient but ‘when misfortune befalls him, he searches his soul, acknowledges his sinfulness, heightens the demands of his conscience, imposes abstinences on himself, and punishes himself with penances’ (Freud, 1961/2001:126). We can see this in the history of Israel.

98

Interpreting the Cross

The people of Israel had believed themselves to be the favourite child of God, and when the great father caused misfortune to rain down upon this people of his, they were never shaken in their belief in his relationship to them or questioned his power or righteousness. Instead they produced the prophets, who held up their sinfulness before them; and out of their sense of guilt they created the over-strict commandments of their priestly religion. (Freud, 1961/2001: 127) Religion, in this sense is the story of the super ego writ large. Earlier, drawing on Frazer (1910/2011), Freud read the Christian story as a clear illustration of what follows from the murder of the father (Freud, 1985).3 Although not one of Ricouer’s ‘masters of suspicion’ we should note that Durkheim’s account of punishment comes out of the same stable. For him ‘God’ is simply a way of talking about the demands of the ‘collective consciousness’ and morality is solidarity with the group. ‘Punishment constitutes essentially a reaction of passionate feeling, graduated in intensity, which society exerts through the mediation of an organised body over conduct’ (Durkheim, 1893/1984: 52). Punishment is at the same time expiation. The offender has to suffer because only thus are the bonds of society reaffirmed. The pain of punishment, its penality in the strict sense, is sacramental: it makes real what it signifies. George Herbert Mead (1918: 582) follows essentially the same tack, arguing that the offender ‘suffered until satisfaction had been given to the outraged sentiments of the injured person, or of his kith and kin, or of the community, or of an angry God’. We do not have to accept these theories, which bear the marks of the positivism and rationalism of the 19th century, to agree that accounts of the need for punishment are not simply (as they are sometimes presented) theories of social control, but have profound psychological roots, and that they are deeply bound up with religion, and in particular with Judaism and Christianity. It is perfectly possible to read the Christian Scriptures as teaching that punishment is endorsed by God; in other words, that it is ontologically grounded, that it is written in to the structure of the universe. To the extent that Nietzsche and Freud put us on our guard against such a reading they are indispensable to the theologian.

Satisfaction theory Christianity existed for a thousand years without a fully worked out theology of the atonement. Anselm, at the end of the 11th century, was

99

CRIMINOLOGY AND PUBLIC THEOLOGY

the first person to produce one in his Cur Deus Homo (though there are important passion hymns, such as the ‘Vexilla Regis’, which date from the 6th century). All commentators are at pains to emphasise that Anselm does not teach penal substitution, the idea that Jesus is punished in place of the sinner. For John McIntyre (1954) poena (pain, punishment) and satisfactio (satisfaction) are alternatives. For McIntyre, satisfaction is what God does freely to see that punishment is not exacted. Satisfaction is ‘Anselm’s way of speaking of that which took place as a result of the good God’s being unwilling to allow his creatures to destroy themselves’ (Gunton, 1988: 91–2). David Brown (2006) argues that the relevant part of Anselm’s context is his Benedictine monasticism. Anselm set light to issues like the investiture controversy4 and his argument must be read more from the cloister than from feudalism.5 For Anselm the need for God to punish springs from the fact that God must act consistently. No unfitness is possible with God and that would follow if God simply forgave, just as it would be unfit for us to accept forgiveness without making compensation (Anselm, c.1094–98/2005). This idea of fitness follows from Anselm’s Augustinian Platonism, which also included a view of corporate personality. We participate in the perfect exemplar or universal human nature that Christ came to offer. We cannot think that Anselm made the satisfaction metaphor central because of his concern not to allow any restraint on God. Christ offers his life voluntarily: ‘It is not part of an established pattern where such conduct is expected and where satisfaction in one form or another is simply assumed’ (Brown, 2006: 293). God does not gain by it because God is impassible. When Anselm talks about honour, he has in mind not feudal ideas but the scriptural command to offer glory and honour to God. The issue was not to pacify God but to show proper respect and worship towards the Being to whom one owes everything. The term satisfaction simply means having ‘done enough’ and is independent of the specifics of a particular penitential or feudal system. Benedictine monasticism, however, had been around for five hundred years by Anselm’s day and we have to ask why atonement theology needed to be formulated just then. What were the prompts? Of course, Anselm tells us that he is trying to answer the queries of unbelievers (probably Jews and Muslims), for whom the idea of God becoming human is blasphemous nonsense. But why did he give the argument this particular cast? Brown’s insistence that only Anselm’s intellectual and monastic context needs to be taken into consideration stretches credulity. From Aosta, in Italy, Anselm had nevertheless come to Bec in Normandy, risen to be abbot and later Archbishop of Canterbury. Normandy was the

100

Interpreting the Cross

powerhouse of Norman expansion, a process of exceptional cruelty and violence. One of William the Conqueror’s biographers, commenting on William’s huge church-building programme, writes: ‘These are the actions of a man trying to propitiate a demanding deity, aware that his violent way of life placed him in danger of being despatched to hell. We have to see him as cut off from all notions of a reconciling and loving God, rarely able to forget that he would one day be judged’ (Bates, 1989: 152). In other words, Anselm’s world was one where propitiating a demanding deity was directly related to the huge expansion of church buildings with which Anselm, as Archbishop, would have had to be concerned. What defenders of Anselm fail to notice is that his argument appeals to retributive axioms. ‘Satisfaction or punishment must needs follow every sin’ (Anselm, c.1094–98/2005: 48) because if injustice is not punished the universe is shown to be an unjust and irrational place. Anselm assumes that punishment must follow sin and that satisfaction may take the place of punishment. Compassion without satisfaction is not possible, for God’s justice allows nothing but punishment as the recompense for sin. The assumption that sin disturbs a balance which has to be restored by punishment is fundamental to retributivism. The retributivist argues that punishment ‘is a just and proper response to a past offence, since it restores that fair balance of benefits and burdens in society which crime disturbs’ (Duff, 1986: 204). Of course, it is true that Christ offers his life freely. Of course, it is true that, as Anselm sees it, it is the harmony of all things which is at stake, but what remains is the necessity of death on account of sin. In my view this assumption, first clearly articulated by Anselm, but from then on part of the main stream of Christian thinking, underscored the logic of retributivism: offences must be paid for. Christ voluntarily offers his life but the reason he does so is that without death it would not be fitting for God to forgive. According to Franz Hinkelammert (1991) this means that God and the devil swap places. In both Old and New Testaments an indebted person could be ‘redeemed’ by the payment of his or her debt. Jesus, following Deuteronomy, insists on the cancelling of debt as a fundamental aspect of Christian practice. Anselm, however, makes God the one who insists on debt. The debt humanity has incurred must be paid with human blood.

Satisfaction theory and penal policy In God’s Just Vengeance (Gorringe, 1996: 224) I argued that construals of the death of Christ which began with Anselm ‘pumped retributivism into the legal bloodstream’. In a review of God’s Just Vengeance Rachel Fulton

101

CRIMINOLOGY AND PUBLIC THEOLOGY

(1999) asks how appropriate metaphors of the circulation of the blood are for the description of processes of intellectual reception. She wants me to pay closer attention to the mechanisms of transmission and reception. It is a fair request and I refer to what I have said about culture and the interplay of ideologies and structures of affect. My argument goes roughly like this: from the 11th to the 17th centuries images of the suffering Christ are the dominant icon in the whole of Europe. Believers are asked to identify with Christ’s suffering. In the 14th to 15th centuries Julian of Norwich asks as a gift that she may do that and in this she speaks for millions of others. At exactly the same time the body and practice of European law begins to take shape, a corpus in which retributive presuppositions are taken for granted. In asking why they are thus taken for granted we could refer to Freud’s view that the law of talion is ‘deeply rooted in human feelings’. Perhaps that is the case but, as Nietzsche argues, if your central religious construal embodies retributivism – the idea that sin cannot go unpunished – then, I argue, that is bound to affect your understanding of penality. If you say, ‘prove it by example’, my reply is twofold. First, I will argue that given the way culture is constituted, where practices, ideologies and structures of affect all bleed into each other (a metaphor from dying cloth, not from medicine) it is not possible that an image as dominant as that of the crucified Christ, construed retributively, could have none effect. Fulton instances the reintroduction of judicial torture in the 12th century which, she says, was practised on the assumption that since Christ who was God suffered the extremes of pain and humiliation, so much the more should heretics, criminals and outcasts’ (Fulton, 1999: 395). This seems to me to underline my argument rather than to show, as she suggests, that the legality of torture had as much to do with the perceived purity of the socio-ecclesiastical body of the church as it did with the punishment of wrongdoers. Again, we have to ask, ‘why now? why at this moment?’, just as we have to ask why the first heretic was burned in 1022 and not earlier. Such developments are not random accidents but are bound up with changes in ideology and structures of affect. Second, I would point to the development of a sacrificial understanding of the mass. Sacrifice is not the same as satisfaction (though in the consecration prayer in the Book of Common Prayer, an early modern revision of the mass, the term ‘satisfaction’ has a central place in explaining Christ’s death ‘a full, perfect and sufficient sacrifice, oblation and satisfaction for the sins of the world’), but it too embodies the notion of the necessity of paying for sin, making atonement, through death. As David Garland (1990) argues, liturgies provide a didactic theatre in which we are taught how to feel and react, and what responses are called for. When the mass is construed as sacrifice or satisfaction, I argue, we learn

102

Interpreting the Cross

that sin (or crime) has to be paid for, that it cannot go unpunished. The centrality of these metaphors in Western culture, I argue, has reinforced and undergirded the retributivism of Western penal practice. Garland argues that socially constructed sensibilities and mentalities have major implications for the way in which we punish offenders. ‘These cultural patterns structure the ways in which we think about criminals, providing the intellectual frameworks […] through which we see these individuals, understand their motivations, and dispose of them as cases’ (Garland, 1990: 195). Although he does not himself follow up the religious implications of this, the significance of Christianity in Western culture, and in particular the role of the cross, suggests that we ought to do so.

Alternatives to retributivism For most of the past two thousand years the sixty-six or seventy-two books taken to comprise Scripture (depending on whether or not one accepts the Apocrypha) have been taken as a unity. People have supposed that there is ‘a biblical view’ on whatever it may be. One of the advantages of biblical criticism is that people have become more open to the suggestion that there are many voices in Scripture and that they are not all saying the same thing. Scripture, it is now widely (though not universally) agreed, represents the record of a debate, argument, conversation, in which matters such as the nature of government (monarchy), sacrifice and how to treat offenders have widely differing treatments. The Dutch exegete Ton Veerkamp (2012) has argued that in Scripture as a whole we have an account of ‘the world otherwise’, which was later subverted when Christianity became the religion of empire. In both the Hebrew bible and the Messianic writings (as he calls the New Testament) we have an account of an alternative world not based on exploitation which was quite different from the arrangements and outlook of the surrounding world. Veerkamp does not consider criminal justice, but I would argue that ‘a world otherwise’ is envisaged there too. The theology of the atonement appeals to the language of the New Testament which draws on ideas of expiatory sacrifice. Expiatory or propitiatory sacrifice is read as ‘the’ biblical account of sacrifice. But in fact the many critiques of sacrifice in the Hebrew bible clearly prioritise the life of obedience and thanksgiving over the sacrificial cultus.6 That this was widely understood in the 1st century is confirmed by the story of Johanan ben Zakkai who, when the temple was destroyed, said: ‘Do not grieve, my son, for we have an atonement which is just as good, namely deeds of mercy, as the Scripture says, “For I desire mercy and not sacrifice”’ (Schechter, 1887: 21).

103

CRIMINOLOGY AND PUBLIC THEOLOGY

E.P. Sanders (1976: 500) argues that the heart of Paul’s understanding of redemption is in participation not expiation: ‘Paul did accept the common Christian view that Christ’s death was expiatory […] but the main conviction was that the real transfer was from death to life, from the lordship of sin to the lordship of Christ’. Krister Stendahl (1977) argues that Paul’s great concern was the inclusion of Gentiles into the people of God. For Veerkamp (2012), following Jacob Taubes (2004), Paul is a political radical whose key word is ‘all’ – all are included in the vision of the new society. To live messianically is to live so as to make the alternative real (Galatians 3:28). For him, Hebrews, often read as concerned with expiatory sacrifice, is not about the return to a sacrificial cultus but the end of religion in that Jesus has once and for all put an end to the need for sacrifice. Hebrews 13:4 is not about otherworldliness but longing for the great alternative. It promises us that Rome will not last for ever. For centuries the gospels were understood as ‘passion stories with a long introduction’ but today there is once again more emphasis on Jesus’ teaching and healing, on his calling together a new community. For John Howard Yoder (1972: 47) the cross is ‘the political alternative to both insurrection and quietism’, the price of social nonconformity. This alternative reading of the cross is not absent in the tradition. The Lollards, at the beginning of the 15th century, distanced themselves from Anselmian views. Their approach was continued by the Anabaptists in the 16th century, by Winstanley and the Diggers in the 17th century, and finds its most passionate exponent in William Blake at the turn of the 18th and 19th centuries. Blake described the conventional theology of atonement of his day as ‘a horrible doctrine’. For Blake, Christ’s death is the perpetual example of that self-sacrifice by which alone human beings can live. What threatens human life, ‘Satan’, is ‘the Great Selfhood’, man’s self-righteous pride: In Hell all is Self Righteousness; there is no such thing there as Forgiveness of Sin; he who does Forgive Sin is Crucified as an Abettor of Criminals, & he who performs Works of Mercy in Any Shape whatever is punished &, if possible, destroy’d, not thro’ envy or Hatred or Malice, but thro’ Self-Righteousness that thinks it does God service, which God is Satan. (Blake, 1927: 160) Blake reads the crucifixion, therefore, primarily through Luke 23:34 (‘Father, forgive them’). More than anyone in his day he had an understanding of ‘the powers’ that oppress people, the idols of death,

104

Interpreting the Cross

and to symbolise these he created his own mythological world. This understanding is the reason that the real energy of Blake’s art is not in depictions of the crucifixion but, for example, in the image of Michael binding Satan, an image of an older atonement theology in terms of conflict with the powers of darkness. Blake has needed to find an alternative language to speak of what the gospels depict as the significance of the crucifixion. The actual image has become too clichéd for use. In our own day the liberation theologians represent this approach to atonement. For the Salvadorian theologian, Jon Sobrino (1978: 214): The cross is not the result of some divine decision independent of history; it is the outcome of the basic option for incarnation in a given situation. That entails conflict because sin holds power in history and takes the triumphant form of religious and political oppression. Approaches like these lead to a quite different account of penality, one based in what today is called ‘restorative justice’, which builds, not on the retributive axiom that offences have to be punished, nor on an understanding of therapy, but thinks rather of a quite different kind of solidarity than that of which Durkheim speaks: namely a solidarity of understanding and acceptance which can be in the proper sense redemptive – it can change people from being enemies of society and of themselves into people who are able to love.

Circles of support and accountability A very interesting restorative justice programme which actually came out of this understanding of atonement are the Circles of Support and Accountability (COSA) which originated in the work of a Canadian Mennonite pastor, Harry Nigh, in 1994. When a repeat sex offender was released back into the community there was uproar, a moral panic and 24‑hour police surveillance. In response to the offender’s pleas for assistance, Nigh agreed to gather a group of congregants around him, to offer both humane support and a realistic accountability framework. It was effective; the man did not reoffend. A similar situation in another Mennonite parish led to the development of a second Circle, after which the Correctional Service of Canada (CSC) expressed interest in developing the concept and introducing pilots (Wilson et al., 2005). The Circles have now become accepted practice in Canada, and have spread to the UK and other parts of Europe. Astonishingly, they have been shown

105

CRIMINOLOGY AND PUBLIC THEOLOGY

to reduce reoffending by 70 per cent (Wilson et al., 2005), one of the most successful recidivism rates in criminal justice at large. COSA use volunteers from the community to form a Circle around a person with a history and assessment of potential high risk of sexual offending, who is or is about to live in the community. Volunteers and the person for whom the Circle is formed are all Circle members, but the offending individual is referred to specifically as the core member. The Circle meets regularly (often weekly) in places such as church halls or coffee shops rather than in formal settings such as a probation office. The Circle aims to provide an informal environment and a healthy ‘community’ to assist the core member’s development of a stable social existence. The COSA concept fits within the general principles of restorative justice given its focus on reintegration, although it does not directly seek to involve victims. The support role of Circle members ranges from practical acts of assistance, like filling out a job or housing application, to less tangible contributions like giving an offender a sense of hope or confidence to move away from old patterns of behaviour. The accountability role of Circles requires volunteers to confront and challenge a core member, for example if he or she tries to rationalise or minimise past offending. Volunteers often say the accountability and support functions are intertwined, for example if the core member is provided with a supportive environment of people, he or she will be more able and willing to open up and genuinely confront entrenched sexual beliefs. Of course, COSA is not an alternative to custody. It happens post custody. Retributive sanctions are still in place. The importance of the programme however is in showing how offenders can be changed, and released from their compulsions. Circles assist the goal of reintegration through the very specific and practical activities of volunteers. Some of these are seemingly very minor or mundane, but we should not underestimate the impact of day-to-day support on the lives of offenders, for whom they may have a disproportionate benefit. For example, by accompanying a core member to a doctor’s appointment, helping a core member find an appropriate club to join, or escorting him or her to a computer class, a Circle can directly link an offender back into a community (Armstrong et al., 2008).

Interpretation and penality Surely it has to be granted that ideas have consequences: this is implied in the quotation from Keynes with which I began. This applies, I

106

Interpreting the Cross

would argue, a fortiori to religious ideas – especially when we extend the word ‘idea’ to embrace symbols and narratives – because in religion human beings line up behind ultimates. But symbols and narratives are open to the most diverse interpretation. Christianity – simply to speak of the tradition with which I am most familiar – has a long history of often bitterly contested interpretations. One of these – the idea of satisfaction – has borne, I argue, on penal practice, and legitimated the idea that people have to suffer for their offences. As a matter of fact, this interpretation has never been hegemonic. There have always been other ways of understanding the cross in the wings and today, especially as one of these is articulated by the Mennonites, this suggests a quite different way of dealing with offenders. It is true, of course, that the practice illustrated by Circles of Support and Accountability is not a magic bullet, that will once and for all deal with offending. On the other hand, let’s imagine that this model, or paradigm, became a major part of every penal programme, perhaps even the dominant one. Just as satisfaction theory stoked retributivism and vengeful feelings towards offenders, might this practice, drawing on a quite different understanding of the cross, feed in to a more reconciliatory understanding of society? And would that not be closer to the promise of a messianic peace which Jesus proclaimed? The hermeneutic circle really is a circle: it is not just new readings of Scripture which produce new practices, but new practices lead to and reinforce different readings of Scripture. Perhaps then religion, or at least Christianity, might be humanised, or drawn back to what is now more and more taken to be its core message, by these different penal practices. Perhaps then the verse which Jesus himself quoted, ‘I desire mercy (hesed) and not sacrifice, the knowledge of God rather than burnt offerings,’ (Hosea 6:6) might begin to be realised. Notes 1

2

3

Thompson’s father lost his faith in India and wrote a play, Atonement, which protested the death penalty, racism, and the penal doctrine of the atonement. This must have affected his son’s later attack on Methodist understandings of the atonement. The Vulgate is a 4th-century Latin translation that became the official Catholic Latin Bible. Freud (1985: 215) writes ‘There can be no doubt that in the Christian myth the original sin was one against God the Father […] The law of talion, which is so deeply rooted in human feelings, lays it down that a murder can only be expiated by the sacrifice of another life: self-sacrifice points back to blood-guilt. And if this sacrifice of a life brought about atonement with God the Father, the crime to be expiated can only have been the murder of the father.’ This led to a replacement of a father religion by a son religion.

107

CRIMINOLOGY AND PUBLIC THEOLOGY

4

5 6

The investiture controversy concerned whether local church officials should be appointed by the church or state. Brown (2006) ignores the feudal parable Anselm uses in Book 2. For example, 1 Samuel 15:22; Amos 5:22f; Hosea 6:6; Psalms 40:6–8, 50:13–14, 51:16–17.

References

Anselm (c.1094–98/2005) Cur Deus Homo, translated by S.N. Deane, Fort Worth, TX: RDMc Publishing. Armstrong, S., Chistyakova, Y., Mackenzie, S. and Malloch, M. (2008) Circles of Support and Accountability: Consideration of the Feasibility of Pilots in Scotland, Glasgow/Stirling: Scottish Centre of Crime and Justice Studies. www.sccjr.ac.uk/wp-content/uploads/2012/11/circles.pdf Barth, K. (1995) Gespräche 1959–1962, ed. E. Busch, Zurich: Theologischer Verlag. Bates, D. (1989) William the Conqueror, London: G. Philip. Blake, W. (1927) ‘A vision of the Last Judgement’, in G. Keynes (ed.) Poetry and Prose of William Blake vol III, London: Nonesuch. Brown, D. (2006) ‘Anselm on atonement’, in B. Davies and B. Leftow (eds) The Cambridge Companion to Anselm, Cambridge: Cambridge University Press, pp. 279–302. Denning, T. (1953) The Changing Law, London: Stevens. Duff, R.A. (1986) Trials and Punishments, Cambridge: Cambridge University Press. Durkheim, E. (1893/1984) The Division of Labour in Society, translated by W.D. Halls, London: Macmillan. Frazer, J.G. (1910/2011) Totemism and Exogamy: A Treatise on Certain Early Forms of Superstition and Society, Hamburg: Severus Verlag. Freud, S. (1961/2001) The Standard Edition of the Complete Psychological Works of Sigmund Freud Vol. XXI (1927–1931) The Future of an Illusion, Civilisation and Its Discontents and Other Works, translated by J. Strachey, London: Vintage. Freud, S. (1985) The Origins of Religion, Harmondsworth: Penguin. Fulton, R. (1999) ‘God’s just vengeance: crime, violence and the rhetoric of salvation by Timothy Gorringe’ [book review], Law and History Review, 17(2): 393–96. Garland, D. (1990) Punishment and Modern Society, Oxford: Clarendon. Gorringe, T. (1996) God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation, Cambridge: Cambridge University Press. Gunton, C. (1988) The Actuality of Atonement, Edinburgh: T&T Clark. Hinkelammert, F. (1991) Sacrificios humanos y sociedad occidental: Lucifer y la Bestia, San José, Costa Rica: DEI.

108

Interpreting the Cross

Keynes, J.M. (1954) A General Theory of Employment, Interest and Money, London: Macmillan. Marx, K. and Engels, F. (1976) Collected Works, vol. 5, Moscow: Progress. McIntyre, J. (1954) St Anselm and his Critics, London: Oliver & Boyd. Mead, G.H. (1918) ‘The psychology of punitive justice’, American Journal of Sociology, 23(5): 577–602. Nietzsche, F. (1887/1967) On the Genealogy of Morals and Eco Homo, ed. W. Kaufmann, London: Random House. Rashdall, H. (1907) The Theory of Good and Evil, Oxford: Oxford University Press. Ricouer, P. (1970) Freud and Philosophy: An Essay on Interpretation, New Haven, CT: Yale University Press. Runciman, S. (1951) A History of the Crusades, vol.  I, Cambridge: Cambridge University Press. 83–8. Sanders, E.P. (1976) Paul and Palestinian Judaism, London: SCM Press. Schechter, S. (ed.) (1887) Aboth de Rabbi Nathan, Vienna: Chaim David Lippe. Sobrino, J. (1978) Christology at the Crossroads, London: SCM Press. Stendahl, K. (1977) Paul Among Jews and Gentiles, London: SCM Press. Thompson, E.P. (1968) The Making of the English Working Class, Harmondsworth: Penguin. Taubes, J. (2004) The Political Theology of Paul, translated by D. Hollander, Stanford, CA: Stanford University Press. Ure, A. (1835/1967) Philosophy of Manufactures: On an Exposition of the Scientific, Moral and Commercial Economy of the Factory System, Abingdon: Routledge. Veerkamp, T. (2012) Die Welt Anders: Politische Geschichte der Großen Erzählung, Berlin: Argument. Wesley, C. (1738) ‘And Can It Be’ [hymn]. Williams, R. (1965) The Long Revolution, Harmondsworth: Penguin. Wilson, R., Picheca, J. and Prinzo, M. (2005) ‘Circles of support and accountability: an evaluation of the pilot project in South-Central Ontario’, Ottawa: Correctional Service of Canada. www.csc-scc.gc.ca/ research/092/r168_e.pdf Yoder, J.H. (1972) The Politics of Jesus, Grand Rapids, MI: Eerdmans.

109

6

Sin, Shame and Atonement: A Challenge for Secular Redemption Christopher D. Marshall

In a notable analysis of shame, guilt and violence forensic psychiatrist James Gilligan (2003) recounts what he had learned, after working with thousands of violent offenders in prisons and mental health institutions over nearly four decades, about the causes and prevention of violence, about what it is that drives certain people, in certain circumstances, to commit acts of extreme violence.1 Gilligan found that when he asked perpetrators about their crimes, they repeatedly offered the same explanation. They had used violence either because they had felt ‘dissed’ or disrespected by their victims or because they wanted to gain respect in the eyes of others. Violence had served as a mechanism for countering feelings of belittlement or for achieving personal esteem (see also Hicks, 2011). Over time Gilligan began to realise that it is the detrimental impact of shame, and the visceral need to ward off or eliminate shame, that is the psychological pathogen from which violence springs, and not just in interpersonal relationships but also in large-scale conflicts. Unsurprisingly Gilligan found that the most persistent offenders had almost always suffered overwhelming abuse or neglect in childhood. Many said they felt ‘dead’ inside: empty, numb, frozen, without human emotions, such as love or fear or regret, and even unable to feel physical sensations. It was as if their personalities had died long before they started

111

CRIMINOLOGY AND PUBLIC THEOLOGY

killing others, Gilligan surmises. This feeling of emotional or spiritual deadness was so intolerable they were prepared to do anything, even commit horrific atrocities, including terrible self-mutilations, just in order to feel alive again. Their violence was a desperate attempt ‘to resurrect their dead self and bring it back to life – to become “born again”, so to speak, through an act of apocalyptic violence’ (Gilligan, 2003: 1153). At first, Gilligan thought he had discovered something original about the psychological genesis of violence, something previously unknown. But then he happened to reread the biblical story of Cain and Abel (Genesis 4:3–16), putatively the first recorded murder in history, and realised ‘the Bible had arrived at the same psychological insight I had, but a long time earlier’ (Gilligan, 2003: 1156). The reason Cain killed his brother Abel was because Cain felt diminished by Abel’s fortunes and lashed out at him in anger. Similar accounts of shame-induced violence recur in the great myths of the classical tradition as well, and the phenomenon has also been recognised by many of the great philosophers and theologians of the West, as well as by a growing number of behavioural scientists today. Shame begets violence, while violence engenders shame, in a self-perpetuating cycle of ruin. That being the case, any attempt to prevent or mitigate interpersonal violence must surely attend to the root cause of violence: the destructive impact of internalised shame. But this presents a peculiar challenge for the criminal justice system, which is tasked with redressing violence on behalf of the community. The challenge is twofold. The first is that while criminal penalties are apportioned on the basis of proven guilt and are intended, at least rhetorically, to elicit remorse and amendment in the offender, those who commit violent crime in the deadly grip of shame frequently lack any real sense of guilt or remorse for their actions. Guilt requires some degree of empathetic imagination, but entrenched shame inhibits or curtails the operation of empathy. It drowns out the voice of conscience and accountability to others, while amplifying the perpetrator’s own internal anguish and sense of grievance. The second challenge is even more serious. The imposition of punitive pain on habitually violent offenders does nothing to remedy the shameful root of their behaviour. Punishment may help reduce feelings of blameworthiness in guilt-prone individuals, but it only increases feelings of shame in shame-bound ones and is thus liable to provoke rather than prevent further violence. In fact, punishment, often interpreted by the recipient as a form of personal violation or vengeance and evoking bitter memories of humiliation and powerlessness in childhood, could even be ‘the most powerful stimulant or cause of violence […] yet discovered’ (Gilligan, 2003: 1164). Diana Kwon confirms this intuition, noting how decades of psychological research has shown that shame can trigger

112

Sin, Shame and Atonement

a deluge of painful consequences that in no way ensures people will mend their ways. If anything, studies found that shame led individuals to become angry, aggressive and self-defensive. It provoked them to deny accusations, try to hide, or even lash back against an accuser. (Kwon, 2016: 67–8) Accordingly, something other than retributive punishment is needed if society is to deal effectively with the psychological incubator that gives rise to violent crime. Arguably, it is the failure to recognise or attempt to repair the ruinous impact of dysfunctional shame on those caught up in serious crime, both offenders and victims, that is the Achilles heel of much criminal justice policy and practice. Rather than mitigating shame, if anything the current system exacerbates the problem (see Marshall, 2012: 228–31). It is also the missing piece in a good deal of theological reflection on sin, repentance and atonement, which historically has done much to shape approaches to crime and punishment in the West. Both criminological and theological reflection have been dominated by the language of guilt and punishment. Both have largely failed to factor in the role of entrenched shame in understanding and responding to human transgression, and both often display an impoverished understanding of what is involved in atoning for sin and defeating its ongoing thrall in the lives of individuals. In what follows, I begin by trying to map out the multiple and complex ways shame functions in human experience. There is a vast and sometimes contradictory literature on this subject, so it is necessary to be selective in the coverage. I then turn to the place of shame and honour in the biblical world, and particularly in the story of Jesus and his first followers. I propose that the unique saving power ascribed to the life, death and resurrection of Christ in the New Testament, known in theological shorthand as the Atonement, includes its capacity to expose, absorb and disrupt the tyranny of shame in the human condition. Those who enter into union with Christ through faith and baptism embark on a lifelong journey of restoration in which the damage done by unaddressed shame may be repaired and shame restored to its rightful role as the regulator of healthy relationships. The task before us is an enormous one and my goal can only be to sketch out the lines of an approach that requires a much fuller treatment. My aim is to probe how and why the atoning work of Christ can make a difference to those trapped in the vortex of shame and how the gospel’s offer of spiritual regeneration provides both a paradigm for and a challenge to secular attempts to secure rehabilitation and relational renewal through the criminal justice system.

113

CRIMINOLOGY AND PUBLIC THEOLOGY

Phenomenology of shame Problem of definition The word shame is usually used to describe the painful feeling that comes from an awareness that one has somehow failed to live up to the standards expected of oneself or by others. The feeling can vary in intensity and duration, from mild self-reproach to extreme self-disgust, though the term usually implies more than a fleeting embarrassment or passing disappointment.2 It signals instead a significant or persistent sense of personal diminishment, a defect that strikes at the core of one’s identity and self-esteem and gives rise to a fear of rejection by others, a dread which, as social animals, we will go to any lengths to avoid. Beyond that high-level generalisation, there is considerable debate over how the phenomenon of shame should be defined, theorised and explained. Even describing it as a feeling or an emotion is not without difficulties, since almost everything to do with the study of emotions is contested. Shame is also construed differently in different disciplinary and clinical discourses, and there are often significant divergences, as well as clear resemblances, between the way philosophers, psychologists, psychoanalysts, socio-biologists, anthropologists, sociologists, sociolinguists, neuroscientists, ritual theorists and literary critics approach the subject. The conditions for shame also vary markedly across historical epochs and cultural settings. Declarations in the New Testament, for example, that it is shameful for a man to wear long hair (1 Corinthians 11:14) or for women to speak in public assemblies (1 Corinthians 14:35) were meaningful in a 1st-century context but make little sense in many modern settings. All this makes it difficult to arrive at a standard definition of shame that covers all the ways the concept is employed. Like other generic terms, it has a broad semantic field. The concept can also be conveyed through a wide variety of synonyms, word combinations and verbal images, so that the subject may be in view even when the standard terminology is not. It has been estimated (Lazare, 1987), for instance, there are at least one hundred and fifty different words or phrases in English that can be used to depict various facets of the condition of shame or humiliation, each carrying distinct nuances of meaning. In addition to these semantic challenges, there are some peculiar features about shame itself that make it elusive to pin down. One such feature is the way shame is intrinsically connected with concealment. That is to say, the experience of shame typically drives people to want to ‘hide their

114

Sin, Shame and Atonement

faces’ so as to avoid the discomfort that may come from being exposed to critical gaze and found wanting, a prospect so threatening that evasion or denial or even self-destruction can seem a better option (suicide has been described as ‘the most extreme maladaptive hiding response of shame’: Lazare, 1987: 1655). This drive to escape unwanted exposure is depicted in the archetypal story of the emergence of shame in the Garden of Eden (Genesis 2:18– 3:24). Initially Adam and Eve felt no shame in their nakedness (2:25), not because they were shameless, in the sense of lacking any respect for appropriate boundaries, but because they enjoyed perfect trust with each other and with God. But when they breached the divinely imposed boundary on their behaviour through an act of disobedience, their instinctive response was to ‘hide themselves from the presence of the Lord God among the trees of the garden’ (3:7–8). When God searches out the fugitives, Adam replies, ‘I heard the sound of you in the garden and I was afraid because I was naked, and I hid myself ’ (3:9). It was not only their shameful deed they sought to conceal, it was their shameful state, which led them to flee from connection with God and project responsibility for their failure onto others (3:12–13). Shame, then, has an incurable tendency to hide its own existence, to break relational connection, and to displace responsibility elsewhere. One of the main ways it does this psychologically is by secreting itself within other emotional or physiological reactions, such as fear, anxiety, guilt, anger, jealousy, depression, violence, addictive behaviours and wide range of other pathological conditions. Drawing on affect theory, Stephanie Arel (2016) describes this process as one of ‘interment’, where shame is repressed and buried in the body beneath an array of emotional responses and maladaptive behaviours that mask its presence and festering power. As a result, shame often goes unrecognised, unnamed and unaddressed, as it directs attention away from itself onto other symptoms. This also influences the way shame is conceptualised by researchers because investigators do not always agree on its presence or primacy within broader patterns of behaviour. Given all these complicating factors, Stephen Pattison (2000) suggests that instead of aiming for an all-encompassing definition of shame, it is better to acknowledge the plurality of its meanings and applications and to look for overlapping features or ‘experiential congruence’ between major uses of the term. Such an eclectic approach enables us to draw together key insights from diverse disciplines into the way shame operates, and to map out possible connections between them within a larger ‘ecology of shame’, without imposing a single explanatory framework.

115

CRIMINOLOGY AND PUBLIC THEOLOGY

Varieties of shame A useful starting point is to recognise that shame is a fundamentally relational phenomenon, with both external and internal dimensions and both positive and negative functions. That is to say, shame is both a socially constructed condition imposed on individuals by their wider relational networks and a psychological or affective response within individual members of the network. Each dimension can be viewed separately, but each requires the other to be effective and both have adaptive and maladaptive expressions. Hence the complexity. For the sake of our analysis, it will be helpful to distinguish four overlapping expressions or modalities of shame and to tease out differences between shame and guilt. This is by no means an exhaustive inventory of the phenomenon, but it will give us the conceptual categories for considering the connection between shame and atonement.

Natural shame While much of the discussion about shame focuses on its harmful manifestations, shame itself is an innate human aptitude that plays an essential role in human development and in the regulation of social connections. As a natural capacity, ‘shame provides significant meaning for the self and for the self in relation to others’ (Arel, 2016: 24). The emergence of this natural shame response is often traced to the attachment bond that exists between infants and caregivers, which is the most critical relationship we have in life (see for example, Pattison, 2000; DeYoung, 2015; Arel, 2016). It is now widely recognised that infants need the focused attention and responsiveness of their primary caregivers in order to flourish both physically and emotionally. Infants crave human connection above all else and are utterly dependent on it for survival. Where the attachment bond is secure, the child gradually develops a sense of selfhood, efficacy and self-esteem, mediated through being gently held and touched, spoken to and smiled at, and having their physical needs met. Particularly important is the way the primary caregiver, usually the mother, gazes intently at the baby’s face, catches its moods and feelings, and reflects them back in facial responses and verbal inflections. This mirroring response affirms and enhances the child’s sense of being loved and valued. It also elicits the capacity for empathy in the developing child, as it learns over time how to solicit positive responses from its carer. When something happens to disrupt this emotional communication unexpectedly, the child instinctively reacts with distress, a signal that

116

Sin, Shame and Atonement

something is lacking in the relational connection that puts the self in jeopardy. When the distress is relieved through reassurance and reconnection, as usually happens, bit by bit the child learns to regulate its responses and develop interactive skills. But if the distress is not relieved or is consistently triggered through abusive, neglectful, unpredictable or manipulative parenting, the seeds of dysfunctional shame are sown, as the infant internalises feelings of abandonment, inferiority, weakness and unlovability.3 Shame, then, is a natural marker of our humanity, a precognitive emotional or physiological reaction that plays a positive role in shaping the development of self-in-relation-to-others. It is stimulated by relational bonds of attachment, it functions to moderate relational communication, and when distress arises from the severing of connection, it is soothed through relational responsiveness and reassurance.

Acute or functional shame Shame signifies the existence of relational attachments and the need to maintain these attachments by complying with the rules of exchange. Actions that threaten attachment by eliciting rejection, or that detract from one’s personal sense of dignity and self-control, evoke an acute response of shame. This feeling is often accompanied by a range of physiological indicators, such as a lowering of the eyes, a dropping of the head, a blushing on the face and neck, and a slumping of the shoulders, as if to make oneself look as exposed and helpless as one feels inside. In most cases, this shame response is short and sharp, a discomfort that is remedied by making behavioural changes that restore self-respect and sustain relational connection. This is the positive or healthy function of shame. It is one of the most critical defences we have against acting on desires or impulses that might be destructive of our dignity and freedom or dangerous to the group. For this reason, a ‘shameless’ person is considered an object of scorn because they fail to feel the appropriate shame that holds them accountable to the ideals and values on which society depends. Of course, the content of those shared values and ideals, and the balance between individual autonomy and collective responsibility, are culturally variable. What causes shame in one context may not do so in another and individuals differ in their sensitivity to expectations. But the function of acute shame is the same – it prods us to attend to our obligations of social belonging by measuring our behaviour against the standards expected of us and limiting ourselves accordingly. Yet there is a world of difference between acute episodes of situational shame, which, though painful, are

117

CRIMINOLOGY AND PUBLIC THEOLOGY

not detrimental to personal wellbeing, and the experience of persistent or dysfunctional shame, which has an altogether more deleterious impact on the self and militates against secure relational bonds.

Chronic or dysfunctional shame Chronic shame emerges when our ability to absorb or process shame is overwhelmed by its intensity or frequency, so that feelings of failure or unworthiness become a permanent state of being, a habitat in which the self is formed and operates. Everyone experiences shame periodically, but the chronically shamed person, in Smedes’ (1993: 41) words, takes ‘a lifelong lease on shame’. Often chronic shame is the product of childhood trauma, as Gilligan (2003) explains.4 But any life experiences that induce a sense of ‘persistent inferiority, worthlessness, abandonment, weakness, abjection, unwantedness, violation, defilement, stigmatisation, unlovability and social exclusion are likely to be generative of chronic shame’ (Pattison, 2000: 108).5 Noting how traditional societies often envisage social shame as a kind of ritual pollution in need of cleansing, Pattison suggests that the psychological counterpart for dysfunctional shame is a sense of ‘internalised pollution’. The shame bearer feels permanently defiled, defective, dirty, stained, spoiled, a toxic nobody unworthy of love (Pattison, 2000: 88–90, 183–4). This feeling is so unbearable that individuals develop a range of mechanisms for averting the feeling. Donald Nathanson’s (1992: 250, 318–19) celebrated ‘compass of shame’ identifies four common defensive strategies for doing so: (i) physical or emotional withdrawal from contexts where shame may occur; (ii) an avoidance of the problem through denial, deception, self-aggrandisement or compulsive behaviours; (iii) an attacking of self though self-harming or self-mortification or self-deprecation; (iv)  and an attacking of others, where the shame, fuelled by rage and contempt, is projected onto others through verbal or physical violence.6 Not infrequently the victim of such violence is perceived as exhibiting similar shame traits as the perpetrator and so serves as a convenient scapegoat for their self-disgust and rage. But far from exorcising the shame, the violence leads only to further shame and isolation, perpetuating a deadly spiral of hatred and abuse. Chronic shame, then, has aptly been called ‘a silent killer’ (Arel, 2016: 114), ‘a terrible life-long affliction’ (DeYoung, 2015: 4) and ‘an ever-present danger lurking in the wings’ (Pattison, 2000: 143). Those afflicted by the condition often live permanently diminished and distrustful lives. Yet its

118

Sin, Shame and Atonement

presence often goes unnoticed, as it burrows deeper into the psyche and morphs into a wide range of damaging behaviours that serve to mask its existence while spreading its contagion. Clawing shame erodes the self and endangers others, but mitigating its influence is not straightforward. Born of relational vulnerability and embitterment, it impels the wounded self to protect itself by withdrawing from relational exposure. It inhibits empathic connection with others because the inferior self does not feel worthy of such connection. It thus turns away from the very thing needed for its remedy: the love, compassion and acceptance of others (Arel, 2016: 42).

Social or public shame A distinction can be drawn between shame as an interior psychological response on the part of individuals and shame as an objectively defined social condition attaching to group membership. The two manifestations are closely connected, however. The external imposition of shame by the group usually elicits corresponding feelings of shame within the targeted person, which is why social shaming is such a powerful regulator of behaviour. But individuals can also emotionally resist the collective conferral of shame, and even turn it into a counter claim for honour and respect which may lead to significant shifts in public opinion. We see this happening in the New Testament (see, for example, Mark 8:38; Romans 1:16–17; 2 Timothy 1:12, 16; Hebrews 2:11; 11:16). The once popular division of societies into either shame-based or guilt-based cultures is now generally regarded as simplistic and overly schematic. Certainly shame-based mechanisms may play a more overt role in collectivist societies, and in those where social status remains closely tied to genealogical origins or traditional role expectations, than they do in modern liberal societies, where status is relatively fluid and more closely linked to individual accomplishments and perceptions of success. But in every known human society, the threat of public disgrace, such as through the criminal justice system, is a powerful tool for preserving social order, controlling deviancy and securing conformity. At the same time, it is also a highly ambivalent tool, for at least three reasons. The first is that social shaming can be employed for evil as well as for good. It may be used to mock or marginalise vulnerable groups, to project collective anxieties onto innocent scapegoats, to stigmatise those who differ from the majority in terms of appearance, belief or identity, and to protect unjust power arrangements from challenge. As Gaby Hinsliff (2019) observes, ‘Shame has a history of being wielded against people who don’t deserve it […]’.

119

CRIMINOLOGY AND PUBLIC THEOLOGY

A second reason for concern is that deliberately imposing shame on someone, even with good intentions, can have unforeseen, sometimes devastating, consequences on them. It is not a precision instrument but a blunt procedure that, like radiation treatment for cancer, can weaken and kill as it aims to heal. It is much easier to impose social stigma than it is to remove it, especially in complex urban societies where relational bonds are thin. John Braithwaite (1989) makes a valuable distinction between disintegrative and reintegrative shaming in criminal justice practice, arguing that better ‘shame management’ tools, such as restorative justice, are required to ensure the shaming response crime necessarily elicits will result in the restoration rather than repudiation of the wrongdoer (see also Ahmed et al., 2001). This is a laudable aim, and restorative justice a powerful mechanism, but shame is a difficult thing to ‘manage’, given its proclivity to disguise itself in complex psychological and behavioural processes and to be preoccupied with protecting itself rather than comprehending the needs of others. Any instrumental use of shame therefore, even for noble ends, is fraught with danger. The third reason for ambivalence is that socially conferred shame can be resisted or contested by its objects, especially in situations where the shamed person embraces a different ground of belonging or standard of comparison. The shame traditionally attached to homosexuality, for example, has been successfully resisted by the same-sex community and inverted into a form of gay pride, which in turn has led to significant shifts in mainstream opinion. In the criminal justice arena, one of the ways persistent offenders resist public shaming is by embracing the value system of deviant communities, such as gangs, which confer respect on them for successfully subverting the expectations of dominant society. In a similar way, Jesus and the early Christians were able to ‘despise’ (Hebrews 12:2) the social ostracism directed at them by their opponents because they believed God had heaped ‘shame’ on the standards of the elites through the work on the cross (1 Corinthians 1:18–31). Imposed shame, then, is only effective as a means of social control when there is a congruence between the ideals of the shamed individuals and those of the shaming community. To sum up so far: shame has many faces and includes both adaptive and maladaptive properties. It is a natural response to fluctuations in the relational attachments that make us human and alerts us to the need to attend to our social obligations, as well as to threats to our own dignity, agency and security. Acute episodes of shame are intensely uncomfortable, but the pain can be ameliorated by adjusting the behaviour that has induced it. But when the pain feels overwhelming, persistent or recurrent, it can tip into a habitual state of self-rejection that blights relationships

120

Sin, Shame and Atonement

and feeds a wide range of pathological conditions and behaviours. This destructive potential means that mobilising shame in the interests of social education and control is always a precarious undertaking, and often has counterproductive results, even if is a necessary response. One remaining question to consider, which is especially pertinent to the issue of atonement, is the complex relationship between shame and guilt.

Shame and guilt Teasing out the connection between subjective feelings of shame and guilt is by no means easy. In everyday conversation, as well as in much academic discourse, the two ideas are often used interchangeably because they share common features. Both shame and guilt are forms of negative self-assessment; both are social emotions intended to guide interpersonal relationships; and both arise from a perceived failure to conform to internal or external ideals. Furthermore, both responses can be induced by the same episode and exist simultaneously. When someone transgresses a moral rule, for example, they can end up feeling both guilty about their actions and ashamed of themselves for giving way to temptation. Similarly, a person who feels ashamed of some unchosen feature of their identity, such as their appearance or temperament or sexual orientation or social origin, can also feel guilty about continually struggling with things they cannot change or think ought not to bother them. People often describe themselves as feeling guilty about the things that cause them shame. Not only are guilt and shame often coexisting and overlapping responses, it is the coalescing of guilt and shame in an individual’s experience that poses the real problem for redemption or atonement. Having said that, it is still important not simply to assimilate shame with guilt, since conflating them can serve to conceal shame’s tentacles in the mind and soul and misjudge its power. While frequently entwined and mutually reinforcing, the dynamics of guilt and shame (especially toxic shame) can still be notionally distinguished by their genesis, their focus of attention, their impact on the self and others, their duration and complexity, and, most importantly, by what is required to remedy them. In terms of origins, the capacity for shame in children precedes the development of the cognitive capacity for guilt. Consciousness of guilt requires the ability to evaluate one’s own behaviour and modify it to conform to moral directives, an ability associated with the gradual acquisition of language. Shame, by contrast, is a more primitive physiological reaction to fluctuations in attachment bonds that does not involve reasoning about right and wrong. Over time, the shame response

121

CRIMINOLOGY AND PUBLIC THEOLOGY

becomes more morally reflexive and complex, but it is not constitutionally derivative of guilt. Second, guilt and shame differ in terms of attribution and focus of concern. Guilt involves negative judgement about one’s actions or conduct (‘I did wrong’), while shame involves negative assessment of the self (‘I am a bad person’). The guilt-sensitive person attributes their bad behaviour to external circumstances or poor decision making, whereas the shamed person attributes it to some defect in their personality. Guilt implies the renunciation of wrongful deeds; shame involves the renouncing of the self, a kind of self-loathing. Guilt is proportionate to the actor’s moral code; shame is incommensurable with standards of right and wrong because it often involves a disparaging of one’s entire worth. Third, guilt and shame have differential impacts on the individual concerned. Guilt has a sudden onset and is temporally limited by the event that gave rise to it and its resolution. Shame has a more pervasive and lingering presence. The response may be triggered by a particular happening, but its intensity is often determined by latent feelings of inadequacy or unrelated experiences of self-defeat. Similarly, whereas the impact of guilt is often to motivate practical efforts to close the gap between one’s actions and one’s values, such as through confession and apology, the impact of shame is to elicit a desire to run away and avoid risking further failure. Guilt and shame also affect relationships differently and invite different responses from others. In many ways, guilt is a pro-social emotion. Its focus on wrongful actions encourages the guilty party to recognise the harmful impact of their behaviour and to take steps to put things right. Guilt encourages empathy, remorse, responsibility taking and reparation, and thus has the potential to strengthen social relationships and foster ethical commitment. While those harmed by the behaviour may respond in anger towards the wrongdoer, when remorse is expressed and repair offered, they often feel able to separate the sinner from the sin and affirm the person’s intrinsic value. In the case of shame, however, the shamed individual’s inclination towards withdrawal, avoidance or denial can invite the very response the person most fears, that of derision, contempt and rejection. Shame motivates a turning inwards and turning away from others; it inhibits empathetic engagement because the focus of pain is located in the self, not the injured party. All emotional energy goes into managing or deflecting this pain rather than imagining the interior life of the other. Whereas guilt helps curb violence and aggression, unaddressed shame helps to perpetuate them. Fifth, remedying the psychological legacy of shame is far more complex than it is for guilt. The ability to acknowledge one’s guilt, express remorse, offer restitution and seek pardon presupposes an essentially

122

Sin, Shame and Atonement

healthy, integrated personality in which the self is capable of change and improvement. For this reason, guilt itself is not destructive of wellbeing; its burden can be discharged, self-respect regained and relationships restored. Confession, penance, punishment and pardon can help stem its flow. But these things have limited impact on shame. Arresting the entail of deep-seated shame is far more complex because shame encourages the tendency to view one’s self as ontologically flawed, incapable of change, unworthy of respect and undeserving of love. This does not mean that all shame is counterproductive. There are circumstances where feelings of shame can be constructive in motivating individuals to mend their ways. Some studies suggest it can be conducive to change: when individuals perceive their offending to be a failure to live up to their own moral standards, not merely the expectations of others (which can elicit defensiveness and denial); where there is no one else to assume the blame (personal responsibility is inescapable); where something can be done to improve things (shame is most damaging when the person believes they have no power to change the situation); and where they are able to distinguish between deserved and undeserved shame, between shame that speaks to their highest aspirations and shame that tells them they are inherently worthless (Benade, 2015; Kwon, 2016; Satel and Lilienfeld, 2016). But achieving these conditions is still a much bigger undertaking than is resolving guilt. In principle, then, guilt is a simpler and more productive problem to deal with than shame. But in practice, things are usually more complicated. Where guilt is allowed to fester, or where it stems from a significant failing that calls into question one’s core identity and self-image, guilt soon merges with shame (Arel, 2016). Together they reinforce a narrative of self-disparagement and powerlessness that hobbles hope for change and incites, rather than inhibits, harmful behaviour in the future. A vicious cycle of guilt–shame–guilt can emerge, where guilt generates shame and shame prompts actions that bring guilt. In everyday reality, then, guilt and shame rarely exist in splendid isolation. It is important to recognise this confluence or co-dependence of guilt and shame. For rather than collapsing shame into guilt, as often happens in theological discussion, or addressing the moral demands of guilt without recognising the furnace of shame in which it is forged, as is typical in criminal justice practice, it is better to see guilt and shame as distinct but inseparable components of the sinful human condition. While guilt can be pardoned and its damage to others repaired, the contamination of shame must be cleansed, its wounds staunched and its power thwarted, if restoration is to occur. Both tasks are integral to the practices of atonement in the Bible.

123

CRIMINOLOGY AND PUBLIC THEOLOGY

Soteriology7 of shame A core Christian conviction is that ‘Christ Jesus came into the world to save sinners’ (1 Timothy 1:15). This salvation was accomplished both through Christ’s distinctive way of being human in the world, as one who lived in perfect conformity with God’s intentions for humanity, as a kind of second Adam,8 and who drew others into the arena of God’s saving power, and through his representative death and resurrection, which served as a definitive ‘sacrifice of atonement for the sins of the people’ (Hebrews 2:17; cf. Romans 3:25). By ‘sacrifice of atonement’ here is meant a purposeful act that enabled the restoration of humanity’s ruptured relationship with God – a return to being ‘at one’ again – by eradicating the blight of sin that has damaged the relationship. Whereas atoning sacrifices were a regular feature in the life of biblical Israel, the distinctive contention of Christian faith is that Christ’s self-sacrifice was ‘once for all’, a unique and universally effective remedy for sin, never to be repeated again.9 The Christian doctrine of atonement seeks to understand and explain this astonishing claim. The New Testament offers no developed theory of atonement that explains how and why Christ’s death and resurrection were decisive in overcoming sin. Instead it provides a cluster of metaphors, images and analogies, drawn from across human experience, that try to communicate the experiential impact of what has happened (cf. Green and Baker, 2000). Some of these images and metaphors were subsequently fashioned into a number of overarching theories of atonement. Each theory contains important insights, but none has been universally endorsed by the church or incorporated into its creeds, simply because no one explanation has proven adequate to the task of comprehending the inexhaustible mystery involved. In most theological explanations, the dominant categories used to explain the mechanics of atonement are those of sin, guilt, punishment and forgiveness. Sin is construed as a moral transgression against God’s law giving rise to a debt of guilt that requires discharging for justice to be satisfied and reconciliation occur, with Christ’s death providing the necessary means of recompense. The predominance of such categories is entirely appropriate given that the necessity of atonement stems directly from the need to address humanity’s proneness to wrongdoing and its calamitous consequences. But difficulties arise when the categories are defined too rigidly or narrowly or explained transactionally rather than relationally. For when sin is restricted to acts of moral transgression, and personal guilt is construed as the critical problem in need of resolving, the net effect is to obscure the pivotal role of shame in the saving drama.

124

Sin, Shame and Atonement

Shame is eclipsed by a narrow focus on legal guilt and judgment, and atonement has little bearing on the problem. ‘I know of no approach to the atonement’, Brad Binau (2002: 89–90) observed, ‘that seeks to frame the doctrine as a response to human shame.’ That is perhaps too sweeping a statement. There have been attempts by some missionary theologians in particular to depict the work of salvation in terms of the displacement of collective shame with divine honour, since forensic models of atonement have limited valence in so-called shamebased cultures.10 But the challenge is greater than providing a contextual repackaging of the gospel for non-Western audiences. There is also a need to explain how the existential bondage of shame in human experience is ruptured through Christ’s saving work, so that sinners are empowered ‘to walk in newness of life’ (Romans 6:4), freed from ‘the things of which you are now ashamed’ (Romans 6:20). The place to start is with a more rounded understanding of what the Bible means by sin.

Sin as guilt, shame and servitude There is an extensive vocabulary for sin in the Bible, with each wordgroup carrying distinct shades of meaning.11 The crucial point to grasp, however, is that in biblical and Jewish thought sin is a religious-relational rather than a moral category (Moore, 1960). That is to say, it has little to do with abstract ethics or moralism and everything to do with humanity’s intended relationship to its Creator. Sin is understood fundamentally as a state of alienation from God and a departure from the way of life God intends for his image bearers in the world, and, in the case of Israel, from the pattern of life spelled out in covenant law. Two things flow from this religio-relational conception important to our inquiry. The first is that sin includes departures from God’s will that are accidental, inadvertent or involuntary, as well as those that result from wilful defiance. It also includes actions which, in themselves, have no intrinsic moral quality, such as breaches of ritual purity requirements. Indeed the regular sacrificial mechanisms for dealing with sin in ancient Israel were principally focused on unwitting or careless transgressions more than on premeditated offences or ‘sins with a raised hand’,12 some of which could only be atoned for by the death of the wrongdoer (Numbers 15:30–1).13 According to Hartmut Gese (1981), even the so-called ‘guilt offering’ in Israel was more a ritual of repentance for acts of negligence than a ritual of atonement, while the ‘sin offering’ also functioned as a means of reconsecration and healing of the offerer’s sinful nature as a whole.

125

CRIMINOLOGY AND PUBLIC THEOLOGY

The annual Day of Atonement had a comprehensive focus on atoning for ‘all the uncleannesses of the people of Israel’, ‘all their iniquities, all their transgressions, all their sins’ (Leviticus 16:16, 21). A sharp distinction between moral law and ceremonial law did not exist. Failures in both domains counted equally as sin, and all sin, including moral wrongdoing, brought ritual defilement. Sin was also more than an individual affair. Its existence imperilled the entire community and its impurity leached into the very land itself, a real contamination that needed purging away if God’s continuing presence in the land was to be assured. Sin, then, was more than an indictable offence against God’s law; it was a toxin that ‘pollutes, stains, and spoils, and thus makes people or things repulsive’ (Goldingay, 1995a: 51). It follows from this that the work of atonement – represented by the Hebrew root kpr, meaning ‘wipe away’, ‘root out’ or ‘cleanse’ (see also Chapter 4, this volume) – was not principally a means of remitting guilt, which always required repentance,14 but of containing or detoxifying the contagion of sin that threatened the very survival of the people and its possession of the holy land. Sin’s desecrating, death-inducing pollution was somehow concentrated in the sacrificial offering and neutralised through a releasing of the mysterious life force contained in the blood (Leviticus 17:11) (Van Gend, 2015). The slaying of the sacrificial victim, then, was not a form of vicarious punishment but of vicarious cleansing, both of the sinner and of the land (Goldingay, 1995b: 10). ‘Indeed, under the law almost everything is purified with blood’, the writer of Hebrews explains, ‘and without the shedding of blood there is no forgiveness of sins’ (Hebrews 9:22). The second thing to note is that the biblical conception of sin includes an inward as well as an outward sphere of application. Certainly, there is an overriding emphasis on avoiding sinful actions. But there is also recognition that sin extends to interior thoughts, desires, motivations and attitudes as well. Psalm 51 is a striking example. Sin is portrayed in the psalm as an inward taint that needs washing away, a stain that needs blotting out. ‘For I know my transgressions, and my sin is ever before me’ (v.3), the author confesses, even suggesting his sinful tendency stems right back to his birth (v.5). He acknowledges that God’s judgement of his wrongful actions would be entirely deserved, but he cries out for mercy and for cleansing. ‘Purge me with hyssop and I shall be clean, wash me and I shall be whiter than snow’ (v.7). Such inner cleansing cannot be secured by sacrifice alone, for ‘the sacrifice acceptable to God is a broken spirit and a contrite heart’ (v.17). He therefore pleads with God to ‘create in me a clean heart and put a new and right spirit within’ (v.10). Lesley DiFransico (2018) may be correct in arguing that the emotions portrayed in this psalm are those of guilt rather than shame, since there is

126

Sin, Shame and Atonement

little evidence of self-deprecation or moral paralysis. ‘The psalmist does not condemn himself as a horrible person, but rather acknowledges his actions as harmful to his relationship to God’ (DiFransico, 2018: 186). Yet it is hard to avoid the feeling that his awareness of sin includes a deep sense of shame. The feeling of interior pollution, we have seen, is characteristic of shame, as is the sense of being inwardly crushed, cut off from God’s presence, and deprived of all joy and gladness (vv.8–12). Perhaps the psalmist’s recognition that what God requires is ‘truth in the inward being’ and ‘wisdom in my secret heart’ (v.6) implies he has given up attempts to conceal his shame and now looks for cleansing. Another highly revealing passage portraying the inward grip of sin is Paul’s vivid account in Romans 7 of the frustrations he felt of living under a law he could never satisfy. While many commentators read this text as a description of Paul’s present Christian experience, there is little doubt in my mind he is speaking retrospectively of his life as a law-observant Pharisee prior to his experience of Christ and the Spirit, which he spells out in the next chapter. He uses the emphatic first-person pronoun (egō) because he considers his personal experience to be representative of all those living under the Torah who strive sincerely to fulfil God’s will through legal performance but are still ‘enslaved to sin’ (v.14, cf. 6:6, 16–23). Their best intentions are thwarted by the indefatigable power of indwelling sin. I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. Now if I do what I do not want, I agree that the law is good. But in fact, it is no longer I that do it, but sin that dwells within me. For I know that nothing good dwells within me, that is, in my flesh. I can will what is right, but I cannot do it. For I do not do the good I want, but the evil I do not want is what I do. Now if I do what I do not want, it is no longer I that do it, but sin that dwells within me. I find it to be a law that when I want to do what is good, evil lies close at hand. For I delight in the law of God in my inmost self, but I see in my members another law at war with the law of my mind, making me captive to the law of sin that dwells in my members. (Romans 7:15–24) While some interpreters resist reading this passage as an example of what Krister Stendahl (1976: 78–9) famously called the ‘introspective conscience of the West’, the psychology disclosed in it is profoundly revealing of how inwardly entrenched Paul considered the problem of sin to be. Sin cannot be equated with a list of forbidden actions, which,

127

CRIMINOLOGY AND PUBLIC THEOLOGY

as a Pharisee, Paul considered himself to be virtually above reproach in avoiding (Philippians 3:6); rather it is a captivity of the mind and will that defy all attempts to control. This is why Paul characteristically speaks of ‘sin’ in the singular rather than ‘sins’ plural. As John Ziesler (1989: 102–3) explains, […] sin for Paul is not just a wrong act, or a series of wrong acts, or even a wrong disposition, though it includes or is manifested in all these […] sin is a power which so grasps men and women that they are profoundly unfree. That makes sin ‘the most negative and dangerous force in human experience’ (Dunn, 1998: 148). It is so intractable that even Israel’s covenant relationship with God has afforded no protection from its dominion (Romans 2:1–3:8), so that the entire human species, both Jew and Gentile, are equally ‘under the power of sin’ (Romans 3:9; Galatians 3:22). This radical conception of sin means that something more than repentance, sacrifice and forgiveness is needed to remedy the problem. What is required is an act of cosmic liberation from an alien power that holds all humankind in its sway. It also means that the inward experience of captivity to sin cannot be fully comprehended by the forensic term ‘guilt’. Prior to his conversion to Christ, Paul evidently felt little or no guilt about his conduct. On the contrary, he exuded what he calls a ‘confidence in the flesh’ about his capacity to remain ‘blameless as to righteousness under the law’ (Philippians 3:2–6). It was only after encountering Christ that Paul came to understand the real depth of his bondage to sin. In describing this bondage in Romans 7, Paul’s language is strikingly reminiscent of shame. ‘For I know that nothing good dwells within me, that is, in my flesh,’ (v.18) he exclaims. The qualification ‘in my flesh’ shows he is not questioning his inherent value as a human being, which would be theologically unthinkable for him, but is bemoaning the worthlessness of his attempts to control his inner desires (vv.7–8). The exquisite cry of misery in verse 24 – ‘O wretched man that I am! Who will rescue me from this body of death?’ – is also tantamount to a howl of shameful desperation. The contrast between Paul’s negative diagnosis of his life under the law in Romans 7 and his more optimistic accounts in Philippians 3 and Galatians 1 has long perplexed commentators. But while it is always risky to psychoanalyse individuals known to us only from ancient rhetorical texts, it is not unreasonable to explain this contrast in terms of Paul’s inner journey with shame. As a zealous Pharisee, Paul repressed feelings of shame. In terms of the compass of shame, he both avoided facing

128

Sin, Shame and Atonement

shame by his fanatical devotion to perfectionism in his religious life,15 and he projected it onto others through his violent persecution of Christian believers.16 The rage he felt towards the followers of Jesus was at least partially fuelled by repressed anxieties about his own law-keeping success, which he projected onto those whom he perceived to be deviating from the law. As Gerd Theissen (1987: 242) suggests, ‘At the time, Paul could not admit to himself his suffering under the law. But when the veil fell from his heart through his encounter with Christ, he recognised the shadow side of his zeal for the law’. This shadow side arguably was the power of unaddressed shame. Enough has been said to indicate that the problem of sin that atonement seeks to remedy is much greater than the need to remit moral guilt. If guilt alone were the obstacle to salvation, then confession, repentance, restitution and forgiveness would be sufficient. But sin is more than guilt. It is an irresistible bias in the human heart towards evil and a corruption that spreads like a contagion through the entire life-system of humanity. It is experienced subjectively not only as a guilty conscience but, more profoundly, as a debilitating shame that clings like dirt. Shame serves a positive role when it drives wrongdoers to confession, repentance and relational repair (Psalm 51), but if it is concealed in piety and perfectionism or is projected through violence onto others, it can become all-controlling power that demonstrates humanity’s ultimate helplessness before sin. The problem that needs addressing through atonement, then, is sin’s deadly combination of guilt, shame and servitude. And this, says Paul, is precisely what Christ has achieved. For God has done what the law, weakened by the flesh, could not do: by sending his Son in the likeness of sinful flesh to deal with sin (peri hamartias17), he condemned sin in the flesh, so that the just requirement of the law might be fulfilled in us who walk not according to the flesh but according to the Spirit. (Romans 8:1–4) By ‘dealing with sin’ (peri hamartias) Paul is likely alluding to the sinoffering of atonement that has now finally overcome the disordering power of sin, guilt and shame and set humanity free.

The difference Christ makes For Paul, the difference Christ has made to the problem of sin stemmed both from his unique identity as God’s Son sent into the world ‘in the

129

CRIMINOLOGY AND PUBLIC THEOLOGY

likeness of sinful flesh’ and from his saving work of ‘condemning sin in the flesh’ through a life of steadfast obedience to God, climaxing in his ‘obedience to the point of death, even death on a cross’ (Philippians 2:8). The unique identity of Christ was critical to his success in defeating sin. The phrase ‘in the likeness of sinful flesh’ is ambiguous, but Paul is likely wanting to affirm both Christ’s common humanity with ours and its crucial point of distinction. Through the incarnation, the Son of God has entered fully into the realm of sinful humanity and its subjection to sin, but, unlike all the rest of Adam’s offspring (Romans 5:12–21), he never succumbed to sin but remained resolutely faithful to God. His sinlessness was not the result of some kind of ontological immunity to sin (he could have failed) but of a sustained resistance to the power of sin throughout his life (he did not fail), even when it entailed death on the cross. The author of Hebrews similarly emphasises how Christ’s humanity was both continuous with ours and discontinuous. He shared in the ‘same flesh and blood’ as every other human being (2:14) and was ‘not ashamed to call them brothers and sisters’ (2:11) since he was ‘like his brothers and sisters in every respect’ (2:17). Except in one crucial respect: he alone was ‘without sin’ (4:15), was ‘holy, blameless, unstained, separated from sinners’ (7:26) and ‘spotless’ (9:14). Again, this sin-free condition was not the result of some metaphysical invulnerability to sin and failure, otherwise the bold assertion that he was ‘tempted in every respect as we are’ (4:15, cf. 2:18) and ‘learned obedience through what he suffered’ (5:8) would be meaningless. It was the outcome of a lifetime of dedication to God, climaxing in his self-giving death on a cross (12:1–4). The saving work of Christ involved him in ‘condemning sin in the flesh’ both through his life of unwavering dedication to God and through his sacrifice on the cross. Now if the penalty of sin that came on the human race as a result of its estrangement from God involved shame and servitude as well as guilt, Christ’s saving work must have included the defeat of shame. And this is exactly what we see enacted in the gospel accounts of his life, death and resurrection.

Jesus and the conquest of shame Jesus was born into an ancient Mediterranean society in which honour and shame were pivotal values and where the ‘love of honour’ structured the daily lives of everyone, both elites and non-elites. By honour was meant ‘the worth, prestige, and reputation which an individual claims and which is acknowledged by others’ (Neyrey, 1998:15). Both claim and acknowledgement were required. Everybody recognised the basis

130

Sin, Shame and Atonement

on which honour could be claimed (including genealogical origins, gender, class, education, occupation, wealth, knowledge, special achievements) and the cultural codes used to signal the claim (including speech, clothing, self-presentation and forms of behaviour), but without social acknowledgement, honour could not exist. It was a supremely public commodity. It was also a strictly limited commodity. Honour achieved by one individual or family meant a loss of honour for others, a lowering of their status in comparison, and successful claims often triggered envy and conflict (cf. Mark 15:10). Hence there was intense competition for honour, particularly in public debates, where one person’s assertion of dominance would be resisted by another, with the outcome depending on the audience’s verdict. Jesus’ debates with his opponents in the gospel accounts exhibit this competitive or agonistic dynamic. Shame came from a loss of standing or respect in the eyes of others or from a flaunting of social expectations and conventions. It also had a predominantly public nature. It was only when personal failures or losses were exposed to public gaze – as almost invariably happened in a smallscale society – that shame ensued. This does not mean shame lacked a psychological impact, only that this impact stemmed from a violation of shared norms and values. Jesus’ famous parable of the Prodigal Son is a striking example of how the experience of social shame was accompanied by interior feelings of worthlessness and self-rejection (see Eng, 2019; Marshall, 2012). When the gospel accounts of Jesus’ life and teaching are viewed against this backdrop, three things stand out strongly. The first is that Jesus identified personally with, and directed his redemptive activity towards, the greatest objects of shame in his society, those on the margins of the community, such as the poor, the sick, the hungry, the demon possessed, the ritually impure, outcasts, prostitutes, tax-collectors and sinners. His public solidarity with such groups evoked furious condemnation from the religious leaders, to which Jesus retorted, perhaps ironically, ‘It is not the strong who need a physician but the sick; I have not come to call the righteous but sinners’ (Mark 2:17). It was those who bore the full brunt of social stigma and isolation that best represented the corrupting impact of shame in human society, and it was to them he announced the ‘year of the Lord’s favour’ (Luke 4:19). Of course, in identifying with the victims of social shame, Jesus drew similar shame on himself and was the target of repeated attempts to kill him.18 Second, in his teaching Jesus redefined conventional standards of honour and shame and reversed current valuations of greatness and inferiority. What society deemed to be the last, the least and the lost, Jesus esteemed as the first, the

131

CRIMINOLOGY AND PUBLIC THEOLOGY

greatest and the foremost.19 ‘All who exalt themselves will be humbled, and all who humble themselves will be exalted’ (Matthew 23:12). In the Sermon on the Mount, Jesus rejects accepted links between honour and social dominance and confers God’s blessing on those whose behaviour and status were culturally a source of utter shame: the destitute, the meek, the hungry, the peacemakers and the persecuted.20 He also proscribes traditional ways of achieving or defending honour through ‘the basic male games of aggression in their culture’ (Neyrey, 1998: 195) – violence, sexual seduction, public verbal displays and retaliation (Matthew 5:21–48). Instead of engaging in competition for human recognition, he instructs his followers to withdraw entirely from ‘the great game of reputation’ (Neyrey, 1998: 30) and focus their attention to the true basis of human value: the approval of God and the imitation of his gracious goodness to all (Matthew 5:43–48), virtues best cultivated in secret rather than in public (6:1–18). Here, then, Jesus disrupts the power of shame in two respects: he rejects social definitions of shame that oppress the weak and vulnerable, and he recalibrates the shame dial back to true north, what the Heavenly Father sees in secret (6:4, 6, 18). The third thing to emerge is Jesus’ willing acceptance of the most shameful form of death imaginable in the ancient world, death by crucifixion. As a troublesome prophet, he clearly expected to die on a Roman cross (Mark 8:34; 10:33–34) and he did nothing to avoid or deliver himself from this terrible fate (14:4–5), despite the sheer terror it evoked (14:32–42). By embracing the cross willingly, he confronted shame in its most diabolical form. When the author of Hebrews speaks of him ‘enduring the cross and despising its shame’ (Hebrews 12:2), he is not merely reflecting the contemporary evaluation of crucifixion as irredeemably shameful; he is also alluding to how he overcame the deadly grip of shame itself. There is an essential relationship, in other words, between the manner of Jesus’ death and its meaning. By dying in shame on the cross, he also died to shame, once and for all, so that others might live for God free of its dominion.21

Dying in shame Death by crucifixion was uniformly regarded in antiquity as the ghastliest penalty anyone could suffer. Descriptions of the practice are rare in ancient documents, presumably because the cultured literary elite found the subject too distasteful to dwell on, but all who do mention it agree it was the ‘most cruel and disgusting penalty’ (Cicero), ‘the most wretched of deaths’ (Josephus), ‘a disgraceful punishment even for worthless men’ (Arnobius), an ‘utter disgrace’ (Origen) and an ‘accursed tree’ (Seneca).22

132

Sin, Shame and Atonement

The revulsion felt toward crucifixion was not because of the physical suffering it involved but because of the immeasurable public shame it conveyed. All the gruesome twists of the spectacle were intended to communicate to onlookers the complete and utter degradation of the victim to the very limits of imagination. The degradation began by being condemned to die in a way that was reserved for the dregs of society, for those entirely lacking in honour: criminals, traitors, rebels, pirates, foreigners, prisoners of war and, especially, offending slaves who could be executed on a whim. The physical torture and bodily mutilation it involved, which often included scourging, blinding with hot irons, amputation of body parts, breaking on a rack, sexual violation, and impaling with spikes, were a conscious assault on ‘the bodily grammar of honour and shame’ by making the victim look ugly and repulsive (Neyrey, 1998: 139–40).23 The nakedness of the victim was also a humiliation because it signalled a total loss of power and dignity, an impotence sometimes reinforced by having the prisoner’s family butchered before his eyes as a way of blotting out his entire existence. In a Judean setting, the shame of involuntary nakedness was particularly acute, since it was scandalous to see male genitalia (frequently denoted by the euphemism ‘shame’) exposed to view.24 The disgrace was compounded by the bodily defecation and swarming flies that accompanied death, and by being left on the cross for days to be devoured by wild animals and birds of prey or being chucked into a common grave rather than afforded a proper burial. Such was the ignominy entailed that many Jews interpreted crucifixion ipso facto as a sign the victim had even been cursed by God, the very epitome of shame (Galatians 3:13; cf. Deuteronomy 21:23).25 Those who witnessed crucifixion clearly recognised the deliberate shaming of the victim and articulated it through verbal abuse. Even if they pitied the victim’s agony, they accepted the official propaganda that crucifixion was a means of protecting the populace from dangerous criminals and violent men, and accordingly heaped contempt on those who suffered it (Hengel, 1977). Jesus was required to carry his cross to the place of execution in a public walk of shame that involved taunting, mockery and ridicule that continued right up until he drew his last breath. The abuse focused particularly on his shameful powerlessness: ‘He who saved others himself he cannot save’ (Mark 15:29–32). In addition to being the object of shame, the accounts indicate that Jesus experienced the subjective desolation of shame as well. His heart wrenching cry on the cross, ‘My God, my God, why have you forsaken me?’ (Mark 15:34) is a quotation from Psalm 22, a prayer of lament of those suffering scorn at the hands of their enemies. However we explain

133

CRIMINOLOGY AND PUBLIC THEOLOGY

the theological import of these words, Jesus clearly felt utterly bereft of God’s presence and love (see Marshall, 2018: 80–92). Just as the pollution of sin was thought to be concentrated in the sacrificial victim in Israel’s atonement rituals, so Jesus believed the accumulated sin and shame of all time had somehow been focused on him at this point, and he plumbed the experiential depths of isolation from God and subjection to evil. Binau (2002: 104) suggests the cry of dereliction shows that ‘shame had penetrated the very core of Jesus’ being, causing him to lose access to [God’s] heart and then to suffer heart-brokenness’. Yet even in this unparalleled suffering, his dying words were still addressed to God and still confirmed his trust in him (cf. Luke 23:46; John 19:30).

Dying to shame In dying in shame, Jesus also died to the power of sin and shame, once and for all. As Israel’s Messiah and the divinely appointed representative of the human race, what he achieved personally redounded to the benefit of all. ‘Just as one man’s trespass led to condemnation for all, so one man’s act of righteousness leads to justification and life for all’ (Romans 5:18). But how was shame, in particular, undone by Christ’s saving work? In what ways did Christ’s atoning life and death serve to disparage the destructive power of shame in its many varieties in human experience? Five connections come into view. 1. It affirms the absolute worth of every person. Christ’s chosen solidarity with humanity in its most shamed state represents the ultimate validation of the inviolable worth and dignity of every human person, irrespective of anything they have done or any indignity they have suffered. At the heart of chronic shame, we have seen, is a sense of being flawed, sullied or diminished at the core of one’s being and the consequent fear that others will reject us as being undeserving of love and acceptance. The cross proves this diagnosis is false. It proves that every individual, irrespective of their actions or achievements or any debasement they have endured at the hands of others, has indestructible worth and deserves to be loved at all costs. Paul speaks movingly of ‘the Son of God who loved me and gave himself for me’ (Galatians 2:20). Shame theorists often identify empathy as the quality that most counteracts entrenched shame and helps to overcome the isolation and alienation it brings. Empathy is the capacity to understand and share in the thoughts and feelings of others based on a shared humanity. To show empathy for someone involves listening deeply to them in a way

134

Sin, Shame and Atonement

that affirms their selfhood and dignity and helps them to recognise that their darkest fears and struggles are not unique to them alone, an abomination that dares not speak its name, but are part of a universally shared human anguish. In empathy, as in faith, love is not directed towards another’s action; it is directed toward the person as he or she is. This love constitutes an adjudication of a person’s value. The natural self has inherent value and […] we love a person for her own sake. (Arel, 2016: 172, emphasis added) This is exactly what we see enacted in the cross, a display of divine empathy for human destitution that adjudicates on the absolute value of its recipients and proves their intrinsic lovability. Grace is a much richer concept than empathy for describing this transaction. Grace denotes a categorical acceptance of someone’s worth, not on the grounds of their achievements or social identity or conformity to some external standard of acceptability, but solely on the basis of their intrinsic value as a unique and irreplaceable human being. Grace is often loosely defined as ‘unmerited favour’. But it is unmerited, not in the sense of being entirely unwarranted, but in the sense of being warranted solely on the basis of being a unique creature of unusual worth, irrespective of any other merits or qualities or deserts. Theologian Eleonore Stump (2019) notes that the natural remedy for shame is the conferral of honour or admiration on a person for a quality that transcends any external frame of reference. When the person recognises they possess something admirable or beautiful or honourable that is more highly valued than the standards by which they are shamed, their shame is defeated. This is what happens in Christ’s atonement. ‘In virtue of being loved enough by Christ for Christ to endure shame for the sake of union with humankind, Christ confers great value, as well as great honour on humanity’ (Stump, 2019: 354). The personal recognition of the honour of being unconditionally loved and accepted by the Source of all goodness and beauty in the universe is the deepest remedy for existential shame imaginable. 2. It represents the subversion of social shaming and stigmatisation. Christ confronted the social impact of shame by identifying himself with the most despised groups in society and by accepting the most despicable death imaginable. But the story did not end there. The attempt of the ruling authorities to pile public disgrace on him and to ensure he, quite literally, died of shame backfired. For the

135

CRIMINOLOGY AND PUBLIC THEOLOGY

one who had ‘emptied himself, taking the form of a slave’ and ‘humbled himself […] to the point of death, even death on a cross’, God has ‘highly exalted and given him a name that is above every name […] in heaven and on earth and under the earth’ (Philippians 2:6–11). This staggering reversal disrupts and delegitimates all systems of domination that justify the victimisation of the weak in the interests of the powerful. The same stark inversion of standards of honour and shame is also to be replicated in the social make-up on the communities that embrace the message of Christ crucified. Consider your own call, brothers and sisters: not many of you were wise by human standards, not many were powerful, not many were of noble birth. But God chose what is foolish in the world to shame the wise; God chose what is weak in the world to shame the strong; God chose what is low and despised in the world, things that are not, to reduce to nothing things that are, so that no one might boast in the presence of God. (1 Corinthians 1:26–9) Accordingly, the experience of shame that attaches to persons in virtue of belonging to socially despised groups, or from suffering stigmatising defects or disabilities, is banished forever by the realisation that God has conferred on ‘what is low and despised in the world’ the greatest of all honours: personal union with God, an attachment that repairs the loss of attachment at the root of human shame, and shared with a new community of belonging and radical equality. 3. It exposes, absorbs and cleanses personal shame. As well as being a socially created condition, shame is also a personal experience that stems from moral wrongdoing and relational failure, a shame that attaches both to the wrongdoer and often to those who have been wronged. The concept of guilt by itself is inadequate to describe the existential impact of these failures on individuals, since guilt often becomes inseparably entwined with shame. But it is still important to keep the threads notionally separate, for while forgiveness can speak to the wrongs that have been done, something further is needed to address the defilement or worthlessness that contaminates the heart and memory of the sinner. For this to be addressed, the shame needs to be exposed, drawn to the surface of consciousness and cleansed through an act of identification with an even greater source of purity and holiness. This is what the sacrificial system in Israel sought to accomplish. The pollution of sin was absorbed by the purity of the sacrificial victim and washed away by the shedding

136

Sin, Shame and Atonement

of its life-giving blood. But, for the writer of Hebrews, the constant repetition of this process only showed that the inner power of shame had still not been finally dislodged. Otherwise, would sacrifices not have ceased being offered, since the worshippers, cleansed once for all, would no longer have any consciousness of sin? But in these sacrifices, there is a reminder of sin year after year. For it is impossible for the blood of bulls and goats to take away sins. (Hebrews 10:2–4) As the unique Son of God, Christ absorbed the defilement of human shame and put it to death, once and for all. At some unfathomable metaphysical level, his sinless humanity was fused with the sinful condition of the human race, and he soaked up the infection of shame like a poultice and took it to the grave. The resulting forgiveness of sins offered is therefore comprehensive in effect, remitting guilt and cleansing shame, so that ‘there is no longer any offering for sin’ required (Hebrews 10:18). The power of shame to diminish human worth and dictate behaviour is definitively ended in Christ’s death to sin and shame. 4. It affords a new personal and social identity. Christ’s assimilation of human sin and shame was one aspect of what happened in the cross; the other was the opening up of a participation in his sin-free and shamefree existence to others, as God ‘made him who knew no sin to be sin, so that in him we might become the righteousness of God’ (2 Corinthians 5:21). An interchange took place. Christ identified himself with our shame so that we might identify ourselves with his righteousness and share through the Spirit in the new life he brings. Paul speaks of this exchange when he declares, ‘I have been crucified with Christ and it is no longer I who live but Christ who lives in me, and the life I now live in the flesh I live by faith in the Son of God who loved me and gave himself for me’ (Galatians 2:19–20). This new identity in Christ enables believers to escape from the shame trap that bases self-worth and acceptance on conformity to worldly standards of success, for what greater ground of value can there be than to be personally loved by the Son of God, to be the reason for his selfsacrifice, and to participate in his risen life? All other standards of worth dissolve in comparison to ‘the surpassing value of knowing Christ Jesus my Lord’ and being ‘found in him’ (Philippians 3:8–9). When believers appropriate this new identity through faith, it sets in train a desire to live up to, and live out of, that identity in daily life, a process of formation, modelled on Christ, that occupies a lifetime.

137

CRIMINOLOGY AND PUBLIC THEOLOGY

Once again, it is Paul who speaks most eloquently of this process: ‘For just as you once presented your members as slaves to impurity and to greater and greater iniquity, so now present your members as slaves to righteousness for sanctification’ (Romans 6:19). When Paul spells out what this sanctification means in practice, he repeatedly draws attention to those relational virtues that function as solvents for shame – love, joy, peace, patience, kindness, generosity, faithfulness, gentleness and selfcontrol (Galatians 5:22). 5. Finally, Christ offers a new source of spiritual empowerment. At the heart of entrenched shame is the conviction that ‘nothing good dwells within me’ (oikei en emoi) and a crippling sense of powerlessness about being able to do anything about it (Romans 7:21–4). At the heart of redeeming grace is the knowledge that ‘the Spirit of God dwells in you’ (oikei en humin) and empowers a new life of obedience, joy, peace and gratitude. It is the infusion of the Holy Spirit that enables Christ’s atoning work to be extended to others. Without that reality, his conquest of sin and shame would remain entirely theoretical for others, a change in forensic status perhaps but without transformative power. The impartation of the Spirit, however, above all else brings a profound consciousness of God’s love (Romans 5:4) and an unwavering confidence that nothing in all creation, neither height nor depth, neither things present nor things to come, can ‘separate us from the love of God in Christ Jesus our Lord’ (Romans 8:31–9). If that experience is not enough to combat the negative power of shame, it’s hard to know what else could.

Conclusion ‘The saying is sure and worthy of full acceptance, that Christ Jesus came into the world to save sinners, of whom I am the foremost’ (1 Timothy 1:15). The salvation Christ accomplished, I have argued, included a remedy for pathological shame, as well as for personal guilt and moral servitude. To address shame, he identified himself with the most dishonoured groups in society, embraced the most shameful of deaths conceivable, and entered into the greatest of desolations imaginable, yet without surrendering his trust in God. In so doing, he ‘condemned sin in the flesh’ and opened up a participation in his restored humanity to all who embrace it in faith. This participation in Christ involves a lifelong journey of restoration in which radical self-acceptance, as someone uniquely loved and treasured by God, is accompanied by a commitment to moral change and growing

138

Sin, Shame and Atonement

conformity to the image of Christ.26 Shame is not eliminated in this process of renewal, since the capacity for shame remains an essential human attribute that alerts us to our relational responsibilities and protects our dignity. Instead its maladaptive features are progressively healed or repaired, so that shame no longer inhibits personal flourishing or distorts healthy relationships but resumes its ‘original role as moderator of social bonding’ (Arel, 2016: 10). What implications does this theological understanding of sin, shame and atonement have for secular attempts to achieve redemption and rehabilitation within the criminal justice system? I began by pointing to the causal link Gilligan (2003) discovered between toxic shame and violent crime, and proposed it is the failure to address the root cause of shame that is the Achilles heel of much modern criminal justice policy and practice. I also highlighted the problems of relying on punishment as an antidote for shame-induced violence since punishment does nothing to remedy the problem and may well make it worse. The value of punishment is sometimes defended on the grounds it provides a means for wrongdoers to atone for their sins and be restored to society (Robinson and Sarahne, 2019). Such a proposal, however, rests on an essentially retributive notion of atonement, where the pain of the punishment compensates for the pain of the wrongdoing. It also assumes the power of atonement rests in one’s own hands.27 But neither assumption corresponds with the understanding of atonement that emerges from the Bible, least of all from the atoning life and death of Christ. Biblical atonement was not principally concerned with punishing sin but with purging its contamination and loosening its deadening grip, so that God’s presence in the land could be maintained. While human collaboration in the form of repentance and obedience was essential, the power of deliverance from sin depended ultimately on a direct encounter with a source of holiness and power greater than the contamination. This deliverance was definitively achieved in the sacrifice of Christ, and when the true significance of this saving event is appreciated, and personally appropriated, it provides the ultimate key to defeating shame. This does not mean that freedom from shame is available only to Christian believers, for Christ acted on behalf of all humanity and God’s restorative grace, of its very nature, is unconditioned by the limitations of human knowledge or belief.28 The benefits of the metaphysical shift that occurred through Christ’s incarnation and redemptive activity ripple out to others through countless ‘traces of grace’ in the world, whether or not individuals are aware of it.29 Even so, the profoundest realisation of one’s unique worth, the deepest awareness of divine love and the fullest

139

CRIMINOLOGY AND PUBLIC THEOLOGY

experience of spiritual freedom are afforded to those who understand, accept and surrender themselves to what Paul calls ‘the foolishness of the cross’ (1 Corinthians 1:18). The result of this is not a quick fix for the harmful legacy of shame in one’s life but the beginning of a lifelong process of renewal. But the immediate impact of embarking on this process of salvation can still be dramatic. Maruna and colleagues (2006) have examined the way religious conversion narratives work as a powerful strategy for shame management for those in prison. The experience of religious conversion – of finding God behind bars – offers prisoners a new social identity; it imbues the time in prison with purpose and meaning; it grants a new sense of power to otherwise powerless individuals; it helps reduce anxiety about the future; and, most importantly for us, it affords an experience of forgiveness that enables them to ‘regain feelings of self-worth’ (Maruna et al., 2006: 178). The authors go on to note that religious conversion is not the only way to cope with the shame and stigma of imprisonment. They point to the way successfully reformed prisoners have often developed ‘redemption scripts’ with remarkable similarities to conversion narratives, but without the religious language or imagery. These secular scripts also include ‘a desire to put one’s shameful past to good use by devoting one’s future to helping others’ (Maruna et  al., 2006: 180). Such evidence shows that shame can indeed be turned to constructive ends through secular interventions, especially interventions that, like the experience of spiritual conversion, strive to forge a new personal identity and solicit greater empathy for and service of others. What is less clear is whether secular narratives of redemption are able to penetrate to the heart of pathological shame with the same transformative power that an encounter with Christ and the gift of the Spirit can. We have seen that unrelieved shame involves, not just distorted thinking about oneself but also a sense of inner defilement that needs cleansing away. It is probably no accident that the New Testament writers speak so frequently of the ‘cleansing’, ‘washing’ and ‘purifying’ of sins, not just their pardoning, or that the early church used the rituals of baptism and Eucharist to communicate the experiential reality of this cleansing in tangible, embodied ways.30 This is where modern talking therapies perhaps reach their limit. Something more than conversation or cognitive behavioural therapy is needed to feel clean again inside, to feel purified in thoughts, habits, memories and motivations. Stephen Pattison (2000) recognises the challenge faced by moderns in this respect. While rituals of punishment and reparation are available to deal with guilt, ‘the cleansing rituals that were available to the ancients are no longer available for those experiencing

140

Sin, Shame and Atonement

shame internally today. Those who experience shame are therefore left in a state of permanent self- and social alienation’ (Pattison, 2000: 90). However, such cleansing rituals are still available today in religious communities, and when people avail themselves of these rituals, and the transcendent realities they communicate, they can feel enabled to stand before God, in companionship with others, ‘with a true heart, in full assurance of faith, with our hearts sprinkled clean from an evil conscience, and our bodies washed with pure water’ (Hebrews 10:22). Such an experience of outward and inward cleansing attests to the defeat of shame, and is available to those who ‘look to Jesus’ as the pioneer and perfecter of their salvation, the one who ‘endured the cross, despising its shame, and has taken his seat at the right hand of the throne of God’ (Hebrews 12:1–2). Notes 1

2

3

4

5

6

7

8 9 10

11 12 13 14

15

Gilligan explains that while shame as a necessary condition for the causation of violence, it is not a sufficient condition; other contributing factors also play a role. ‘Maybe the difference [between shame and embarrassment] is this: we feel embarrassed because we look bad, and we feel shame because we think we are bad. When we are embarrassed, we feel socially foolish. When we are shamed, we feel morally unworthy’ (Smedes, 1993: 11). ‘In any situation where children find themselves and their needs regularly or systematically ignored, neglected, humiliated, dishonoured, betrayed, objectified, disregarded or overwhelmed, there are the seeds of powerlessness, inferiority, weakness, defilement and unlovability that constitute chronic shame’ (Pattison, 2000: 105). DeYoung goes so far as to say, ‘I believe most symptoms of so-called mental illness, from depression and anxiety disorders to personality and dissociative disorders, have something to do with childhood relational trauma’ (2015: 3). Pattison (2000: 93–109) employs the concepts of ‘soul murder’ and ‘poisonous pedagogy’ to describe the systematic destruction of the child’s sense of self-worth. The ‘compass of shame’ model has been used by theorists and practitioners in several fields, such as restorative justice (see for example, Blood, 2012). From the Greek word for salvation, sōtēria, soteriology is the theological term for the doctrine of salvation. Romans 5:14; 1 Corinthians 15:45 Romans 6:10; Hebrews 7:27; 9:12, 26; 10:2, 10; 1 Peter 3:18 See the review in Cozens and Ochs (2019). See also the work of systematic theologians Krauss (1987) and Stump (2019). For an accessible survey, see Thiselton (2015: 769–73). Numbers 15:30–1; Psalms 19:14; Deuteronomy 17:12 For a fuller discussion, see Marshall (2001: 217–23). Moore (1960: 520) notes that while sacrificial atonement was essential, it did not atone ex opere operatio (namely, its efficacy did not reside in the action itself but depended on the attitude of the offerer), nor did it compel God to forgive. ‘Repentance is the sole, but inexorable, condition of God’s forgiveness and the restoration of his favour […]’ (cf. Moore, 1960: 498, 500, 535). Galatians 1:14; Philippians 3:4–6; 2 Corinthians 11:22; cf. Acts 26:5

141

CRIMINOLOGY AND PUBLIC THEOLOGY

16

17

18 19 20

21 22 23 24 25 26 27

28

29 30

Galatians 1:13; 1 Corinthians 15:9–10; Philippians 3:6; 1 Timothy 1:13, cf. Acts 8:3; 9:1–2; 22:4; 26:9–11 The Greek phrase literally translates as ‘concerning sin’, but likely echoes a technical term in the Septuagint, the Greek translation of the Hebrew Bible, for sacrificial atonement, as in Hebrews 10:6. For example, Mark 3:6, 11:18; Luke 4:29, 13:31; John 7:19, 8:37. For example, Mark 9:34–7; Matthew 23:9–12; Luke 9:46–8, 22:24–7. On the universality of social dominance in human behaviour, see Colin Patterson (2019). Cf. Hebrews 9:11–14, 10:2–4, 19–22. For references, see Hengel (1977); Finney (2013). For the role of sexual violation, see Tombs (1999). Isaiah 58:7; Ezekiel 16:22; Job 26:6; Jubilees 3:27; 1 Corinthians 12:23 See Hooker (1994) and Finney (2013). For a different view, see Elliott (1994). 1 Corinthians 15:49; 2 Corinthians 3:17–18; Colossians 3:10 For a penetrating analysis of modernity’s inability to comprehend the objective basis of humanity’s need for atonement, see McClay (2017). Romans 5:18; Philippians 2:10–11; Hebrews 2:9; 1 John 2:2; 1 Timothy 4:10; Titus 2:11 I borrow this phrase from Jessica Coblentz (2019). Mark 7:15–16; Matthew 23:25; John 13:10; 15:3; Acts 10:15; 11:9; 22:16; Romans 14:20; 1 Corinthians 5:7; 6:9–11; 2 Corinthians 7:1; Ephesians 5:26–7; 2 Timothy 2:21; Hebrews 10:2, 22; James 4:8; 1 John 1:7–9; Revelation 7:14

References

Ahmed, E., Harris, N., Braithwaite, J. and Braithwaite, V. (2001) Shame Management through Reintegration, Cambridge: Cambridge University Press. Arel, S.N. (2016) Affect Theory, Shame, and Christian Formation, Basingstoke: Palgrave Macmillan. Benade, L. (2015) ‘Shame: does it have a place in an education for democratic citizenship?’, Educational Philosophy and Theory, 47(7): 661–74. Binau, B.A. (2002) ‘When shame is the question, how does atonement answer?’, Journal of Pastoral Theology, 12(1): 89–113. Blood, P. (2012) ‘The repair and restoration of relationships’, in S. Roffey (ed.) Positive Relationships: Evidence-Based Practice across the World, Dordrecht: Springer, pp. 277–95. Braithwaite, J. (1989) Shame, Crime and Reintegration, Cambridge: Cambridge University Press. Coblentz, J. (2019) ‘The possibilities of grace amid persistent depression’, Theological Studies, 80(3): 554–71. Cozens, S. and Ochs, C. (2019) ‘Putting the shameful body to death: some critiques and a way forward in the soteriology of shame’, Transformation, 36(4): 233–45.

142

Sin, Shame and Atonement

DeYoung, P.A. (2015) Understanding and Treating Chronic Shame: A Relational/Neurobiological Approach, New York/London: Routledge. DiFransico, L. (2018) ‘Distinguishing emotions of guilt and shame in Psalm 51’, Biblical Theology Bulletin, 48(4): 180–7. Dunn, J.D.G. (1998) Romans, Volume 1, Dallas, TX: Word Books. Elliott, N. (1994) Liberating Paul: The Justice of God and the Politics of the Apostle, Maryknoll, NY: Orbis Press. Eng, D.K. (2019) ‘The widening circle: honour, shame, and collectivism in the parable of the Prodigal Son’, Expository Times, 130(5): 193–201. Finney, M.T. (2013) ‘Servile supplicum: shame and the Deuteronomic curse – crucifixion in its cultural context’, Biblical Theological Bulletin, 43(3): 124–34. Gese, H. (1981) Essays on Biblical Theology, Minneapolis, MI: Augsburg Publishing House. Gilligan, J. (2003) ‘Shame, guilt, and violence’, Social Research, 70(4): 1150–80. Goldingay, J. (1995a) ‘Your iniquities have made a separation between you and your God’, in J. Goldingay (ed.) Atonement Today, London: SPCK. Goldingay, J. (1995b) ‘Old Testament sacrifice and the death of Christ’, in J. Goldingay (ed.) Atonement Today, London: SPCK. Green, J.B. and Baker, M. (2000) Recovering the Scandal of the Cross: Atonement in the New Testament and Contemporary Contexts, Downers Grove, IL: IVP. Hengel, M. (1977) Crucifixion, London: SCM Press. Hicks, D. (2011) Dignity: The Essential Role It Plays in Resolving Conflict, New Haven/ London: Yale University Press. Hinsliff, G. (2019) ‘In praise of shame: how Trump and Johnson show we need it more than ever’, The Guardian, 3 July, www.the guardian.com/ society/2019/jul/02/in-praise-of-shame Hooker, M.D. (1994) Not Ashamed of the Gospel: New Testament Interpretations of the Death of Christ, Carlisle: Paternoster. Kwon, D. (2016) ‘For Shame’, Scientific American Mind, May–June: 67–8. Krauss, N.C. (1987) Jesus Christ Our Lord: Christology from a Disciple’s Perspective, Scottdale, PA: Herald Press. Lazare, A. (1987) ‘Shame and humiliation in the medical encounter’, Archives of Internal Medicine, 147(9): 1653–8. Marshall, C.D. (2018) All Things Reconciled: Essays on Restorative Justice, Religious Violence and the Interpretation of Scripture, Eugene, OR: Cascade Books. Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with two Gospel Parables on Law, Crime, and Restorative Justice, Eugene, OR: Cascade Books.

143

CRIMINOLOGY AND PUBLIC THEOLOGY

Marshall, C.D. (2001) Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, Grand Rapids, MI: Eerdmans. Maruna, S., Wilson, L. and Curran, K. (2006) ‘Why God is often found behind bars: prison conversions and the crisis of self-narrative’, Research in Human Development, 3(2–3): 161–84. McClay, W.M. (2017) ‘The strange persistence of guilt’, The Hedgehog Review, 19(Spring), https://hedgehogreview.com/issues/the-postmodern-self/articles/the-strange-persistence-of-guilt Moore, G.F. (1960) Judaism in the First Centuries of the Christian Era: The Age of the Tannaim, Peabody, MA: Hendrickson Publishers. Nathanson, D.L. (1992) Shame and Pride: Affect, Sex and the Birth of the Self, New York: W.W. Norton & Company. Neyrey, J.H. (1998) Honor and Shame in the Gospel of Matthew, Louisville, KY: Westminster John Knox Press. Patterson, C. (2019) ‘The world of honor and shame in the New Testament: alien or familiar?’, Biblical Theology Bulletin, 49(1): 4–14. Pattison, S. (2000) Shame: Theory, Therapy, Theology, Cambridge: Cambridge University Press. Robinson, P.H. and Sarahne, M. (2019) ‘The opposite of punishment: imagining a path to public redemption’, Public Law and Legal Theory Research Paper Series No.  19–27, University of Pennsylvania Law School, http://ssrn.com/abstract=3406761 Satel, S.L. and Lilienfeld, S.O. (2016) ‘Can shame be useful?’, The New York Times, 23 January, http://nyti.ms/1PdET7R Smedes, L.S. (1993) Shame and Grace: Healing the Shame We Don’t Deserve, New York: Harper Collins. Stendahl, K. (1976) Paul among Jews and Gentiles, Philadelphia, PA: Fortress Press. Stump, E. (2019) Atonement, Oxford: Oxford University Press. Theissen, G. (1987) Psychological Aspects of Pauline Theology, Philadelphia, PA: Fortress Press. Thiselton, A.C. (2015) The Thiselton Companion to Christian Theology, Grand Rapids, MI: Eerdmans. Tombs, D. (1999) ‘Crucifixion, state terror and sexual abuse’, Union Seminary Quarterly Review, 53(Autumn): 89–109. Van Gend, A. (2015) ‘Speaking of mysteries: atonement in teenage fantasy books’, PhD thesis, Victoria University of Wellington. Ziesler, J. (1989) Paul’s Letter to the Romans, London: SCM Press.

144

7

Criminology, Public Theology and Hope Andrew Millie

Introduction Contact with the criminal justice system can be a difficult experience. Criminologists writing about those sentenced often talk about the pains of punishment or the pains of imprisonment (Sykes, 1958; Dubber, 1996; Crewe, 2011), which can involve various deprivations, most obviously a deprivation of liberty but also a deprivation of autonomy, of personal security and of goods and services (cf. Sykes, 1958). This is not surprising as pain is integral to punishment; as the legal philosopher H.L.A. Hart (1960: 4) has observed, punishment ‘must involve pain or other consequences normally considered unpleasant’. Similarly, the criminologist Nils Christie (1981: i) has noted that, ‘imposing punishment within the institution of law means the infliction of pain, intended as pain’. Others have talked in terms of the pains of police custody (Skinns and Wooff, 2020) or of probation supervision (Hayes, 2015; McNeill, 2019). Those working within the criminal justice system can also find it a painful experience being under pressure from targets and creeping privatisation (see Chapter 9 by Lol Burke), or the day-to-day difficulties of dealing with those society deems too much of a risk. The pain for victims is exacerbated by often being the forgotten element in many criminal justice processes (Christie, 1977). This chapter draws from Christian public theology and criminology, and considers hope to be an alternative to such pains. The chapter also

145

CRIMINOLOGY AND PUBLIC THEOLOGY

looks at philosophical writings where pertinent, in particular Kantian conceptions of dignity and Paul Ricoeur’s work on an economy of gift which draws on both philosophy and theology. While there is some limited criminological engagement with philosophy (for example, Arrigo and Williams, 2006; Millie, 2016), engagement with theology is almost non-existent; and a secular criminal justice might be reticent to learn from the non-secular. However, the starting point for this chapter is that much can be learnt from a Christian perspective without necessarily having to believe in God. According to the theologian Duncan Forrester (1997: 30), religion can be divisive due to it having an assumed ‘privileged access to the truth’ and a ‘naïve idealism which pays scant respect to the facts of the case and the constraints’. Yet, he continued, there is another line of argument that suggests that a public sphere from which religion is excluded is deprived of a great source of determination, hope and the vision ‘without which the people perish’. […] [It] would have excluded Martin Luther King’s dream from American public life […] Would the end of apartheid and the building of a new South Africa have come more quickly and more generously had Archbishop Tutu been confined to the pulpit and compelled to leave public affairs to the politicians? (Forrester, 1997: 30) If there is something useful that public theology can contribute to public debates – and to discussions of criminal justice in particular – then what form does this take? In recounting a discussion at a conference on law and order held in 1986, Forrester remembered how: Initially the members of the group felt quite strongly that rehabilitation, the treatment model, had something inherently Christian about it […] Most also agreed […] there was something inherently un-Christian about retributivism. But as we looked more closely at the matter, and in particular as we attended to the common view of prisoners that rehabilitation was a disguise for the unattractive reality of what really went on in prison […] we felt increasingly disenchanted with the possibility of baptizing rehabilitation. (Forrester, 2018: 456) In theoretical (and theological) discussions about justice we must be cognisant of the reality for those experiencing the justice system. Forrester was perhaps right that rehabilitation is ‘inherently Christian’ as it has some clear overlap with notions of repentance and redemption, while being

146

Criminology, Public Theology and Hope

aware of the limitations in how it is carried out in practice. For instance, the criminologist Anthony Bottoms (2015) has talked of repentance in describing how offenders can turn their lives around (see also his contribution to this volume, Chapter 2). Similarly, Shadd Maruna (2001) has written about redemption scripts that desisting offenders construct as part of a process to ‘redeem themselves of their past and assert a meaningful future’ (Sundt, 2010: 575). While a theological viewpoint might be accused of naïve idealism, it is argued in this chapter that Christian public theology has something positive to contribute to debates on justice; and this contribution is much more than the lending of religious language. For this chapter it is contended that a true reading of Christian theology goes beyond calls for rehabilitation; it privileges reconciliation rather than retribution, and if applied to secular criminal justice would fundamentally challenge conventional thinking on retributive justice and just deserts. An example of the motivation for such ‘naïve idealism’ comes in the Lord’s Prayer (Matthew 6:9–13).1 Here Christian believers are instructed to seek God’s forgiveness of sins, ‘as we forgive those that sin against us’.2 For the theologian Tim Gorringe (1996: 265, emphasis in original) forgiveness is a ‘remorselessly difficult praxis’.3 The forgiveness of others’ sins is a challenge for believers and non-believers alike, although the language of sin does not translate so well to the secular (see Chapter 5 by Tim Gorringe, and Chapter 6 by Christopher Marshall, this volume). Sin can be understood as a turning away from God’s intention for us, with repentance the turning back to God. Through sin we have wronged, offended or grieved God as Father, Son and Spirit; as is stated in Ephesians 4:30–2: And do not grieve the Holy Spirit of God, with whom you were sealed for the day of redemption. Get rid of all bitterness, rage and anger, brawling and slander, along with every form of malice. Be kind and compassionate to one another, forgiving each other, just as in Christ God forgave you. A similar message is given in Colossians 3:13, but this time in terms of grievance against each other: ‘Bear with each other and forgive one another if any of you has a grievance against someone. Forgive as the Lord forgave you.’ The question for this chapter is whether such a response has relevance outside Christianity, and whether it can be applied to secular criminal justice. The context – in the West at least – is a pluralist society where the Christian voice is just one among many. And it can be argued that there is not a single Christian voice either, with different lived experiences of

147

CRIMINOLOGY AND PUBLIC THEOLOGY

faith and interpretations of Christian theology, doctrine and tradition. Various expressions of the church have not always had a good record in this area. Influenced by the Old Testament lex talionis, or an eye-for-aneye (for example, Deuteronomy 19:214), God has often been viewed as a judgemental moral authority justifying capital punishment – and in some historical contexts other extreme practices, including inquisitions and witch burnings. In the 13th century Thomas Aquinas (1265–74) defended capital punishment in the Summa Theologica by claiming: By sinning man departs from the order of reason, and therefore falls away from human dignity, in so far as man is naturally free and exists for his own sake, and falls somehow into the slavery of the beasts, so that he may be disposed of according to what is useful to others […] Therefore, although it be evil in itself to kill a man who preserves his human dignity, nevertheless to kill a man who is a sinner can be good, just as it can be good to kill a beast; for an evil man is worse than a beast. (Aquinas5 cited in Brugger, 2012: 366–7) It is a view that appears to contradict the Colossians 3:13 instruction to ‘Forgive as the Lord forgave you’; but Aquinas saw ‘evil-doers’ as no longer having human dignity and therefore ‘worse than a beast’. Until the 19th century, most Christian denominations saw a clear need for punishment, although there were some exceptions such as the Anabaptists ‘who judged it inconsistent with the gospel either to serve as a magistrate or to go to court’ (Gorringe, 2004: 11), or the Quakers who from the 17th century ‘recognised a duty to scrutinise the workings of the criminal justice [system] as the use of force by government against its own citizenry’ (Newell, 2007: 20). But following Aquinas, for many Christians punishment was appropriate for sinners who had fallen ‘away from human dignity’. The idea of dignity is explored further in this chapter with reference to the Golden Rule and Immanuel Kant’s belief that all have dignity – including sinners. Fast forward from Aquinas to today and most Christian denominations are against capital punishment, with a few exceptions (Lipka, 2015). The Catholic Church long held the view that the death penalty was admissible in certain circumstances; yet in 2018 Pope Francis reworded the Catechism (no. 2267), which now emphasises the dignity of offenders and takes a very different view from Aquinas’: there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes. In

148

Criminology, Public Theology and Hope

addition, a new understanding has emerged of the significance of penal sanctions imposed by the state. Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption. Consequently, the Church teaches, in the light of the Gospel, that ‘the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person’, and she works with determination for its abolition worldwide. (The Vatican, 2018) While the church’s view on punishment and the death penalty has shifted over the centuries, the contemporary church is still a site of controversy concerning abuses of power ranging from prosperity teachings6 (leaving some pastors very rich indeed), through to sexual misconduct and other abuses by clergy (see for example, Death, 2016). Such abuses may be enough for the reader to conclude that nothing good could come from the church, and that the church teaches us more about injustice than justice. Yet, in terms of criminal justice a lot of good has come from the church. While some believers see God as a judgemental moral authority, the alternative is a view of God as a merciful, forgiving deity. Historically, Christians who have emphasised mercy and forgiveness have also been involved in more progressive penal actions and campaigns. For instance, early 19th-century criminal law reform in England and Wales was led in parliament by a group of evangelicals (Follett, 2001). By the end of that century evangelicals, through the work of police court missionaries, had been instrumental in the birth of the probation service (McWilliams, 1983; see also Chapter 9 by Lol Burke). Today, Christians are involved with prisons via faith-based ministries, prison chaplains and fellowships (for example, Deuchar et al., 2016; Hallett et al., 2017; Oliver, 2017), and campaigns for penal reform or penal abolition (for example, Griffith, 1993; Bowman, 2019). As noted, this chapter considers hope to be an alternative to the pains of contemporary criminal justice. In the first instance the chapter draws on the philosophy of Immanuel Kant (1785/1990) focusing on his categorical imperative. It is highlighted how this owes a great deal to Jesus’ interpretation of the Golden Rule. Also considered is Kant’s view of human dignity as expressed in his Formula of Humanity as an End in Itself: that we should treat others as ends and never simply as means to an end. Kant may have argued elsewhere in favour of retribution (Falls, 1987; Byrd, 1989; Merle, 2000; see also Chapter 8 by Richard Bourne); yet his thinking on ends and means helps us to recognise the importance of individual human dignity and respect.

149

CRIMINOLOGY AND PUBLIC THEOLOGY

Second, the chapter draws on Jesus’ teaching in the Sermon on the Plain to ‘love your enemies, do good to them, and lend to them without expecting to get anything back’ (Luke 6:35). The implications for criminal justice of ‘love for enemies’ are considered. Third, the discussion reflects on the French philosopher and theologian Paul Ricoeur’s (1990) interpretation of the Sermon on the Plain in proposing a Christian economy of gift with a logic of superabundance. It is argued that such superabundance, or generosity, is a gift of hope (as opposed to the pain offered by retribution), where reciprocity may be desired, but not demanded. The consequences of applying such a Christian ethical position (or as Ricoeur put it, a supra-ethical position) to secular criminal justice are discussed.

The Golden Rule and Kantian ethics In the late 18th  century Immanuel Kant formulated his categorical imperative, a deontological rule for moral living that states we should ‘Act only according to that maxim whereby you can at the same time will that it should become a universal law’ (1785/1990: 1031). To adopt this imperative we should aim to act only in ways that we wish everyone to act. To give a criminological example, I do not steal because I do not wish for theft to become a universal law (Millie, 2016). It is a deceptively simple idea, although it does not tell us the specifics of what is acceptable and in what circumstances, and not everyone will agree on what ought, or ought not, be done. For instance, a categorical imperative could be to not commit murder. This may seem uncomplicated, but we have ways of bending or finding exceptions to such rules (Edgerton, 1985; Hinde, 2007). For many, the imperative ‘do not murder’ may change during wartime or may be viewed differently in self-defence. Philosophers have created thought experiments that suggest the murder of one may be required to avoid the murder of many. It is a question of whether utilitarianism trumps deontology. The famous trolley or tram problem is such an experiment where the driver of a runaway tram must decide whether to steer one way towards where five men are working, or the other where just one man is working. According to Philippa Foot (1967: 8), ‘anyone on the track he enters is bound to be killed’ (see also Jarvis Thomson, 2008). A categorical imperative to not murder (and for that matter one of the Ten Commandments) is challenged. Thus, Kant’s formula would be adapted to include the prefix, ‘Under normal circumstances act only according to the maxim whereby you can at the same time will that it should become a universal law.’ While the tram/

150

Criminology, Public Theology and Hope

trolley problem can possibly be used to justify war to save the lives of the many, the biblical instruction is simply ‘you shall not murder’ (Exodus 20:13). There are no easy answers to what is right in all circumstances and Christians are not all in agreement, ranging from pacifism and peace making (for example, Sowle Cahill, 2019) through to proponents of ‘just war’ (see O’Donovan, 2003). That said, the categorical imperative provides a useful guiding principle for morally right behaviour – even if exceptions can be found. The categorical imperative was itself influenced by the Golden Rule, a maxim that has existed across many religions and cultures, including Christianity, Buddhism, Islam, Zoroastrianism, Confucianism and Stoicism as well as in the works of Plato and Aristotle (Hertzler, 1934; Gill, 2017). It is famously expressed in the Sermon on the Mount in which Jesus declared ‘So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets’ (Matthew 7:12). The Golden Rule suggests a reciprocity, although this is challenged by Ricoeur (1990) – of more later. For now, we stay with the notion of reciprocity, that we do to others as we wish others do to us. Thus, we do not murder because we would not want others to murder us in the same circumstances, we are kind and compassionate because we want to receive kindness and compassion, we forgive because we wish others to forgive us. Not only do we seek God’s forgiveness ‘as we forgive those that sin against us’, but we forgive others because that is what we would want others to do if our roles were reversed. A further interpretation of the Golden Rule, and of the categorical imperative, is that we are respectful because we wish others to show us respect. The Kantian view of respect and human dignity is expressed in his Formula of Humanity as an End in Itself: ‘Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means’ (1785/1990: 1036). In effect all humans are worthy of respect and have inherent dignity.7 All should be treated as ends, and never as means to an end. As Thomas Hill has noted, we are to respect others ‘regardless of how their values differ and whether or not we disapprove of what they do’ (2000: 69; see also Millie, 2009). It is a view that, if taken seriously, ought to change how we treat offenders. Following this logic, a person ought not be incarcerated as a means to other ends – such as to deter others from crime (general deterrence), or as a form of crime prevention (incapacitation). It may also mean that society ought not punish an offender as a means to express its revenge (retribution), although this would be inconsistent with Kant’s favourable view of retribution.

151

CRIMINOLOGY AND PUBLIC THEOLOGY

Returning to the Golden Rule, Paul Ricoeur (1990) has observed how it can be interpreted as following a logic of equivalence, and that this equivalence is also present in the concept of retaliation or retribution – or in the lex talionis, for example as expressed in Deuteronomy 19:21: ‘Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot’. While unattractive to most modern readers, according to Ricoeur (1990), the lex talionis is limited and thus a moral improvement on vengeance which is limitless. In effect it is an early form of just deserts – it sets proportionate limits for punishment, that it would not be acceptable to take life for foot, for example. If retribution is a moral improvement on vengeance, then the teaching of Jesus provides some clarification, with his perspective a moral improvement on retribution; as he made explicit in the gospel of Matthew (5:38): ‘You have heard that it was said, “Eye for eye, and tooth for tooth”. But I tell you. Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also.’ The morally right thing to do is taken far beyond retaliation or retribution. Paul in the book of Romans (12:18–20) highlights that if there is to be any kind of revenge this ought to be left to God alone. Instead, ‘If your enemy is hungry, feed him; if he is thirsty, give him something to drink.’ Paul continues by saying, ‘In doing this, you will heap burning coals on his head.’ This is an odd phrase but is thought to mean that your kindness will result in your enemy feeling shame. Paul is referring back to Proverbs 25:21–22, a passage which itself may be referencing an Ancient Egyptian repentance ritual (Hre Kio, 2000). Whether referring to a desire for repentance or feelings of shame, Paul is not talking about literal burning coals. If the enemy is someone who has offended against us the lesson seems to be that we ought to treat offenders well, and this positive treatment itself can act as part of (reintegrative) shaming (cf. Braithwaite, 1989). According to John Braithwaite, a process of reintegrative shaming may involve criminal justice systems utilising ‘shaming ceremonies’ in tandem with ‘forgiveness and repentance ceremonies’ (1989: 81) to communicate the shame of crime, while also recognising offenders as members of society who are to be reintegrated back into community – rather than treated as outcasts. As with broader developments in restorative justice (see for instance Chapter 12 by Joanna Shapland), relationship between harmer and those harmed is central. Braithwaite claimed reintegrative shaming has many benefits over stigmatisation, but chiefly that: Reintegrative shaming communicates disapproval within a continuum of respect for the offender: the offender is treated as a good person who has done a bad deed. Stigmatization is

152

Criminology, Public Theology and Hope

disrespectful shaming: the offender is treated as a bad person. Stigmatization is unforgiving. (Braithwaite, 2000: 282) Lex talionis has had an historic influence on Western ideas of criminal justice, where punishment is an expressive and retributive ritual marking society’s denunciation. According to Richard Bourne (2014: 87; and see Chapter  8, this volume) there has been a ‘privileging [of] the retributive over the reconciliatory’ within models of criminal justice. Yet reconciliation is promoted by alternative approaches such as Braithwaite’s reintegrative shaming and through programmes of restorative justice. If Jesus’ teaching on turning the other cheek is taken seriously, and Paul’s instruction to care for our enemies, then the response to the crime is not characterised by reciprocity or a logic of equivalence, but by a morality that takes the victim to a higher place. The motivation for this non-retaliatory position is that we treat others well because we see Christ in others. As Jesus expressed in Matthew 25:35–6, For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me. In the story recounted in Matthew 25 the people’s response to Jesus was to question when they did this. The reply, as expressed in verse 40 was, ‘I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.’ Reference to ‘the least of these brothers’ does not imply that Jesus believed some had lower worth. Instead, all are equally made ‘in the image of God’ (Genesis 1:26–7). Society may label certain others as having lower value, but God has special concern for them: [T]he biblical idea of justice also contains an implicit notion of human rights. Since all persons are made in the ‘image of God’, all are endowed with equal claims to justice. Not only does God require justice for all, he shows special concern for the poor and oppressed. (Gardner, 1995: 125) In line with Matthew 25, this special concerns is for all in need: the hungry and thirsty, the stranger, the naked, the sick and – of relevance to this chapter – the imprisoned.8 Such an egalitarian perspective grounded in social justice is in line with Kant’s view on human dignity, that we

153

CRIMINOLOGY AND PUBLIC THEOLOGY

ought to see all as ends in themselves, and never as means to an end. Such a moral position has been a motivation for Christian charity and social justice for centuries. For example, it was an inspiration for Mother Teresa and the Missionaries of Charity. As Mother Teresa has stated, It is He whom we reach in the people who are unwanted, unemployed, uncared for; they seem useless to society, nobody has time for them. It is just you and I who must find them and help them. Often we pass them without seeing them. But they are there for the finding. (cited in Poplin, 2011: 39–40) Clearly, a view that all are equal ‘in the image of God’ will have little purchase within a secular criminal justice. Yet, the idea of equal worth and dignity, and a moral position that recognises this and then leads by example may translate. It is here that I turn attention to Jesus’ Sermon on the Plain.

The Sermon on the Plain Jesus’ Sermon on the Plain is retold in Luke 6:20–49. According to Roman Montero (2019: 1) it is not just ‘an ethical text […] it is a manifesto’. It is a manifesto that if adopted is a radical challenge to conventional notions of justice. A key section of the Sermon is reproduced here: But to you who are listening I say: Love your enemies, do good to those who hate you, bless those who curse you, pray for those who mistreat you. If someone slaps you on one cheek, turn to them the other also. If someone takes your coat, do not withhold your shirt from them. Give to everyone who asks you, and if anyone takes what belongs to you, do not demand it back. Do to others as you would have them do to you. If you love those who love you, what credit is that to you? Even sinners love those who love them. And if you do good to those who are good to you, what credit is that to you? Even sinners do that. And if you lend to those from whom you expect repayment, what credit is that to you? Even sinners lend to sinners, expecting to be repaid in full. But love your enemies, do good to them, and lend without expecting to get anything back. Then your reward will be great, and you will be children of the Most High, because he is kind to the ungrateful and wicked. Be merciful, just as your Father is merciful.

154

Criminology, Public Theology and Hope

Do not judge, and you will not be judged. Do not condemn, and you will not be condemned. Forgive, and you will be forgiven. Give, and it will be given to you. (Luke 6:27–36) The Sermon includes several of Jesus’ key moral statements – including the Golden Rule (v.31) and the instruction to turn the other cheek (v.29). At verse 32 the sermon questions directly the logic of equivalence by stating, ‘If you love those who love you, what credit is that to you? Even sinners love those who love them.’ The instruction is to ‘love your enemies, do good to them, and lend without expecting to get anything back’. Love for enemies also features in the Sermon on the Mount (Matthew 5:43–4). But the challenge is not only to love enemies, it is to do so without expecting anything in return. What might such a moral position mean for criminal justice? According to the Sermon on the Plain, we can show love by being nonjudgemental, non-condemning and forgiving. Our approach to those who have wronged us shifts from retribution and reciprocity to reconciliation, restoration and forgiveness. Wrongdoing is acknowledged, but this is through a relational framework quite different to orthodox views of justice. For Desmond Tutu (quoted in Taylor, 2010) forgiveness cannot be demanded; instead it is in the gift of the individual doing the forgiving: ‘You can’t make anybody forgive another […] And yet, when that occurs, it is like saying: “I give you another opportunity.” To forgive is to say: “I give you another chance to make a new beginning.”’ Elsewhere Tutu has similarly stated that: When I talk of forgiveness I mean the ability to let go of the right to revenge and to slip the chains of rage that bind you to the person who harmed you. When you forgive you are free of the hatred and anger that locks you in a state of victimhood. If you can find it in yourself to forgive, you can move on, and you may even help the perpetrator to become a better person. (Tutu, 2015: xvii) Tutu’s experience on the post-apartheid South African Truth and Reconciliation Commission meant he saw such forgiveness in action (Tutu, 1999). Forgiveness is considered in more detail in Chapter 12 by Joanna Shapland. What is important to note here is that Christian forgiveness comes from a recognition that, as Chris Wood (1991: 81, emphasis in original) has noted: ‘There are no innocent human beings, according to the teaching of the New Testament. There is a basic human solidarity in sin, offence, and guilt. We are all offenders.’9 From a secular

155

CRIMINOLOGY AND PUBLIC THEOLOGY

position this may seem a nonsense until the myth of a law-abiding majority is unpacked and it is realised that we have all broken the law in some way or breached society’s norms and standards (Karstedt and Farrall, 2006; Millie, 2016: 71). There is no ‘law-abiding majority’. Examples of everyday law-breaking include motorway speeding, making exaggerated insurance claims, having undeclared income on tax returns, unauthorised parking in a disabled bay, committing minor fraud or illegal downloading. From a biblical perspective, even if we have not sinned through deed, we may have sinned through thought, as stated by Jesus in the Sermon on the Mount: You have heard that it was said to the people long ago, ‘You shall not murder, and anyone who murders will be subject to judgment.’ But I tell you that anyone who is angry with a brother or sister will be subject to judgment […] You have heard that it was said, ‘You shall not commit adultery.’ But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. (Matthew 5:21–2a, 27–8) Therefore, as we have all sinned or committed some form of everyday crime, or at least breached society’s norms and standards in some way, we see the offender as like ourselves and can empathise – even if their offence is generally regarded as something more serious. Forgiveness may benefit the forgiver, but it is also a gift offered to the offender. Forgiveness is usually from the person harmed, or someone associated with the person harmed, or perhaps it could be offered by the state. At the very least, if there is a place for forgiveness, rather than a criminal justice system that is founded on the infliction of pain, it can be replaced by one that is founded on a gift of hope – that just because you have treated others badly does not mean that society will do the same to you. In line with the Sermon on the Plain, you will be treated with dignity without anything expected in return.

Paul Ricoeur and the economy of gift The sociologist Richard Sennett (2003) has noted the benefits of reciprocity when talking about the need for mutual respect between people; and this idea was taken forward in the UK by the then Prime Minister, Tony Blair, in his respect agenda of the early 2000s. The motto of the respect agenda was that we ‘give respect, get respect’ (Millie,

156

Criminology, Public Theology and Hope

2009). Thus, we only get respect if we first give respect. Sennett was not impressed with Blair, or with his respect agenda. But following the Sermon on the Plain (and Kant’s Formula of Humanity as an End in Itself), the motto would be reinterpreted as, ‘I will respect you, even if you do not respect me’. It is quite a different message. Drawing on Paul Ricoeur (1990), this can be seen as a ‘logic of superabundance’ which is ‘polarly opposite to the logic of equivalence which governs everyday ethics’ (1990: 392, emphasis in original). Paul Ricoeur (1990) has considered the Golden Rule in the context of Jesus’ Sermon on the Plain. In the commandment to love enemies, Ricoeur has suggested that, through a logic of superabundance, Jesus took moral reasoning beyond an economy of reciprocity, replacing it with an extravagant economy of gift, as evident in the idea of giving without expecting anything back. According to Robin Gill (2017: 191) the Golden Rule is placed in the context of ‘radical, passionate, positive action towards enemies.’ This is a challenge to some views of the Golden Rule and Ricoeur recognised a tension between a unilateral love for enemies which expects nothing in return (a logic of superabundance), and a bilateral and reciprocal Golden Rule (a logic of equivalence). Yet, for Ricoeur ‘the tension between them is essential and central to genuine Christian ethics.’ It is an ethical paradox that is ‘intended to disorient for the sake of reorienting’, a ‘disentangling of the intent of the [golden] rule from its literal interpretation’ (1990: 396). For Ricoeur, the command to ‘love your enemies’ disorients conventional readings of the Golden Rule, but then reorients it to what was perhaps intended all along. According to Ricoeur (1990: 397), ‘the commandment of love for enemies is not ethical but supra-ethical […] it must reinterpret the principle of morality summarized in the Golden Rule. By doing so, the new commandment elevates the principle of morality above itself, close to its breaking point.’ For Ricoeur it is so close to breaking point that without the context of the Golden Rule it could become non-ethical. Ricoeur went further: Christian ethics […] relies to my mind on this tension between unilateral love and bilateral justice. The practical consequences of this common ethics are innumerable and perfectly feasible. The incorporation of a motive of compassion and generosity in all our codes, penal codes and codes of social justice, constitutes a reasonable task, although difficult and endless. The Golden Rule is put in this concrete way in the midst of a basic conflict between self-interest and self-sacrifice. The same rule may be invoked by the exponents of both motivations. (1990: 397, emphasis in original)

157

CRIMINOLOGY AND PUBLIC THEOLOGY

Ricoeur sees superabundance as ‘the hidden truth of equivalence’ that ‘[t]he Golden Rule is repeated. But repetition means transfiguration’ (p. 397). If applied to secular criminal justice, such a transfiguration would result in a re-emphasis on compassion and generosity. Such superabundance can be interpreted as a form of empathy – or in the context of this chapter, an empathetic criminology or criminal justice (Millie, 2016). Empathy is related to Comte’s altruism, which can be regarded as ‘benevolent and sympathetic feelings that […] ought to be promoted in place of more selfish ones’ (Scott and Seglow, 2007: 15). In short, we try to see the world from the perspectives of others – including an offender who has wronged us. We empathise because we recognise the offender’s inherent dignity and that they are made in the image of God, and we acknowledge that the offender is like us because, after all, ‘we are all offenders’ (Wood, 1991: 81). Yet the current climate is one of late-modern individualism where ethical egoism can be seen to dominate. The self is supreme, a situation that makes any form of empathetic approach – or superabundance – more challenging. And empathy is not perfect. There is such a thing as relational empathy which is more inclined to people we are related to or know. The type of empathy that is emphasised here is inclusive empathy, which is more outward looking, simply more inclusive (Oxley, 2011). It is similar to the different forms of social capital (for example, Putnum, 2000) – these being bonding social capital with those like ourselves, or bridging social capital with others. Empathy is a bridge offered to all, including our enemies. And by adopting an ethical position derived from love for enemies – an economy of gift – we offer a gift of hope by treating others with love and mercy, even if we do not expect it in return. In terms of criminal justice, this is quite different from the orthodox gift of pain that is offered by retribution. Following a logic of superabundance, reciprocity may be desired, but it is not demanded.

Conclusions It is too tempting to think of a neat divide between a law-abiding ‘us’ and a law-breaking ‘other’ (Millie, 2016). Yet, it has been highlighted in this chapter that we have all broken the law in some way or breached society’s norms and standards. As Chris Wood (1991: 81) has noted, there is a ‘basic human solidarity in sin, offence, and guilt.’ In humility we need to acknowledge that ‘we are all offenders’. Once we have done this our view of others who have wronged us has the potential to shift from

158

Criminology, Public Theology and Hope

judgement to empathy, from exclusion to a desire for inclusion. From a Christian perspective we recognise God in the offender who, like us, was made in God’s image. Translated to secular criminal justice we may not think of seeing God in others; but influenced by the Golden Rule and Kantian ethics we can identify inherent dignity in others, even if they have wronged us. According to Saint Paul, ‘the entire law is fulfilled in keeping this one command: “Love your neighbour as yourself ”’ (Galatians 5:14). To live by this command is to recognise equality between our neighbour and ourselves. Such equality is something different from the equivalence or reciprocity found in retributive justice – or lex talionis. Instead it is an equality of love. It is an inclusive empathy that aims to build relationship; it seeks hope rather than pain. It is important to make clear that equality cannot mean that we see ourselves as lower than others. Thus, just as we are to love others and show mercy and forgiveness, we are also to love, show mercy and forgive ourselves. In line with the Sermon on the Plain (Luke 6:27–36), our neighbour may be our enemy, including someone who has offended against us. Love for neighbour or enemy may appear undeserved, but it is a gift of hope. For Robin Gill (2017) loving or forgiving of enemies reflects a moral passion and demonstrates God’s grace. In an exchange relationship the giver only gives on the understanding that the receiver will give back. In a gift relationship – or as Ricoeur (1990) put it, an economy of gift – following a logic of superabundance a gift is given with no conditions because the giver wants the receiver to have the gift freely. As stated in the Sermon on the Plain, we are called to ‘love your enemies, do good to them, and lend without expecting to get anything back’ (Luke 6:35). This logic of superabundance is characterised by a compassionate generosity that gives without expecting anything in return. In translating this generosity to a secular criminal justice, the notion of just deserts becomes less relevant. The offender does not get what they deserve, instead they freely receive grace, mercy and a hope for the future. They may even receive forgiveness, although this is in the gift of the forgiver and cannot be demanded. Such a moral position is a fundamental challenge to criminal justice orthodoxy. It can of course be accused of ‘naïve idealism’ (Forrester, 1997: 30) or of being utopian in vision and unconnected to the reality of secular criminal justice where justice is required to be seen to be done and, in more serious instances, the public needs to be protected. No matter how attractive a logic of superabundance, it is possible that there will always be some offenders who are so dangerous that for the protection of others – and of themselves – exclusion is required, although this exclusion does

159

CRIMINOLOGY AND PUBLIC THEOLOGY

not have to be to a prison in the accepted sense. Such exclusion for public protection may be a compromise on Kant’s Formula of Humanity as an End in Itself. Yet even with serious offenders there is scope to reframe our relationship with them to one that is characterised by hope rather than pain, demonstrating empathy, and with greater emphasis on support, treatment and (hoped for) reintegration back into community. Below this level, alternatives to custody would be prioritised that again work with the offender. In line with Christopher Marshall (2012) a compassionate justice is possible that follows a restorative approach with greater emphasis on community (see also Chapter 12 by Joanna Shapland). By adopting a logic of superabundance the offender does not get what they deserve – in the accepted retributive sense of just deserts – but instead is given a gift of hope. In adopting such a logic of superabundance, reciprocity may be desired, but it is not demanded. As noted at the start of this chapter, the victim is often the forgotten element in many criminal justice processes. An approach centred on hope would also recognise the pains of the victim. Such a major overhaul of the criminal justice system is not likely to occur in the immediate future. Yet even now criminal justice agencies could lead by example; they could offer hope and be empathetic to the situation of others (including offenders and victims), wanting to show them the dignity they deserve. Focus would shift from retribution and reciprocity to reconciliation, restoration and maybe one day, even forgiveness. The pains of punishment would be replaced by compassion and generosity. Such a change in thinking would be quite a challenge to the status quo; yet it would a good place to start in transforming criminal justice from reciprocity to superabundance, from pain to a gift of hope. Notes 1 2

3

4 5 6

7

All Bible verses used in this chapter are from the New International Version. Traditional versions of the Lord’s Prayer refer to the forgiveness of trespasses, but the meaning is the same. For Anthony Bash (2007: 57): ‘What makes forgiveness difficult to practise comes from the fact that forgiveness is both a moral and a relational issue. It is also one that concerns justice.’ See also Exodus 21:23–24. Summa Theologica II–II, supra note 2, at q. 64, art. 2, at 1467 A controversial view among some churches that prosperity and good health are blessings from God and that by giving to others (including the church), you will also be blessed (see Bowler, 2013). According to Stephen Darwall (1977: 38) there are two forms of respect: recognition respect that is due to all persons, that ‘other persons take seriously and weigh appropriately the fact that they are persons in deliberating about what to do’; and appraisal respect that has to be earned, in view of ‘their excellence as

160

Criminology, Public Theology and Hope

8

9

persons or as engaged in some specific pursuit’. A Kantian notion of respect is a form of recognition respect due to all (Millie, 2009). Christ related to criminals through being a ‘lawbreaker’ himself, and by suffering a criminal’s execution hung on a cross between two other criminals: ‘a horrible and ignominious death. He was condemned by a Roman prefect – abetted by the Temple aristocracy – and was abandoned by virtually all of his friends and associates.’ (Skotnicki, 2012: 27) See Romans 3:23.

References

Arrigo, B.A. and Williams, C.R. (2006) Philosophy, Crime, and Criminology, Urbana/Chicago, IL: University of Illinois Press. Bash, A. (2007) Forgiveness and Christian Ethics, Cambridge: Cambridge University Press. Bottoms, A. (2015) ‘Christianity and crime’ [sermon], Trinity College Cambridge, 26 April, http://trinitycollegechapel.com/media/filestore/ sermons/2015-4-26-Anthony%20Bottoms.pdf Bourne, R. (2014) ‘Communication, punishment, and virtue: the theological limitation of (post)secular penance’, Journal of Religious Ethics, 42(1): 78–107. Bowler, K. (2013) Blessed: A History of the American Prosperity Gospel, Oxford: Oxford University Press. Bowman, H. (2019) ‘A Christian case for penal abolition’, West Hills, CA: Christians for Abolition, https://christiansforabolition.org/wp-content/ uploads/2019/06/Illustrated-intro-Xian-case-for-abolition-1.pdf Braithwaite, J. (1989) Crime, Shame and Reintegration, Cambridge: Cambridge University Press. Braithwaite, J. (2000) ‘Shame and criminal justice’, Canadian Journal of Criminology, 42(3): 281–98. Brugger, C. (2012) ‘Aquinas and capital punishment: the plausibility of the traditional argument’, Notre Dame Journal of Law, Ethics and Public Policy, 18(2): 357–72. Byrd, B.S. (1989) ‘Kant’s theory of punishment: deterrence in its threat, retribution in its execution’, Law and Philosophy, 8(2): 151–200. Christie, N. (1977) ‘Conflicts and property’, British Journal of Criminology, 17(1): 1–15. Christie, N. (1981) Limits to Pain, Oxford: Martin Robertson. Crewe, B. (2011) ‘Depth, weight, tightness: revisiting the pains of imprisonment’, Punishment and Society, 13(5): 509–29. Darwall, S.L. (1977) ‘Two kinds of respect’, Ethics, 88(1): 36–49. Death, J. (2016) ‘Child sexual abuse and the church’, in K. Sadique and P. Stanislas (eds) Religion, Faith and Crime: Theories, Identities and Issues, Basingstoke: Palgrave Macmillan, pp. 191–210.

161

CRIMINOLOGY AND PUBLIC THEOLOGY

Deuchar, R., Lerche Mørck, L., Hisbon Matemba, Y., McLean, R. and Riaz, H. (2016) ‘It’s as if you’re not in the jail, as if you’re not a prisoner’: young male offenders’ experiences of incarceration, prison chaplaincy, religion and spirituality in Scotland and Denmark’, The Howard Journal of Crime and Justice, 55(1–2): 131–50. Dubber, M.D. (1996) ‘The pain of punishment’, Buffalo Law Review, 44(2): 545–611. Edgerton, R.B. (1985) Rules, Exceptions, and Social Order, Berkeley, CA: University of California Press. Falls, M.M. (1987) ‘Retribution, reciprocity, and respect for persons’, Law and Philosophy, 6(1): 25–51. Follett, R.R. (2001) Evangelicalism, Penal Theory and the Politics of Criminal Law Reform in England, 1808–30, Basingstoke: Palgrave Macmillan. Foot, P. (1967) ‘The problem of abortion and the doctrine of the double effect’, The Oxford Review, 5(1967): 5–15. Forrester, D. (1997) Christian Justice and Public Policy, Cambridge: Cambridge University Press. Forrester, D. (2018) ‘Punishment and prisons in a morally fragmented society’, in D. Forrester (ed.) Forrester on Christian Ethics and Practical Theology: Collected Writings on Christianity, India, and the Social Order, Abingdon: Routledge. 449–63. Gardner, E.C. (1995) Justice and Christian Ethics, Cambridge: Cambridge University Press. Gill, R. (2017) Moral Passion and Christian Ethics, Cambridge: Cambridge University Press. Gorringe, T. (1996) God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation, Cambridge: Cambridge University Press. Gorringe, T. (2004) Crime, Changing Society and the Churches series, London: SPCK. Griffith, L. (1993) The Fall of the Prison: Biblical Perspectives on Prison Abolition, Grand Rapids, MI: Eerdmans. Hallett, M., Hays, J., Johnson, B., Jang, S.-J. and Duwe, G. (2017) The Angola Prison Seminary: Effects of Faith-Based Ministry on Identity Transformation, Desistance, and Rehabilitation, Abingdon: Routledge. Hart, H.L.A. (1960) ‘The Presidential Address: I – Prolegomenon to the principles of punishment’, Proceedings of the Aristotelian Society, 60(1): 1–26. Hayes, D. (2015) ‘The impact of supervision on the pains of community penalties in England and Wales: an exploratory study’, European Journal of Probation, 7(2): 85–102. Hertzler, J.O. (1934) ‘On golden rules’, International Journal of Ethics, 44(4): 418–36.

162

Criminology, Public Theology and Hope

Hill, T.E. (2000) Respect, Pluralism, and Justice: Kantian Perspectives, Oxford: Oxford University Press. Hinde, R.A. (2007) Bending the Rules: The Flexibility of Absolutes in Modern Life, Oxford: Oxford University Press. Hre Kio, S. (2000) ‘What does “you will heap burning coals upon his head” mean in Romans 12.20?’, The Bible Translator, 51(4): 418–24. Jarvis Thomson, J. (2008) ‘Turning the trolley’, Philosophy & Public Affairs, 36(4): 359–74. Kant, I. (1785/1990) ‘Grounding for the metaphysics of morals’, in S.M. Cahn (ed.) Classics of Western Philosophy (third edn), Indianapolis, IN: Hackett, pp. 1009–58. Karstedt, S. and Farrall, S. (2006) ‘The moral economy of everyday crime: markets, consumers and citizens’, British Journal of Criminology, 46(6): 1011–36. Lipka, M. (2015) ‘Some major US religious groups differ from their members on the death penalty’, Pew Research Center, 13 July, www. pewresearch.org/fact-tank/2015/07/13/some-major-u-s-religiousgroups-differ-from-their-members-on-the-death-penalty/ Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice, Eugene, OR: Cascade Books. Maruna, S. (2001) Making Good: How Ex-Convicts Reform and Rebuild Their Lives, Washington, DC: American Psychological Association. McNeill, F. (2019) Pervasive Punishment: Making Sense of Mass Supervision, Bingley: Emerald Publishing. McWilliams, W. (1983) ‘The mission to the English police courts 1876– 1936’, Howard Journal of Criminal Justice, 23(3): 129–47. Merle, J.-C. (2000) ‘A Kantian critique of Kant’s theory of punishment’, Law and Philosophy, 19(3): 311–38. Millie, A. (ed.) (2009) Securing Respect: Behavioural Expectations and AntiSocial Behaviour in the UK, Bristol: Policy Press. Millie, A. (2016) Philosophical Criminology, Bristol: Policy Press. Montero, R.A. (2019) Jesus’s Manifesto: The Sermon on the Plain, Eugene, OR: Resource Publications. Newell, T. (2007) Forgiving Justice: A Quaker Vision for Criminal Justice (revised edn), London: Quaker Books. O’Donovan, O. (2003) The Just War Revisited, Cambridge: Cambridge University Press. Oliver, K. (2017) ‘The origin and development of Prison Fellowship International: pluralism, ecumenism and American leadership in the evangelical world 1974–2006’, Journal of American Studies, 51(4): 1221–42.

163

CRIMINOLOGY AND PUBLIC THEOLOGY

Oxley, J.C. (2011) The Moral Dimensions of Empathy: Limits and Applications in Ethical Theory and Practice, Basingstoke: Palgrave Macmillan. Poplin, M. (2011) Finding Calcutta: What Mother Teresa Taught Me About Meaningful Work and Service, Downers Grove, IL: InterVarsity Press. Putnum, R. (2000) Bowling Alone: The Collapse and Revival of American Community, New York: Simon & Schuster. Ricoeur, P. (1990) ‘The golden rule: exegetical and theological perplexities’, New Testament Studies, 36(3): 392–7. Scott, N. and Seglow, J. (2007) Altruism, Maidenhead: Open University Press. Sennett, R. (2003) Respect: The Formation of Character in an Age of Inequality, London: Penguin Books. Skinns, L. and Wooff, A. (2020) ‘Pain in police detention: a critical point in the “penal painscape”?’, Policing & Society, doi.10.1080/10439463. 2019.1706506 Skotnicki, A. (2012) The Last Judgment: Christian Ethics in a Legal Culture, Farnham: Ashgate. Sowle Cahill, L. (2019) Blessed are the Peacemakers: Pacifism, Just War, and Peacebuilding, Minneapolis, MN: Fortress Press. Sundt, J.L. (2010) ‘Maruna, Shadd: redemption scripts and desistance’, in F.T. Cullen and P. Wilcox (eds) Encyclopedia of Criminological Theory Volume 1, Thousand Oaks, CA: Sage, pp. 574–6. Sykes, G. (1958) The Society of Captives: A Study of a Maximum Security Prison, Princeton, NJ: Princeton University Press. Taylor, J. (2010) ‘Forgiveness cannot be demanded, says Tutu’, The Independent, 13  May, www.independent.co.uk/news/uk/home-news/ forgiveness-cannot-be-demanded-says-tutu-1972201.html Tutu, D. (1999) No Future Without Forgiveness, London: Rider. Tutu, D. (2015) ‘Foreword’, in M. Cantacuzino, The Forgiveness Project, London: Jessica Kingsley. The Vatican (2018) ‘New revision of number 2267 of the Catechism of the Catholic Church on the death penalty – Rescriptum “ex Audentia SS.mi”, 02.08.2018’, Press Office: ‘Summary of Bulletin’, https://press.vatican. va/content/salastampa/en/bollettino/pubblico/2018/08/02/180802a. html Wood, C. (1991) The End of Punishment: Christian Perspectives on the Crisis in Criminal Justice, Edinburgh: Saint Andrew Press.

164

PART II

Criminal Justice, Mercy and Restoration

8

Mercy Triumphs over Judgement: Intrusive or Enabling Mercy? Richard Bourne

Blessed are the merciful (Matthew 5:71). Who could possibly disagree? As an abstract virtue mercy is often lauded. It displays humane modesty, integrity and compassion. But it is a virtue whose practice generates considerable controversy and consternation. To whom should we act mercifully? On what grounds? What of justice? In discussions of criminal justice the invocation of mercy is often perceived to run counter to the demands of justice. Within Christianity the problematic is long contested. The epistle of James paradoxically enjoins mercy and threatens with retribution those who do not act mercifully. ‘For judgment will be without mercy to anyone who has shown no mercy; mercy triumphs over judgment’ (James 2:13). The dominant solution in Christian thinking, especially in the West, has been to understand justice retributively, and thus to construe mercy as an intrusion which compromises deserved punishment. For much of the tradition such an intrusion is worthy but episodic or selective. This chapter briefly identifies the theological precedents and secular transformations that eventually led to the eclipse of mercy in public judgement. It then explores the communicative justification of punishment and demonstrates that, in retaining the traditional retributivist antinomy of justice and mercy it undermines the effectiveness of punishment as an invitation to reform. By contrast, this

167

CRIMINOLOGY AND PUBLIC THEOLOGY

chapter will argue that mercy is to be regarded as the operative condition of justice. Divine mercy founds the pursuit of justice not on a requirement for reform, but on a gift of penitential time in which restoration and reform occur as phenomena of gratitude. Finally, it explores how this has the potential to broaden discussions of desistence to a fuller account of the criminogenic elements of desire – as a central element of sustained desistence from crime.

Retribution and the eclipse of mercy For a great deal of Christian thinking the paradigm of Jesus shapes both the concept and the practice of the virtue of mercy. The conundrum of how to relate mercy and justice took on a particularly pronounced tension once Christianity, after Constantine, found itself needing to articulate both the upholding of order and the exemplary mercy of Christ. For Augustine this tension was, in part, attenuated by a twin-set of divisions of labour – first, that God’s retributive justice was not so much a licence for state retribution but the delimitation of the role of human law to the preservation of the public good; and second, that the role of the ruler who must exercise political authority is distinct from the role the church, which is free to exemplify mercy and intercede on behalf of offenders (even the heretics whom Augustine famously opposed). Nonetheless, as Tuckness and Parrish (2014) show, in embedding in Christian thought the distinction of justice and mercy, the seeds are sewn for the later full eclipse of mercy in public life. The tension is not so much resolved but sustained and rendered tolerable through a rather fideistic2 appeal to human finitude. Rather than question retributive justice Augustine sets the trend of shrouding it in the mystery of inscrutable divine will. In chapter 98 of the Enchiridion on Faith, Hope and Love he asserts that when God elects to save ‘He does it of mercy; when He does it not, it is of justice that He does it not’ (Augustine, 1961: 112). While this may be conceptually unsatisfying it had the practical effect of chastening human practices of punishment. The very same limitation of human knowledge that prevents us understanding how divine retribution and divine mercy can coinhere also prevents us from perfect knowledge of the true motives of others, or indeed of ourselves. As such knowledge would be essential for the discernment of true just deserts, human punishment is more modestly consequentialist in scope, serving prevention, deterrence and the maintenance of order. Only once this functional limitation to human judgement and the authority of law is undone in the modern period is mercy largely excluded from public judgement.

168

Mercy Triumphs over Judgement

The conceptual tension of mercy and justice becomes all the more pronounced as accounts of the atonement solidify a retributive understanding of justice. In his abstract meditation, the Proslogion, Anselm famously appears to construe mercy as a diminution of the justice that is of the very being of God. ‘But how do you spare the wicked if You are all-just and supremely just? For how does the all-just and supremely just One do something that is unjust? Or what kind of justice is it to give everlasting life to him who merits eternal death?’ (Anselm, 1998: 91–2). For Anselm it remains the cases that divine beneficence to the wicked remains part of God’s justice: ‘He who is good to both good and wicked is better than he who is good one to the good.’ This plenitude of goodness remains mysterious. There is no conceptual resolution but again an appeal to mystery ‘For even if it be difficult to understand how Your mercy is not apart from Your justice, it is, however necessary to believe that it is not in any way opposed to justice’ (Anselm, 1998: 93). He recoils from the conclusion that it is unjust for God to be merciful, declaring this view improper. Indeed, this impropriety is founded on the fittingness of divine mercy – which is indexical not to our desert but to the supreme goodness and glory of God himself. However, this note of mystery is compromised in Anselm’s later Cur Deus Homo wherein the satisfaction of infinite injury to supreme honour requires the execution of Christ to achieve atonement. The economy of honour and dishonour morphed in the Reformation to a juridical economy of just punishments. Mystery becomes contradiction when the freedom of God to forgive without satisfaction is declared impossible – God must uphold his own honour. But, importantly, humans may and must forgive in precisely the way that would be unfitting for God. However, the remit of human law is by this time framed in part around the right of temporal authorities to act directly in the place of God, thus they must punish retributively rather than forgive (Tuckness and Parrish, 2014: 116). Rather than allow divine mercy to bring into question the picture of divine retribution, the appeal to mystery serves both positively – as a chastening of the ambitions of human law to achieve justice – and negatively – entrenching retributivism within the theological tradition. In a complex sequence of developments the tension fades from a mutual balance of mercy and justice to a distinct privileging of the latter. From Aquinas (as we shall see) to Luther and Calvin, and thence into modernity, an essentially retributivist account of punishment was strengthened. The sense that divine judgement tempered the remit of human justice erodes in modernity, and retribution is then found to be, albeit proximately, the dominant rationale for human practices of punishment. In contrast with

169

CRIMINOLOGY AND PUBLIC THEOLOGY

the functional distinction of human and divine justice, the position that emerges among 17th-century natural law thinkers is that human and divine justice are based on the same consistent principle (Tuckness and Parrish, 2014: 260). Thereby mercy is excluded. The Kantian translation of this theological trope is the common motif that mercy fails to treat the offender as genuinely responsible and autonomous. It is an offence against justice itself. In contemporary retributivism, while intrusive on it, mercy requires a form of retributive justification of punishment – that is, mercy is indexical to justice, a leniency calculated as a reduction in the punishment deserved. In this form of Kantian retributivism to punish less than is deserved is inherently unjust; it construes the offender as something less than a rational and responsible agent. It is thus a form of implicit condonation of the wrongdoing. Michael Moore (1987: 215) expresses this stridently when he accuses ‘It is elitist and condescending toward others not to grant them the same responsibility and desert you grant to yourself.’ We may render Kant’s objection to mercy, then, as a failure to address the offender adequately. While contemporary retributivisms remain ‘backward looking’ in that punishment is envisaged to address a past wrong, this is so not so much in a vain attempt to reach back and amend the past, but as Hegel identifies, to address the continued presence of the past wrong in the unrepentant will of the offender (Hegel, 1991: 124–6). That said, for Hegel himself retribution remains a restating of the offence itself against the offender, albeit in the apparently disconnected form of a ‘different external existence’ (Hegel, 1991: 129). For contemporary retributivists, rather than conceive of punishment as a rebalancing of the moral order through an economy of pains, a proportionate use of such hard treatment is often regarded as the state’s reply to the wrongdoer, a proxy response to the demeaning ‘message’ that the wrongful act conveyed to the victim. Punishment reasserts the value and position of the victim: ‘his elevation over me is denied, and moral reality is reaffirmed’ (Hampton, 1988: 125). Many such defences, including those seeking to do justice to Christian love embodied in legal practice, continue the modern institutional separation of victims’ rights and experiences from the remit of criminal proceedings. For Jeffrie Murphy (2017), Christian love does require the exhibition of mercy in relation to criminal justice, but only epiphenomenally and exceptionally. For Murphy, mercy is distinct from forgiveness in two important ways – first the agent of mercy is not the victim but a legal authority who, as such, does not have feelings of resentment to overcome. Second, while a victim may forgive privately, mercy occurs publicly. Where forgiveness is entirely compatible with and distinct from advocacy for the offender’s undergoing ‘the legal

170

Mercy Triumphs over Judgement

consequence of criminal punishment’ (Murphy, 2017: 159), mercy is not. A criminal trial would be different from a private tort precisely in not considering the forgiveness or satisfaction of the victim’s desires (whether for harshness or clemency), a determining factor in identifying an outcome for the legal process. Criminal process has to do with other values – crime control or justice (equated with ‘just deserts’) as well as the interests of the victims. Mercy has little presence in law in such a process, for Murphy argues that while Christian love may well extend a requirement for mercy to be shown to criminals, this does not obviate the requirement to punish, but only subsequently leaves room for considering relevant features of an offender’s intent (their remorse, repentance, or apology), which might legitimately incline one to favour a reduced sentence for that offender. As such, mercy and justice are based on distinct and competing norms; in practice such displays of mercy are appropriate to ‘executive clemency decisions rather than at the time of sentencing’ (Murphy, 2017: 159–60).

Aquinas and Duff: communication, penance and mercy3 This Hegelian focus of retribution on the offender’s current will raises the question, why should some state-inflicted hard treatment be regarded as an effective punitive address to the will of the wrongdoer? While expressivist or communicative justifications of retributive punishment give some provision for both the public practice of mercy and the hope of rehabilitation which it provides, by continuing to define mercy as a contrary norm to justice they undermine the effectiveness of the communication. If, on its best account, punishment serves as an invitation to reform, by failing in its communication it is no longer just. The communication fails precisely because of the dubious language chosen. The currency of hard treatments is held, without plausible evidence of its effectiveness, to be sufficiently fungible that the wide variety of pains encountered in contemporary criminal sanctions (or some justified subset of them) are deemed to be well heard by offenders as justified censure (Feinberg, 1970; Hampton, 1988) and/or an invitation to change (Duff, 1986). Antony Duff (1986: 233) presents the process of criminal trial as an attempt to ‘engage the defendant in a rational dialogue about the justice of the charge which she faces, and to persuade her – if that charge is proved against her – to accept and make her own the condemnation which her conviction expresses’. The process of trial and punishment aims not simply to encourage a prudential decision for obedience to

171

CRIMINOLOGY AND PUBLIC THEOLOGY

law, but to elicit from the offender an appreciation of the wrongfulness of his or her action. Punishment is communicative, rather than simply expressive in so far as it represents a rational and reciprocal act in which the offender is engaged as an active participant (Duff, 2001: 79–80). The communication of censure is accompanied by a communication of that society’s demand for repentance and reform. Indeed, unlike expressivist justifications, whether secular (Feinberg, 1970; Primoratz, 1989) or theological (O’Donovan, 1998; 2005, 101–24), it also presents the offender with a means of response. However, the intent to hold together censure and invitation becomes difficult in Duff’s account because he retains a retributivist separation of justice from mercy. In contemporary analytic defences of penitential retributivism this characteristically takes the shape of a construal of mercy as exceptional and intrusive on the domain of justice (Murphy and Hampton, 1988; Garvey, 2004, 2007; Duff, 2007, 2011). In legal practice, the antonymic separation of justice from mercy became dominant in the medieval development of Gregorian canon law. There mercy is tamed, becoming at best a defence of equity in punishment, and a rationale for modest and occasional clemency. Mercy was held to temper the excesses of the demand for justice; mercy seasoned justice to render it more palatable. It was, however, subordinate to the divinely maintained balance between transgression and retribution (Slaughter, 2010: 437). The increasingly rationalist juridification of justice thus took leave of the earlier properly mysterious coextensive relation of justice and mercy (Berman, 1983: 179). The shift in the relation between the two was far from uniform. Building on the Augustinian and Anselmian moves outlined earlier, Thomas Aquinas (ST4 I–II, Q.87, A.1, A.6) advanced a simple retributivist demand for punishment deserved for damage to the order of human law. Yet he also provided an account of the non-competitive compatibility, if not simple harmony, of justice (iustitia) and mercy (misericordia) which had the (unfortunately underdeveloped) potential to at least chasten the triumph of retributive justice-as-fairness over the restorative justiceas-reconciliation. In Aquinas the deserved punishment for violation of human law is distinct from the pain of remorse, which arises from the sin violating reason itself and from the violation of divine law, in which punishment is, or may be, inflicted by God. This latter was understood in a clearly expiatory and propitiatory defence of redemptive suffering (ST III, Q.49, A.3–4). On the basis of which it is hardly surprising to hear him argue for something strikingly close to Duff’s picture of punishment: The stain of sin cannot be removed from man (sic) unless his will accept the order of Divine justice, unless either of

172

Mercy Triumphs over Judgement

his own accord he take upon himself the punishment of his past sin, or bear patiently the punishment which God inflicts on him; and in both ways punishment avails for satisfaction. Now when punishment is satisfactory, it loses somewhat of the nature of punishment: for the nature of punishment is to be against the will; and although satisfactory punishment, absolutely speaking, is against the will, nevertheless in this particular case and for this particular purpose, it is voluntary. […] We must, therefore, say that, when the stain of sin has been removed, there may remain a debt of punishment, not indeed of punishment simply, but of satisfactory punishment. (ST I–II, Q.87, A.6) It is notable that this sense of the transformation of punishment in becoming ‘satisfactory’ is here predicated on the continued pertinence and power of divine mercy. Unlike the simplistic construal of mercy as a supererogatory form of punitive leniency, Aquinas insists on the more basic foundation of mercy in charity, such that the community may aid the offender’s recovery of virtue (ST II–II, Q.25, A.6, ad. 2).5 We shall see later in our discussion the importance of framing this wider communal reintegration as central to desistence. It is necessary to note two areas of contrast between Aquinas’ view and that of Duff. In the first instance, Duff’s view is clearly more appealing in that it repudiates the most basic form of retributivism which may be called the justification of deserved pain, whereby hard treatment is justified on the basis of an uncritical baptism of the allegedly universal intuition that wrongdoers deserve to suffer. The pain of remorse is central to Duff’s argument that restorative justice still enacts an essentially retributive restoration (Duff, 1998, 2002, 2003; see also Daly, 2000). Though somewhat ill-defined in most retributive accounts, remorse is clearly somewhat more than pangs of regret. It is, one might suggest, regret driven to self-censure: in remorse I do more than merely regret the harms done (although I may come to appreciate these in a deeper empathy with the victim); I also begin the process of disavowal of the desires, passions, intentions or choices from which the wrongdoing flowed. Importantly, it is in seeking to induce remorse that practices like mediation and community service retain, for Duff, a retributive justification (Duff, 1992, 2001, 2003). The pain of remorse is the recognition of guilt. This is to be distinguished from the anguish generated in the realisation that such guilt warrants my own hard treatment. This latter claim is found, for example, in Michael Moore’s (1997: 145) notion of ‘feeling guilty unto death’ for committing some horrific offence. Here Duff rightly regards Moore’s essentially intuitionist

173

CRIMINOLOGY AND PUBLIC THEOLOGY

account of remorse as reducible, wholesale to what has here been named deserved pain (Moore, 1997: 104–52; Duff, 2001: 24–5). The justifiable and necessary pain of remorse is far closer, one might suppose, to the ‘godly grief ’ induced by St Paul’s lost letter of rebuke to the Corinthians that moved the recalcitrant community to repentance (2 Corinthians 7:8–13). This, as Aquinas points out, is the root of the Latin contritio – to crush. Thus ‘because remission of sin requires that a man (sic) completely relinquishes the effects of sin, through which he had a certain continuity and solidity in the sensitive part of his soul, this act by which sin is forgiven is […] called contrition’ (IV Sent 6 d.17.q.2.a.1. Qa.1., cited in Luijten, 2003: 56). Aquinas seeks to harmonise the tension of retribution and mercy arguing that the latter exceeds and perfects justice. By contrast for Duff, mercy is ‘an intrusion into, rather than an aspect of, the criminal law’s normative structure’ (Duff, 2007: 362; see also 2011: 478). This is not to say that he thinks such leniency inappropriate or unjustifiable. Rather, it is the exceptional interposing of justifiable concerns for elements of the human condition of the offender (their socioeconomic situation, family obligations and so on) which are not admissible within the consideration of the criminal act itself at trial. In arguing thus Duff elides ‘criminal justice’ with ‘retributive justice’ (Tasioulas, 2011: 41). Thus, in offering countervailing reasons for the mitigation of an offender’s sentence, mercy is found to run counter to justice itself. Important as they may be to the practice of sentencing, the grounding events of mitigation (not all of which may be adequately described as merciful) do not affect the punishment deserved. This public role for mercy is, somewhat akin to Augustine, based in part on the fallibility and partiality of human judgement. Duff (2007: 387) claims that, were we to eliminate from our consideration the excessive harshness of current penal practice, there are no grounds for conceding a role for mercy in attenuating genuine desert. In such circumstances any punishment which seeks, as mercy must, to exact a penalty more lenient than deserved, must thereby compromise the effective communication of censure and a demand for fully public repentance. Duff (2001: 118–21; 2007: 384–6; 2011: 485–7) thus construes the prior repentance of an offender as a mere private contrition, which does not warrant mitigation. This would be the case even if an offender had acted on his or her remorse by seeking out and apologising to the victim and offering some privately agreed reparation. Only by undertaking the modes of public repentance and reparation stipulated by the trial and sentencing may the offender constitute genuine repentance. On this basis, any prior repentance by an offender would not merit leniency but would permit the already repentant

174

Mercy Triumphs over Judgement

offender to regard punishment as a genuine and necessary penance from the very start (Duff, 2001: 121). A fully public form of hard treatment is held to be intrinsically appropriate to the penitential model of punishment (Duff, 1998: 164–5). Unfortunately Duff nowhere satisfactorily explains how or why hard treatment necessarily ‘constitutes a forceful and public apology’ (Duff, 2001: 119) in a way that brings about, or at least makes possible, reconciliation with the political community. Reconciliation requires the initiative and gracious invitation of the offended parties,7 and also a reasonable level of attentiveness to the response of the offender. It is thus somewhat surprising to find Duff rejecting the mitigation of sentence on the basis of the prior repentance of an offender. Communication with no real interest in reception and response is really only expressivism, and is only focused on the expression of censure and not the genuine invitation in hope of desistence.

Mercy as the operative condition of justice Traditional forms of retributivism place at the centre of justice motifs of desert and an economy of pains that balance out criminal wrongs and harms. This sits ill with the biblical vision of a relational justice (mishpat) in which any punitive action was oriented to reconciliation and restoration. The judgement of God is not merely vindictive, but vindicatory – God delights in kindness (hesed), justice (mishpat) and righteousness (tsedaqah) (Jeremiah 9:24). Rhetorical contrasts of the thick and relational concepts of biblical justice (tsedaqah) from a thin procedural and retributive justice (iustitia) are inevitably simplistic. They do serve, however, as a reminder of the limits of the practice of justice in modern liberal societies, in which the state has become both the arbiter and the agent of justice, its own satisfaction of an abstract principle that effectively disenfranchises the actual victims of crime. The reciprocity and reconciliatory intent of Duff’s communicative model articulates some scope to close the distance between the two accounts. The secular act of judgement and censure retains an analogical link with biblical account of divine wrath and judgement; both are essentially communicative and invitational. God’s wrath (orgē) is not primarily an emotional disposition or condition (affectus) but an act (effectus) – the opposition to sin known as judgement. Judgement aims to elicit a response of repentance, remorse and moral change.8 Thus wrath and reconciliation are far from antonymic. Where communicative forms of retributivism still render mercy as an intrusion into the realm of justice, Thomas Aquinas moves partially away

175

CRIMINOLOGY AND PUBLIC THEOLOGY

from the Anselmian contradiction and conceives of the relation of iustitia and misericordia not as one of contradiction but completion – mercy exceeds and perfects the demands of justice (ST I. Q.21, A3). Unlike mercy, divine anger is never deemed to be an attributa dei.9 No balancing act is required to steady the competing demands of anger and mercy (De Grijs, 1998: 36). Here Aquinas may have been an ally for Karl Barth (contrary to his own reading). For both, because divine misericordia10 is the operative condition of divine judgement, this judgement functions as ‘the veil of the divine mercy’ (Barth, 2004, CD II.2: 214). On this basis Barth, then, insists that the primal, basic decision of God with regard to man is His mercy, the engagement of His heart, and therefore His most intimate and intensive involvement with the latter’s existence and condition. It reveals that even God’s judgment is sustained and surrounded by God’s mercy, even His severity by His kindness, even His wrath by His love. (Barth, 2004, CD II.2: 211, CD II.1: 393) God’s being is intimately connected with his mercy – in revealing his name in Exodus, he is ‘I am who I am’ and ‘I will have mercy on whom I will have mercy’ (Exodus 3:14, 33:19; see Barth, 2004, CD II/2: 219– 20). In such an account mercy does not cancel out justice, nor does justice render mercy unbecoming; only in relation to each other can the two be understood at all. They are made known not in a general conceptual articulation, but definitively in historical actuality. Here the mysterious union of justice and mercy is not construed as a fideistic acceptance of a manifest contradiction, but as the historical actuality of the revelation of God (musterion). It is the event of the gift of grace, Christ, that demonstrates, first, the actuality, and then only as such the possibility, of a union of justice and mercy. Drawing strongly on Pauline participatory descriptions of baptism as entering into the death of Christ only to then follow into the life of the resurrection (Romans 6:3–5), for Barth (1968: 112) ‘Men [sic] are forgiven by God only when He condemns them; life rises only from death; the beginning stands at the end, and the “Yes” proceeds from the “No”.’ For Barth’s famous commentary on the epistle to the Romans this is figured as an indissoluble and unharmonisable dialectic – ‘By the death of Christ we are confronted by the absolute and nor merely relative ‘otherness’ of God, and therefore by His indissoluble union with us. In manifesting the utmost limit of the wrath of God, it exposes His unfathomable mercy’ (Barth, 1968: 162). Human mercy is not an external imperative or duty but a participation in God’s reconciling economy in history. Famously for Barth, in Christ all

176

Mercy Triumphs over Judgement

are elected for salvation. Atonement is unlimited, though not necessarily therefore universal. All are judged on the cross, all are caught up in God’s gift of love. The individual act of forgiveness, and indeed the individual participation in divine patience, is only possible in Christ and as part of an economy of grace that consistently recognises the other as an elected, forgiven offender. There is, in this account, nothing twee about the invocation of the victim’s recognition of common frailty ‘There but for the grace of God go I.’ I forgive, individually, not because you, individually, forgive (a balanced economy), or because God has forgiven ‘me’ as an isolated individual, but because forgiveness marks the possibility of new action – as Hannah Arendt (1958) famously observes. The historical actuality of the event of Christ is the foundation of all human action, including of the possibility of changed behaviour. ‘Jesus lives. He lives as the Doer of this act of the free and victorious human will breaking the circle of sinful human action and being […] In Him the mercy of God which limits our misery is really present as the gift of freedom […]’ (Barth, 2004, CD IV/2: 493) Wrath and judgement are, then, not opposed to God’s reconciling mercy but find in that mercy their operative condition (Romans 9:22–3; Ephesians 2:3–10; see also Barth, 2004, CD II.1: 386–406; Travis, 2008: 53–73). Unlike many forms of retributivism here the outworking of wrath is not a pain excessive or extrinsic to the act, but the permissive and reluctant outworking of the full awful consequences of the wrongdoing itself. The censure of divine judgement aims to evoke what R.C. Moberly called the ‘wistful desire for renewed fellowship’ (Moberly, 1909: 65; Fiddes, 1989: 104–5). Thus, divine judgement is the enacting of the opposition to sin that invariably entails an invitation to obedience. The invitation is not secondary to or distinct from the act of judgement. The utter repudiation of retribution by Jesus (Matthew 5:38–48; Luke 6:27–36) runs counter to large swathes of Christian history and thought in which pain serves as currency in a divine–human exchange. Christopher Marshall (2012; see also Chapter 6, this volume) considers how the parables of Jesus explore the rejection of simple desert, the insistence of what is owed under the law, in favour of the transformative power of mercy. In the parable of the Good Samaritan (Luke 10:25–37), the Samaritan is the paragon of one whose status under Torah would demonstrate the treacherous absence of merit and standing. The scandalous reversal of social stigma in the parable shows that an act of mercy in transgression of rules of purity and identity ‘satisfied the deepest meaning of the law. […] The continual and habitual practice of restorative mercy is an essential individual requirement for entry to the age of salvation’ (Marshall, 2012: 132). Indeed, as Marshall’s exploration of the parable of the Prodigal Son

177

CRIMINOLOGY AND PUBLIC THEOLOGY

(Luke 15:11–32) shows, the insufficiency of the remaining son’s demand for the exercise of the retributive desert is as much the subject of the parable as the gracious gift of welcome of the younger son who returned home from humiliation. In the end, it is not the treatment of the younger son – who departed in rebellion and returned in humility and repentance – which is contrary to and in excess of justice, but the attitude of the older son, whose adherence to the demands of retributive balance and sense of his own rectitude prevents him from the fuller justice of reconciliation and the flourishing that comes in mercy (Marshall, 2012: 234–42). As with contemporary retributivism’s roots in the account of atonement developed in Augustine and especially Anselm and the magisterial reformers, so here the account of mercy and justice is grounded in a vision of the atonement. Restorative justice does not render substitutionary language inappropriate, however. The claim that Christ died ‘for us’ or ‘in our place’ can be fruitful if it is governed by an appreciation of how such metaphors only make sense when framed within the loving mercy of God. God’s mercy does not demand obedience as the cost of entry into salvation. Instead God invites our obedience, the fragmentary recovery of our own full humanity, enabled by the Holy Spirit, as a grateful recognition of God’s grace. To quote Katheryn Tanner (2001: 88) ‘[t]he cross simply does not save us from our debts to God by paying them. If anything, the cross saves us from the consequences of a debt economy in conflict with God’s own economy of grace by cancelling it’. Anselm’s exploration of the relation of divine justice and mercy in Proslogion is not, contrary to how it is often treated, an abstract conceptual puzzle. It is not so much about how one may understand the interconnection of two attributes, but a theodical question – how can God who is fully just, save the wicked without thereby undoing his own justice? Or do You with justice in one way punish the wicked and with justice in another way spare the wicked? For when You punish the wicked it is just, since it agreed with their merits however, when You spare the wicked it is just, not because of their merits but because it is befitting to Your goodness. (Anselm, 1998: 93) Nowhere in this discussion does Anselm engage with St  Paul’s own wrestling with a similar conundrum – nor does he seem aware that his chosen resolution, an appeal to arbitrary selection based in inscrutable judgement, is diverted and transformed by Paul in Romans 9–11. Of course, the significant difference is that Anselm’s statement of the problematic is individualised, where for Paul justice, as relational, is never

178

Mercy Triumphs over Judgement

an individual but a communal reality. The problematic Paul engages with is not so much one of whether an individual sinner deserves salvation, but how the pagan nations might be included in the salvation of Israel, and the fate of those in Israel who have not recognised the gospel. Framing his discussion with a quotation from Exodus 33:19, that God is the one who has mercy on whom he has mercy (Romans 9:15), Paul poses the question of a just double election: What if God, desiring to show his wrath and to make known his power, has endured with much patience the objects of wrath that are made for destruction; and what if he has done so in order to make known the riches of his glory for the objects of mercy, which he has prepared beforehand for glory. (Romans 9:22–3) After narrating key episodes in the election of Israel, demonstrating that God’s chosen people have been sustained through grace, Paul again highlights the potential tension: ‘Note then the kindness and the severity of God: severity toward those who have fallen, but God’s kindness toward you, provided you continue in his kindness; otherwise you also will be cut off’ (Romans 11:22). But rather than permanently counterpoise severity and kindness in the being of God, the inscrutability of God’s ways in history is figured as a primordial and ineliminable mercy: Just as you were once disobedient to God but have now received mercy because of their disobedience, so they have now been disobedient in order that, by the mercy shown to you, they too may now receive mercy. For God has imprisoned all in disobedience so that he may be merciful to all. (Romans 11:31–2) God holds open the current time in order that all will come to recognise his mercy. The current inscrutability of God’s ways in history is not a shroud for arbitrary double predestination11 but the gift of a penitential time which will end in the mercy of salvation of all. The incongruity of grace is such that, as John Barclay suggests, the gift ‘creates new modes of obedience to God, which arise from the gift as ‘return’ to God […] the transformative power of grace thus creates a fit between believers and God, which will be evident in the eschaton’12 (Barclay, 2015: 569). The reciprocity of mercy (Matthew 18:35; Romans 4:16, 5:20, 6:14–15, 15:7; Ephesians 4:32; Colossians 3:13; 1 John 4:19; James 2:13 and 1 Peter 4:8) is a form not of balanced exchange but of humble recognition of the

179

CRIMINOLOGY AND PUBLIC THEOLOGY

incongruity of grace under which human action is set. So, Barth insists the possibility of change of character and action has the character of a gift: The newness of the new creature is not therefore, a goodness which he has achieved himself, or which has been imparted to him or infused into him, but simply the goodness promised and done to him in the new position of his proximity to the kingdom of God, his confrontation with Jesus. […] It is what they have received and would always receive that they are to bring to others. […] Not ‘give and take’, but ‘take and give’ is the golden rule of life […] (Barth, 2004, CD II/2: 694) Where mercy for the righteous was a common enough expectation in the Second Temple period (for example, 4 Ezra), as Barclay highlights ‘Paul opposes this reasonable construal of divine gift because he thinks that God has acted in Christ in a way that draws no distinction between ‘the righteous’ and ‘the unrighteous’: ‘works’ are irrelevant to the elective purposes of God (cf [Romans] 9:12)’ (Barclay, 2015: 542). Paul is not content with the salvation of a remnant and the just damnation of the rest (Israel and the nations). Israel – the elect community created by God not on the basis of the merit or virtue of the patriarchs but precisely on God’s foundational mercy (Romans 4, 9) proceeds now in ‘an invincible, non-reversible momentum […] sweeping the world’ (Barclay, 2015: 549). The scandalous claims that God’s justice is achieved in his patient peace making (Romans 5:1, 9–11) entails a fundamental theological assertion about human agency in history. To act mercifully in pursuit of justice is, in John Howard Yoder’s (1988: 58) words, to ‘work with the grain of the Universe’. God’s action in history is to provide the gift of time in which all things are gathered up in Christ (Ephesians 1:10). The executed Christ is the one in whom all things are made (Colossians 1:16–17). As Marshall (2016: 135) puts it ‘Peace is both ontologically prior to violence and eschatologically posterior to it.’ In this sense it is the mercy of God which makes human action possible, and is the ground, in our terms the operative condition, of justice. A primal mercy underlies all human action. Human punishment can only then be licit to the extent that it is modest in its aims. It cannot inflict pain and hard treatment as a currency which sets in balance a damaged moral order, but it can, in the infliction of highly circumscribed forms of hard treatment, hold open the space for the non-fungible pains of remorse, repentance and desistence from crime. Penitential time is a strange gift to be sure. It is an invitation to feel the full force of the pains of remorse, but to know these as temporally limited. Unlike consequentialist justifications of punishment, which are exclusively

180

Mercy Triumphs over Judgement

focused on instrumental future goods, and conventional retributivism which entails little concern for the future, a non-retributive invitational punishment would seek to address the offender with their past wrong, its continuation in their present will, and to provide for them a picture of the future in which they can experience greater flourishing.

Mercy, desire and the possibility of desistence This, then, requires a fuller account not just of moments of religious conversion, but of the hard, lengthy and often ambiguous processes of change of character and action: in theological terms ascesis and sanctification; in criminological terms, desistence from crime. The temporary pains of remorse mark not just the initial and sometimes horrific realisation of the harm done and pain caused to victims, but also incorporate the various pains of desistance. Progress in desistance is not linear. Even after many years without criminal offending, financial, employment or relational barriers to desistence make recidivism more likely. This is especially the case where a primary desistance from particular acts of offending is not accompanied by a larger secondary desistance, understood as a change in self-identity (Maruna and Farrall, 2004). Wider reintegration is also essential. Described by McNeill as a tertiary desistence, the changed self-identity must be recognised by others – society, the community, or at least those in whom one finds one’s closest identity (family, romantic relationships) (McNeill, 2016). Nugent and Schinkel (2016) delineate this as act-desistance, identity desistance and relational desistance. They identify three pains occurring in efforts for desistance – each of which can occur at any of the three forms – the pain of isolation, the pain of goal failure and the pain of hopelessness. The pain of hopelessness is a parasitic totalisation of the pains of isolation and goal failure. Conversely, ex-offenders who develop strong social links, or who are supported to develop a sense of themselves and their value stand a better chance of genuine desistance. ‘Relational desistence’ is not simply the third in sequence, but the environment in which act-desistence is sustained. For Paul, the gift of penitential time is a gift held in common. It is in reintegration into the community that the burdens of those struggling with transgression are borne together (Galatians 6:1–5). Central to this, for Paul, is the baptismal logic of identity desistence: not so much of a strenuous effort of selfrecreation, but the event of being radically disconnected from one’s prior identity by the interruptive grace of the event of Christ. There are both parallels and significant differences between models of desistence from

181

CRIMINOLOGY AND PUBLIC THEOLOGY

crime and the practices of reshaping action and identity in Christian practice. Both focus on the possibility and practice of act-desistence as it relates to the nexus of identity-desistence and relational-desistence. This chapter suggests that the Christian traditions of the formation of desire provide scope for critical consideration of the social, political and cultural determinations of criminogenic behaviour, and thus an account of the nature of desistence in the foundational reality of divine mercy. The pastoral governmentality that emerges in Christian monastic and ascetic practices finds a contemporary parallel in contemporary models of desistence. Neither is without risk of a technocratic drift which, rather than framing individual tertiary desistence around a communal duty of welcome, instead overshadows individual benefit in the name of community cohesion of management of risk to the social good. Desistence literature is diverse and often oriented predominantly to models of social control and technocratic interventions in which the goods and motivations of the offender are eclipsed by social pragmatics focused on risk factors and client deficits. Control the variables of risk, need and responsivity (the RNR model – Andrews and Bonta, 2016) and recidivism is substantially reduced. The focus is on ‘dynamic risk factors’ – especially on the criminogenic psychological needs of autonomy, relatedness and competence, and the criminal maladaptations generated when they are not met (Deci and Ryan, 2004; Ward and Maruna, 2007: 48). However, the individual failing of offending is a calculative one (conscious or otherwise). The moral anthropology underlying this appears largely Benthamite – with a simple and largely rationally construed calculus of pleasure and pain in response to criminogenic social factors. Offending arises from a miscalculation in a social context wherein the rewards of offending behaviour are, or appear to be, high. Unlike Bentham, there is little here of the dubious assertions of increased penalty as serving a significant deterrent in the rational calculus. However, what remains of the hedonic calculus is a pragmatism regarding the immediacy and likelihood of the success of the penal or rehabilitative intervention. The RNR model chastens interventions on the basis of the responsiveness of offenders – determined as their motivational profile (from learning style, personality, ethnic identity). The focus is on the amenability of the individual to positivist techniques of change; a focus on the ‘general personality and social psychology of antisocial behaviour’, which focuses on cognitive social learning to the exclusion of cultural and political analysis. Social, cultural and economic factors are contextually relevant but not largely recognised to contribute causally. While the individual offender is the primary locus of rehabilitative work the primary benefit articulated in most RNR

182

Mercy Triumphs over Judgement

approaches is the reduction of harm inflicted on society (Ward and Maruna, 2007: 67). While some prioritisation of resource and awareness of risk factors is inevitable in pragmatic judgement, the RNR model is rightly criticised for its narrowness. A stronger emphasis on individual benefit and agency is found in the good lives model (GLM) (Maruna, 2001; Ward and Maruna, 2007). There are two promising parallels with the account developed in this chapter: a positive or hopeful moral anthropology and a narrative construction that seeks to break the episodic and atemporal emphasis of current retributive penology. The practice of ex-offenders creating desistence narratives is founded on a fundamental commitment to the ‘moral redeemability’ of offenders; that criminality is an adaptation to life circumstances and not an inherent or unchangeable trait of a particular individual (Maruna and King, 2009). The inner resources of the person empower genuine change, with guidance and support to rewrite their personal narrative. GLM rightly broadens the account of both motivations and needs articulated in its underlying moral anthropology. ‘Avoidance goals’ aimed at reducing or eliminating negative experiences (arrest, imprisonment, family separation, isolation, stigma and so on) have been found to be initially powerful, but are far less sustainable as motivators in comparison with positive ‘approach goals’ articulating the personal benefits of desistence (fulfilling relationships, financial or professional success, a renewed sense of purpose) (Ward and Maruna, 2007: 101). The correlate of the ‘redeemability’ of offenders is a degree of psychological plasticity that is shaped by an agent’s environment, and as such, is malleable to intentional revision. Despite the claim that GLM ‘has a relatively robust conception of human nature’ this remains articulated as a set of prudential rather than moral or epistemic goods (Ward and Maruna, 2007: 106–7). The notion of primary goods lacks a frame of a substantive moral anthropology or teleology. Advocates of GLM are clear that life is teleological – it proceeds in awareness of, even if not always articulation of, a sense of goal and purpose. They do not however state what that goal is. It remains, in this respect, a fundamentally liberal account – focused on a universal set of primary goods without recourse to an explicit unifying vision of human flourishing. Primary goods include life, knowledge, excellence in play and or work (including mastery experiences), agency (i.e. autonomy and selfdirectedness), inner peace (i.e.  freedom from emotional turmoil and distress), friendship (including intimate, romantic and family relationships) community, spirituality (in the broad

183

CRIMINOLOGY AND PUBLIC THEOLOGY

sense of finding meaning and purpose in life), happiness and creativity. (Willis and Ward, 2013: 308) Notably, the genealogy of thinkers Ward and Maruna provide for the focus on ‘the good life’ and the ‘Greek’ view of happiness and wellbeing has no real consensus among them on human nature, but many from Aristotle to MacIntyre would regard this as something determined by a wider teleology, a narrative beyond the individual. Such wider teleologies are unavoidably moral and social, rather than purely pragmatic or individually constructed. The Aristotelian account famously articulates vicious excess or deficiency as twin dangers in the pursuit of any virtue oriented to eudaemonia.13 For MacIntyre, the strong narrative structure of teleologies in traditions are not separable from individual stories and values. For both GLM and for MacIntyre, stories are fungible, developing and indispensable. As MacIntyre (1985: 216) insists, ‘deprive children of stories and you leave them unscripted, anxious stutterers in their actions as in their words’. In the account of the primacy of mercy outlined earlier, the teleological gift of penitential time permits the creation of such redemption scripts, which then enable the offender to ‘rewrite as shameful past into a necessary prelude to a productive and worthy life’ (Maruna, 2001: 87). The theological parallels are more than coincidental. Maruna et al. (2006) explore the theological framings of forgiveness and religious conversion as a strong example of a ‘second chance’ where the redemption script extends to the baptismal creation of a new identity, thereby shedding stigma; it imbues the experience of punishment (imprisonment) with a purpose and meaning, creates a new sense of power as an ‘agent of God’ and, importantly given our emphasis on the gift of penitential time, it both provides a language and framework of forgiveness and provides ‘a sense of control over an unknown future’ (Maruna et al., 2006: 161). These are a particular religious sub-type of the wider construction of hopeful self-narratives. Unlike reductive rational choice models of rehabilitation, the narrative focus of GLM does not assume a simple calculative agent who can desist merely through a heroic act of rationality and volition. There is no sense that crime or desistance from crime are simply a choice. However, these individually constructed self-narratives may enable a wider focus, in which choices but also emotions, dispositions and attitudes are prominent features. However, the lack of wider socio-political contextualisation of primary goods means that the structural shaping of desire, and its criminogenic potential, are not featured. By contrast for much of early Christian tradition, from Augustine to the Cappadocians, individual

184

Mercy Triumphs over Judgement

narratives of sin and sanctification are articulated around a rich theological anthropology in which human action is not construed primarily as calculus or adaptation to achieve specified goods, but as directions of love and/or desire. Indeed, the primary goods noted in GLM are, in this perspective, themselves proximate goods to be valued appropriately through an education of desire which finds its final telos in God. Each primary good is liable to being loved inappropriately, inordinately, or achieved unjustly if not oriented to the common good. The Pauline vision of divine patience as the means by which God mercifully reconciles the world to himself (Romans 9–11) is articulated directly after Paul gives robust consideration to the education of desire and the complexities of sustaining the identity in Christ inaugurated at conversion. The struggle in sustaining desistence may find here an express recognition of the necessity of a wider grace. Where much desistence literature focuses on maladaptations of individual strategies for achieving basic human goods, there is little articulation of the social formation of desire as itself potentially criminogenic – of the structures of desire as key to criminal offending. Conversely, desire and emotion are foregrounded in forms of ‘cultural criminology’ which themselves often lack an account of desistance. Where RNR largely developed in a pendulum swing away from a focus of structure to an account of individual agency, cultural criminology seeks to unite structure and agency in ways that more fully accounted for the criminogenic patterns of life in late modern consumer capitalism14 (Young, 1999). Drawing on Jack Katz (1988, 1999), it places emphasis on the emotional experience of crime as a means of self-expression and perceived revolt against the mundanity and banality of late modern urban life (Hayward, 2004: 151–2). An urban experience of simultaneous cultural inclusion into the desires and ideal self of late modern consumerism, appear in late modern consumer societies alongside endemic structural exclusion from the attainment of such goals. This is described by Jock Young (1999) as the ‘bulimic society.’ The prevalence of anomie, frustration, exclusion and alienation generates both expressive crime and the erotics of transgression. This erotics includes, for example, an exaggerated performance of masculinity which itself seals the offender into low-paid and insecure employment and thereby denies them the self-realisation they have been promised by a putatively meritocratic (but in fact highly privileged and stratified) social order. Thus, any repudiation of the prior identity in the creation of a redemption script must include within it a reflection not just of goods and motivations, but on desire. Such desires are intertwined with any sense of identity and status. Underlying much consumer-driven offending is a

185

CRIMINOLOGY AND PUBLIC THEOLOGY

permanently atomised, competitive and hostile milieu […] an ‘open competition’ with big prizes, few winners and many losers, [which is] democratising and diffusing throughout the population the psycho-social forces that fuel the search for social distinction as self-aggrandisement. (Hall et al., 2008: 206) The quest for social distinction fuels a practice of consumption that is ‘not about freedom, it is a defence against humiliation […]’ (Hall et al., 2008: 203) The discourse of failure is ever present, with neologisms like ‘nomark,’ ‘Skip rats’ and ‘Aldi-bashers,’ all of which denote the dispossessed urban poor; an insignificant ‘other’ with little self-respect or concern for consumer signification’ (Hall et al., 2008: 219–21). Here consumer goods are not loved for their own sake (in some kind of fetishised base materialism) but are the pinnacle of a rapacious, unforgiving and aggressive material-semiotics. Absent the possibility of a mercy which denudes the idols of consumerism, neither religious conversion nor the creation of redemption scripts could escape the extreme burden of continuous self-construction. This highlights the non-rationality, and in some cases the palpable irrationality, of ‘decisions’ to commit crime. Like Katz, discussions of desire and affect in cultural criminology, and also in much urban theory (Amin and Thrift, 2002; Thrift, 2004, 2008) centres on a rather static, naturalist and irrationalist account of desire and affect. This exaggerates the separation of transgressive thrills from instrumental reason and underplays the extent to which emotions and drives to transgression are contingent on the particular constellation of desire-producing and shaping apparatus of contemporary consumer capitalism. Problematically, by rendering desire and affect as static, cultural criminology may efface the genuine agency that offenders have to change their script. It is altogether too romantic to see in spectacular urban crime a form of noble resistance or rebellion. A picture of criminal desire as static or uncontrollable would entail a repudiation of the fundamental redeemability of human beings under the conditions of divine mercy. But in advocating asceticism, then, am I here drifting from self-creation to advocacy of a damaging self-denial? There certainly are excesses of self-debasement and a pathologisation of natural desires with Christian ascetic traditions. Properly understood, ascesis is not the denial of desire, nor some rupture or escape from it into apathetic serenity. It is a gracious work of the education of desire. What is renounced is not desire itself but a perverse (here, capitalist) libidinal economy. A reconstituted personal narrative that retained its pressurising commitments to consumer signification would not sustain genuine desistance. Christian ascetic traditions identify both a moment

186

Mercy Triumphs over Judgement

of unplugging, of baptismal rupture with the desires of the past (Romans 6) and then a continued wrestling with the bind of law and transgression – ‘For I do not do the good I want, but the evil I do not want is what I do’ (Romans 7:19). Structured clearly as an echo of Exodus, the entirety of the exploration of sin, desire and redemption in Romans 5–8 evokes the escape from slavery and the narrative of deliverance achieved by the God whose very name is mercy. For Paul, participation in the active faithfulness of Christ (Galatians 2:22) is enabled by the sanctifying work of the Holy Spirit such that the believer takes on a new identity, being incorporated into a redeemed humanity through the ascetic re-education of desire – conversion is thus induction into a Christic libidinal economy. Understood correctly, then, asceticism is not a reverse fetishism of the goods now renounced. It is instead to regard primary human goods in light of a wider theological teleology – of participation in God’s merciful patience. For ascetic traditions the proper use of property and proportionate loving of proximate goods requires positioning in such a wider teleology, wherein desire is shaped to dispose all objects of desire for the common good (Mathewes, 2004; McCabe, 2005: 53–8; Johnson, 2007; Agamben, 2013). The connection between asceticism and the works of mercy in which the community may achieve ‘tertiary’ desistence, is found in the pattern of active union with Christ. Baptismal union issues in a participation in the descent of God in Christ to the outcast, to unjust death, and thus in his ascent to the Father. For Gregory of Nazianzus Christian asceticism awaits gracious completion, without which it cannot become true philanthropia, the redeeming mercy of God. This ascetic ascent is the sacramental and soteriological experience of theosis, which Gregory explicitly associates with the notion of becoming not divine, but heirs with Christ (Romans 8:12–17) (Gregory of Nazianzus, 2006). Notably Nazianzen does not give a programmatic stipulation of ascetic practices, but instead indicates how the showing of mercy is an ineradicable demand of the transformation of the flesh.15 Unlike modern philanthropy, philanthropia is anything but patrician condescension. Thus, the form of asceticism which may unplug its subjects not just from criminal behaviours but from the libidinal economy of consumerism must not merely exercise self-discipline and temporary restraint. They cannot be, that is to say, oriented solely around avoidance goals and intentional repudiations of maladaptations in pursuit of static basic goods. Ascetic practices do not merely define themselves oppositionally to the symbolic order of consumerism (instant vs deferred gratification, immature longing vs mature rationality). While one might demur from her exclusively non-personal account of pneumatological ‘force,’ Valérie Nicolet-Anderson is right to claim that, for Paul,

187

CRIMINOLOGY AND PUBLIC THEOLOGY

the spirit functions as a productive force for practices of imagination that invent and create new ways of being a community ([Romans] 8:26). The spirit stands behind the practices of askesis asked of the Christ believers. It contributes to the endless and tiring work of deconstructing and recreating a reality that portrays itself as natural and unchangeable. The spirit for Paul is a force that can nourish the practices of resistance central to the identity of the Pauline communities. (Nicolet-Anderson, 2012: 235) Take perhaps the most commonly criticised element of a body-denying Christian asceticism – celibacy. Among the messy history of this complex set of practices we find early forms of celibacy in which the focus is not on a perverse rejection of sexual desire, but a repudiation of the exploitative and dehumanising structures of reproductive servitude (Martin, 2006: 103–24). Celibates breached the pervasive system of patriarchal social signification, displacing the tying of honour and shame, glory and humiliation to the production of sons and heirs. Celibate fraternity was thus the provocative ascetic liturgy of unplugging, based precisely in Christic participation in the gloriously dishonourable adoption as children of God. Of course, these accounts of celibacy and mysticism still drip with eroticism; not because desire is prohibited, but because it is redirected and, in the suggestive notion of Gregory of Nyssa, it is intensified, not in its lack but in its satiety (Gregory of Nyssa, nd; Coakley, 2013: 13). Understood in such a way, ascesis founded in primordial mercy is central to the process of sustained conversion which is described in GLM. In Pauline terms, union in the baptism of Christ (Romans 6) separates the offender from their previous cycles of transgression, judgement and stigma (Romans 7) and provides a hopeful orientation to the future conceived of as an anticipatory life which gestures to eschatological solidarity with all those stigmatised, excluded or vomited in the bulimic society. Asceticism is mundane and often communal. Whether by way of prison visiting (Matthew 25:34–40, Hebrews 13:1–3), offender reintegration and mentoring,16 youth work in deprived areas, anti-gang projects, and the like, it may enact the fragile collective asceticism in which divine philanthropia is made present. These mundane practices counter the perverse positing of the figure of a criminal other deserving of severe punishment, a culture itself created in large part by theologies of penal substitution, retributive justice and an antinomy of justice and mercy. The mutual exposure of vulnerabilities, and the proactive offer of trust to exoffenders found in faith-based prisoner reintegration programmes serves as a clear example of the practices by which the self-enclosing operation

188

Mercy Triumphs over Judgement

of consumerist desire are undone. Notably, the offer of trust without or prior to evidence of trustworthiness runs entirely counter to stateprovided training in offender reintegration, which is strongly dominated by risk management and a tendency to regard offenders as inherently undeserving of trust17 (Wells and Owen, 2011; Armstrong, 2014). In such ways a primordial mercy is manifest, and creates the conditions for tertiary or relational desistence, and thus the pursuit of justice in its fullness. Notes 1

2

3 4 5

6

7

8

9 10 11

12

All biblical quotations are from New Revised Standard Version Bible, copyright ©  1989 National Council of the Churches of Christ in the United States of America. Used by permission. All rights reserved worldwide. That knowledge is dependent on revelation or faith in the absence of, or even in contradiction with, reason or evidence. This section is adapted from Bourne (2014). The Summa Theologica, written 1265–74. It may be objected here that Aquinas then goes on to outline the grounds for the withdrawal of such merciful charity in cases where an ‘incurable wickedness’ justifies a capital sentence. However, the justification for such punishment is clearly distinct from the broader compatibility of justice with mercy. One need not follow Aquinas’ regrettable verdict of the incurability of very great wickedness, nor of the need to address such through the death penalty – both of which militate against the virtue of hope that, as we shall see below, sustains a truly just practice of punishment. Fourth volume of Aquinas’ commentary on Peter Lombard’s Sentences – Commentum in Quartum Librum Sententiarum Magistri Petri Lombardi. This begs a range of questions regarding offences where reparation appears impossible, or at least, severely limited. The all too obvious case of murder may permit some minor ‘reparations’ to the family of a victim, but not to the victim themselves. I cannot enter into these questions here, and need not do so, for the problem of such a conceptualization of reparation besets both secular and postsecular penance, among many other varieties of the justification of punishment. It will have to suffice to note that the justification of reparative justice does not seek to escape the tragic, time-bound ‘predicament of irreversibility’ (Arendt, 1958: 237). There is no space here to discuss the important issue of whether such wrath is thus fundamentally personal (though not merely affectus) as, for example, both Karl Barth (2004, CD II.1: 370–1) and Stephen Travis (2008, 54–5) claim, or whether it arises inevitably, even mechanistically, as part of the process of a morally ordered universe – as is maintained by C.H. Dodd (1932), John Howard Yoder (2002: 318) and A.T. Hanson (2010). An attribute of God. Divine mercy or compassion. That God actively wills and determines persons individually to either salvation or damnation. The end of time as a culmination of history and the final victory of God’s loving purposes for creation.

189

CRIMINOLOGY AND PUBLIC THEOLOGY

13

14

15

16

17

Eudaimonia is sometimes translated as ‘happiness’ but connotes far more than an individual affective condition. It envisages perfect flourishing in the realisation of a telos – that is, a goal or end. The following draws on and paraphrases extracts from Bourne (2016), and is used with permission from Brill. While Nazianzen exhibits impatience with the body which may strike us as confirming the stereotype of an anti-body asceticism, it is notably that this is here figured in visceral terms of revulsion at the corpulent and sweaty reclining ‘fleshy hulk’ of a decadent body. Gregory of Nazianzus ‘Oration 14’ §17. See, for example, www.message.org.uk/?s=ENTERPRISE+CENTRE and www. caringforexoffenders.org. Needless to say, this need not be taken as a simplistic contrast whereby placing trust in ex-offenders eschews morally and legally required measures of safeguarding other vulnerable parties.

References

Agamben, G. (2013) The Highest Poverty: Monastic Rules and Form-of-Life, Stanford, CA: Stanford University Press. Amin, A. and Thrift, N. (2002) Cities: Reimagining the Urban, London: Polity. Andrews, D.A. and Bonta, J. (2016) The Psychology of Criminal Conduct (sixth edn), London: Routledge. Anselm (1998) Anselm of Canterbury: The Major Works, Oxford: Oxford University Press. Aquinas, T. (1981) Summa Theologica 1256–1272, translated by the Fathers of the English Dominican Province, Westminster, MD: Christian Classics. Arendt, H. (1958) The Human Condition, Chicago, IL: University of Chicago Press. Armstrong, R. (2014) ‘Trusting the untrustworthy: the theology, practice and implications of faith-based volunteers’ work with ex-prisoners’, Studies in Christian Ethics, 27(3): 299–317. Augustine (1961) The Enchiridion on Faith, Hope and Love, translated by J.F. Shaw, Chicago, IL: Henry Regnery. Barclay, J.M.G. (2015) Paul and the Gift, Grand Rapids, MI: Eerdmans. Barth, K. (1968) The Epistle to the Romans, translated by E.C. Hoskyns, Oxford: Oxford University Press. Barth, K. (2004) Church Dogmatics [multiple volumes], translated by G.W. Bromiley and T.F. Torrance, Edinburgh: T&T Clark. Berman, H.J. (1983) Law and Revolution: The Formation of the Western Legal Tradition, Volume I, Cambridge, MA: Harvard University Press. Bourne, R. (2014) ‘Communication, punishment and virtue: the theological limitation of (post)secular penance’, Journal of Religious Ethics, 42(1): 78–107.

190

Mercy Triumphs over Judgement

Bourne, R. (2016) ‘Vertigo in the city: urban crime, consumerism and the theopolitical act’, International Journal of Public Theology, 10(2): 167–92. Coakley, S. (2013) God, Sexuality and the Self: An Essay ‘On the Trinity’, Cambridge: Cambridge University Press. Daly, K. (2000) ‘Revisiting the relationship between restorative and retributive justice’, in H. Strang and J. Braithwaite (eds) Restorative Justice: Philosophy to Practice, Aldershot: Ashgate, pp. 33–54. Deci, E.L. and Ryan, R.M. (2004) ‘The ‘what’ and ‘why’ of goal pursuits: human needs and the self-determination of behaviour’, Psychological Inquiry, 11(4): 227–8. De Grijs, F.J.A. (1998) ‘Thomas Aquinas on Ira as a divine metaphor’, in H.J.M. Schoot (ed.) Tibi Soli Peccavi: Thomas Aquinas on Guilt and Forgiveness, Utrecht: Peeters, pp. 19–46. Dodd, C.H. (1932) The Epistle of Paul to the Romans, London: Hodder & Stoughton. Duff, R.A. (1986) Trials and Punishment, Cambridge: Cambridge University Press. Duff, R.A. (1992) ‘Alternatives to punishment – or alternative punishments?’, in W. Cragg (ed.) Retributivism and Its Critics, Stuttgart: Franz Steiner, pp. 43–68. Duff, R.A. (1998) ‘Desert and penance’, in A. von Hirsch and A. Ashworth (eds) Principled Sentencing: Readings on Theory and Policy (second edn), Oxford: Hart Publishing, pp. 161–7. Duff, R.A. (2001) Punishment, Communication and Community, Oxford: Oxford University Press. Duff, R.A. (2002) ‘Restorative punishment and punitive restoration’, in L. Walgrave (ed.) Restorative Justice and the Law, Cullompton: Willan Publishing, pp. 82–100. Duff, R.A. (2003) ‘Restoration and retribution’, in A. Von Hirsch, J. Roberts, A.E. Bottoms, K. Roach and M. Schiff (eds) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms, Portland, OR: Hart Publishing, pp. 43–59. Duff, R.A. (2007) ‘The intrusion of mercy’, Ohio State Journal of Criminal Law, 4(2): 361–87. Duff, R.A. (2011) ‘Mercy’, in J. Deigh and D. Dolinko (eds) The Oxford Handbook of Philosophy of Criminal Law, Oxford: Oxford University Press, pp. 467–92. Feinberg, J. (1970) ‘The expressive function of punishment’, in Doing and Deserving: Essays in the Theory of Responsibility, Princeton, NJ: Princeton University Press, pp. 95–118. Fiddes, P.S. (1989) Past Event and Present Salvation: The Christian Idea of Atonement, London: Darton, Longman & Todd.

191

CRIMINOLOGY AND PUBLIC THEOLOGY

Garvey, S. (2004) ‘Is it wrong to commute death row? Retribution, atonement and mercy’, North Carolina Law Review, 82(4) May: 1319–43. Garvey, S. (2007) ‘Questions of mercy’, Ohio State Journal of Criminal Law, 4(2): 321–27. Gregory of Nazianzus (2006) ‘Oration 14: on the love of the poor’, in B. Daley (ed.) Gregory of Nazianzus, London: Routledge, pp. 75–97. Gregory of Nyssa (nd) On Virginity, www.newadvent.org/fathers/2907. htm Hall, S., Winlow, S. and Ancrum, C. (2008) Criminal Identities and Consumer Culture: Crime, Exclusion and the New Culture of Narcissism, Cullompton: Willan Publishing. Hampton, J. (1988) ‘The retributive idea’, in J.G. Murphy and J. Hampton (eds) Forgiveness and Mercy, Cambridge: Cambridge University Press, pp. 111–61. Hanson, A.T. (2010) The Wrath of the Lamb, Eugene, OR: Wipf & Stock. Hayward, K.J. (2004) City Limits: Crime, Consumer Culture and the Urban Experience, London: Glasshouse Press. Hegel, G.W.F. (1991) Elements of the Philosophy of Right, edited by A.W. Wood, translated by H.B. Nisbet, Cambridge: Cambridge University Press. Johnson, K.S. (2007) The Fear of Beggars: Poverty and Stewardship in Christian Ethics, Grand Rapids, MI: Eerdmans. Katz, J. (1988) The Seductions of Crime: The Moral and Sensual Attractions of Doing Evil, New York: Basic Books. Katz, J. (1999) How Emotions Work, Chicago, IL: Chicago University Press. Luijten, E. (2003) Sacramental Forgiveness as a Gift from God: Thomas Aquinas on the Sacrament of Penance, Nijmegen: Peeters. MacIntyre, A. (1985) After Virtue: A Study in Moral Theory (second edn), London: Bloomsbury. Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime and Restorative Justice, Eugene, OR: Cascade Books. Marshall, C.D. (2016) All Things Reconciled: Essays on Restorative Justice, Religious Violence, and the Interpretation of Scripture, Eugene, OR: Cascade Books. Martin, D.B. (2006) Sex and the Single Saviour: Gender and Sexuality in Biblical Interpretation, Louisville, KY: Westminster John Knox Press. Maruna, S. (2001) Good Lives: How Ex-Convicts Reform and Rebuild Their Lives, Washington, DC: American Psychological Association. Maruna, S. and Farrall, S. (2004) ‘Desistance from crime: a theoretical reformulation’, Kölner Zeitschrift fur Soziologie un Sozialpsychologie, 43: 171–94.

192

Mercy Triumphs over Judgement

Maruna, S. and King, A. (2009) ‘Once a criminal, always a criminal? ‘Redeemability’ and the psychology of punitive public attitudes’, European Journal on Criminal Policy and Research, 15(1): 7–24. Maruna, S., Wilson, L. and Curran, K. (2006) ‘Why God is often found behind bars: prison conversions and the crisis of self-narrative’, Research in Human Development, 3(2–3): 161–84. Mathewes, C. (2004) ‘On using the world’ in W. Schweiker and C. Mathewes (eds) Having: Property and Possession in Religious and Social Life, Grand Rapids, MI: Eerdmans, pp. 189–221. McCabe, H. (2005) God, Christ and Us, London: Continuum. McNeill, F. (2016) ‘Desistance and criminal justice in Scotland’ in H. Croall, G. Mooney and R. Munro (eds) Crime, Justice and Society in Scotland, London: Routledge, pp. 200–16. Moberly, R.C. (1909) Atonement and Personality, London: Murray. Moore, M.S. (1987) ‘The moral worth of retribution’, in F. Schema (ed.) Responsibility, Character and the Emotions, Cambridge: Cambridge University Press, pp. 179–291. Moore, M.S. (1997) Placing Blame: A Theory of the Criminal Law, Oxford: Oxford University Press. Murphy, J.G. (2017) ‘Christian love and criminal punishment’, in R.F. Cochran Jr. and Z.R. Calo (eds) Agape, Justice and Law: How Might Christian Love Shape Law?, Cambridge: Cambridge University Press, pp. 151–65. Murphy, J.G. and Hampton, J. (1988) Forgiveness and Mercy, Cambridge: Cambridge University Press. Nicolet-Anderson, V. (2012) Constructing the Self: Thinking with Paul and Michel Foucault, Tübingen: Mohr Siebeck. Nugent, B. and Schinkel, M. (2016) ‘The pains of desistance’, Criminology and Criminal Justice, 16(5): 568–84. O’Donovan, O. (1988) ‘The death penalty in Evangelium Vitae’, in R. Hütter and T. Dieter (eds) Ecumenical Ventures in Ethics: Protestants Engage Pope John Paul II’s Moral Encyclicals, Grand Rapids, MI: Eerdmans, pp. 216–36. O’Donovan, O. (2005) The Ways of Judgment, Grand Rapids, MI: Eerdmans. Primoratz, I. (1989) ‘Punishment as language’, Philosophy, 64(248): 187–205. Slaughter, M. (2010) ‘Sublime mercy’, Law, Culture and the Humanities, 6(3): 436–54. Tanner, K. (2001) Jesus, Humanity, and the Trinity, Minneapolis, MN: Fortress Press.

193

CRIMINOLOGY AND PUBLIC THEOLOGY

Tasioulas, J. (2011) ‘Where is the love? The topography of mercy’, in R. Cruft, M.H. Kramer and M.R. Reiff (eds) Crime, Punishment, and Responsibility: The Jurisprudence of Antony Duff, Oxford: Oxford University Press, pp. 37–53. Thrift, N. (2004) ‘Intensities of feeling: towards a spatial politics of affect’, Geografiska Annaler, 86B(1): 57–78. Thrift, N. (2008) Non-Representational Theory: Space, Politics, Affect, London: Routledge. Travis, S.H. (2008) Christ and the Judgment of God: The Limits of Divine Retribution in New Testament Thought, Peabody, MA: Hendrickson. Tuckness, A. and Parrish, J.M. (2014) The Decline of Mercy in Public Life, Cambridge: Cambridge University Press. Ward, T. and Maruna, S. (2007) Rehabilitation: Beyond the Risk Paradigm, London: Routledge. Wells, S. and Owen, M.A. (2011) Living Without Enemies: Being Present in the Midst of Violence, Downers Grove, IL: IVP. Willis, G. and Ward, T. (2013) ‘The good lives model: evidence that it works’, in L. Craig, L. Dixon and T.A. Gannon (eds) What Works in Offender Rehabilitation: An Evidence Based Approach to Assessment and Treatment, Chichester: John Wiley & Sons, pp. 305–18. Yoder, J.H. (1988) ‘Armaments and eschatology’, Studies in Christian Ethics, 1(1): 43–61. Yoder, J.H. (2002) Preface to Theology: Christology and Theological Method, Grand Rapids, MI: Brazos. Young, J. (1999) The Exclusive Society, London: Sage.

194

9

The ‘Quality of Mercy’ in Probation Practice Lol Burke

The quality of mercy is not strained; It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blest; It blesseth him that gives and him that takes: […] (Shakespeare, The Merchant of Venice, Act IV, Scene I) We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice, and – perhaps – we all need some measure of unmerited grace. (Stevenson, 2015: 18)

195

CRIMINOLOGY AND PUBLIC THEOLOGY

Introduction The creation of the probation service in England and Wales could be seen as an expression of public theology in action involving a heady mix of evangelism and philanthropy. The importance of the Evangelical movement in penal reform generally throughout the 19th  century is demonstrated by Martin Wiener (1990), and it is perhaps no coincidence that prison reformers John Howard and Elizabeth Fry were closely associated with the Evangelical movement (Ignatieff, 1978), as was Mary Carpenter whose pioneering work established the reformatory school system to deal with the issue of juvenile delinquency (Radzinowicz and Hood, 1986). As Mair and Burke (2012: 8) note, Evangelicals were not content simply to sit in church on Sundays and worship God; they were concerned with going out and grappling with social problems in an attempt to ameliorate them. They had a profound concern for the souls and wellbeing of the poor and oppressed, and encouraged rescue work for those who deserved redemption. Salvation – the saving of souls – was central to their beliefs and this involved missionary work with sinners. The late Victorian forerunner of the probation officer was the police court missionary. As the name implies the term ‘missionary’ belies its religious credentials and the reference to ‘police court’ relates to the attachment to what was to become the magistrates’ courts. The request in 1876 by the Hertfordshire printer and philanthropist, Frederic Rainer, to the Church of England Temperance Society (CETS) expressing his concern about the lack of help for those who came before the courts has been seen as the catalyst for the formation of probation in England and Wales. Legend has it that he sent a donation of five shillings towards a fund for practical rescue work in the police courts; however this has been queried by Cassady (2001: 289) who claims that the significance of Rainer’s donation to the creation of the probation service might ‘have become corrupted over the years and embellished as a useful means of symbolising the birth of an institution’. Nevertheless, it seems that CETS responded to Rainer’s request by appointing two missionaries to Southwark Court with the initial aim of ‘reclaiming drunkards’. This formed the basis of the London Police Courts Mission, whose missionaries worked with magistrates to develop a system of releasing offenders on the condition that they kept in touch with the missionary and accepted guidance. The first missionaries were employed by CETS, and as Sascha Auerbach notes, this coincided with a move within the

196

The ‘Quality of Mercy’ in Probation Practice

church to regain lost ground from other religious denominations, such as the Nonconformists and the Methodists, who were already deeply involved in education and social welfare in the 19th century. In doing so, the Church of England ‘shed its elitist image and [made] inroads into the burgeoning working class’ (Auerbach, 2015: 629). In the first of his seminal quartet of articles on the early development of the probation service in England and Wales, Bill McWilliams describes the unique contribution that the police court missionaries brought to the penal system through their belief in the power of change through moral intervention: ‘The missionaries had a religious philosophy, distinctively their own, and when they first entered the summary courts their transcendent task was the saving of souls through divine grace’ (McWilliams, 1983: 130). McWilliams characterises the role of the police court missionary within the court system as being one of special pleading, and as such it is the notion of ‘mercy’ which he identified as helping the relationship between the sentencer, the accused and the missionary: ‘If the court could be persuaded to show mercy to the penitent accused, the missionary would have opportunity to work with him (sic) to encourage and guide his reformation’ (McWilliams, 1983: 137). In return for cooperating with the missionary, a working-class man or women could hope for favourable treatment from the magistrate, and in return the missionary would gain the gratitude of the accused and in some cases a signed temperance pledge. However, McWilliams is at pains to point out that the relationship was not confined to one that cast the supplicant offender as the recipient of the altruistic pleading by the missionary and the mercy of the sentencer, but also involved the personal redemption of the other ‘actors’ in this relationship. Echoing the definition of mercy contained within the Shakespearian quote at the start of this chapter, it was a reciprocal one in which each of the parties gave, but also received. The offender gave an earnest of reform and received the plea of the missionary, the mercy of the sentencer and the opportunity to repent and be saved. The missionary gave a pledge to look after and to supervise the offender in pursuit of his reformation and received an enhancement of grace; and the sentencer gave mercy and, like the missionary, received an enhancement of grace also. (McWilliams, 1983: 140) Their insistence that justice must include an element of mercy chimed with concerns among some magistrates regarding the levels of poverty

197

CRIMINOLOGY AND PUBLIC THEOLOGY

and social deprivation experienced by many of those who came before the courts, and an extension of their jurisdiction in 1879 to release an individual on their own recognisances had, according to McWilliams (1983: 135), ‘simultaneously thrown open the door for leniency and the more merciful treatment which the reformers demanded’. Vanstone (2004: 39) contends that the ideology that underpinned the work of the missionaries was not restricted to saving souls but one of developing, ‘moral citizenship based on self-reliance, civic duty and fervency for social improvement’. From this perspective, the charitable impulse in Victorian life was just as significant as – and, indeed intimately related to – the importance of religion. Christianity enjoined its adherents to practise charity towards those who were in need, as this would not only save the soul of the giver but also help those in need. As Bowpitt (2007: 106) observes, ‘It provided the foundation of civil society. It humanized urban industrial life and relations between rich and poor. It introduced a higher moral tone to working-class life. It contributed to social cohesion’ (see also Bowpitt, 1998). Young (1976: 44) contends that the reforming zeal of the missionaries reflected ‘the ethos of a peculiar middle-class entrepreneurial philosophy’ that strove to incorporate and ameliorate a potentially ‘oppositional working-class culture into an institutional and cultural structure based on middle-class values and ideologies’. Auerbach (2015: 630) also notes that their work was influenced by preconceived notions regarding gender norms and perceptions of female drunkenness was an important ‘moral marker’. This took on greater salience as increasingly the missionaries became a point of referral for ‘fallen women’ by police officers as part of a changing discourse of female inebriates, which viewed them more as victims of weakness and misfortune and thereby deserving treatment rather than depraved public annoyances who required punishment (Auerbach, 2015: 635). It is also important to note that the application of mercy, to either men or women, was not applied to all, and according to Auerbach (2015: 643) in some cases missionaries disregarded those whom they did not see as deserving of mercy while going to extraordinary lengths for those whose personal circumstances appealed to their sensibilities. Offers of help were often conditional on the individual ‘signing the pledge’. McWilliams (1983: 141) terms this the ‘doctrine of the stumbling-block’, based on the belief that a sinner could only receive God’s grace once those forces, such as alcohol, which were impeding their understanding of the gospel had been removed – which was ultimately to be the missionaries’ undoing. As Auerbach (2015: 633) notes, there was little practical incentive for offenders to sign the pledge or keep their oaths if they did not choose to sign, and so in practical terms the missionaries did not significantly

198

The ‘Quality of Mercy’ in Probation Practice

influence the court proceedings or hold any particular influence over the magistracy. Within the Home Office there were also increasing concerns that ‘so important a task as the monitoring of probationers could not be left to religiously motivated amateurs, therefore the responsibilities once held by the missionaries were transferred to the official agents of the state (Auerbach, 2015: 662). Nevertheless, the religious impulse of the early police court missionaries continued to be felt well into the opening decades of the 20th century and, despite their ongoing adherence to Victorian moral codes, the police court missionaries can justifiably be viewed as ‘part and parcel of the transition from prison-state to the penalwelfare complex’ (Auerbach, 2015: 624). The notion that rehabilitation (on which probation practice sat) was a ‘moral good’ was largely unchallenged in the first fifty years of the existence of probation; however, from the 1970s onwards there was a sustained critique and reaction against the perceived excesses of the ‘rehabilitative ideal’ which presented punishment as a technique for curing socially disordered individuals. Likewise, the notion of ‘mercy’ came under increasing attack in the light of criticisms of the arbitrary and differential ways in which it was applied. In his liberal critique of rehabilitation in the 1950s, C.S. Lewis presented it as an affront to individual rights and autonomy. […] the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it. This means that you start being ‘kind’ to people before you have considered their rights, and then force upon them supposed kindnesses which they in fact had a right to refuse, and finally kindnesses which no-one but you will recognize as kindnesses and which the recipient will feel as abominable cruelties. (Lewis, 1953: 230) These criticisms gathered pace in the 1970s with the subsequent decline of the rehabilitative ideal and the (re)emergence of the justice movement, which was grounded in retributivist desert theory. Unlike early forms of retributive punishment that were based on vengeance, retributive desert is concerned with first, proportionality, by ensuring that the individual attracts what they deserve for committing the crime and the harm caused, and second, the blameworthiness of the offender. From this perspective, mercy is seen as being at odds with justice because it does not treat individuals equitably, which in turn potentially gives rise to injustice, unfairness and a loss of objectivity. It was claimed that in an efficient, fair system of criminal law, in which the guilty are punished, and the innocent are not convicted, there should be no need to redress the system with a merciful

199

CRIMINOLOGY AND PUBLIC THEOLOGY

judgment except in very limited circumstances. Mercy is therefore viewed as an emotional response that undermines (what in theory at least) should be a rational legal judgment. According to Meyer (2010: 1) ‘[…] a judge who grants mercy cannot be just, a judge imposing a just sentence cannot be merciful’.

Application of mercy in a contemporary context Notions of who is ‘deserving’ of mercy and how it is interpreted and applied was brought into sharp focus in the case of Lavinia Woodward. In 2016, Lavinia Woodward, a young medical student at Christ Church, Oxford, was found guilty of wounding her boyfriend during a quarrel. Heavily intoxicated, and high on cocaine, she stabbed him with a bread knife and subsequently pleaded guilty to the charge. The case attracted significant media attention when she was sentenced to ten months’ imprisonment, suspended for 18 months, for an offence which carries a maximum sentence of five years’ imprisonment. Mitigation presented in the case centred on the fact that she had been in a previously abusive relationship, was addicted to alcohol and drugs, had mental health problems including a severe eating disorder, and had shown significant remorse coupled with action taken to address her addictions and health problems. On the surface, her story is sadly familiar to many women who find themselves in the criminal justice system. More than half of the women in England’s prisons have experienced emotional, physical or sexual abuse and at least have a history of drug or alcohol misuse (Prison Reform Trust, 2017). However, Ms Woodward also came from a wealthy background and was presented as a brilliant student who had ambitions to become a cardiovascular surgeon. She could afford a top criminal lawyer who ‘was able to demonstrate – in a language the judiciary can easily understand – her potential future contribution to society’ (Hirsch, 2017). Before sentencing Ms Woodward, the judge requested a pre-sentence report (PSR) from the National Probation Service before deciding on her sentence. On the face of it this might seem a sensible course of action before depriving a young woman of her liberty, although it is far from standard practice. An increasing number of PSRs are now presented to the court in oral rather than written form. In the period July to September 2018, the National Probation Service produced 27,658 court reports. Of these, 16,110 were fast delivery oral reports, 10,648 were fast delivery written reports and 900 were ‘standard’ PSRs. At the magistrates’ courts, fast delivery oral reports represent an even more significant proportion of the probation workload: over the same period, nearly 70 per cent of

200

The ‘Quality of Mercy’ in Probation Practice

the 20,499 PSRs produced for magistrates were fast delivery oral reports (Whitehead, 2018). Critics of the sentence argued that the judge had been excessively lenient on the grounds of privilege, gender and race. Writing in The Independent newspaper, James Moore (2017) commented that the same mercy should be accorded to another Lavinia Woodward, with a similar troubled background, who was simply attending courses laid on by Jobcentre Plus with the aim of becoming a care assistant. Or one who was a checkout assistant at Tesco with aspirations towards becoming a supervisor. The extent to which social deprivation should be taken into account in the sentencing process is highly contested. Compare, for example, the approach taken in the Woodward case with that of the riots in 2011, when hundreds of young people – a disproportionate number from deprived backgrounds – were given harsher than average sentences (Travis and Rogers, 2011). The issue becomes even more stark when financial considerations and profit-maximisation become features of offender supervision. In one American state a law has been passed to restrict the ability of sentencers to waive fines and fees for economically disadvantaged individuals (The Marshall Project, 2017). North Carolina is one of many American states, driven by the desire to reduce costs, which are becoming increasingly reliant on an offender-funded probation model overseen by for-profit companies that manage probation requirements, electronic monitoring, drug-testing and fine collection. It is a lucrative business as there is no cap on the amount of fees that private probation companies can charge individuals, even those convicted of minor offences. Unsurprisingly, many of those placed on probation only do so because they are unable to pay their court fines in the first place and become increasingly unable to afford the probation fees accrued to the private company. Consider the case of Thomas Barrett, a former Georgia probationer who stole a $2 beer and was fined $200 by the court. Barrett ended up owing more than $1,000 to Sentinel Offender Services, the private company supervising his probation. He resorted to selling his own blood plasma twice a week to pay Sentinel (Gambino, 2014). Clearly there is little room for acts of mercy and altruism when probation is ‘ultimately reduced to a concern with debt collection and boosting the coffers of those companies providing so called pay only probation’ (Burke and Collett, 2020, emphasis in original). The Woodward case raises another fundamental issue in relation to probation, in terms of public perceptions that the sanction represents

201

CRIMINOLOGY AND PUBLIC THEOLOGY

a ‘soft option’ in terms of sentencing outcomes. Commenting on the Woodward case, Fergus McNeill (2019a: 14) contends that it is another example of the ‘misperception that subjects of supervision are recipients of mercy’. The fact that Lavinia Woodward was sentenced to a suspended sentence supervision order meant that a range of conditions could be applied in addition to the requirement that she avoid further offending. For McNeill, the reaction to this case is symptomatic of the failure of supervisory sanctions to make inroads into cultural representations of punishment and the public consciousness. Setting aside important and reasonable questions about the fairness and appropriateness of this sentence – and the potential role of privilege in the process – for present purposes the important point is this: In many of the press reports of this case, the sentence itself is misunderstood and misreported in such a way that its meaning and effects are misinterpreted. Woodward has not (yet) been ‘spared jail’ and she has certainly not ‘walked free’ from court. She was spared immediate imprisonment, but for 18 months a sword of Damocles hung above her head, and she was, at best, semi-free. (McNeill, 2019b: 14) McNeill’s (2019a) ground-breaking book Pervasive Punishment develops this idea further. He argues that ‘the effects of supervision are often diffuse – they pervade the lives of supervisees – and that, even when experienced as helpful, they hurt’ (McNeill, 2019a:10). Although the pains of imprisonment are well documented (see for example Sykes, 1958; Crewe, 2009, 2011) the pains involved in community sanctions are less visible. This aspect of probation practice has largely been dismissed in public discourses regarding the rightful infliction of punishment because ‘at least it’s not prison’ (Hayes, 2018: 383). At its best, probation can support individual desistance and ameliorate some of the pains inflicted, not only by a sentence of imprisonment, but also those exacted by the criminal justice system and wider social structures. However, as Hayes (2018: 385) notes, just because ‘penal supervision is sometimes experienced as gainful does not mean it is always perceived as being uniformly good’ and even ‘where penal supervision does good, it also causes pain’ (p. 388). Recent research has uncovered the potential depth of the physical, psychological and emotional impacts on some of those subject to penal supervision. Durnescu (2011: 534–8) identified eight types of deprivation and pains that, although were not acknowledged or experienced to the same extent by all individuals, were evident in the group of those Romanian service users interviewed as a whole. These included: the deprivation of

202

The ‘Quality of Mercy’ in Probation Practice

autonomy in terms of the reporting requirements involved in supervision and the obligation to inform the probation officer of their circumstances; the deprivation of time, particularly where individuals had to travel long distances to their appointments, and allied to this the financial costs involved; the stigmatisation effects of supervision, which they were unable to conceal from employers and family members; repeatedly being confronted with and forced to return to the offence; and living a life under the threat of being returned to prison if they did not comply with the requirements of the court order or they committed a further offence. Hayes’s (2015) study of English probationers identified similar issues, particularly in relation to the pains of liberty deprivation, but he also uncovered the sometimes painful consequences involved in the individuals’ attempts to alter their lifestyles and achieve a positive nonoffending lifestyle. These the author categorised as being associated with wellbeing (associated new threats to their physical or mental health or the aggravation of pre-existing issues); lifestyle changes (involving the abstention or moderation of drug and alcohol consumption); and stigma (most of those interviewed expressed some shame regarding their offences and this had detrimental impacts on their perceptions of their self-worth). Contemporary supervisory sanctions include varying degrees of severity that are formalised in law, but as McNeill (2019b) points out, there is a perception among the public that how these sanctions are applied are solely at the discretion of the judiciary or executive. As in the case of Lavinia Woodward, where the perception was that her suspended sentence was not directly linked to the circumstances of the offence – but instead rooted in class and privilege – then public cynicism is likely. According to McNeill the difficulty lies in the historical origins of community sanctions, outlined earlier in this chapter, which in England and Wales, as in many jurisdictions, have been viewed as acts of clemency or mercy: The difficulty rests in the historical roots of community sanctions in many jurisdictions as acts of clemency or mercy. Recipients of clemency or mercy are not diverted from or excused punishment because they deserve such treatment; rather, they are diverted because the state elects not to proceed with the measures of punishment to which it is nonetheless entitled. As philosophers of punishment have pointed out, part of the point of mercy is that it is undeserved (Smart, 1969; Murphy, 1988; Walker, 1991). For that reason, mercy is not something to which someone can usually extend a rights-based claim. (McNeill, 2019a: 8, emphasis in original)

203

CRIMINOLOGY AND PUBLIC THEOLOGY

The ‘right-based claim’ in the final sentence of the above quotation refers to the basic rights that all individuals are entitled to by virtue of their citizenship. From this perspective, although her actions were undoubtedly deserving of punishment, Lavinia Woodward’s entitlement to earn her redemption should not be denied or undermined.

Is there a case for mercy in contemporary probation practice? Regardless of the rights and wrongs of the Lavinia Woodward case, there is a good case for mercy (or certainly not always returning to the default position of retributive punishment) even if in contemporary secular society it is not grounded in the same religious impulse that shaped the early pioneers of probation practice. This is because research into desistance (helping us to understand why people give up offending and lead a noncriminal life) shows that the majority of those caught up in the system acquire virtue (in the sense of wanting to change, feeling a greater sense of responsibility towards others, or acquiring a better understanding of the harms they have done to others). Most people, even persistent offenders, and those from social backgrounds very different from that of Lavinia Woodward, eventually give up crime through the natural processes of ageing. But we also know that, for most, this process occurs gradually rather than suddenly. We know too that many of the systems of criminal justice can actually compound rather than facilitate this natural process. We also know that, for many who offend, their punishment does not end at the completion of the sentence (in that they will continue to face continued exclusion in the community and a denial of opportunities). For those who want to explore the complexity of these interactions and of desistance theory, I would suggest Farrall et al. (2014) and/or Shapland et al. (2016). Nugent and Schinkel (2016) have recently presented a challenge to the orthodox view of desistance as having a straightforwardly positive outcome for both the individual desister and the wider community. Many of those going through the process of ‘going straight’ found it a difficult and painful process that could lead to a limited and often diminished life. As the authors powerfully illustrate, desistance for some was ‘rather more like an endurance test with little to no reward for their efforts’ (Nugent and Schinkel, 2016: 580). In this sense, then, it is clear that mercy is not just something which is needed at the point of sentencing but also needs to be demonstrated within the realms of community and civil society. In a recent publication, Steve Collett, Fergus McNeill and myself attempted to present a vision for reimagining rehabilitation based on

204

The ‘Quality of Mercy’ in Probation Practice

the four models developed by McNeill (2012) (Burke et al., 2019). We chose the subtitle ‘Beyond the individual’ because it was our contention that, particularly in the Anglophone world, criminal justice (and indeed probation) has focused somewhat myopically on personal rehabilitation. Clearly bringing about behavioural changes that enhance individual motivation and the skills for living differently is an important aspect of the rehabilitative endeavour, but as McNeill (2019a: 17) states, a narrow focus on personal rehabilitation cannot ‘resolve the problems of disintegration that are social rather than individual’. Our model therefore proposes that we consider three other forms or aspects of rehabilitation, all of which compel us to address the damaged relationships between disintegrated individuals and wider society. These we termed the judicial, moral and social. Judicial rehabilitation is a process of formal, legal ‘de-labelling’ whereby the status of the citizen is reinstated. This is a duty that the punishing state owes to those citizens who have settled their debts; it signifies and secures the end of punishment. This includes addressing the issue of criminal records and how the formal stigma that they represent can be set aside, sealed or surpassed. Maruna (2011) has argued that efforts to sponsor rehabilitation and reform must address the collateral consequences of conviction – most notably its stigmatising and exclusionary effects – or be doomed to fail. No amount of correctional or psychological or personal rehabilitation and no amount of supporting people to change themselves can be sufficient to the tasks and challenges of reintegration, resettlement and re-entry, if legal and practical barriers are left in place. Moral rehabilitation is more informal and focuses on the negotiation between citizen, civil society and state – a civic and civil conversation that looks back not just at the offence but at what lies behind it, that explores harm, repair and renegotiation of social integration. In simple terms, a person who has offended has to ‘pay back’ or to ‘make good’ before s/he can ‘trade up’ to a restored social position as a citizen of good character (McNeill and Maruna, 2007). Equally, an unjust society that has permitted criminogenic social inequalities to go unaddressed, creating barriers to the fulfilment of citizenship for people at the hard end of inequalities, will have debts that it must settle in and through the support for (re)integration that it makes available. Social rehabilitation concerns the individual’s social position and social identity. It is about social capital – his or her connections and resources; the help and welcome that is required along the path from other citizens. Social rehabilitation is not something that the state itself can order or provide; rather, it is a duty and a function of civil society, but one that the state retains the duty to underwrite and support. Can, or should, mercy play a role in this, and what can contemporary probation contribute? McNeill and Farrall (2013) in their discussion

205

CRIMINOLOGY AND PUBLIC THEOLOGY

of virtue and necessity argue that because desistance from crime often involves the acquisition of intellectual and moral virtues then it follows that supporting desistance requires practitioners to demonstrate those same virtues. As Duff (2007: 361) has argued ‘Mercy is, of course a virtue, and to act mercifully is to act rightly.’ This is relevant to probation work because it involves direct engagement with people who have offended and who, in many cases, operate at the margins of society and whose stigmatisation can exist way beyond legal censure. There is therefore a moral obligation on those who work with those who offend because, quite simply, if we expect the acquisition of virtue from others, then you cannot recast the model you are trying to change without listening and dialogue (Burke et al., 2019). As Canton (2013: 591) states, ‘Treating people with dignity and respect is an ethical requirement that is not dependent on its contingent outcomes as an instrumental means of reducing reoffending.’ Similarly, Burke et al. (2019) also emphasise the moral dimension of rehabilitation, arguing that it entails a dialogue that centres on the renegotiation of shared values and mutual reparation of the harms that individual offenders, communities and the state may have done to one another. More recently McNeill (2019a) has described offending as something that ‘tears at the social fabric’. However, he argues that it makes little sense to focus solely on one side of the tear because ‘the fabric tears because it is weak and worn thin by other wrongs’ (McNeill, 2019a: 17). These perspectives conceptualise the criminal process as a dialogue in which both the offender and the victim are given a voice. Unlike the adversarial system of punishment that pits victim and offender against one another, here punishment is seen as the ‘shared memory of the wrong as wrong’ (Meyer, 2010: 87). Implicit in this approach is the idea that ‘the defendant and the victim are thrown together to feel a mutual trauma’ (Allen, 2015: 190). This opens up the possibility of applying mercy because it allows both parties to understand each other’s trauma more clearly. Experiencing the ‘wrong as wrong’ might induce feelings of remorse within the offender but it is not necessarily a precondition for mercy. This form of mutuality involving the sharing of feelings, actions or relationships between two parties may, according to Millie (2016: 104), ‘be a useful way to understand how such degradation of dignity can be minimised’. An example of this is the Humanist African philosophy of uBuntu which has been used directly in both substantive, constitutional and procedural law in South Africa and in the Truth and Reconciliation Commission that was established following the end of the apartheid regime. uBuntu is a Zulu word that expresses the values of human interconnectedness, group solidarity, compassion, respect and human dignity. Roughly translated it means ‘a person is a person because of other people’ but is often used

206

The ‘Quality of Mercy’ in Probation Practice

in a more philosophical sense to mean ‘the belief in a universal bond of sharing that connects all humanity’ (Wikipedia ‘Ubuntu philosophy’). Bishop Desmond Tutu describes uBuntu in the following way: It is the essence of being human. It speaks of the fact that my humanity is caught up and is inextricably bound up in yours. I am human because I belong. It speaks about wholeness, it speaks about compassion. A person with uBuntu is welcoming, hospitable, warm and generous, willing to share. Such people are open and available to others, willing to be vulnerable, affirming of others, do not feel threatened that others are able and good, for they have a proper self-assurance that comes from knowing that they belong in a greater whole. They know that they are diminished when others are humiliated, diminished when others are oppressed, diminished when others are treated as if there were less than who they are. The quality of uBuntu gives people resilience, enabling them to survive and emerge still human despite all efforts to dehumanize them. (Tutu, 1999: 35) uBuntu challenges us to see ourselves in others and others in us and requires an empathetic approach in order to engage with the humanity of the person and express kindness towards those who may have committed dangerous and abusive acts while being attuned to the risks they might continue to pose. However, as Andrew Millie (2016: 70) notes, there is a tendency, even in criminological circles, to present a somewhat simplistic distinction ‘between respectable “us” and deviant or harmful “others”’ even though in reality ‘all of us are rule breakers to varying degrees – whether breakers of legal, moral or normative rules concerning crime, deviancy and harm’. Drawing on the work of Paul Ricoeur (1990), Millie cites the Christian-based ‘economy of gift and its logic of superabundance’ based on the belief that you should treat others with love and mercy regardless of familial or social connections, even if it is not expected in return (this is explored further by Millie in Chapter 7, this volume). It is a recognition that we each share a commonality of what is universal in the human condition and an acknowledgement that our own lives might have been very different in different circumstances. He argues for criminal justice practices (as a representative of the state) to be guided by a form of ‘inclusive empathy’ that respects all citizens rather than those it perceives as deserving of respect. Such an approach would be concerned not only with the censure or formal sanction but would express a genuine interest in the individual. This, he concludes could have radical consequences for

207

CRIMINOLOGY AND PUBLIC THEOLOGY

criminal justice agencies ‘emphasising generosity, mercy and love’ (Millie, 2016: 123, emphasis added). How then does the ‘economy of gift’ relate to probation practice? The various research studies discussed earlier, into the pains involved in penal supervision, all ‘emphasise the importance of representation, emotion and inter-personal relationships in the construction of penal supervision as an experience’ (Hayes, 2018: 388). Bolton’s (2005) study of the role of emotion in the workplace describes the context in which the worker decides to give more of ‘themselves’ during a social exchange as a gift rather than an organisational requirement. Conceptualising probation work as a gift might on the face of it appear somewhat incongruous within a relationship based on a court-mandated sanction and involving a remunerated penal agent. Moreover, as Knight (2014: 189) points out: In the current punitive climate of criminal justice, certain different forms of knowledge production are favoured over others; there is a favouring of ‘hard’ facts or statistics over ‘soft’ emotions. This applies equally to the favouring of ‘hard’ practices, for example, community payback and electronic monitoring, over ‘softer’ interpersonal relationships. However, Knight (2014: 8) goes on to contend that it is these ‘soft skills’ such as empathy, motivation, and self-awareness, that enable practitioners to achieve the ‘hard work’ of managing and enabling change in those they work with. In an earlier article, Malcolm Millar and myself (Millar and Burke, 2012) argued for a reassertion of the humanitarian concerns of probation. It is important to emphasise that we were not suggesting that probation practitioners do not have the capacity for humanistic practice. Successive studies (see for example, Annison et al., 2008; Deering, 2011; Grant, 2016) have demonstrated that despite the vagaries of criminal justice policies, they are keen to hold on to the traditional welfare focus of probation. Rather, our contention was that the context of contemporary probation work was in some cases forcing them to adopt a somewhat utilitarian approach in their interactions with those under their supervision. Our intention was to promote a concept of probation activity that has humanity as an essential definer of its value; the practice qualities associated with humanity being at least as important as any impact on criminal activity that probation may produce. Drawing on a Kantian approach to punishment, we argued that to pursue humanistic probation involves, first of all, accepting and asserting that, even although individuals have acted illegally, they should still be met with the respect

208

The ‘Quality of Mercy’ in Probation Practice

– and the respectful treatment – which is their right as human beings, independently of any impact that this humane treatment could have on the risk of their reoffending. So, whatever they have done, people should be treated according to values commonly regarded as constitutive of humanity. In this regard, communicative justifications for punishment (Duff, 2001) may be viewed as humanistic in that they seek to uphold an individual’s moral equality while expressing society’s disapproval of their behaviour. More specifically, if they pursue practice humanistically, probation officers will aim for interventions that have an unconditional regard for personal dignity, empathy and compassion. The Kantian idea of ‘respect for persons’ is helpful in articulating this ethical constraint on the treatment of human beings. Crucially, the fact of committing criminal offences does not constitute a justification for social exclusion, or for withdrawing the respect which individuals, as persons, are due. Indeed, as the renowned civil rights defence attorney Bryan Stevenson (2015: 294) has argued, mercy is most potent when it is aimed at those deemed undeserving: The power of just mercy is that it belongs to the undeserving. It’s when mercy is least expected that it’s most potent – strong enough to break the cycle of victimization and victimhood, retribution and suffering. It has the power to heal the psychic harm and injuries that lead to aggression and violence, abuse of power, mass incarceration. Acceptance of the basic tenets of humanistic practice might, from one point of view, seem unproblematic, in the sense that few in the professions which engage sympathetically with forms of human need might be expected to dissent from them. But a crucial point about humanistic qualities lies in the potential for conflict involved in their advocacy. From this point of view, the significance of humanistic probation is not only in the nature of the qualities it supports, but also – and crucially – in the fact that supporting these qualities can be particularly contentious, and will certainly be so when ‘popular’ punitive discourse is prevalent. Forcing ‘offenders’ to wear brightly coloured jackets as a shaming form of ‘punishment in the community’ (Casey, 2008); imposing disproportionate restrictions on individuals based on the possibility of further offending; or recall decisions which are of dubious legitimacy (Digard, 2010) – these topics all raise moral issues; and particularly in a punitive climate, those who venture to examine them in terms of their questionable humanity in individual cases enter contentious territory. In this sense, humanistic probation is challenging and controversial. It asks a lot of those who

209

CRIMINOLOGY AND PUBLIC THEOLOGY

would pursue it and more specifically, it expects them to think about how contentious decisions can be justified. Humanistic probation does not contradict the view that public protection is a vital aim, and nor does it ask probation officers to respect the rights of offenders at the expense of those offended against (a position also criticised by Nellis, 1995: 351). The role of probation is (or should be) to implement court-imposed sanctions in a way that maintains the integrity of the judicial process while encouraging ‘making good’ (Maruna, 2001) and respecting moral agency. Part of what it means to respect moral agency is to censure, and as Millie (2016: 104) has argued ‘the justice system is there to intervene if anyone uses another human as a means to an end’. If an individual does not volunteer to make good, then the state has the power (and the right) to impose compulsory losses. Similarly, if a person refuses help (for example, help that might reduce the risk of serious offending as well as supporting reintegration), then the state has the appropriate authority (and some would say duty) to impose restrictions on the individual in an attempt to secure public safety. So, although humanistic practice may require practitioners sometimes to go against the grain of popular sentiment, it should not be caricatured as exclusively concerned with social care or offenders’ needs. On the contrary, part of the complexity that humanistic practice incorporates is constituted by its recognition that criminal justice matters are not resolvable in simple terms. Of course, it should be recognised that due to sustained (and I would argue damaging) political interference contemporary probation has had little control over its identity and ways of working. Humanistic practice is a moral concept but one that can deliver tangible outcomes in terms of supporting the individual’s journey to a new non-offending identity and reintegration within our communities. At present, humanistic practice is under threat not necessarily because probation staff and criminal justice workers lack it, or have lost faith in it, but because the fundamental basis of marketised rehabilitative services linked to the obsession with speed and apparent efficiency in criminal justice processes makes it more difficult to express with service users on a daily basis. However, it is vital that practitioners hold on to a humanistic perspective in order to sustain probation’s developmental trajectory. The literature on desistance that has been referred to throughout this chapter, consistently points to the importance of the supervisory relationship. As David Hayes (2015: 87) notes, ‘Practitioners should therefore be keenly aware of the potential for their practice to exacerbate, or indeed to create pain and suffering, even if only in the short term, in order to consider whether different approaches and practices could better achieve their objectives.’

210

The ‘Quality of Mercy’ in Probation Practice

Conclusion As Andrew Millie outlined in his introduction in Chapter  1, the central aim of this edited collection was to challenge criminal justice orthodoxy, to question the dominance of retributive punishment, and to consider alternatives that draw on Christian ideas of hope, mercy and restoration. Mercy as a guiding rationale might appear somewhat out of place in contemporary probation practice, which is less about individual reformation and more concerned with public protection through the mechanisms of risk management strategies and delivered through a marketised system. Indeed, the prospects for a more enlightened and merciful criminal justice practices do not bode well. In a recent pronouncement, the British Home Secretary has spoken of wanting criminals to ‘literally feel terror’ (BBC, 2019). Mercy does not flourish in such infertile ground. Populist rhetoric of this type only serves to further reinforce unfounded assumptions that those who find themselves subject to penal sanctions are somehow different from ‘ordinary’ members of the public and that punitive responses will have a deterrent effect. Certainly, in the case of community orders there is no evidence that tougher sanctions lead to improved outcomes in terms of reducing reoffending despite the assertions of successive governments over the past thirty years (Mills, 2011). This all seems a long way from the morality of the public theology that motivated the early police court missionaries’ desire for a more merciful approach to sentencing, whose influence continued to be exerted up within the work of the secular probation service until the post-war period. As Nellis (2007: 50) notes, Whatever its shortcomings, there can be no doubt that probation in twentieth century Britain did humanise significant aspects of the administration of justice at root by ameliorating unnecessary harshness but in many respects going beyond this to something more proactive. At their best, probation officers showed kindness, understanding and respect to offenders at fateful and strained moments in their lives. As this exploration of the early work of the police court missionaries highlights, the notion of mercy and how it is applied is not without its problems, located as it was within a humanistic sensibility ‘hedged by the unconscious constraints of white British – even imperial – identity’ (Nellis, 2007: 51). Nevertheless, it could be argued that there is a need for a renewed language and dialogue that reflects the humanitarian concerns of probation work, one that captures the same motivations

211

CRIMINOLOGY AND PUBLIC THEOLOGY

that led the early police court missionaries to engage with the troubled and the troublesome even if the help offered was conditional and mercy extended only to those deemed deserving of an alternative approach to the default of punishment. Subsequently, throughout much of the 20th century probation was used instead of punishment until it became a sentence in its own right following the implementation of the Criminal Justice Act 1991. It has to be acknowledged of course that the work of the police court missionaries was largely focused on first-time and petty offending. Contemporary probation on the other hand has responsibility for managing a much broader range of offending profiles including those at the most serious level. However, if we have learnt anything from the narratives of those attempting to ‘go straight’ (see for example, Maruna, 2001; Farrall, 2002; Nugent and Schinkel, 2016) it is the futility of believing that punishment alone will bring about positive and lasting changes for those involved in entrenched criminal lifestyles. Failing to respect an individual’s dignity and capacity for moral agency is to deny them the humanity which we should be attempting to model and merely serves to reinforce their marginalisation and disenfranchisement. Perhaps then, as Christie (1981: 11) contends, we should ‘look for alternatives to punishment, not only alterative punishments’. As Canton argues this should be underpinned by social values that include a belief in the possibility of change and a rejection of the idea that anyone is permanently defined by or reduced to their worst behaviour. They also include the belief that punishment must have its conclusion, that once the punishment has been completed people ought to be dealt with on the same basis as others. (Canton, 2018: 265) Canton frames this interaction as a dialogue between the community, as represented by the probation officer, and the offender. Accordingly, ‘sometimes the individual will wish to express remorse, but there may also be occasions when she needs to say other things – something about the social context of the offence, perhaps, and what it would take to help her to desist’ (Canton, 2018: 264). Crucially, this approach recognises that in order to deliver tangible outcomes in terms of supporting the individual in their efforts towards a new non-offending identity and reintegration within our communities, society has to ‘accept its responsibilities to deal with ex-offenders on an appropriate moral basis that does not reduce them to the worst things they ever did’ (Canton, 2018: 260). The early police court missionaries understood this, and it is no less relevant today. The biblical exemplars of the Good Samaritan or the father of the Prodigal

212

The ‘Quality of Mercy’ in Probation Practice

Son come to mind here, based as they were on acts that were sensitive to the plight of the powerlessness and demonstrating an unconditional offer of help and mercy to those in difficulty. References

Allen, M. (2015) ‘Locating forgiveness in criminal law and punishment’, PhD thesis, Birkbeck: University of London, http://bbktheses.da.ulcc. ac.uk/138/ Annison, J., Eadie, T. and Knight, C. (2008) ‘People first: probation officer perspectives on probation work’, The Probation Journal, 55(3): 259–71. Auerbach, S. (2015) ‘“Beyond the pale of mercy”: Victorian penal culture, police court missionaries and the origins of probation in England’, Law and History Review, 33(3): 621–63. BBC (2019) ‘Home Secretary Priti Patel: I want criminals to feel terror’, News, 3 August, www.bbc.co.uk/news/uk-49213743 Bolton, S.C. (2005) Emotion Management in the Workplace, Basingstoke: Palgrave Macmillan. Bowpitt, G. (1998) ‘Evangelical Christianity, secular humanism, and the genesis of British social work’, British Journal of Social Work, 28(5): 675–93. Bowpitt, G. (2007) ‘Christianity and Social Service in Modern Britain: The Disinherited Spirit by F. Prochaska’ [Review], Social Policy and Administration, 41(1): 105–7. Burke, L. and Collett, S. (2020) ‘The gift relationship: what we lose when rehabilitation is privatised’, in P. Bean (ed.) Criminal Justice and Privatisation: Key Issues and Debates, Abingdon: Routledge. Burke, L., Collett, S. and McNeill, F. (2019) Reimagining Rehabilitation: Beyond the Individual, Abingdon: Routledge. Canton, R. (2013) ‘The point of probation: on effectiveness, human rights and the virtues of obliquity’, Criminology and Criminal Justice, 13(5): 577–593. Canton, R. (2018) ‘Probation and the philosophy of punishment’, Probation Journal, 65(3): 252–68. Casey, L. (2008) Engaging Communities in Fighting Crime: A Review, London: Cabinet Office. Cassady, S. (2001) ‘Frederic Rainer: the founder of probation?’, Probation Journal, 48(4): 287–9. Christie, N. (1981) Limits to Pain: The Role of Punishment in Penal Policy, Oslo: Universitetsforlaget. Crewe, B. (2009) The Prisoner Society: Power, Adaptation and Social Life in an English Prison, Oxford: Oxford University Press. Crewe, B. (2011) ‘Depth, weight, tightness: revisiting the pains of imprisonment’, Punishment & Society, 13(5): 509–29.

213

CRIMINOLOGY AND PUBLIC THEOLOGY

Deering, J. (2011) Probation Practice and the New Penology: Practitioner Reflections, Aldershot: Ashgate. Digard, L. (2010) ‘When legitimacy is denied: offender perceptions of the prison recall system’, Probation Journal, 57(1): 43–61. Duff, R.A. (2001) Punishment, Communication and Community, Oxford: Oxford University Press. Duff, R.A. (2007) ‘The intrusion of mercy’, Ohio State Journal of Criminal Law, 4(2): 361–87. Durnescu, I. (2011) ‘Pains of probation: effective practice and human rights’. International Journey of Offender Therapy and Comparative Criminology, 55(4): 530–45. Farrall, S. (2002) Rethinking What Works with Offenders, Abingdon: Routledge. Farrall, S., Hunter, B., Sharpe, G. and Calverley, A. (2014) Criminal Careers in Transition: The Social Context of Desistance from Crime, Oxford: Oxford University Press. Gambino, L. (2014) ‘Thrown into jail for being poor: the booming forprofit probation industry’, The Guardian, 2 March, www.theguardian. com/money/2014/mar/02/poor-for-profit-probation-prison-georgia Grant, S. (2016) ‘Constructing the durable penal agent: tracing the development of habitus within English probation officers and Scottish criminal justice workers’, British Journal of Criminology, 56(4): 750–68. Hayes, D. (2015) ‘The impact of supervision on the pains of community penalties in England and Wales: an exploratory study’, European Journal of Probation, 7(2): 85–102. Hayes, D. (2018) ‘Experiencing penal supervision: a literature review’, Probation Journal, 65(4): 378–93. Hirsch, A. (2017) ‘The Lavinia Woodward case exposes equality before the law as a myth’, The Guardian, 27 September. Ignatieff, M. (1978) A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750–1850, London: Macmillan. Knight, C. (2014) Emotional Literacy in Criminal Justice, Basingstoke: Palgrave Macmillan. Lewis, C.S. (1953) ‘The humanitarian theory of punishment’, Res Judicatae, 6(230): 224–30. Mair, G. and Burke, L. (2012) Redemption, Rehabilitation and Risk Management: A History of Probation, Abingdon: Routledge. The Marshall Project (2017) ‘No mercy for judges who show mercy’, News, 29  November, www.themarshallproject.org/2017/11/29/nomercy-for-judges-who-show-mercy Maruna, S. (2001) Making Good: How Ex-Convicts Reform and Rebuild Their Lives, Washington, DC: The American Psychological Association.

214

The ‘Quality of Mercy’ in Probation Practice

Maruna, S. (2011) ‘Judicial rehabilitation and the ‘clean bill of health’ in criminal justice’, European Journal of Probation, 3(1): 97–117. McNeill, F. (2012) ‘Four forms of supervision: towards an interdisciplinary perspective’, Legal and Criminological Psychology, 17(1): 18–36. McNeill, F. (2019a) Pervasive Punishment: Making Sense of Mass Supervision, Bingley: Emerald Publishing. McNeill, F. (2019b) ‘The paradox of punishment’, Society Now, Spring (34), https://esrc.ukri.org/files/news-events-and-publications/publications/ magazines/society-now/society-now-issue-34/ McNeill, F. and Farrall, S. (2013) ‘A moral in the story! Virtues, values and desistance from crime’, in M. Cowburn, M. Duggan, A. Robinson and P. Senior (eds) Values in Criminology and Community Justice, Bristol: Policy Press, pp. 147–65. McNeill, F. and Maruna, S. (2007) ‘Giving up and giving back: desistance, generativity and social work with offenders’, in G. McIvor and P. Raynor (eds) Developments in Social Work with Offenders: Research Highlights in Social Work 48, London: Jessica Kingsley. McWilliams, W. (1983) ‘The mission to the English police courts 1876– 1936’, Howard Journal of Criminal Justice, 23(3): 129–47. Meyer, L.R. (2010) The Justice of Mercy, Ann Arbor, MI: University of Michigan Press. Millar, M. and Burke, L. (2012) ‘Thinking beyond ‘utility’: some comments on probation practice and training’, Howard Journal of Criminal Justice, 51(9): 317–30. Millie, A. (2016) Philosophical Criminology, Bristol: Policy Press. Mills, A. (2011) Community Sentences: A Solution to Penal Excess?, London: Centre for Crime and Justice Studies/Esmee Fairbairn Foundation, www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/ CommunitysentencesRSS.pdf Moore, J. (2017) ‘The Lavinia Woodward case exposes the inequality at the heart of our justice system’, The Independent, 18 May. Murphy, J. (1988) ‘Mercy and legal justice’, in J.G. Murphy and J. Hampton (eds) Forgiveness and Mercy, Cambridge: Cambridge University Press. 162–86. Nellis, M. (1995) ‘The “third way” for probation: a reply to Spencer and James’, Howard Journal of Criminal Justice, 34(4): 350–3. Nellis, M. (2007) ‘Humanising justice: the English probation service up to 1972’, in L. Gelsthorpe and R. Morgan (eds) Handbook of Probation, Cullompton: Willan. Nugent, B. and Schinkel, M. (2016) ‘The pains of desistance’, Criminology & Criminal Justice, 16(5): 568–84.

215

CRIMINOLOGY AND PUBLIC THEOLOGY

Prison Reform Trust (2017) ‘There’s a Reason We’re in Trouble’: Domestic Abuse as a Driver to Women’s Offending, London: Prison Reform Trust. Radzinowicz, L. and Hood, R. (1986) A History of English Criminal Law, Vol. 5: The Emergence of Penal Policy, London: Stevens & Sons. Ricoeur, P. (1990) ‘The Golden Rule: exegetical and theological perplexities’, New Testament Studies, 36(3): 392–7. Shapland, J., Farrall, S. and Bottoms, A. (2016) (eds) Global Perspectives on Desistance: Rethinking what We Know and Looking to the Future, London: Routledge. Smart, A. (1969) ‘Mercy’, in H.B. Acton (ed.) The Philosophy of Punishment, London: St Martin’s Press, 212–27. Stevenson, B. (2015) Just Mercy: A Story of Justice and Redemption, New York: Scribe Publications. Sykes, G. (1958) The Society of Captives: A Study of a Maximum Security Prison, Princeton, NJ: Princeton University Press. Travis, A. and Rogers, S. (2011) ‘Revealed: the full picture of sentences handed down to rioters’, The Guardian, 18 August. Tutu, D. (1999) No Future without Forgiveness, London: Rider. Vanstone, M. (2004) Supervising Offenders in the Community, Aldershot: Ashgate. Walker, N. (1991) Why Punish? Theories of Punishment Reassessed, Oxford: Oxford University Press. Whitehead, S. (2018) The Changing Use of Pre-Sentence Reports, London: Centre for Justice Innovation. Wiener, M.J. (1990) Reconstructing the Criminal: Culture, Law and Policy in England 1830–1914, Cambridge: Cambridge University Press. Young, P. (1976) ‘A sociological analysis of the early history of probation’, British Journal of Law and Society, 3(1): 44–58.

216

10

Loving the Neighbourhood, Loving Enemies: Towards a Theology for (and from) Policing1 Alistair McFadyen

Introduction Criminal justice has proved to be a long-standing site of substantive theological engagement. It may therefore come as a surprise to find that in the theological literature on criminal justice (at least in English), we find no substantive discussion of policing.2 Indeed, the case is no different in other discursive theological fields, such as Christian ethics, liberation theology, public theology, political theology or black theology, for instance.3 In all, we can find some occasional, passing and indirect mention of policing, but almost no sustained and substantive discussion where policing is the direct focus. There are a very few instances where policing does receive more than passing or fleeting attention (in texts where the focal interest is not, in fact, criminal justice), where it is similarly nonetheless secondary and instrumental towards other, more comprehensive frames of reference, primary ends and contexts of concern. Policing in its own right has therefore been curiously absent from all theological discourse as a site for direct, sustained and focused theological engagement, reflection, discernment or concern, whether critical or constructive.

217

CRIMINOLOGY AND PUBLIC THEOLOGY

In this chapter, I begin by asking what we might learn from this absence of specific, focal theological engagement with policing in the theological literature on criminal justice, as well as from those few discussions where there is at least some indirect mention or more extended consideration of policing towards other more primary ends, and whether and why that absence might matter. Those questions will help identify potentially productive theological foundations for a constructive and critical theological engagement, which I hope might also contribute in a small way towards a rich understanding of more conventionally established loci for theological discussion of criminal justice. The constructive proposal is centred on love in the twin modalities of love of neighbour and love of enemies. Perhaps already this seems an unlikely candidate for a positive constructive theological engagement with policing; unlikely perhaps to survive exposure to its gritty, ambiguous reality. Suspicion about the role that might play in a constructive engagement with policing reflects perceived tension between love on the one hand and the dispensation of criminal justice on the other; suspicion that revolves around the role played by judgement, coercion, force, deprivation of liberty, confrontation. Love might seem more likely to be an instrument of critique than of constructive engagement or theological discernment. That same anticipated tension between love on the one hand and the practice of policing on the other is no stranger to established theological discussion of criminal justice, especially in relation to punishment, although it is not always explicitly thematised in this way. By identifying appropriate discursive nodes for theological discernment in relation to policing, then, I hope also – by taking a step sideways – to throw a little light back on the extant theological literature on other aspects of criminal justice. But the journey is a return one. By thinking through what love might mean in the context of the realities of policing affords opportunity to critically interrogate and deepen Christian understanding of what Christian talk of love might mean. I say that the absence of substantive theological consideration of policing, especially in the significant literature on criminal justice, is ‘curious’ for several reasons. First, policing is the organ of criminal justice we are likely to encounter (or notice in the form of passing patrols or police activity) more often than others (unless under conditions of incarceration or working in criminal justice ourselves). Policing is visible to us, both in our daily lives and through its representation in media, literature, film and TV, in a way and to an extent that probation work, prisons, courts and sentencing are not. Second, in a sense, it is also more basic than other aspects of a criminal justice system: almost always, prior police involvement will have been

218

Loving the Neighbourhood, Loving Enemies

instrumental to the activation of other organs of justice. Given that we see police and encounter policing in the fabric of our everyday lives, the absence of specific theological attention seems all the more curious given the prominence in several fields in Christian theology and ethics of issues regarding state use of force and violence and of state power more broadly. Such impression is not dimmed by the one strand of theological ethics where policing does receive relatively more substantial attention in discussions of force: in Christian ethics rather than the theological literature on criminal justice. The attention is positive, since policing is treated as a previously disregarded resource for thinking through issues of military force, non-violence and just war in both Roman Catholic and anabaptist-rooted traditions. But the consideration of policing is instrumental to the primary field of concern (military operations) rather than given direct, substantive attention. This builds on an acceptance even among some Christian pacifists that their reservations about military violence might not in all circumstances extend to a policing function, given certain strict conditions. That then extends to consideration of military force in exercising a ‘policing’ function in foreign deployments that aim to keep peace, reduce conflict, restrain disorder or restore order. Notwithstanding that this treatment of policing is relatively substantial but not substantive, there is nevertheless something significant to take from this discussion into focused theological consideration of policing in its own right, which I pick up a little later in this chapter (see for example, Winright, 1995; Kauffman, 2004; Friesen and Schlabach, 2005; Schlabach, 2007, 2012). This rapprochement between Catholic ethicists and anabaptist theologians has met significant pushback from representatives of the latter’s radical traditions, where we do find some substantial (and extremely negative) discussion of US policing. While substantial and direct, the consideration of policing is entirely directed towards re-establishing both a position of absolute pacifism and non-participation in the coercive power of the state (including either joining or calling the police). There is no possibility therefore of building up a positive theological engagement, or seeing policing as itself a place for theological discernment or as a theologically significant arena for engaging the ambiguities of a damaged and damaging humanity (see especially Alexis-Baker, 2007, 2016). Those discussions have a history coincident with the beginnings of Christian faith, long pre-dating the institution of policing as a separate and nonmilitary function of the state. That perhaps partly explains the retention of focus on military rather than police use of force. Moreover, in the UK, especially since the 7/7 bombings of the London transport system in 2005, religion and faith communities have achieved

219

CRIMINOLOGY AND PUBLIC THEOLOGY

greater significance in relation to policing – as has been the case in state institutions across British public life more generally. This is a development that has gone largely unnoticed in the academic disciplines of either criminology, with the exception of counter-terrorist policing (see Spalek and Lambert, 2007; Lambert, 2008; Spalek, 2008; Kundnani, 2009; Spalek et al., 2009; Choudhury, 2010; Greer, 2010), or of theology and religious studies (although see McFadyen and Prideaux, 2014). These developments include: • the explicit incorporation of faith and religion into the prioritised set of diversity agendas (both internal and outward facing) operating through all aspects of British policing; • the formal recognition in criminal law of faith hate as a separate and distinct hate crime, and of a religious motivation or context as a potentially aggravating factor in relation to several offences that are crimes in their own right; • the shift throughout British policing to a neighbourhood policing model (now vastly scaled back as a consequence of ‘austerity’ measures following the last financial crisis), combined with broader currents of concern regarding social cohesion, partnership working and community engagement, especially with traditionally ‘harder-toreach’4 communities • engagement with faith communities and religious and quasi-religious ideologies in social cohesion (and for their social capital), especially in the context of counter-terrorism work.5 It would be exaggerating to say that there is a widespread expectation for theological engagement in either policing or policing studies. And yet, at the same time, it is also true that – certainly in British policing – current conditions favour fertile receptivity to the contribution of theologians and Christian ethicists to the vibrant, rich, traditioned and grounded discussions of values and policing purpose in a plural and open democratic society. Despite an institutionalised aversion to ideology in British policing (as in the civil service), it was founded on a unique set of values that have remained a defining aspect of its core identity.6 More recently, a formal code of ethics has been introduced that stands at the centre of the National Decision Model (which guides all decision making and against which all police decisions have to be justified), but which has attracted no attention in public theology, Christian ethics or the theological discourse regarding criminal justice (College of Policing, 2014a, 2014b). The combined effect of these considerations makes the absence of direct, substantive engagement with policing in the theological literature

220

Loving the Neighbourhood, Loving Enemies

on criminal justice seem all the more curious – except it is perhaps only an independently derived interest in policing that puts these developments and factors together; only from that perspective that one might ask how the trajectories of several theological discourses where consideration of policing might be pertinent have nonetheless excluded it from direct, substantive consideration. Asking that latter question of the theological literature on criminal justice will assist in gaining clarity about both how theological engagement with policing might most helpfully be oriented and how it might map onto extant engagements of theology with criminal justice. Gaining a stronger sense of the character and quality of the criminal justice literature will help us understand why its established trajectory has not tarried long on policing and also point us towards ways of framing theological engagement with policing that might have constructive and critical potential. Although it is rare to find criminologists and theologians in conversation or publishing together as we are in this volume (for example, Bottoms and Preston, 1980; Rothchild et al., 2007), criminal justice has nonetheless proved to be a site of recurrent theological engagement over a prolonged period. Over the last forty years, for instance, several substantive works of academic theology have appeared in English on criminal justice (with theologians often working in interdisciplinary ways, engaging with criminology as a discipline, if not with criminologists themselves as interlocutors) (for example, Wood, 1991; Gorringe, 1996, 2004; Forrester, 1997; Newell, 2000; Marshall, 2001, 2012; Hauerwas, 2004; Oliver, 2008; Levad, 2014; Burkholder, 2017). In quantitative terms, the overall number of texts in that time-frame might perhaps appear small; the rate of publication over an extended period, infrequent. Yet it would be a mistake to conclude from such quantitative measures alone that criminal justice has in fact been a relatively insignificant, marginal theological theme, attracting only episodic and occasional attention; attention that is ad hoc in character, reflecting perhaps the accidental and idiosyncratic interests and enthusiasms of specific theologians at particular junctures. There are two reasons that, combined, suggest otherwise: first, that pattern of repeated return to the field of criminal justice itself; second, its impressive coherence derived from its almost exclusive singularity of focus. The irregular rhythm of frequent return suggests, in fact, the opposite of what might be expected. Criminal justice repeatedly exercises a lure and a pull for theological attention on its own account, rather than as natural outworking of an institutionalised, ongoing and uninterrupted conversation, where one author responds to and builds on another soon after. It does so independently also of an established place in the canon of formally recognised doctrinal loci or obligatory

221

CRIMINOLOGY AND PUBLIC THEOLOGY

themes in Christian doctrine, ethics or public theology. That it wins its place for renewed attention somehow time and again suggests rather that there is something about criminal justice that holds a special significance for Christian faith, such that it repeatedly invites sustained theological attention from theologians and Christian ethicists for whom criminal justice is not otherwise a primary or exclusive concern. Rather, criminal justice becomes a concern as the result either of the trajectory of broader theological work and/or as the result of issues emerging in the context in which the theologian is working. What is it about criminal justice that independently repeatedly draws theologians’ attention as the result of their work in doctrinal, biblical, public theology or Christian ethics? Or that seems to demand a specifically theological contribution where criminal justice becomes, for instance, a matter of general public concern or debate in a particular context? An important clue as to what it might be about criminal justice that demands this repeated attention lies in the coherence of the theological literature – in terms equally of focus, character of concern and of general position adopted. Overwhelmingly (indeed, almost exclusively) the focus is on punishment and penal policy: the purpose, nature and consequences of punishment and of incarceration. The general character of that concern has been that punishment serves a creative, positive and potentially transformative purpose. The orientation is largely towards the welfare of the offender and the general position that punishment is not intrinsically good (indeed, might even be suspect) so cannot therefore be an end in itself. Tellingly, that same phenomenon of repeated, episodic engagement with issues in criminal justice can be found discursively in official church reports as well as in academic theology (which the academic discourse both mirrors and contributes to) (Barth, 1961, 1965;7 Barnes Lampman, 1999;8 Catholic Bishops Conferences of England and Wales, 2004; Sedgwick, 2004; Church of England, 2007; Church of Scotland, 2007). Like the academic literature, church reports are also almost exclusively focused on punishment and penal policy. That focus is both rooted in and expresses significant and long-standing practical commitments – of institutions to maintain prison chaplaincies, and (especially) lay activism in relation to prison reform and alternatives to incarceration and retributive forms of punishment. Criminal justice – specifically issues regarding punishment and the treatment of offenders – can attract and repeatedly reclaim this returning discursive and activist theological attention because issues of penal policy and practice are widely perceived by Christians to be closely correlated with core, foundational and fundamental aspects of Christian faith. In short, imprisonment and punishment are viewed as

222

Loving the Neighbourhood, Loving Enemies

having such close connection to the core of Christian faith, that they are seen as in themselves Christian and theological issues. As the subtitle of the present volume conveys well, the approach of academic theologians and of churches alike has been marked uniformly by an experienced tension between what are taken to be core Christian values and orientations on the one hand (what God is up to in the world; the orientation and character of God’s presence and action) and those found in practice, theory and policy in the criminal justice system – specifically, its treatment of offenders – on the other. The ‘hope, mercy and restoration’ of our subtitle might be interpreted theologically as vectors for God’s transformative power, opening creative possibilities for new life where people seem imprisoned and enclosed by the forces of death; of re-establishing God’s shalom where that has been broken; of establishing possibilities for atonement, forgiveness, reconciliation. That creative, transformative power is directed and focused precisely where human beings are most damaged and damaging: in their potency, comprehensively disoriented from the good; in their vulnerability, overwhelmed, tempted, groomed, coerced. It is also especially focused where people are in the power, care and control of the state or community, which now bears responsibility for them. In terms of Christian faith, this represents a reading centred on the consequences of Jesus’ death and resurrection on the one hand; and the nature and gratuitous orientation of his ministry, characterised by love and forgiveness on the other. The latter was oriented towards the marginalised, the outcast, the undeserving – the most damaged and damaging; the direction and orientation of the work of the Holy Spirit. Christians have their own particular reasons, therefore, for asking hard questions of the values that might be shaping criminal justice practice and policy or instantiated in its outcomes, and good reason for focusing on punishment, penal policy and practice. The common thread running through the chapters in this book can also be found in that sequence of previous theological and ecclesiastical engagements. The same fundamental question is carried forward here: can criminal justice (and especially its penal practices and policy) be a vehicle of love that transforms and creates new possibilities of living, seeking human flourishing in a future that is not overdetermined by the past, such that it might have transformative and restorative possibilities? In short, can treatment of offenders (including imprisonment) be loving, forgiving, life-giving, even? And can it be so precisely at the point at which the state has taken control over an offender and is set to impose sanctions, restrictions, requirements, cautions about future behaviour? And if so, how? Or is it fundamentally dehumanising and demonising, merely

223

CRIMINOLOGY AND PUBLIC THEOLOGY

retributive and instrumental, locking offenders into a determinative past that comprehensively marks their identity, worth and future in a way that denies or gives up on God as the source of transformative creativity, the promise and possibility of new life? Can the transcendent break into human reality through the institutions and practices of criminal justice, precisely where it seems there are no grounds for hope; where retribution rather than mercy is at least humanly understandable and (in a narrow calculation) ‘justly’ deserved; where, therefore, restoration to community also appears undeserved? The coherent focus and orientation of the theological criminology literature on penal policy/punishment, coupled with its repeated pull for theological attention (by Christians in academy, church and world), are expressions of fundamental, orienting commitments of Christian faith. The repeated return itself suggests strongly that criminal justice (especially the way it disposes of offenders) is regarded as a significant context where the transformative vectors of love, hope, forgiveness, reconciliation (whereby the energies of the transcendent power to make things new may be mediated) are both most needed and most at risk (where we are tempted easily to enact alternatives to them). This focus and orientation has twin direct consequences: a focus on offenders and on what happens to them post-conviction, suffused with a concern for the wellbeing and future flourishing of the offender. The absence of direct, substantive discussion of policing may partly be explained as an indirect consequence of that focus. Only passing attention, if that, tends to be paid in the literature to policing, and even then, it is only the (admittedly core) police function of bringing offenders to justice in the sense of a judicial process that is in view. For the most part, theologians writing about criminal justice pay no substantive attention to policing in its own right, as though police activity is of instrumental significance only in beginning that process whereby the state takes control of suspected offenders, bringing them to the point of punishment – the issue of theological interest and consideration. The overwhelming focus of the literature on the post-conviction treatment of the offender explains the marginalisation of policing as a direct and distinct focus for substantive attention. Yet that marginalisation runs the risk of exacerbating suspicions some may have about the direction and character of concern for the offender; concerns that in my experience can be encountered among some criminal justice practitioners about Christian discourse and practical engagement. Those suspicions are not generated by the literature; they are brought to it and reflect a fairly widely held hermeneutic lens through which fundamental Christian orientations, convictions and values are heard and interpreted. Broadly put, there is

224

Loving the Neighbourhood, Loving Enemies

concern that Christian concentration on the offender characterised by transformative love will run counter to the interests of the victim, of appropriate justice and so also of the community. The suspicion is that the vectors of transformative love and hope directed towards offenders – restoration, reconciliation, forgiveness – effectively minimise or set aside the offence, harm caused and future risk. This is often represented as a fanciful optimism, disengaged from reality and from the truth of the situation; a sign of what I have heard more than once represented as Christianity’s laughable ‘otherworldliness’; its unfitness for handling the realities of a broken and damaged world in a fog of benign, wishywashy, ungrounded optimism about human beings. Those concerns are often nourished by the way in which Christian talk of love (especially of enemies), the prioritisation of forgiveness and reconciliation, and what can appear to be resistance to confrontation and judgement in its name, can be heard. I was tempted to say ‘misheard’, but one does not have to go far to find examples of Christian talk that appear to operate with exactly the understanding of love, forgiveness and reconciliation that would sustain these suspicions that, in turn, invite mishearing of more nuanced, subtle understanding of them articulated in the criminal justice literature and elsewhere. Despite the fact that most theological discussions of punishment display considerable nuance and sensitivity (especially in their discussion of restorative justice) towards the needs of the community and of victims, the direct focus on offenders combined with the character of that orientation (creatively transformative love, forgiveness, reconciliation) are likely to be missed when read through this interpretive lens. The absence of policing from the discussion is likely to exacerbate suspicion that loving, forgiving, reconciling, restoring offenders – creative alternatives to retributive and punitive measures – are alternatives to what is perceived to be appropriate justice because they are understood to dispense with (rather than dispense) judgement or to confront or effectively control offenders’ behaviour and the harm and risk they present. What is claimed by Christians to be a sign of the inbreaking creative possibilities of new life and hope can look to others like a fanciful refusal to face the reality of damaged and damaging humanity or take the severity of past harm and future risk to the community seriously. Christian talk can seem disengaged from the realities it claims to be subverting; too ‘other-worldly’, a denial of reality rather than a way of dealing with it creatively. Later in this chapter, I shall be proposing love of enemies as one of the twin nodes for theological engagement with policing, arguing that – properly understood – it represents a form of Christian realism that has humanising and transformative capacity. Enemy love, however, is just

225

CRIMINOLOGY AND PUBLIC THEOLOGY

one of those Christian tropes that invites (often deservedly) suspicion that it is not a vehicle for Christian realism, engaging truthfully with and confronting effectively the gritty reality of damaged and damaging human reality – a precondition for being transformative. Turning later to propose love of enemies as a central node for theological engagement with the realities of policing represents an opportunity to interrogate what enemy love might mean in a world populated by ‘enemies’ whose behaviour needs to be challenged, confronted and contained. I shall be in a better position to articulate the grounds on which enemies might be identified, their confrontation or containment prosecuted, when I turn to the other node of engagement I propose: love of neighbour. I am going to make an odd kind of progress towards that discussion by staying for now with Christian suspicion of policing focused on its confrontational and forceful nature – either generically and universally or in a specific societal context. One of the reasons this is an odd kind of progress, rather than just delay, is that the discussion will continue to focus for a while on the confrontational nature of policing, which – though essential to it – is neither the exhaustive characterisation of its interactions nor a focus that provides the most helpful way of framing and evaluating, say, use of force, nor developing a constructive, critical understanding of policing purpose. Nevertheless, moving through these critiques will helpfully advance us towards a specification of love of neighbour as love of neighbourhood that, in combination with love of enemies I shall propose as one of the two fruitful nodes for theological engagement with and discernment in policing. Policing’s inherently confrontational nature is one of the reasons that it is treated sometimes, not only with caution, but hostility in the very few substantive discussions that can be found outside the theological criminal justice literature. This is either on the basis of a more or less anarchist principle of non-violence and non-coercion (Alexis-Baker, 2007, 2016) or the way in which policing is actually practised in a particular context, its underlying values, guiding interests and its effects, in (and in support of) a specific social order: judged to be not just the limited, partial realisation of a penultimate9 good but something like the material expression of demonic powers.10 We can see here a spectrum arising out of the perceived tension that I have alluded to before between core Christian orientations (transformative love) and criminal justice in general expressed in relation to policing in particular. That tension might be expressed as the question whether, how, under what conditions and to what extent can Christian love be combined with practices that are coercive, forceful and exercise control. Yet we see the tension emerging here, not as an isolated question about use of force, but as about the social order that policing secures, serves

226

Loving the Neighbourhood, Loving Enemies

and helps recreate. Except for the pure forms of pacifism at one end of the spectrum that find all forms of cooperation with the coerciveness of any state a compromise of the purity of Christian faith with the ‘worldliness’ of the world, other points on the spectrum are not opposed to policing and the enterprise of criminal justice in principle. There is awareness of the inherent danger in any criminal justice system (and in all policing) of demonising and dehumanising offenders, of constructing systems and making decisions that are not transformative, hope bearing, forgiving, restorative; that are not loving. For sin is nowhere more dangerous than in our act of (thinking we are) confronting it (a danger potentially radicalised where policing is combined with frames of religious judgementalism). (The opposite danger is present too, though less frequently acknowledged in theological literature: that victims, witnesses, bystanders, those who are vulnerable are not protected and not given justice; those who take and assert unaccountable power to abuse or to impose their will through criminality or anti-social behaviour are left unchecked.) Other texts discuss criminal justice and policing, not in the abstract, but as embedded in, shaped by and serving a specific social order in which neither love nor justice are determined to be possible. Where the social order is itself subject to profound systemic and structural disorientation, policing and criminal justice will almost certainly find themselves vehicles for the transmission of those distortions and disorientations: vehicles of injustice. Despite their differences on issues of principle regarding force, coercion and violence, these texts share an at least implicit, formally identical means of assessing policing and criminal justice by reference to a normative notion of social order: of a community that is founded on loving mutuality funded by the presence and activity of God’s love that creates new possibilities of hope and transformation where human lives are disoriented, damaged, broken. In the liberative critique of ‘lockdown America’ and in the theological literature about Black Lives Matter, the focus is the oppressive form of social order; discussions of policing and criminal justice are secondary to that, though they are seen as principal manifestations and tools of that social order that have to be resisted (Levad, 2014; Taylor, 2015; Young, 2015; Lloyd and Prevot, 2017; Massingale, 2017; Mitchell and Williams, 2017; Menéndez-Antuńa, 2018; Miller, 2020). The implicit criteria by which policing and criminal justice are judged and which should also guide the form of protest and resistance is a non-oppressive, non-terrorising, non-racialised society, which will engender modes of policing and institutions of criminal justice (and law itself) that will be liberative in being ordered towards the full flourishing of every member. Similarly, in its more ameliorative and reformist tendencies, the theological literature on criminal justice focused on punishment (that

227

CRIMINOLOGY AND PUBLIC THEOLOGY

seeks to ensure penal policy and practice are governed by the values of love, forgiveness, reconciliation and restoration) also operates evaluative criteria that express a vision of normative social order. Present policy and practice are judged according to their potential to realise or anticipate those values: punishment is to be oriented towards the construction of an inclusive community in which there is truth and justice for victims and offenders restored to fully human life in that community. This is not expressed in univocal terms, but it is striking how pervasively a biblical notion of justice as shalom operates as a criterion of evaluation, either explicitly or implicitly (for example, Gorringe, 1996, 2004; Wolterstorff, 1999, 2011; Marshall, 2001; Friesen, 2005; Rothchild et al., 2007; Volf and McAnnally-Linz, 2016). In the Christian pacifist/anarchist case that is hidden by the headline emphasis on the issue of non-violence. But what lies behind that is not adequately captured in terms of individual rights. It is a more social discernment: that a social order founded on or maintained by the coercive power of the state cannot be the vehicle of God’s redemptive and creative love. So, no policing function nor juridical use of punishment or imprisonment can serve those theologically grounded purposes; neither can they be vehicles of God’s redemptive and transforming, hope-bearing love (Alexis-Baker, 2007). What divides them is the question whether coercion, force and violence can serve such a social order or whether they are bound themselves to generate a social order that cannot be a penultimate good, theologically construed.

Love of neighbourhood Taking the journey we have done to this point through the notions of normative social order undergirding the various literatures that bear on policing will, I hope, help avoid potential for misunderstanding when I propose re-expressing that concern through the trope of love of neighbour; or, rather, love of neighbourhood. There is a tendency to interpret love of neighbour individualistically, asocially and universally (hence, also absent reference to determinate social structure and order). Thus, ‘love of neighbour’ functions as a placeholder trope conveying a universal ethic of goodwill directed towards all individuals: • love of a generic person, not as a highly particularised person and contingent love; • specifically embodied and embedded in a particular, determinate and concrete social order, structured into a specifiable set of relationships with me;

228

Loving the Neighbourhood, Loving Enemies

• with whom I have to do on account of those material, social, cultural, symbolic, economic relationships. Love of neighbour is taken to mean love of a generalised other: love everybody in principle (but nobody in particular) but as abstract, formally identical individual exemplars of universal humanity. Properly understood, however, love of neighbour is both incarnational and social, inseparable from the social order in which I come to have to do with specific others in all their concrete particularity and bearing the contingencies of whether, what and how we are structured into particular encounter or ordered interaction – as member of that or neighbouring community but also as an officer policing it. As posed by Jesus in the parable of the Good Samaritan (Luke 10:25–37), moreover, the question, ‘who is my neighbour?’ (significantly, perhaps, raised by a lawyer) is turned around. His answer shows it is not for him an identity question concerning the legal status of someone who falls outside the legally prescribed sphere of reciprocal moral obligation and care (Samaritans would ordinarily have been regarded as enemies of Jews, not belonging to the neighbourhood), but as a question of the active orientation towards the wellbeing of someone who crosses one’s path.11 Being a neighbour is not a legal status, but active orientation towards specific others who need care: social mediation of God’s loving care and shalom that builds up neighbourhood. Biblically, a penultimately good social order or neighbourhood is a vehicle of God’s expansive shalom. Love of neighbour and of God are declared inseparable, both in the Hebrew scriptures and in the New Testament (Leviticus, 19:17; Matthew 22:35; Mark 12:28; Luke 10:27). What it takes to construct and sustain a neighbourhood where human beings in their diversity flourish; what imperils that; what might secure it – this is the focus of so much of the concern of the Hebrew scriptures (the decalogue and law in general; prophecy; wisdom and proverbial material, for instance), carried over in the New Testament’s articulation and Jesus’ exemplification of the nature and orientation of love. In both, we find strategies that protect against an overly narrow articulation of neighbourhood and neighbours correlated with intentional community, common interest or reciprocal moral obligation, which undermine any tendency to make neighbourhoods exclusionary or hostile to those not judged to ‘belong’ (for example, Brueggemann, 2002, 2010; Miller, 2004). Policing and enforcing penultimately good social order cannot include systematic practices of hostility towards others who do not ‘belong’. The Hebrew scriptures are careful to articulate obligations towards those to whom we might not ‘naturally’ sense such obligation but with whom we might nonetheless find that we have to do in our

229

CRIMINOLOGY AND PUBLIC THEOLOGY

daily lives; also those who are vulnerable or marginalised in or passing through the neighbourhood: strangers, aliens, enemies, poor people, those marginalised by the operation of economic and social systems, prisoners, widows, orphans. This is not a form of universalisation that is abstract or disembodied. It is, however, a register of the theological risk of drawing the boundaries of the social order of the neighbourhood tightly and exclusively; of permitting practices of exclusion or of marginalisation – either in the normal operation of the dynamics ordering social life (release of prisoners; cancellation of debts; care for the lot of those dispossessed) or in the extraordinary dealing with people not resident in the community (love for enemies, strangers). It is the reference to sociality – and specifically this biblically grounded sense of penultimately good social order, the neighbourhood of shalom, that I wish to concentrate on here. Love of neighbour can be an important corrective to any Christian tendency to focus exclusively on offenders and their good (what love means in terms of sentencing and out-of-court disposals) by bringing love of third parties into the picture. Insisting that others (specifically, victims), their needs and interests, might also warrant loving concern, and so be included in the frame of juridical consideration does have this consequence. However, including others with potentially competing needs and interests in calculating the demands of loving justice – while important – in itself falls a little way short of what it means to love others specifically as neighbours; that is, as belonging in, present in, passing through, working in, connected to neighbourhood. Loving others as members of a neighbourhood suggests intentional activity oriented towards victims and offenders alike as members together of the neighbourhood and its mediation of shalom or penultimately good social order. But not only victims and offenders are relevant to consideration of the effects of crime: also initial suspects, bystanders, witnesses, police officers and others more or less directly or indirectly affected by this offence. Yet the effects to be considered are neither only individual nor restricted to the more or less immediate effects and consequences of this specific offence as an isolated incident. Neighbourhood and not only neighbours are affected by patterns of repeat offending; the response of neighbours who perceive heightened risk of being subject to or witnessing future victimisation has social as well as individual effects. The pattern of public life and the ordering of public space are changed. The power that effectively regulates it are redistributed, whether that is from fear of the home being targeted in one’s absence or being victimised or witnessing victimisation in public space. The order and patterning of life are changed in the neighbourhood, whether that is the result of sexual harassment; being subject to hate speech; awareness of stranger rapes or street robberies; frequent disorderly

230

Loving the Neighbourhood, Loving Enemies

behaviour and low-level crime on the street; or a pattern of burglaries on unoccupied dwellings. In all these cases, fear reshapes the ordering of public space, who enters it, the interactions that take place in it, who has effective ‘control’ over it. Provision of and access to public utility are interrupted, businesses may close and people may feel unsafe transiting the public space of the neighbourhood. Not only crime, but the (perceived and actual) pattern of police presence, attention and activity (equally, of absence, inattentiveness, inactivity and unresponsiveness), including response to crime, also have effects on the social order of the neighbourhood. Response to incidents; the conduct of the investigation; of proactive, preventive patrol; and, above all, the quality of interactions between officers and the public: each of these can counter the effects of crime and anti-social behaviour on neighbourhood. But they are capable also of producing the opposite effect too, especially where people feel they are not treated as neighbours and police power deconstructs or threatens the neighbourhood’s good social order; is imposed on it, rather than supporting the maintenance and reconstruction of good neighbourhood. Police presence and activity, not least its engagement with suspects or groups perceived to be the actual or potential future cause of neighbourhood disorder or disruption of its public space are especially significant here.12 And all of that is to be construed dynamically in relation to the actual presence, movement and settlement of specific people, their behaviour and interactions (including reactions to policing). This offers a challenging agenda for, criteria of evaluation, and fundamental orientation in relation to policing: a community of practice seeking to engage those it comes across in whatever role as neighbours; to be an agent in the protection, construction and transformative reconstruction of neighbourhood. Policing as loving neighbourhood is a dynamic activity, by definition constantly protecting, keeping alive, restoring, extending the conditions that make it possible to be neighbours (sharing this responsibility with partner agencies and organisations, helping establish these where they presently do not exist in neighbourhoods). Special forms of attentiveness and engagement will be needed in relation to those who are (or who experience themselves to be) marginalised, vulnerable and at risk (of involvement in criminality or of criminal victimisation, but also in relation to police action), unjustly treated (including by policing or the wider criminal justice system), unable to access resources for flourishing or participating fully as neighbours in the maintenance and construction of neighbourhood. This will mean, for instance, proactively engaging marginalised, recently arrived and transient communities in order to understand their policing needs and to make the service accessible to them, but also to assess any risk represented by

231

CRIMINOLOGY AND PUBLIC THEOLOGY

or to them. (The necessity of combining the confrontational with the humanising is, I think, the essence of policing values in the construction of good neighbourhood, but it will come to better expression as love of enemies discussed below.) What should be expected of policing as love of neighbourhood in this expansive sense would require, for instance, forms of engagement and activity that might sometimes be transformative and responsive in ways that lead change with marginalised or ‘hard to reach’ communities, those stigmatised or demonised or previously criminalised, or whose presence in public space is regarded or treated with suspicion, fear or violence, especially those communities not experiencing current policing as the securing or construction of loving, plural and diverse neighbourhood.13 This includes a healthy but not disabling ability to interrogate the assumptions embedded in policing practice (and a resource also to defend appropriate and proportionate practice against the criteria of fostering good neighbourhood in the senses conveyed here). More positively, it certainly includes forms of proactive engagement with communities directly affected by offending or subject to police attention in the course of investigation.14 Good neighbourhood requires police work, in other words, towards community cohesion (but also including the facilitating of protest). This expansive criterion of neighbourhood means also identifying and responding to vulnerabilities, within communities and in individuals, to exploitation by others, including their grooming, manipulation or influencing towards criminal behaviour themselves; signposting intervention and support in the space created by arrest. Policing understood this way is oriented towards the maintenance and reconstruction of the conditions for good neighbourhood, conscious also of the effects of police activity and proactivity to themselves be experienced as constituting threats to that good order: A crime, on this view, is an act of ruin, of demolition. The common preemptive task of the state and the neighborhood in question is to diminish social conditions that encourage and allow such acts to take place; but when they do take place, the common responsive task of state and neighborhood, of victims and perpetrators, is to face and assess the ruin, to account responsibilities, and to begin to build anew. (Marshall, 2012: 136) If justice is ‘the constructive work of repairing and promoting communal life’ (Marshall, 2012: 136), then post-offence police work is the facilitation

232

Loving the Neighbourhood, Loving Enemies

of the conditions that make that possible: not just minimising or containing harm but a contribution to the creation of a space where something more creative and transformational than that can potentially happen. While not directly considered in Marshall’s excellent book from whence these quotations are drawn, the policing role in this activity requires use of police powers, including those of force and coercion. Both facing and assessing ruin and accounting responsibilities, require investigating and assessing the truth about what has happened, who did what, what harm has been experienced and caused, why did this happen in what range of complex circumstances – and all that from a range of diverse perspectives. This requires powers to examine and seize investigative material; to speak to witnesses and suspects; to enter premises; to establish conditions where suspects cannot conspire to mislead and cannot intimidate witnesses; where offenders cannot continue the course of conduct that has damaged neighbourhood and harmed neighbours and their capacity for neighbourliness. Police powers are there to facilitate the creation of space where victims and the neighbourhood are first of all protected from continuing harm; second, where investigations can be carried out and, where appropriate, a criminal case can be placed before a court. Those powers are required for the constructive work of repairing neighbourhood and they are to be evaluated by that criterion also. The move towards loving the neighbourhood (and loving suspects, offenders, victims and others as members of the neighbourhood) affords a more comprehensive and complex frame for theological, ethical and practical deliberation of police (and also of penal policy and practice that has been the focus of theological engagement with criminal justice hitherto); one that has reference to a far wider range of interests. (It more closely matches the complexities but also the orientation of police decision making, in my experience of British policing.) Or, perhaps better, it allows the interests more conventionally considered – of, say, suspect, offender, and victim – to be expressed as an interest in the construction and thriving of neighbourhood as a place for human flourishing. Custody is perhaps a helpful point of comparison and crossover between policing and the post-conviction emphasis on punishment – since the purpose and orientation of custodial offences and the potential of noncustodial alternatives has been such a vibrant area of theological attention. Police custody and powers of arrest have a different and more limited purpose, less frequently considered in the theological literature relating to sentencing and punishment: broadly, that deprivation of liberty is necessary in order to facilitate the investigation or subsequent judicial process; but also to prevent further victimisation, violence or harm to third parties or violence to the suspect (say from others’ responses to the offence) or

233

CRIMINOLOGY AND PUBLIC THEOLOGY

continued disruption of the order of good neighbourhood.15 Deprivation of suspects’ liberty may be necessary, not only to ensure the investigation can progress but also to create a space in which victims and witnesses may be spoken to without the influence of suspects or the intimation of their unchecked power on the social order of the neighbourhood (or, in the case of domestic violence, especially involving coercive control, the home – the suspect’s power being often psychologically present even when physically absent (McFadyen, 2020), as may also be true in public space of neighbourhood and significant offenders more broadly). Deprivation of suspects’ liberty may also be necessary so that bystanders, victims, and witnesses may be reassured; so that the vulnerability of the neighbourhood in general or specific neighbours and their needs relative to the offender be assessed (as can the vulnerability of suspects themselves); and the unwarranted interruption of penultimately good, decent order and its normal patterns of life may continue without unwarranted and unlawful interruption. This creation of breathing, as much as investigative, space by police powers of detention might have fruitful analogues to supplement consideration of judicial incarceration after sentence: preservation of neighbourhood and creation of a breathing space. So, for instance, custodial sentences might be justified on the basis of the neighbourhood and (potential as well as actual) victims needing (for example) a break from a pattern of repeat victimisation and exploitation of vulnerability before they can be ready to become neighbours to and for the offender again. Equally, the custodial sentence might give the offender time to process what the offending has done to the neighbourhood and how it has affected the capacity to be a neighbour to others, to receive support and assistance in becoming a neighbour again, there or elsewhere, possibly under some conditions for the future management of risk (for example, in relation to sexual offences or domestic violence). Theologically, the rights and interests of victims and offenders are to be discerned in relation to the penultimate good of the neighbourhood. They are not self-substantiating, neither do they exist in isolation, neither yet can they be played off against each other. Although for delimited and specific purpose, for victims as well as for suspects, the investigative space is one that can have significance as a mode of neighbourly recognition. The opportunity to narrate the story of victimisation and its context from their points of view, to be heard, have the damage to them acknowledged, to be paid attention, is significant – as are the negations of that: to feel misunderstood, judged, not taken seriously, blamed inappropriately, treated with suspicion or hostility, rather than heard with empathy and compassion – not treated as neighbour.

234

Loving the Neighbourhood, Loving Enemies

The simple acts of recording and investigating crime can in themselves be positive and significant expressions of the social order of neighbourhood at the point at which victims, witnesses, bystanders experience its ‘ruin and demolition’. In cases of grooming or coercive control especially, police action in confronting the abuser, contesting their narrative about what is acceptable, right and good and asserting a counter-narrative as that of the proper order and values of the neighbourhood (this is not right; you do not deserve this; it is not your fault; it is not your shame) are as important as the more obvious acts whereby abuser’s control is contested through use of force or power of arrest. Especially in considering the suspect in the context of policing construed as loving the neighbourhood, I’ve already begun to cross the border into consideration of policing as love of enemies, not least when considering confrontation, control and use of force. Not least, but not only: I have also mentioned the significance for the suspect of the creation of the space police action can open to face the reality (of what they have done and the factors that might have been operant in the offending behaviour) and to be offered support in, say, managing anger, understanding his or her controlling or abusive behaviour, gaining employment, resolving housing issues, tackling addiction, making reparation. Treating the suspect as current and future neighbour means treating them creatively, critically but also potentially transformationally as a member of the social order of neighbourhood who will be returned to it at some point (possibly almost immediately), where they may be responsive to the need to be good neighbours themselves. Police engagement with suspects and offenders under the rubric of love of enemies should be shaped by the criteria and requirements of love of neighbourhood. Yet all the transformational and creative opportunities I have suggested are made possible only because the space in which they can be offered and might be considered has been opened up by police taking action first to confront, control and to exercise judgement at least implicitly (what has happened is not OK; neither good for you nor the victim; is this who and how you want to be? what might you need to support change?). This everyday policing reality holds in sometimes tense combination a level of potentially transformative concern, care and responsibility for the suspect on the one hand, and confrontation, control, force on the other. It is a combination that is at the very heart of policing practice oriented towards the good neighbourhood, its inherent values and code of ethics. I think it best brought to expression as love of enemies. Thinking about policing as love of enemies will, I think, help bring to expression something important at the very heart of the policing mission and values (although, admittedly, I never hear it articulated thus). It will also clarify how this central trope of Christian

235

CRIMINOLOGY AND PUBLIC THEOLOGY

faith and living might most helpfully be understood, against conventional assumptions. Policing is in fact where I have learned what it might mean to love enemies.

Love of enemies It is the retention of a confrontational attitude towards the suspect, his or her expressed and enacted intentions, interests and behaviour that I regard as a practical expression of enmity to this limited extent and to these limited purposes. I anticipate that Christians might bridle at the thought that love of enemies could involve such confrontational practices as coercion, deprivation of liberty and use of force. For similar reasons, I think, that underlie other common interpretations of Christian love – in the forms of forgiveness and reconciliation, for instance – Christians tend in my experience to think of love as an alternative to enmity, rather than as a way of practising it. This assumption fails to keep love and enmity in relationship together. That is not hard to understand. For, on any conventional definition, love and enmity are oxymoronic in combination. That invites the interpretation that there is a zero-sum choice between love and enmity, such that opting for love represents refusal of enmity and loving means – from our side at least – refusing to have enemies. Something like that interpretation does seem to operate as an unexamined, background assumption in a good deal of theological ethics. It explains why we rarely find love interpreted as a qualifier of enmity, rather its antithesis; why we in fact so rarely find extended treatment of enmity under the heading ‘love your enemies’. Both enmity and enemies disappear as soon as they are targeted by love, as though we are more conscious of the threat posed to love by enmity than of the power love has to reconfigure enmity.16 Better, that any and all forms of enmity are assumed to incorporate destructive, dehumanising and demonising attitudes towards the other (hatred rather than love) that cannot be vehicles intending the wellbeing or flourishing of the enemy. I have already argued that confrontation of criminal suspects might be an expression of love of neighbourhood and that love of neighbourhood might condition, shape and be a criterion for judging police activity. In doing so I have already tentatively suggested that intending suspects and offenders as members of the neighbourhood carries the possibility whereby confrontational action can create a transformational space for enabling, empowering and redirecting offenders’ decision making and future behaviour. In other words, the acts of confrontation might be hope-bearing vehicles for creative transformation that open possibilities

236

Loving the Neighbourhood, Loving Enemies

for the offenders to flourish. Moreover, bringing offenders to justice entails implicit acknowledgment of their humanity. It is a process that engages their self-understanding and narration of reality and truth from their perspectives, so that motivations and the broader context of offending, for instance, can all be understood. The offender and situation are interpreted as humanly understandable, and not as expressions of some demonic, inhuman force. And they will be subject to judgement as such. (The temptation of using demonising and dehumanising language to refer to offenders is profoundly dangerous and already beginning the direction of travel away from anything that can be characterised as hope-bearing love, a vehicle for the offender’s wellbeing – indeed, it is its opposite, locking the offender into a closed and disparaged identity.) The general trajectory of this discussion has been to resist the temptation to focus exclusively on the suspect/offender and on use of force. At this point, it is necessary to turn attention towards the policesuspect interaction, albeit in the context of love of neighbourhood as the governing context. Nevertheless, police-suspect interaction does provide something of a test case for the applicability of the language of love towards suspects themselves at the point at which force is used, and not only in consideration of more ultimate intentions, outcomes or context of meaning or reference to the benefits for others (love of neighbourhood). Can use of force and deprivation of liberty – practices of oppositional, confrontational enmity – in themselves (and not only as instruments towards an end that might be described as loving) be characterised as, shaped by, love, that carries the wellbeing (if not flourishing) of the suspect/offender within them? Limiting the use of force to what is necessary, reasonable and proportionate in the circumstances (minimum level to achieve a lawful purpose) and in the interests of the neighbourhood (that is, has a lawful purpose such as preventing harm, damage, loss, or to effect arrest) is one way in which the wellbeing of the suspect – and their humanity – routinely enters police decisions regarding use of force. It is an at least minimal expression of love. Similarly, cessation of use of active force once compliance or control are gained is another significant test. Where control is achieved, absent continuing resistance, further active application of force would not only be unlawful but should be understood as torture, no matter how minimal. It is important that police operate with a far lower level definition of the acts that constitute torture than is conveyed in internationally agreed conventions. It is neither the intensity of pain nor the level of violence that constitute torture for a police officer, nor yet their instrumental purpose. Rather, the one sufficient condition for force and violence to constitute torture is the achievement of physical control

237

CRIMINOLOGY AND PUBLIC THEOLOGY

and power over the suspect/offender. At that point the same act that would previously have been lawful and not dehumanising or degrading (say twisting partially or completely applied handcuffs to gain compliance or to use body mechanics to bring to the ground) becomes unlawful and dehumanising violation. Instead, when control is achieved or surrendered, where a suspect is completely in the power of the officer, there is a transfer of correspondingly absolute responsibility for the suspect’s (now the officer’s prisoner) wellbeing. This includes, but is not limited to, the vulnerability created by police action, including use of force. It extends to the meeting of the detained person’s physical needs (provision of reassurance, treatment of injuries, provision of food and water) but also their immediate psychological and emotional needs. Again, this is short of an orientation towards full flourishing, but it is a necessary condition at the very beginning of that continuum – a recognition of humanity and human need, of the obligation to take responsibility for the person of the other (that is typically continued while queuing in custody, where very human interactions regarding the prisoner’s general situation and hope for the future and possible options for support might be explored). At the same time, this is still a confrontational practice and is likely still to involve some use of force sufficient to negate risk of escape and of the officer being subject to violence or resistance, and the outcome is likely to be the journey towards formal police detention in the cells for the purposes outlined in the foregoing discussion (creating investigative space) and thence to bring to justice. So, handcuffs are likely to be and to remain applied, the person searched for weapons and possibility of escape negated by the officer maintaining physical advantage. For example, British officers are taught to switch immediately from aggression to caregiving after deployment of incapacitant spray, expressing care and reassurance, but also maintaining readiness against attack when the effects wear off. This is a practice of enmity that can be (and routinely is) combined with humanising practices oriented towards the wellbeing of the suspect/ offender that might helpfully be characterised as forms of loving care.

Conclusion There has been little theological consideration of policing. Moreover, what little there is, is cast in overwhelmingly negative tone. Policing seems a site of neither significant, nor positive theological interest or concern. Several reasons for both this lack and the negative character of attention have been suggested, focusing on prioritisation of post-sentencing justice

238

Loving the Neighbourhood, Loving Enemies

but also on dominant assumptions concerning the character of Christian love and its relationship to force, coercion and power. In particular, a combined Christian tendency was identified whereby, first, concern for the offender is typically isolated from concern for victims, wider society and justice; second, that concern is characterised by love, construed as unconditional and non-combative. These assumptions can be observed in discussions of love of neighbour in abstraction from preservation of the social and material order of neighbourhood; similarly, of love of enemies that assumes a zero-sum choice between love and enmity. Having interrogated these assumptions, I have begun to explore the possibility that loving enemies in the context of love of the neighbourhood might provide a positive theological foundation for policing and for critical engagement with policing practice. At the same time, bringing both these dominant Christian ethico-theological tropes into contact with the realities of policing in a British context enriches and expands our understanding of how both might potentially be interpreted. Inevitably, Christian disquiet and discomfort regarding force and violence is likely to carry forward into any substantive, focused theological engagement with policing. That is both unavoidable and right – policing especially remains an ambiguous enterprise, humanly as well as theologically. However, there is a serious risk in centring discussion on that issue that we shall always get bogged down on first principles of justifying the theological legitimacy of the policing function and get no further. There is a place for that question, but making that the point of entry in theological consideration of policing makes progress unlikely to a richer understanding and means of assessing policing in its actual practice, either in specific societal contexts or in general terms. Even where the question is resolved positively in favour of policing, it would not in itself yield a positive framework for critical, constructive engagement with policing in its full, complex reality beyond conditions where the application of force or intrusive power might be deemed legitimate. The concern about the place, purpose and limits of uses of force are appropriate Christian ethical and theological considerations in relation to policing and criminal justice. But they should neither exhaust the scope of theological interest nor be its permanent, exclusive central focus. A focus on force does not, for instance, easily provide a way of thinking critically about the social context and consequences of offending, of policing or punishment. Moreover, attention focused on the issue of force and violence is still almost exclusively on interaction with offenders or suspects. It is likely to focus on the rights of suspects as individuals. That certainly has its place, but it does not in itself relate those rights to a more ultimate context governing qualities of interaction and their

239

CRIMINOLOGY AND PUBLIC THEOLOGY

purpose: the good that violence and force might disrupt. For similar reason, it is unlikely to help us understand use of force across a whole spectrum, including – at the lowest end of the continuum – officer presence. More importantly, it is unlikely to assist in understanding and accounting for the full realities of police use of force in a way that reflects the decision making, ethics and accountability of police officers. It passes without much public discussion but is a fact of which police officers are keenly aware – we are accountable always for the force we use, but we are also accountable in some circumstances for not using force. We can only make sense of police use of force and coercion if we begin, not with the use of force, but with a clear sense of why it is police have powers where, under some circumstances they can use or threaten force (indeed, in the use of force continuum, officer presence might itself be considered an implicit use of force to which others respond17). Police have such powers where they have responsibilities and duties – where the public expects officers to act, to take control, to investigate, to secure others’ safety and so on. And they are as liable for the consequences of failing to use force if that could have contained or resolved a situation, especially where that has led to injury, damage, or allowed a risky situation to continue; for example: • failing to end a pursuit through tactical contact; • failing to act decisively in the home to effect entry and use force to separate the parties and then arrest a domestic violence suspect (preventing harm to the victim, but also creating space for the victim to make decisions, for interventions and referrals, for effective investigation) (McFadyen, 2020); • failing to intervene forcefully to stop an attack; or • failing to take hold of someone lacking capacity who is wandering in traffic on a busy road or preparing to throw themselves from a bridge. Use and non-use of force cannot adequately be considered against a notion of an individual’s rights abstracted from any social reference and expressed negatively (not to be subject to force). Rather, they need expressing socially and positively – with reference to the penultimately good social order in which the person lives alongside others who are also in the frame of reference; moreover, expressed positively in relation to expansive conceptions of human flourishing – of this person, but related to the conditions of flourishing community populated by others. Love of neighbourhood and love of enemy present opportunities for a picture that is theologically grounded, has critical and constructive potential, is both realistic and hope bearing.

240

Loving the Neighbourhood, Loving Enemies

Notes 1

2

3

4

5

6 7

8

9 10

11 12

13

All views expressed are the author’s and do not necessarily reflect or represent the views of West Yorkshire Police. Volf and McAnnally-Linz (2016) is a partial exception in that it includes a very brief chapter on policing with some contextual theological details. I am also aware of but have discounted a short article by Means (1975) as he was a sociologist rather than theologian by profession, and the discussion of the paper is prompted by empirical social research he had undertaken and framed by sociological concerns that he wishes Christians to engage with apologetically. The paper does not articulate a theology of criminal justice nor of policing specifically. A chapter by Gerald Schlabach (2012), ‘Must Christian pacifists reject police force?’, similarly expresses surprise that policing has not been the focus of theological or ecclesiastical discussion of non-violence. As John Sutherland (2020) points out, the truth was and is that such communities are often not really harder to reach nor ‘harder to hear’ but ‘not listened to’. In addition, the nature of secularity and the place of religion in public life has become a matter of central concern to the study of religion and of direct concern to some branches of theology (most notably public theology). Given the developments just listed, it is again curious that no attention has been paid to policing as a potentially significant site where the nature and relationship of secularity and religion are being played out, socially constructed and redefined in public discourse, policy and practice. These are the Peel principles of policing (see Home Office, 2012). Karl Barth is the obvious cross-over example to illustrate the concern of theologians and ministry (of a major academic theologian, also an ordained pastor, regularly preaching in his local prison as an expression simultaneously of theological, ministerial and basic Christian vocation). Lisa Barnes Lampman is unusual; first, in crossing the academic-ministerial boundaries (lay and ordained in this case) in hosting contributions from academic theologians, ordained ministers and lay practitioners; second, her book (1999) was written as an aid to churches developing a ministry to victims of crime, hence the focus of each contribution is on victims. Indirectly, as a consequence, it is also focused secondarily on the construction of caring neighbourhoods. While there is no substantive consideration of policing, both the rebalancing of attention towards victims and the significant position accorded to the neighbourhood anticipate key coordinates of the discussion here. On my use of ‘penultimate’, see Dietrich Bonhoeffer (2009). For example, Mark Lewis Taylor (2015). Again, I have excluded this work from the category ‘theological literature on criminal justice’. Despite an extensive discussion of criminal justice, the discussion and overall intention belong more to the genre of political theology. Criminal justice, including policing, is one of the ‘instruments of terror’ whereby the Pax Americana is constructed as a brutal and brutalising social order. The overall intention is to illuminate the true nature of the social order and fund possibilities of resistance and societal transformation. Cf. Ian MacFarland (2001) This sense appears to undergird the constructive critique of Gale Fisher-Stewart (2017). Significantly, former US police officer, now Anglican priest, Gale Fisher-Stewart (2017) explicitly refers to the Peel principle that ‘the police are the people; the people are the police’. See also College of Policing (2014a)

241

CRIMINOLOGY AND PUBLIC THEOLOGY

14

15

16

17

For example, in the course of investigating the 7/7 London bombings in 2005 (the bombs were made in Leeds and all bombers lived in or had connection to the city or surroundings), while the number of suspects and supporters was still uncertain, active measures were taken to protect local Muslim communities from radicalised white right wing, Islamophobic reaction, to facilitate through partners effective communication strategies, keep families informed insofar as was possible and consistent with an active investigation within the community, to recognise and respond to community confusion, grief and anger. Police powers of arrest – and more importantly, both the way of thinking about necessity and purpose of arrest – were changed in England and Wales in 2012, in order to comply with international standards of human rights and their local expression in the Human Rights Act 1998 (and equalities legislation), specifically regarding the non-arbitrariness of arrest relative to dealing with the offence, processing the offender or protecting neighbourhood, neighbours and the suspect (as well as formalising duties of non-discrimination). See: Police and Criminal Evidence Act 1984 (PACE) Code G: Revised Code of Practice for the Statutory Power of Arrest by Police Officers, S 2.9 (London: The Stationery Office, 2012). According to John Piper (1980) loving preserves an oppositional stance of enmity towards what is genuinely evil. By contrast, for Lisa Sowle Cahill (1994) and Willard M. Swartley (1992), enemy love is immediately translated into and colonised by the issue of violence, so the questions regarding violence and the understanding of love no longer appear framed consciously by the issue of enmity. For this reason also in England and Wales ‘voluntary’ searches are not lawful – that is, where no power to search exists (requiring reasonable grounds for suspecting possession of specified articles); but where a person consents or offers to be searched or show what is in a bag or similar, either on being asked questions, asked to consent to examination or out of zeal to be seen to comply with what it is perceived the officer wants. This is an early instance of legal recognition that consent can be coerced simply by the imbalance of power between the parties (other examples are coercive control in domestic contexts; grooming and abuse of children sexually or for criminality). The ‘consent’ given to a search during an interaction with police cannot be free of the effect of the power that the officer carries or the person may fear they could be subject to and so cannot be trusted to be freely given. See: Police and Criminal Evidence Act 1984 – Code A: Exercise by Police Officers of Statutory Powers of Stop and Search, S. 1.5 (London: Crown Copyright, 2010).

References

Alexis-Baker, A. (2007) ‘The gospel or a glock? Mennonites and the police’, The Conrad Grebel Review, 25(2): 23–49. Alexis-Baker, A. (2016) ‘Police, technique, and Ellulian critique: evaluating just policing’, in J.M. Shaw and T.J. Demy (eds) Jacques Ellul on Violence, Resistance, and War, Eugene, OR: Wipf & Stock. Barnes Lampman, L. (ed.) (1999) God and the Victim: Theological Reflections on Evil, Victimization, Justice, and Forgiveness, Grand Rapids, MI: Eerdmans. Barth, K. (1961) Deliverance to the Captives, London: SCM Press.

242

Loving the Neighbourhood, Loving Enemies

Barth, K. (1965) Call for God: New Sermons from Basel Prison, London: SCM Press. Bonhoeffer, D. (2009) Ethics, Minneapolis, MN: Fortress. Bottoms, A.E. and Preston, R.H. (eds) (1980) The Coming Penal Crisis: A Criminological and Theological Exploration, Edinburgh: Scottish Academic Press. Brueggemann, W. (2002) Reverberations of Faith: A Theological Handbook of Old Testament Themes, Louisville, KY: Westminster John Knox Press. Brueggemann, W. (2010) Journey to the Common Good, Louisville, KY: Westminster John Knox Press. Burkholder, B. (2017) ‘Violence, atonement, and retributive justice: Bonhoeffer as a test case’, Modern Theology, 33(3): 395–413. Catholic Bishops Conferences of England and Wales, The (2004) A Place of Redemption: A Christian Approach to Punishment and Prison, London: Burns & Oates. Choudhury, T. (2010) ‘Muslim communities and counterterrorism: the dynamics of exclusion and possibilities of inclusion’, in M. Wade and A. Maljevic (eds) A War on Terror? The European Stance on a New Threat, Changing Laws and Human Rights Implications, New York: Springer, pp. 321–45. Church of England (2007) Taking Responsibility for Crime, London: Church of England Mission & Public Affairs Council. Church of Scotland (2007) What’s the Alternative?, Edinburgh: Church of Scotland Church & Society Council. College of Policing (2014a) Code of Ethics: A Code of Practice for the Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales, Ryton-on-Dunsmore: College of Policing. College of Policing (2014b) National Decision Model, www.app.college. police.uk/app-content/national-decision-model/ Fisher-Stewart, G. (2017) ‘To serve and protect: the police, race, and the Episcopal Church in the Black Lives Matter era’, Anglican Theological Review, 99(3): 439–59. Forrester, D. (1997) Christian Justice and Public Policy, Cambridge: Cambridge University Press. Friesen, D.K. (2005) ‘In search of security: a theology and ethic of peace and public order’, in D.K. Friesen and G.W. Schlabach (eds) At Peace and Unafraid: Public Order, Security, and the Wisdom of the Cross, Scottdale, PA: Herald Press, pp. 37–82. Friesen, D.K. and Schlabach, G.W. (eds) (2005) At Peace and Unafraid: Public Order, Security, and the Wisdom of the Cross, Scottdale, PA: Herald Press. Gorringe, T. (1996) God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation, Cambridge: Cambridge University Press.

243

CRIMINOLOGY AND PUBLIC THEOLOGY

Gorringe, T. (2004) Crime, Changing Society and the Churches series, London: SPCK. Greer, S. (2010) ‘Anti-terrorist laws and the United Kingdom’s “suspect Muslim community”: a reply to Pantazis and Pemberton’, British Journal of Criminology, 50(6): 1171–90. Hauerwas, S. (2004) Performing the Faith: Bonhoeffer and the Practice of Nonviolence, London: SPCK. Home Office (2012) Definition of Policing by Consent, 10 December, www.gov.uk/government/publications/policing-by-consent/definitionof-policing-by-consent Kauffman, I. (ed.) (2004) Just Policing: Mennonite-Catholic Theological Colloquium, Telford, PA: Cascadia. Kundnani, A. (2009) Spooked! How Not to Prevent Violent Extremism, London: Institute of Race Relations. Lambert, R. (2008) ‘Salafi and Islamist Londoners: stigmatised minority faith communities countering Al-Qaida’, Crime, Law and Social Change, 50(1–2): 73–89. Levad, A. (2014) Redeeming a Prison Society: A Liturgical and Sacramental Response to Mass Incarceration, Minneapolis, MN: Fortress Press. Lloyd, V.W. and Prevot, A. (2017) ‘Introduction’, in V.W. Lloyd and A. Prevot (eds) Anti-Blackness and Christian Ethics, Maryknoll, NY: Orbis. MacFarland, I. (2001) ‘Who is my neighbor? The Good Samaritan as a source for theological anthropology’, Modern Theology, 17(1): 57–66. Marshall, C.D. (2001) Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, Grand Rapids, MI: Eerdmans. Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice, Eugene, OR: Cascade Books. Massingale, B.N. (2017) ‘The erotic life of anti-blackness: police sexual violation of black bodies’, in V.W. Lloyd and A. Prevot (eds) AntiBlackness and Christian Ethics, Maryknoll, NY: Orbis. McFadyen, A. (2020) ‘“I breathe him in with every breath I take”: framing domestic victimisation as trauma and coercive control in feminist trauma theologies’, in K. O’Donnell and K. Cross (eds) Feminist Trauma Theologies: Body, Scripture and Church in Critical Perspective, London: SCM Press. McFadyen, A. and Prideaux, M. (2014) ‘The placing of religion in policing and policing studies’, Policing and Society, 24(5): 602–19. Means, R.L. (1975) ‘The police, the social order, and the Christian: apologia and apologies’, The Christian Century, 19 March, 284–7.

244

Loving the Neighbourhood, Loving Enemies

Menéndez-Antuńa, L. (2018) ‘Black Lives Matter and gospel hermeneutics: political life and social death in the gospel’, Currents in Theology and Mission, 45(4): 29–34. Miller, L. (2020) ‘James Cone’s constructive vision of sin and the Black Lives Matter movement’, Black Theology, https://doi.org/10.1080/147 69948.2020.1726010. Miller, P.D. (2004) The Way of the Lord, Tübingen: Mohr Siebeck. Mitchell, C.M. and Williams, D.R. (2017) ‘Black Lives Matter: a theological response to racism’s impact on the black body in the United States’, Studia Historiae Ecclesiasticae, 43(1): 1–18. Newell, T. (2000) Forgiving Justice: A Quaker Vision for Criminal Justice, London: Friends House. Oliver, W.M. (2008) Catholic Perspectives on Crime and Criminal Justice, Lanjam, MD: Lexington Books. Piper, J. (1980) ‘Love Your Enemies’: Jesus’ Love Command in the Synoptic Gospels and the Early Christian Paraenesis, Grand Rapids, MI: Baker. Rothchild, J., Myer Boulton, M. and Jung, K. (eds) (2007) Doing Justice to Mercy: Religion, Law, Criminal Justice, Charlottesville, VA: University of Virginia Press. Schlabach, G.W. (ed.) (2007) Just Policing, Not War: An Alternative Response to World Violence, Collegeville, PA: Liturgical Press. Schlabach, G.W. (2012) ‘Must Christian pacifists reject police force?’, in T. York and J. Bronson Barringer (eds) A Faith Not Worth Fighting For: Addressing Commonly Asked Questions About Christian Nonviolence, Eugene, OR: Cascade Books. Sedgwick, P. (ed.) (2004) Rethinking Sentencing: A Contribution to the Debate, London: Church of England Mission and Public Affairs Council. Sowle Cahill, L. (1994) Love Your Enemies: Discipleship, Pacifism, and Just War Theory, Minneapolis, MN: Fortress. Spalek, B. (2008) ‘Muslim communities post-9/11: citizenship, security and social justice’, International Journal of Law, Crime and Justice, 36(4): 211–14. Spalek, B. and Lambert, R. (2007) ‘Terrorism, counter-terrorism and Muslim community engagement post 9/11’, in R. Roberts and W. McMahon (eds) Social Justice and Criminal Justice: Harm and Society, London: Centre for Crime and Justice Studies, pp. 202–13. Spalek, B., El Awa, S. and Zahra McDonald, L. (2009) Police-Muslim Engagement and Partnerships for the Purposes of Counter-Terrorism: An Examination, Birmingham: University of Birmingham. Sutherland, J. (2020) Crossing the Line: Lessons from a Life on Duty, London: Weidenfeld & Nicolson.

245

CRIMINOLOGY AND PUBLIC THEOLOGY

Swartley, W.M. (ed.) (1992) The Love of Enemy and Nonretaliation in the New Testament, Louisville, KY: Westminster John Knox Press. Taylor, M.L. (2015) The Executed God: The Way of the Cross in Lockdown America (second edn), Minneapolis, MN: Fortress Press. Volf, M. and McAnnally-Linz, R. (2016) Public Faith in Action: How to Think Carefully, Engage Wisely and Vote with Integrity, Grand Rapids, MI: Brazos Press. Winright, T.L. (1995) ‘The perpetrator as person: theological reflections on the just war tradition and the use of force by police’, Criminal Justice Ethics, 14(2): 37–56. Wolterstorff, N. (1999) ‘The contours of justice: an ancient call for Shalom’, in L. Barnes Lampman (ed.) God and the Victim: Theological Reflections on Evil, Victimization, Justice and Forgiveness, Grand Rapids, MI: Eerdmans, pp. 107–30. Wolterstorff, N. (2011) Justice in Love, Grand Rapids, MI: Eerdmans. Wood, C. (1991) The End of Punishment: Christian Perspectives on the Crisis in Criminal Justice, Edinburgh: Saint Andrew Press. Young, J.U. (2015) ‘Do Black lives matter to “God”?’, Black Theology, 13(3): 210–18.

246

11

Persecuting the Prophets: Inequality, Insanity and Incarceration Andrew Skotnicki1

In his Pulitzer Prize-winning book, The Denial of Death, Ernest Becker (1973) suggests that we have it all wrong about who is and who is not mentally ill. Put more succinctly, our ‘pretense of sanity’ (p. 30) is a denial of our true condition.2 Centuries earlier, Pascal (1670/1941: 441) had a similar insight: ‘Men are so necessarily mad, that not to be mad would amount to another form of madness.’ We will delve into the logic of such aphorisms in greater detail in the pages to come but these, presumably, counterintuitive assertions have much to do with what I hope to explore in at least summary fashion in this chapter. First, I want to underscore, when all is said and done (organic disorders and sadistic serial killers notwithstanding), the elastic character of what is termed mental illness. Remembering Nils Christie (2004), insanity, similar to crime, is like a sponge that can absorb virtually any sort of behaviour as long as those with the power to define and the power to punish deem the appellation an appropriate one. The allusion to punishment and cognitive impairment, by the way, was hardly coincidental. The overwhelming number of US citizens diagnosed as mentally ill are housed in the nation’s jails and prisons (James and Glaze, 2006).3 It is thus necessary to explore next why those determined to be mentally ill are almost inevitably incarcerated rather than consigned to a treatment centre. That will set the table for the exposition

247

CRIMINOLOGY AND PUBLIC THEOLOGY

from psychological, criminological and theological sources that will seek to provide some logical coherence to this rather ‘bizarre’ practice of punishing those who, at least putatively, have diminished mental capacity. I will argue that the short answer to the conundrum, as contained in the title of this chapter, is that there is something in both their physical presence and in the message their eccentricity conveys that is deeply disturbing to the world of economic and political privilege and to the norms of what Foucault (1972) calls ‘true discourse’, or what otherwise might be termed ‘common sense’. That something is the prophetic; and, as with the classic prophets of ancient Judaism and their more modern counterparts, theirs is a scathing social critique, not to mention an ominous forecast, to which, as history repeatedly proves, few but the wise pay heed.

The flexible definition of sanity What is termed insanity has not always borne the pity, shame or opprobrium currently associated with the designation. Homer’s characters, for example, routinely claimed ‘to be compelled, moved, distracted, or deceived by the gods’. In fact, the most ancient of the generic terms for the ‘grossly distorted mind, entheos, refers to a “god within”’ (Robinson, 1996: 9). In like manner, Plato (2007: 108) writes that in the midst of ‘plagues and mightiest woes’ the madness of one ‘truly possessed and duly out of his mind’, through the medium of ‘prayers and rites, has come to the rescue of those who are in need’. Thus, he concludes ‘the sane man is nowhere at all when he enters into rivalry with the madman’. One might also be reminded of Luther’s notable maxim that reason is a ‘whore’ when compared to the bedrock truths of Scripture, faith and grace; or of his contemporary, Erasmus of Rotterdam (1511/1942: 240), who exalted St Paul’s assertion that ‘God chose the foolish of the world to shame the wise’ (1 Corinthians 2:27); and the prayer of Christ who gives thanks ‘that [God] had conceal’d the mystery of salvation from the wise, but revealed it to babes and sucklings, that is to say, fools’ (Matthew 11:25) (see Porter, 2004). Another classic formulation of psychopathology in a divine light was proffered by William James (1902/1961) in his extensive research into the experiences of many ‘geniuses’ touched by a transcendental encounter and, in kind, designated as insane by psychological experts, disparagingly referred to by James as ‘medical materialists’. Such geniuses have often shown symptoms of nervous instability. Even more perhaps than other kinds of genius, religious leaders have been

248

Persecuting the Prophets

subject to abnormal psychical visitations. Invariably they have been creatures of exalted emotional sensibility […] They have […] frequently fallen into trances, heard voices, seen visions, and presented all sorts of particularities which are ordinarily classed as pathological. (James, 1902/1961: 25) However eye-opening such attributions may be to the reader, we all know, whatever our familiarity with the rites and discourses of psychiatry, psychotherapy and the institutionalisation of the insane, that there is little popular recognition of anything attention worthy, let alone edifying, in the ‘proto-language’ that is often the preferred parlance of those designated as mentally ill.4 In his well-known study, Madness and Civilization, Foucault (1973) notes the shift that occurred when ‘the ship of fools’ was transformed into the asylum with the enthronement of reason – and the disenthronement of theological ethics and metaphysics – during the course of the Enlightenment. He reminds us that the ship of fools did indeed exist (although it is a contested assumption). Not far from the insights of Homer and Plato, there was, it appears, at least a subliminal recognition in not a few medieval jurisdictions that the mode of conduct of those who were deranged was an invitation to ponder the hidden ways of God. ‘[T] hese boats […] conveyed their insane cargo from town to town. Madmen led an easy wandering existence’ (Foucault, 1973: 8). He contends, however, that in the pronounced dualism of the post-Cartesian ‘rational’ world a legally proscribed designation of conduct considered abnormal was endorsed. It was a code, which excludes all dialectic and all reconciliation […] it rules over a world without twilight, which knows no effusion, nor the attenuated cares of lyricism; everything must be either waking or dream, truth or darkness, the light of being or the nothingness of shadow. Such a law prescribes an inevitable order, a serene division which makes truth possible and confirms it forever. (Foucault, 1973: 109–10) In the neat mental categories of the reason-driven ‘modern’ world one finds the birth of both a ‘natural’ terminology and a diagnostic practice that identify the ones who are ‘out of their minds’. ‘We say of a person who is insane that he is irrational. When he manifests his insanity in his conduct, it is natural to speak of his conduct as irrational. An insane person has ‘lost his reason’ (Fingarette, 1972: 175).

249

CRIMINOLOGY AND PUBLIC THEOLOGY

At the same time, in the wake of the Protestant reformation, the Age of Science, and the Enlightenment, a new and fully ‘disenchanted’ world came into being, a telling consequence of which was that those who care for the body (physicians) were accorded primacy of authority and respectability over those who care for the soul (clergy). Thus, complementing the epistemological dualism ushered in by the radical scepticism of Descartes, the virtually unimpeachable mandate and competence to identify and treat physical disease – that is, brain disease – was accorded to members of the medical profession (Fingarette, 1972: 21). Gone was the awe and ‘sacred distance’ brought on by the sight of the unstable – similar to the fear, pity and strict separation that marked comportment shown to the leper (Foucault, 1973: 6). The new regimen featured a restricted dialogue in which the physician or psychiatrist enters a relation with the patient ‘only through the abstract universality of disease’ (Foucault, 1973: xx). The patient communicates with society only by the intermediary of an equally abstract reason […] As for a common language, there is no such thing; or rather, there is no such thing any longer; the constitution of madness as a mental illness, at the end of the eighteenth century, affords the evidence of a broken dialogue, posits the separation as already effected, and thrusts into oblivion all those stammered, imperfect words without fixed syntax in which the exchange between madness and reason was made. (Foucault, 1973: xx–xxi) Here, I am reminded of one of Wittgenstein’s claims concerning language games: that while the mental state of, say, a therapist gives no guarantee of what will happen, a ‘knowing’ is nevertheless operational that finds it hard to fathom ‘where a doubt could get a foothold nor where a further test was possible’ (Wittgenstein, 1969: 356). The fact that the newly designated experts within the profession were unable then, or, for that matter, now, to reach anything approaching consensus regarding the correct methods of detection and treatment of the problem is explicable in light of the fact that neither has there ever been consensus concerning the aetiology of ‘irrational’ behaviour. As Russell Schutt (2011: 139) points out, mental illness reveals the intellectual divide between medical and sociological methods of investigation: Whereas many physical illnesses have been linked to a specific pathogen or bodily malfunction, no agent that can be observed

250

Persecuting the Prophets

under a microscope or found in a defective bodily process has been established as a causal factor in the major mental illnesses such as schizophrenia, bipolar illness, or major affective disorder. This meandering notion of a disease in search of a cause has mirrored the development of diverse medical diagnoses seeking to explain and treat neurological impairment. Passion and melancholy were the favoured symptoms of insanity throughout the later Middle Ages and early modern period (Foucault, 1973, chapter  4). Numerous 19th-century figures held that society’s fast pace, growing materialism, and increasing social complexity were the causes (Rothman, 1971). Some historians point to the instability of economic productivity as the surest predictor of admission rates to psychiatric wards since an inverse relation, traceable since the mid-19th century, exists between the state of the economy and the identification of psychological pathology (Brenner, 1973). Beginning in the 1940s, psychiatrists in the US began a radical redrawing of the line separating ‘normal’ and ‘abnormal’: Up to that point, only about one-third of patients admitted to New York mental hospitals were diagnosed as schizophrenic […] Two decades later, more than half of admitted patients were being diagnosed as schizophrenic […] American doctors were regularly applying the schizophrenic tag to people who should properly be diagnosed as manic depressive, or simply neurotic. (Whitaker, 2002: 168) The most revered source for the explication of both the symptoms and treatment of brain disease, ‘the bible of psychiatry’, is the Diagnostic and Statistical Manual (DSM). Since its first edition in 1952, the DSM has gone through several revisions. And what is continually being revised, as Mary de Young (2010) points out, is the very notion of madness. She mentions startling redactions in the various incarnations of the manual. For instance, homosexuality was listed as a sexual deviation in both the first and second editions. In the first printing of the third, it was described as a form of madness, particularly if associated with prolonged stress, but in the revised edition of that volume, the concept disappears completely. De Young’s (2010: 10) conclusion should not be surprising: ‘[N]owhere in any of the iterations of the DSM can a diagnosis of ‘sane’ be found or, for that matter, a description of it’. In complementary fashion, Louis Charland (2004: 72) states that what the DSM calls moral disorders (‘Cluster B’) are not natural in any plausible sense:

251

CRIMINOLOGY AND PUBLIC THEOLOGY

They are a species of interactive kinds that are simply too transient to count as genuine natural disease entities. In fact, precisely because they are interactive, their transient character should be no surprise […] as social and political conditions change, so do the boundaries of deviant moral behavioral syndromes that are thought to require special social attention and behavioral control. None of this is surprising to Herbert Fingarette. He asserts that the willingness to entrust the definition, determination, and treatment of insanity to medical experts, although understandable within their worldview and confidence in the integrity of their diagnosis, ‘reflects a dangerous faith in the combination of good will and claimed expertise’ (Fingarette, 1972: 5). We conclude this section with a refrain of the point made when we began: mental illness exists exactly to the extent that those with the power to authorise the meaning of human behaviour render certain behaviours as caused by mental illness (Brenner, 1973). Wittgenstein (1969: 336) would seem to be in agreement in his observation that what is determined to be ‘reasonable’ or ‘unreasonable’ is subject to continual alteration: ‘At certain periods [people] find reasonable what at other periods they found unreasonable. And vice versa.’

‘Crazy’ people go to jail Thus far, I have attempted to reiterate what a wide body of scholarship divulges as the continually malleable social determination of who is and who is not ‘crazy’. Our next task is to investigate why ‘crazy people go to jail’ in epic numbers rather than being treated in a clinic, hospital or inpatient facility. Look for a moment at the numbers: there were approximately 500,000 beds available in US state mental health facilities in 1950. By 2010, the number had dwindled to 55,000 (Vogel et al., 2014). At the same time, as noted earlier, in the last comprehensive study by the Bureau of Justice Statistics (US Department of Justice), the authors write: At midyear 2005 more than half of all prison and jail inmates had a mental health problem, including 705,600 inmates in State prisons, 78,800 in Federal prisons, and 479,900 in local jails. These estimates represented 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates. (James and Glaze, 2006: 1)

252

Persecuting the Prophets

Furthermore, a convicted offender categorised as mentally deficient spends, on average, one year more in confinement than offenders sentenced for similar infractions (Pustilnik, 2005). As Amanda Pustilnik notes, ‘It is beyond cavil that the criminal justice system functions as the United States’ default asylum system’ (2005: 218). She adds that in some states, from 30 to 40 per cent of incarcerated mentally ill individuals ‘had no criminal charges pending against them, while jails report frequently holding people with mental illnesses simply because there is no other place to put them’ (2005: 219). To go from bad to worse: the stigma of insanity has, at least in the US, continually borne a strong correlation to race. For instance, de Young (2010: 12) notes that the 1840 census ‘provided the fodder for an unrepentantly racialized discourse about madness that would continue for decades, despite the fact that the findings did not hold up to scrutiny’. She contends that the census then, not unlike the 1890 census about which Khalil Muhammad (2010) writes so convincingly, sowed the imaginative as well as logical seeds that freedom was a burden on a black population intended for servitude; for them, the by-product of equal treatment was widespread lunacy: ‘Drawing on both the racial prejudices that permeated society and the prevailing scientific discourse that had medicalized those attitudes, asylum physicians drew a distinctly racialized line between sanity and madness’ (de Young, 2010: 12, 14).5 The earliest statistical data seeking to measure the demographics of confinement of those reputed to be mentally ill was produced in a 1939 study by Faris and Dunham. The authors uncovered a strong correlation between race, class, location and involuntary admission to a detention facility – one that continues unabated to the present time. Specifically, they determined that commitment rates for ‘severe psychoses and “functional disorders”, especially schizophrenia, were highest in the inner city and tended to decrease in concentric zones moving out toward the suburbs’ (Holzer et al., 1986: 260).6 Statistical analyses notwithstanding, the practice of confining those living in poverty and deemed to be unstable can be traced to the origins of the workhouse at the turn of the 16th century which, in turn, shaped the modern municipal jail. There is a rich body of literature covering this phenomenon but, briefly, the swelling numbers of urban poor with the decline of feudalism and the rise of mercantilism motivated the Dutch and British to establish facilities to incapacitate ‘undesirables’, among them beggars (in England, this included students from Oxford and Cambridge seeking funds to pay tuition) and, where possible, train them for productive employment.7 Both the hôpital général in France and the zuchthäusern in Germany emulated the workhouse format. According to Foucault (1973: 46), they organised

253

CRIMINOLOGY AND PUBLIC THEOLOGY

into a complex unity a new sensibility of poverty […] new forms of reaction to the economic problems of unemployment and idleness, a new ethic of work, and also the dream of a city where moral obligation was joined to civil law, within the authoritarian forms of constraint. Their deeper significance for our purposes in this chapter was the establishment of an ongoing fusion of the old theological concept of ‘excommunication’ in terms of production and commerce. A relation was established in which indolence and destitution were linked to madness and the need to corral a population designed to remain outside the boundaries of civil and commercial society (Foucault, 1973: 57). Once it was determined by a licensed medical authority that a given person was ‘out of touch’ with reality, and given the gap between diagnosis and treatment, the path from prognosis to incarceration was often a very short one: ‘[T]hough the police action or Court action may come much later than the offending deed, it may be of value to restrain the person at least for some minimum period for the protection of society’ (Fingarette, 1972: 135). Authors conversant in the contemporary politics of sending those with outlandish behaviour to a police lockup rather than a clinic also point to the role of the police as ‘first responders’ to a situation of civil unrest. They are the ones who determine whether a given subject is mentally challenged or criminally negligent. The fact that jail is most often the destination is explicable in light of the statistics at the beginning of this section regarding the paucity of social services for people judged to be mentally ill, as well as the reluctance of already over-taxed facilities to accept a person who may appear to be dangerous or threatening. For these reasons and to avoid ‘procedural hurdles’, charging that individual with a crime is a ‘less cumbersome and more reliable way of removing the person from the community’ (Levesque, 2010: 718–19). What I am stressing here is that the determination of mental incompetence and, typically, institutionalisation in a detention facility is overwhelmingly coloured by the class and race of the suspected culprit. Charles Holzer et al. (1986: 269) confirm earlier studies that there are demonstrably higher rates of psychotic disorders, especially schizophrenia, among the lower classes: ‘[T]he much studied association between SES [Socioeconomic Status] and psychiatric disorder is still alive and well’. In other words, a set of social meanings have been constructed, tracing themselves back to events a half-millennium ago, averring that mental illness is not only a predominantly prevailing pitfall for people at the lower rungs of the social hierarchy but also that it brings with it some form of culpability for its manifestation.

254

Persecuting the Prophets

It is highly instructive, by way of contrast, that the tens of millions of affluent people in the US who pour billions and billions of dollars into the coffers of the self-help and pharmaceutical industries to address their fantasies, phobias, stresses and neuroses have not seen their ‘madness’ fall under the shadow of guilt and confinement. De Young (2010: 24) observes that theirs is a largely white, urban, educated, professional and upper class type of madness. So appreciated, it is generally without stigma and is addressed, if not treated, in private offices, in in-person and online support groups, and the comforts of the home, but certainly not in asylums. People deemed to be crazy are categorised by what Bernard Lonergan (1957: 254) describes as a ‘mechanist determinism’ based on ‘the already out there now real’ that governs the epistemology of what is and is not acceptable behaviour. For Wittgenstein (1969: 352), they are the ‘excluded middle.’ Their malady is not simply that they have odd or eccentric behaviour but, according to the standards of medical and judicial determinists, they ‘must either look like this, or like that.’ The excluded middle ‘says nothing at all, but gives us a picture […] saying “There is no third possibility.”’ And since there is no ‘possibility’ of patience, licence or restraint for the poor racial minorities who make up the overwhelming majority of those diagnosed as mentally ill, we are left with Foucault’s (1973: 225–6) powerful observation: ‘The presence of madmen among the prisoners is not the scandalous limit of confinement, but its truth; [its] essence’.

Why the insane are in jail and prison The last section provided both empirical data as well as a preliminary social analytical account of the preponderance of those designated as mentally ill in jail or prison and the way that race, class and location colour those who have been so diagnosed. In this section, I want to build on the foundation we have established by looking at deeper sociological patterns and, especially, insights from psychology and theology to underscore my contention that, to a substantial degree, the confinement of the incoherent, the abnormal, the insane reveals deeper fears, prejudices, neuroses and hostilities that have clinically coded a designated population due to their spoken and unspoken message – a prophetic message – and sequestered and consigned them to a sort of civil death.

255

CRIMINOLOGY AND PUBLIC THEOLOGY

Social and racial factors leading to confinement The prophetic oracle has been traditionally understood as a message from a divine source, often through the agency of a reluctant messenger who has been chosen to communicate the divine intent and, most often, the divine anger or frustration with idolatry and social injustice. Jeremiah provides a poignant reminder of the burden of announcing a message virtually no one wants to hear: ‘If I say, “I will not mention him, or speak any more in his name,” then within me there is something like a burning fire shut up in my bones; I am weary with holding it in, and I cannot’ (Jeremiah 20:9). Before looking at the phenomenon of the ‘traditional’ prophet who is aware of his or her ‘burden’ and the implications that its announcement invokes in a society alienated from the divine will, I want to speak of a different kind of prophet, the inadvertent one: the person with a sense of rage over perceived injustice and shuttered doors of opportunity. In the late 18th  century, Philippe Pinel sought to reform the treatment of those confined in asylums in France. His philosophical and moral inspiration was the belief that the people who are mad are, quite literally mad about the degrading conditions in which they are forced to live. Robert Whitaker (2002: 20) writes that, for Pinel, the ‘rantings and ravings that appeared to define the mad […] were primarily antics of protest over inhumane treatment’. From a more contemporary perspective, James Gilligan (2001) is a psychologist who has devoted much of his academic research to probing the causes of violence. What his research reveals is there is a direct and consistent correlation between income inequality and violence. This is an extension of his thesis that shame often produces an adverse reaction, especially being shamed or humiliated in a public setting. He continues this line of thought by demonstrating that, aside from interpersonal confrontations involving feelings of being insulted or humiliated, shame is also spread through the economic system: For people are shamed on a systematic, wholesale basis, and their vulnerability to feelings of humiliation is increased when they are assigned an inferior social or economic status; and the more inferior and humble it is, the more frequent and intense the feelings of shame, and the more frequent and intense the acts of violence. (Gilligan, 2001: 38) He points to the fact that the most salient factor in the rate of violent crime is the width of income disparity between the most affluent members of the nation and the poorest (Gilligan, 2001: 39–42).

256

Persecuting the Prophets

Another complementary factor provoking diffuse or vicarious rage is the national myth or ethos, which in many nations, notably the US, is predicated on natural equality and equal opportunity. Thus, the attitudes, prejudices and structural barriers that do so much to demarcate and stigmatise those living in poverty exacerbate feelings of shame and, inevitably, anger. This is not to excuse anti-social and, especially, violent conduct. Such conduct does serve, however, to remind us that, from a theological perspective, acts of systematic injustice arouse divine pathos and solidarity with those who are marginalised. The voices of acrimony become unwitting mouthpieces of God’s indictment of national policies increasingly predicated on neoliberal conceptions of an expanded and deregulated free market coupled with a focus on individual responsibility, ‘hyper-incarceration’ and social control (Loader, 2009; Wacquant, 2010). In his classic study of prophecy, Abraham Heschel (1955: 5) writes: ‘Prophecy is the voice that God has lent to the silent agony, a voice to the plundered poor, to the profaned riches of the world. It is a form of living, a crossing point of God and man. God is raging in the prophet’s words.’ The angry voice in an unjust social system is in some refracted way the voice of God – not condoning violence but using it to call the socioeconomic system to accountability for the large and prohibitive disparities in income and opportunity. The second type of inadvertent prophet – one with normally no consciousness of being called by God – is the person whose day-to-day life bears so few signs of fulfilment that he or she retreats into a world fabricated to deny the harshness of their existence. I am speaking in general terms of someone categorized as schizophrenic. Whitaker (2002: 169) reveals that the expanded attribution of the term began in earnest due to political and social tensions: In the 1950s, the Cold War […] led to a relative lack of tolerance in this country for noncomformist behavior, and that decade gave way to one marked by social protests. There was a clash of cultures, and as this occurred, American psychiatry became ever more quick to judge a person ‘schizophrenic’. The link between social protest, nonconformity and mental illness summoned the widespread use of psychotropic drugs, convulsive therapy, electroshock and prefrontal lobotomy; techniques that had first been employed during the eugenics movement of the 1930s to tranquillise persons being sterilised to curtail their birthing ‘undesirable’ offspring. The liberal diagnosis of schizophrenia and the utilisation of the

257

CRIMINOLOGY AND PUBLIC THEOLOGY

‘therapeutic’ remedies just alluded to caught the attention of the World Health Organization, which complained several decades ago that levels of the diagnosis were troublingly high in developed countries such as the US and relatively insignificant in poorer countries (Whitaker, 2002). It is noteworthy that the labelling of troublesome or extravagant behaviour as schizophrenic and, as we have seen, incarcerating those who exhibit it rather than treating them, reveals itself to be something of a self-fulfilling prophecy that has become ‘the face of madness in America’ (Whitaker, 2002: 164). This is due to the fact that once diagnosed, the subject is normally prescribed ‘neuroleptics’ that significantly affect dopamine transmission. The latter are neural transmitters that play a significant role in the motivational component of behaviour, particularly regarding actions with rewards and sanctions attached. Whitaker (2002: 164) concludes that the image that most of us have of madness in general, and schizophrenia in particular – ‘the awkward gait, the jerking arm movements, the vacant facial expression, the sleepiness, the lack of initiative’ – are not personality quirks but the characteristics normally associated with a disruption in dopamine transmission. These brief remarks suggest a vibrant link between social inequality, peculiar or recalcitrant (writ prophetic) behaviour and confinement. We now look at mental illness and, in particular, schizophrenia, from a psychological perspective.

Psychological and theological factors leading to confinement Having elicited, ideally, a hermeneutic of suspicion regarding the sociopolitical factors instigating the label of insanity and the necessary segregation of its bearers from the ‘sane’ population, I would now like to look at schizophrenia from a clinical perspective: some people are diagnosed as having schizophrenia and receive treatment. But, as we will see shortly, the ‘madness’ associated with it is closer to a truthful reckoning with reality than that of the ones who find the idiosyncratic and anomalous an intolerable threat. In this discussion we will hearken to the aphorisms of Becker and Pascal about who is truly sane that were used to begin this chapter. I have already alluded to the angry voice of the ‘plundered’ poor that echoes the traditional concern of God for those outside the pathways of privilege, and the voice of the prophet who speaks on behalf of both. The feelings of depression brought on by systemic alienation and the seeming futility of translating one’s dreams for financial stability and selfdevelopment into a semblance of reality can easily promote ‘distorted

258

Persecuting the Prophets

social cognition and less ability to acknowledge others’ perspectives, thus eliciting less favourable views from and rejection by others, and so even more social withdrawal and more pessimistic social expectations’ (Schutt, 2011: 31). The stresses created during periods of ‘economic correction’ and the globalisation of the market are ‘most likely to fall most heavily on those in lower socioeconomic strata. The lowest socioeconomic groups may, for this reason, show the highest rates of mental hospitalization’ (Brenner, 1973: 232). A ‘traditional’ view of these pathologies from a psychiatric perspective is provided by George Graham (2004: 90) who would conclude that these reluctant prophets suffer from the ‘delusion’ of ‘thought insertion.’ Schizophrenic behaviour is typically associated with ‘disorders’ such as alien voices, thought withdrawal and revelations revealed in passivity. Although the condition is ‘grossly misleading,’ it is something about which the recipient is ‘absolutely convinced and from which he cannot be dissuaded’. One of the earliest accounts of the conditions leading to schizophrenia – still influential in certain circles of psychology – is presented by Kierkegaard (1954). Kierkegaard would have taken exception to Graham’s analysis of the condition. Although Kierkegaard did not employ the term, Becker (1973) insists he anticipates contemporary psychological portrayals of the ‘disease’ as well as the thought of Freud on the matter. To that end, Becker quotes Orval Mowrer: ‘Freud had to live and write before the earlier work of Kierkegaard could be correctly understood and appreciated’ (Becker, 1973: 68). Kierkegaard’s great insight is that there is an inherent and debilitating contradiction that plagues each person – and only faith can in any way ameliorate its grip. It is a conscious ‘synthesis of infinitude and finitude’ (1954: III). Each person possesses a mind and imagination in which anything is possible; a cognitive and ideational framework that can carry one to see and desire extravagant personal outcomes with a degree of excitement and latent possibility. At the same time, each person is continually thwarted and chilled by the inescapable limitations of life and nature – none more chilling than our tragic vulnerability, our relative insignificance in the ‘grand scheme of things’, and the gnawing spectre that we are all going to die. Becker replicates Kierkegaard in asserting that what Graham calls the ‘delusional’ schizophrenic is often one who feels the dread of death, life’s uncontrollable rhythms, and his or her inability to escape them far more keenly than the self-important professional whistling in the dark with a schedule full of activities designed not only to inflate his or her uniqueness – what Becker calls ‘character armor’ – but also to avoid having to face

259

CRIMINOLOGY AND PUBLIC THEOLOGY

the ‘despair he avoids by building defenses; and these defenses allow him to feel that he controls his life and his death’ (Becker, 1973: 56–7, emphasis in original). Extrapolating from these ideas, a person living with schizophrenia lives in a world of crushed dreams and unachievable desires and, more importantly, ‘has not been able to build the confident defenses that a person normally uses to deny them […] He has to contrive extra-ingenious and extra-desperate ways of living in the world that will keep him from being torn apart by experience’ (Becker, 1973: 63). This loneliness felt by those in these conditions is a source ‘not only of confusion and the thought disorders characteristic of schizophrenia but also of the suffering that results from the feeling of isolation and the loss of one’s place in the world’ (Gillet, 2004: 27). Kierkegaard honours the despair that honestly confronts life’s capriciousness and recognises that agency and will are finally helpless in enabling one to face the dread of one’s own existential helplessness and mortality. Indeed, he insists that the despair that ‘plunges wildly into the infinite and loses itself ’ is less debilitating than the sort of despair that ‘permits itself as it were to be defrauded by the others’ (1954: III). This is the despair of conformity, bearing noticeable resemblance to Heidegger’s (1962: 167) designation of the ‘they self.’ The latter consists in a memetic mirroring of the comportment of ‘the multitude,’ in ‘getting engaged in all sorts of worldly affairs,’ in learning the behaviours that make one ‘wise about how things go in this world.’ Kierkegaard insists that such a person ‘forgets himself, forgets what his name is (in the divine understanding of it), does not dare to believe in himself, finds it too venturesome a thing to be himself, far easier and safer to be like the others, to become an imitation, a number, a cipher in the crowd’ (1954: III). R.D. Laing (1969) surmises that labelling ‘the schizophrenic’ as a ‘condition’ before she or he is appreciated as a human being represents the medical equivalent of the bifurcation and truncated view of the person represented in Kierkegaard’s portrayal of the social climber with a servile personality. These psychological insights are reminiscent of the findings some decades ago by Hollingshead and Redlich (1958) who discovered that the various forms of mental illness were overdetermined by one’s place in the social hierarchy. They concluded that rates of schizophrenia were the predominant designation ascribed to the poor while various neuroses were the affliction of the affluent (see Holzer et al., 1986). And Becker (1973: 57–8) insightfully adds: ‘Neurosis is another word for describing a complicated technique for avoiding misery, but reality is the misery.’ In similar fashion, he states: ‘In order to function normally, man has to achieve from the beginning a serious constriction of the world and of

260

Persecuting the Prophets

himself. We can say that the essence of normality is the refusal of reality […] Or, putting it in another way, normality is neurosis, and vice versa’ (Becker, 1973: 178–9, emphasis in original). It is, finally, Kierkegaard’s ideas on how to overcome the anxiety at the core of the human heart that prepare our way for the role of the selfconscious prophet; one who has faced squarely the irreversible tension between possibility and necessity. Despair, in the Danish philosopher’s words, takes two forms: ‘not willing to be one’s own self ’ and ‘willing to be one’s own self.’ The ones so willing have abandoned the illusions to superiority, invulnerability and wilful ignorance and place themselves with trust in the One in whom all contradictions are resolved, and in this find their true selves and a state of ‘bliss’ (Kierkegaard, 1954: 1A, 1B). They, at the same time, become bearers of and witnesses to the unity of all things in God; transmit this truth and the way to personal and social harmony, and, in so doing, deliver a message that those unwilling to face the paradox of existence must silence.

A theology of the ‘mad’ prophet The reluctant but submissive prophet delivers a message the powers of the world do not wish to hear since it is one that seeks to reverse the privileges and prejudices that deny an ontological solidarity of humans with one another, with the natural world and with their Creator. That message, I am contending, spoken or implied, is one that for both socioeconomic and psychological reasons must be muted and its mouthpiece banished from the common life. For, as von Rad (1968: 44) reminds us, the prophet is ‘repeatedly reminded of the difficulty and even hopelessness of his position by the words with which Yahweh accompanies the delivery of the revelation: the people to whom he is sent are of a hard forehead and a stubborn heart’. The message arises from the core of one’s being revealing the classical formula of mystical consciousness, one that, because it is what Otto (1958: 7) calls ‘numinous,’ cannot be ‘strictly defined,’ yet possesses a trait that is common to all types of mysticism: ‘the Identification, in different degrees of completeness, of the personal self with the transcendent Reality’ (p. 22, emphasis in original). Following Heidegger’s logic, the revelation the prophet receives cannot be spoken unless it has first been heard; it cannot be heard until the hearer has become silent; and the silent attentiveness must involve ‘hearkening,’ a ‘hearing which understands.’ This attentiveness is the ‘existential’ stance of ‘Being-open […] Beingwith others’ (Heidegger, 1962: 206, 207). For William James, it produces

261

CRIMINOLOGY AND PUBLIC THEOLOGY

‘states of insight into depths of truth unplumbed by the discursive intellect’ in which one passes ‘out of ordinary consciousness as from a less into a more, as from a smallness into a vastness’ (1902/1961: 300, 326). These correlates correspond to the frequency with which, according to psychiatrists, a person who has schizophrenia hears voices – religious and critical voices: Most psychotic hallucinations are auditory and involve voices. The voices may be unpleasant and accusatory or just offer commentary and asides on the situation in which the person finds himself […] [Julian] Jaynes observes that hallucinations in hospitalized patients have certain common characteristics, such as suddenness of onset, religious themes, conflicting messages, and a critical tone. (Gillet, 2004: 23) This is the madness of the prophet of which Plato (2007: 107) speaks, which is ‘the special gift of heaven, and the source of the chiefest blessings among men. For prophecy is a madness.’ James concludes that there ‘can be no doubt that as a matter of fact a religious life, exclusively pursued, does tend to make the person exceptional and eccentric’ (James, 1902/1961: 24). I wish to look briefly at two themes in speaking of the ‘madness’ of the prophets: their message has insight and it departs from the canons of common sense.

Insight In his well-known study of the phenomenon of insight, Bernard Lonergan (1957) provides an overview that corroborates much of what we have been saying about prophecy and abnormality. For him, insight has several telling characteristics that mirror James’ classic account of religious and mystical experience. Both religious experience and insight come ‘as release to the tension of inquiry’; they are not created or conjured but come suddenly and unexpectedly; they are ‘a function not of outer circumstances but inner conditions’; they unite the concrete with the abstract; and they are ‘noetic’ in as much as they pass into the recipient’s store of knowledge (Lonergan, 1957: 3–4).8 In direct opposition to prevailing psychological and psychiatric accounts that denigrate the voices and apparitions that seem to accompany the ‘ravings’ of ‘the mad’, Lonergan, referencing Einstein and Heisenberg, writes that ‘it has taken modern science four centuries to make the discovery that the objects of its inquiry need not be imaginable entities

262

Persecuting the Prophets

moving through imaginable processes in an imaginable space-time’ (1957: xx–xxi). And, once again mirroring the findings of James on the relation between revelation and genius, Lonergan writes that insight is discovered, not by learning rules, not by following precepts, not by studying any methodology. Discovery is a new beginning. It is the origin of new rules that supplement or even supplant the old. Genius is creative. It is genius precisely because it disregards established routines, because it originates novelties that will be the routines of the future. (Lonergan, 1957: 4) Furthermore, the intimate relation between insight and prophecy is confirmed in that it is ‘unwanted’ since it seeks to correct and revise the dominant structural and ideological framework (Lonergan, 1957: 193). Insight involves, in Thomas Kuhn’s (1970: 5) words, ‘a paradigm shift’, one that the regnant epistemology finds heretical: Normal science, the activity in which most scientists inevitably spend almost all their time, is predicated on the assumption that the scientific community knows what the world is like. Much of the success of the enterprise derives from the community’s willingness to defend that assumption, if necessary at considerable cost. (Kuhn, 1970: 10) Note how classic interpretations of prophecy mirror the above analysis. For von Rad (1968: 20–1), prophecy is rooted in a form that transcends all previous states of knowledge, it ‘could not possibly be housed in any traditional form.’ Heschel writes: Insight is a breakthrough, requiring much intellectual dismantling and dislocation […] It is being involved with a phenomenon, being intimately engaged to it, courting it, as it were, that after much perplexity and embarrassment we come upon insight – upon a way of seeing the phenomenon from within […] [I]t is knowledge at first sight. (1955: xvi, emphasis in original)

Common sense Common sense is not to be disparaged. Knowledge creates neurological pathways that enable us to take for granted vast sectors of experience that

263

CRIMINOLOGY AND PUBLIC THEOLOGY

have been confirmed over and over again. Gillet (2004: 25, 22) refers to this as ‘discursive naturalism’. It consists of a ‘pre-reflective theory of knowledge’ that views each person ‘in a community of socially embodied creatures who share a perspective on the world and jointly come to know what their surroundings are like’. Years ago, Peter Berger and Thomas Luckmann (1966) reminded us that reality is largely a social construct. It functions in such a way that for the knower, it locates all collective events in a cohesive unity that includes past, present, and future. With regard to the past, it establishes a ‘memory’ […] With regard to the future, it establishes a common frame of reference for the projection of individual actions. Thus the symbolic universe links [people] with their predecessors and their successors in a meaningful totality. (Berger and Luckmann, 1966: 102–3) Regarding the perception and judgement of others, it is not difficult, given the commonality of what is considered reliable knowledge, to find something askew in one whose account of reality varies from the prevailing set of cultural norms and meanings and, just as often, disturbs the taken-for-granted attitude that most of us assume in most of our dayto-day interactions. Fingarette (1972) rightly notes that unconventional words and behaviour often trigger defensive attitudes that easily elide into the domain of the police and the justice system: One who is unaware of certain broad types of moral condemnation by society […] (and of certain types of exceptions and excuses), one who is unable even to take these attitudes into account in conducting himself, is thereby marked out as suffering some psychopathology; he is out of touch with reality just as much as if he were unaware of the general nature and purpose of houses, money, or policeman and the laws against crimes. (Fingarette, 1972: 109) Lonergan’s (1957) thought on the concept is especially helpful since he helps us understand that the meanings held in common are inherently conservative and, without careful attention, openness and empathy, frequently lead to negative judgement of the exceptional and its expulsion from the functional networks of society. The prophet, consciously or not, testifies to the fact that ‘from each generation to the next there are transmitted not only sound ideas but also incomplete ideas, mutilated ideas, enthusiasms, passions, bitter memories’ (Lonergan, 1957: 233).

264

Persecuting the Prophets

This is due to the fact that common sense is ill equipped to see its own development historically. Its internal bias ‘prevents it from being effective in realizing ideas, however appropriate and reasonable, that suppose a long view or that set up higher integrations or that involve the solution of intricate and disputed issues’ (Lonergan, 1957: 228). Echoing, to some degree, Lonergan’s reticence of an overreliance on common sense, Szasz (1961) observes that the history of psychiatry and psychotherapy are predicated on unassailable medical determinations of what constitutes an unbalanced psyche. In most cases, it involves a judgement to medicate and isolate the subject due to an inability to decipher commonly held meanings in that person’s narrative and mode of communication. He goes on to say that although this psychiatric methodology ‘is not novel,’ what it fails to appreciate is the idea that so-called mental illnesses may be like languages, and not at all like diseases of the body […] Suppose, for instance, that the problem of hysteria is more akin to the problem of a person speaking a foreign tongue than it is to that of a person having a bodily disease. (Szasz, 1961: 11) Common meanings allow us to proceed without the need to question the discourses and institutional dynamics that both organise our existence and shield us from the anomie and disorder that necessarily occur when social structures fail to provide basic human necessities or prohibit significant sectors of the human community from seeking to fulfil the talents and aspirations so essential to coming to full personhood. This is why prophets arose in ancient Judaism, why their critical and ‘uncommon’ critique is so jarring, and why they continue to be branded as unstable, troublesome, delinquent, and so often find themselves in our jails and prisons.

No prophet is accepted … Heschel (1955: 5) reminds us that the prophet ‘feels fiercely. God has thrust a burden upon his soul, and he is bowed and stunned at [humanity’s] fierce greed.’ Although the vocation is almost always a distasteful one, it is borne due to love and compassion for the victims of history and to the God for whom their lives are precious. As I have attempted to demonstrate in this chapter, the price for speaking that truth is that he or she is stigmatised and thought to be entrapped in obsessive delusions by his or her contemporaries (Heschel, 1955: 12, 18).

265

CRIMINOLOGY AND PUBLIC THEOLOGY

One does not expect pious phrases from Foucault, but he poignantly saw that the humility shown by God in bearing the burden of our humanity involved not only a descent into poverty, homelessness, incarceration and immense suffering but also being judged insane. He writes that Christ took on the stigmata of fallen nature; from poverty to death, he followed the long road of the Passion, which was also the road of the passions, of wisdom forgotten, and of madness. Madness is the lowest point of humanity to which God submitted in His incarnation, thereby showing that there was nothing inhuman in man that could not be redeemed and saved. (Foucault, 1973: 81) His interpretation of the life of Jesus as one of constant recrimination due to psychosis is attested to in the gospels – not only in his life at the margins of society, his continual harassment by the Temple aristocracy and, finally, Roman authorities, but also by his own family: ‘Then Jesus entered a house, and again a crowd gathered, so that he and his disciples were not even able to eat. When his family heard about this, they went to take charge of him, for they said, “He is out of his mind”’ (Mark 3:20–1). The prophet is thus, like Jesus himself, unwelcome in society and, often, among family and friends. It is dangerous to swim against the current of ‘true discourse,’ nationalistic triumphalism, and amnesia regarding the nation’s sins. Not to be ignored is the persecution of the prophets by their own churches. One need not only look to Martin Luther King’s ‘Letter from Birmingham Jail’ (1964: 76–95) to find abundant evidence that, as Jesus quipped, ‘no prophet is ever accepted in his own country’ (Luke 4:24): ‘The contemporary American church is so largely enculturated to the American ethos of consumerism that it has little power to believe or to act […] Our consciousness has been claimed by false fields of perception and idolatrous systems of language and rhetoric’ (Brueggemann, 1978: 11).

The necessary message of the prophets We began our investigation with several rhetorical statements suggesting that madness is most pronounced among those who define themselves as sane. If this chapter has been to some degree convincing, the reader will agree that the quotes were far more than imaginative devices but a compelling reminder of a truth that is easy to ignore.

266

Persecuting the Prophets

Thomas Merton (1966) writes with a similar rhetorical flair – he calls it a ‘meditation’ – about the trial of the Nazi war criminal, Adolph Eichmann. What he found most memorable about the trial was the determination by a team of psychiatrists that Eichmann was perfectly sane: The sanity of Eichmann is disturbing. We equate sanity with a sense of justice, with humaneness, with prudence, with the capacity to love and understand other people. We rely on the sane people of the world to preserve it from barbarism, madness, destruction. And now it begins to dawn on us that it is precisely the sane ones who are the most dangerous. (Merton, 1966: 46, emphasis in original) I have argued that sane people, like those who engineered the Holocaust, or ‘nuclear strike capability’, or ‘collateral damage’, or the criminal justice system, have overseen a wholesale destruction of the network of hospitals and clinics that sought to address the problems of those who, at least putatively, are mentally ill and sent them en masse to the nation’s jails and prisons. I have further argued that this manoeuvre has at least subliminal if not direct connection to the fact that there is something about those considered to be ‘mad’ that frightens us both psychologically and socially. The ‘sane’ fear their anger, their ‘schizoid’ relation to an unrelentingly harsh life world wherein the only alternative to penury and thwarted opportunity is a jail cell. And they fear their prophetic message – spoken and unspoken – on behalf of the God who loves them. A God who decries systems of skewed social mobility, drastic and fatal wealth distribution, and the mantras of the propaganda machine that absolve the economic and political system of all culpability, and label asocial and irrational conduct as not only delinquent but also punishable. Roy Porter (2004) has studied the history of insanity and the gap between ‘the sane’ and ‘the crazy’, not in terms of clinical treatment but in distinct relations of power. In this he mirrors Lonergan who asserts that the ‘dark side’ of common sense is that it is always accompanied by and, if necessary, maintained by force.9 Although neither might endorse the exact terminology used in this chapter, Porter – echoing Lonergan – thinks it necessary to give ear to what ‘mental cases’ have to say as they, like it or not, bear an ‘uncanny’ resemblance to ourselves: [I]t is important to get inside the heads of the mad. For one thing, their thought-worlds throw down a challenge, being at once so alien yet so uncannily familiar, like surrealist parodies of normality. For another, if we are to understand the treatment

267

CRIMINOLOGY AND PUBLIC THEOLOGY

of the mad, we must not listen only to the pillars of society, judges and psychiatrists: their charges must be allowed a right of reply. (Porter, 2004: 229–30) Put negatively, the persecution of the prophet – whether the nomenclature is embraced by its bearer or not – is a manifestation of the I-It as opposed to the I-Thou relationship of which Martin Buber (1970) speaks so eloquently. His vocabulary is replicated in R.D. Laing’s synopsis of treating the person with a ‘mental problem’ as a symptom, not to mention threat, rather than as a fellow human being: Seen as an organism, man cannot be anything else but a complex of things, of its, and the processes that ultimately comprise an organism are it-processes. There is a common illusion that one somehow increases one’s understanding of a person if one can translate a personal understanding of him into the impersonal terms of a sequence or system of it-processes. (Laing, 1969: 21, emphasis in original) To see the prophet in a positive light, to heed the message that his or her ‘condition’ conveys is to stand in direct line with lineages of wisdom spanning two-and-one-half millennia. As de  Young states, ‘Whether bestowed upon the Holy Fool, the mad artist, the wild-eyed prophet or the insane genius, madness sometimes has been seen as a blessing in disguise, as bequeathing the gifts of prophecy, creativity, inspiration, insight, and even love’ (de Young, 2010: 24). Prophets are thwarted not because they are ‘out of their mind’ but because they express the language of something daringly new: a unitive message that is as inclusive as it is disturbing in its reading of the moment and its warning that sin is its own punishment – an inescapable punishment if the cause is not addressed. This is the message that, as Brueggemann (1978: 9) notes, ‘every totalitarian effort’ seeks to silence; but with each truthful voice that is muffled and exiled ‘we find our humanness diminished.’ I close with a quote from Thomas Merton (1966: 47) who saw with exquisite clarity and irony the price we pay for ignoring the prophets shut up in our jails and prisons: And so I ask myself: what is the meaning of sanity that excludes love, considers it irrelevant, and destroys our capacity to love other human beings? […] We can no longer assume that because a man is ‘sane’ he is therefore in his ‘right mind.’ The

268

Persecuting the Prophets

whole concept of sanity in a society where spiritual values have lost their meaning is itself meaningless. Notes 1

2

3

4

5

6

7

8

9

I would like to thank my research assistant, Elizabeth Stenson, for her help with this chapter. ‘If we had to offer the briefest explanation of all the evil that men have wreaked upon themselves and upon their world […] it would be not in terms of man’s animal heredity, his instincts and his evolution: it would be simply in the toll his pretense of sanity takes, as he tries to deny his true condition’ (Becker, 1973: 29–30, emphasis in original). Jails in the US house those awaiting trial and serving sentences for misdemeanors (one year or less). Prisons detain those convicted of felonies with sentences that begin at one year and one day. ‘In general, whenever people feel unable – by means of “normal” mechanisms, such as ordinary speech – to prevail over the significant objects in their environment, they are likely to shift their pleas to the idiom of proto-language (for example, weeping, body signs)’ (Szasz, 1961: 130). For an analysis of how the 1890 census provided ‘sociological’ proof of the inability of black people to live peacefully and productively in a free society, see Khalil Muhammad’s The Condemnation of Blackness (2010) chapter 1. Loïc Wacquant has argued consistently that the three factors most responsible for incarceration are race, class and location (see for example, Wacquant, 2009, 2010). On the workhouse, see Sellin (1976), Ignatieff (1978), McGowan (1998). On the punishment and incarceration of poor people in 16th-century England see Van der Slice (1936). James (1902/1961: 299–300) writes of religious experience that it is immediately luminous, philosophically reasonable and morally helpful. Concerning mystical experience, he states that it is ineffable, noetic, transient and passive. ‘For at the root of the general bias of common sense and at the permanent source of the longer cycle of decline, there stands the notion that only ideas backed by some sort of force can be operative’ (Lonergan, 1957: 239).

References

Becker, E. (1973) The Denial of Death, New York: The Free Press. Berger, P. and Luckmann, T. (1966) The Social Construction of Reality, New York: Anchor. Brenner, M.H. (1973) Mental Illness and the Economy, Cambridge, MA: Harvard University Press. Brueggemann, W. (1978) The Prophetic Imagination, Philadelphia, PA: Fortress. Buber, M. (1970) I and Thou, translated by W. Kaufmann, New York: Charles Scribner’s Sons. Charland, L. (2004) ‘Character: moral treatment and personality disorders’, in J. Radden (ed.) The Philosophy of Psychiatry, New York: Oxford University Press, pp. 64–77. Christie, N. (2004) A Suitable Amount of Crime, Abingdon: Routledge.

269

CRIMINOLOGY AND PUBLIC THEOLOGY

de Young, M. (2010) Madness: An American History of Mental Illness and Its Treatment, Jefferson, NC: McFarland. Erasmus, D. (1511/1942) The Praise of Folly, New York: Walter J. Black. Fingarette, H. (1972) The Meaning of Criminal Insanity, Berkeley, CA: University of California Press. Foucault, M. (1972) The Archaeology of Knowledge, translated by A.M. Sheridan, New York: Pantheon. Foucault, M. (1973) Madness and Civilization, translated by R. Howard, New York: Vintage. Gillet, G. (2004) ‘Brain pain: psychotic cognitions, hallucinations, and delusions’, in J. Radden (ed.) The Philosophy of Psychiatry: A Companion, Oxford: Oxford University Press, pp. 21–35. Gilligan, J. (2001) Preventing Violence, London: Thames & Hudson. Graham, G. (2004) ‘Self-ascription: thought insertion’, in J. Radden (ed.) The Philosophy of Psychiatry: A Companion, Oxford: Oxford University Press, pp. 89–103. Heidegger, M. (1962) Being and Time, translated by J. Macquarrie and E. Robinson, New York: Harper & Row. Heschel, A. (1955) The Prophets, New York: Harper & Row. Hollingshead, A.B. and Redlich, F.C. (1958) Social Class and Mental Illness: Community Study, Hoboken, NJ: John Wiley & Sons Inc. Holzer, C.E., Shea, B.M., Swanson, J.W., Leaf, P.J. et  al. (1986) ‘The increased risk for specific psychiatric disorders among persons of low socioeconomic status’, American Journal of Social Psychiatry, 6(4): 259–71. Ignatieff, M. (1978) A Just Measure of Pain, New York: Pantheon. James, D.J. and Glaze, L.E. (2006) Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report, NCJ 213600, Washington, DC: Bureau of Justice Statistics. James, W. (1902/1961) The Varieties of Religious Experience, New York: Collier. Kierkegaard, S. (1954) Sickness unto Death, translated by W. Lowrie, Princeton, NJ: Princeton University Press. King, M.L. (1964) ‘Letter from Birmingham Jail’, in Why We Can’t Wait, New York: Mentor, pp. 76–95. Kuhn, T.S. (1970) The Structure of Scientific Revolutions (second  edn), Chicago, IL: University of Chicago Press. Laing, R.D. (1969) The Divided Self, New York: Pantheon. Levesque, S. (2010) ‘Closing the door: mental illness, the criminal justice system, and the need for a uniform mental health policy’, Nova Law Review, 34(3): 711–38. Loader, I. (2009) ‘Ice cream and incarceration: on appetites for security and punishment’, Punishment and Society, 11(2): 241–57.

270

Persecuting the Prophets

Lonergan, B. (1957) Insight: A Study of Human Understanding, New York: Philosophical Library. McGowan, R. (1998) ‘The well-ordered prison’, in N. Morris and D.J. Rothman (eds) The Oxford History of the Prison: The Practice of Punishment in Western Society, New York: Oxford University Press, pp. 79–109. Merton, T. (1966) ‘A devout meditation in memory of Adolph Eichmann’, in Raids on the Unspeakable, New York: New Directions, pp. 45–9. Muhammad, K. (2010) The Condemnation of Blackness, Cambridge: Harvard University Press. Otto, R. (1958) The Idea of the Holy, translated by J.W. Harvey, New York: Oxford University Press. Pascal, B. (1670/1941) Pensées, translated by W.F. Trotter, New York: The Modern Library. Plato (2007) ‘Phaedrus’ in Plato Six Great Dialogues, translated by B. Jowett, Mineola, NY: Dover. Porter, R. (2004) Madmen: A Social History of Madhouses, Mad Doctors, and Lunatics, Stroud: Tempus. Pustilnik, A. (2005) ‘Prisons of the mind: social value and economic inefficiency in the criminal justice response to mental illness’, Journal of Criminal Law and Criminology, 96(1): 217–66. Robinson, D.N. (1996) Wild Beasts and Idle Humors: The Insanity Defense from Antiquity of the Present, Cambridge, MA: Harvard University Press. Rothman, D. (1971) The Discovery of the Asylum, Boston, MA: Little Brown. Schutt, R. (2011) Homelessness, Housing, and Mental Illness, Cambridge, MA: Harvard University Press. Sellin, T. (1976) Slavery and the Penal System, New York: Elsevier. Szasz, T. (1961) The Myth of Mental Illness, New York: Hoeber Harper. Van der Slice, A. (1936) ‘Elizabethan houses of correction’, Journal of Criminal Law and Criminology, 27(1): 45–67. Vogel, M., Stephens, K.D. and Siebels, D. (2014) ‘Mental illness and the criminal justice system’, Sociological Compass, 8(6): 627–38. von  Rad, G. (1968) The Message of the Prophets, translated by D.M.G. Stalker, London: SCM Press. Wacquant, L. (2009) Punishing the Poor, Durham, NC: Duke University Press. Wacquant, L. (2010) ‘Class, race, and hyper-incarceration in revanchist America’, Daedelus, 139(3): 74–90. Whitaker, R. (2002) Mad in America: Bad Science, Bad Medicine, and the Enduring Mistreatment of the Mentally Ill, Cambridge, MA: Perseus. Wittgenstein, L. (1969) On Certainty, translated by D. Paul and G.E.M. Anscombe, New York: J. & J. Harper.

271

12

The Ins and Outs of Signals of Forgiveness in Restorative Justice Joanna Shapland 1

There is no way that society could function in our crowded urban spaces, rural villages and homes without forgiveness. We have people bump into us, drop things (and sometimes break them) and say the wrong thing several times a day. Some of these are actually crimes, such as coming into contact with someone else recklessly – an assault. But if we took umbrage at each one, we would be eaten up with grumbles and rage, and we would be known as someone to avoid, someone who took slights easily, someone to give a wide berth to in the pub. Yet when the crime and the hurt are serious, we often laud and wonder at someone who does forgive, though we may not be at all sure we could do that ourselves. The example of Gordon Wilson, whose daughter Marie was killed in the Enniskillen bombing in Northern Ireland by the Provisional IRA, is often cited. He was an ordinary person, a draper, but what he did was very much seen as extraordinary. He said ‘I bear no ill will. I bear no grudge’ (Belfast Telegraph, 2008). He called for a spirit of forgiveness and reconciliation, and he became a peace campaigner in relation to the Troubles in Northern Ireland. He sought to meet with representatives of the Provisional IRA, to understand the reasons for that bombing, and did so. Later, the leader of Sinn Féin formally apologised for the bombing. Neither our forgiveness of the small things, nor Gordon Wilson’s forgiveness of the bombing, are acceptances of or agreements with the

273

CRIMINOLOGY AND PUBLIC THEOLOGY

acts to which they refer. The acts remain wrong, to be condemned. The forgiveness, if it occurs, is for the person who did the wrong, not for the nature of the act (Griswold, 2007; Shapland, 2016). Forgiveness, though, like many other social acts, is a complex social interaction. I argue in this chapter that it has other messages and purposes as well, directed at a multiplicity of audiences. I shall be considering the social context and patterning of forgiveness here, rather than its meaning or results solely for the individual who forgives. In particular, I want to look at the signals forgiveness may send out to others in the social environment, and in looking at this generally I shall focus on the specific context of restorative justice, which is where the person harmed and the person who has harmed are enabled to communicate with each other after a criminal offence.

Is forgiveness inevitable, or even likely? To begin with, we need to consider the extent to which forgiveness may occur in different situations and what exactly we are going to understand as forgiveness. There is a considerable literature on forgiveness, from the perspectives of moral philosophy (for example, Bennett, 2003; Griswold, 2007) and of psychology (for example, Witvliet et al., 2001; Field et al., 2013). More specifically, forgiveness has been considered to some extent as to when and whether it may occur in restorative justice for a criminal offence, where the person who has harmed and the person harmed come into communication (Armour and Umbreit, 2006; Van Stokkom, 2008; Shapland, 2016).2 Another, often parallel discourse is in relation to religiously inspired forgiveness, where people follow the teachings of the religion to which they adhere (for example, Christianity: Anderson, 2016). Definitions and ideas of the patterning of conduct that may consist of forgiveness vary by discipline. The disciplinary discourses are now not entirely siloed, in which different groups of scholars consider allied topics with no reference to each other, but it is clear that the ways in which forgiveness is conceived or operationalised in empirical research are different between the disciplines. Psychological work has often taken verbal responses to show forgiveness, sometimes in written responses to questionnaires, but perceived emotions of closure may be used as proxies, rather than the word ‘forgive’ itself. Alternatively, emotional responses may be measured physiologically. Both moral philosophers and criminologists/restorative justice scholars have tended to take verbal (or non-verbal) expressions of forgiveness by the person harmed towards the person who has committed the harm as

274

Signals of Forgiveness in Restorative Justice

indicating and showing forgiveness – provided they are not simultaneously accompanied by anything counterproductive, like beating up the person who has harmed or stealing the harmer’s property. However, non-verbal expressions, which may denote forgiveness, like hugging or shaking hands, can occur as other signals and do not necessarily denote ‘forgiveness’ (for example, they might merely show acknowledgement of reparative work that has been done by the harmer). Given that people may not use the word ‘forgive’, it can be hard to recognise forgiveness by observation without an express statement by the person harmed. Moreover, nonverbal expressions can be culture-specific. Some countries and peoples are more into hugging, others into shaking hands, or even a smile or just a terse nod of the head. The cultural specificity has not often been acknowledged in the literature, which has tended to assume universality in people’s reactions to justice events, but it is important to recognise the cultural specificity of the showing of emotions and of the expectations of social patterning of interactions, particularly in multi-person exchanges such as forgiveness. For the purposes of this chapter, we shall stick with verbal and nonverbal expressions of forgiveness, which are clearly expressed and recognised as forgiveness by at least the person harmed and the person who has harmed – though the ‘F’ word (forgiveness – Braithwaite, 2016) does not have to be used. Theoretically, it is possible for the person harmed to forgive silently and remain tight-lipped, not communicating it, even in facial expressions, but there is then no possibility of others understanding that state, so if we wish to look at the social effect of signals of forgiveness, rather than individuals’ reactions, non-communicative forgiveness cannot work. If we look at the occurrence of forgiveness, both in response to everyday events and to crime, it is clear that a number of constraints surround the occurrence of forgiveness. First, it is not universally shown by those who have been harmed – one can choose to forgive or not to forgive. There may be social repercussions if the person harmed does not show forgiveness, but it would still be recognised as his or her choice. Second, it is not necessary that the person who has harmed be known to the person harmed, or be identified, or for the person harmed to feel or express forgiveness; as was shown by Gordon Wilson, for whom the people who killed his daughter were never identified in his lifetime. Philosophically, this has been argued by Fiddes (2016). Communication in this situation may then be to others in that society, or those who may know the person who has harmed, or to the (unknown) person who has harmed. It has sometimes been argued that meaningful communication after a crime has occurred is very difficult in modern Western societies,

275

CRIMINOLOGY AND PUBLIC THEOLOGY

because ties between individuals are only weak or ‘thin’ (Granovetter, 1973) and it is difficult to perceive any meaningful ‘community’ to which both the person who has harmed and the person harmed belong. However, I would argue that though there may have been little or no relation or interaction between the person who has harmed and the person harmed before the offence, signals from their communication afterwards can (and do) spread out from either party to others they know. Third, as we saw above, cultural expectations tend to be of the greater likelihood of forgiveness when the slight is minor or the person who has harmed is a child or ill in some way. However, historical examples have also shown that forgiveness may not be expected for even a minor act where the person harmed is of high status (for example, bumping into a king or someone of high rank or caste can have major adverse consequences, rather than forgiveness). More generally, we know that the person harmed’s reactions to offences are relatively individualistic, depending on their previous mental state, such that a proportion of the people harmed by both serious and more minor crimes will say they were hardly affected, whereas for others the offence will have a considerable effect on their mental and social wellbeing (Shapland and Hall, 2007). I would argue, then, that forgiveness is intrinsically social and has to be seen as set in its social and cultural setting. In this, I am referring to more than the intrinsic dyadic or multi-party nature of forgiveness, which, except in the special case of self-forgiveness, has to involve at least the person/people harmed and those who have done the harm. I am saying that the ways in which forgiveness is expressed and how it may be recognised as forgiveness vary by their cultural and social settings. I am also suggesting that forgiveness is normally a communicative act (from harmed to harmer), which is social. Hence the relation of forgiveness with power and those involved in and around the offence needs to be explored. During and after a criminal offence has been committed, the balance of power tends to shift. During the offence, the power is clearly with the person who has harmed and, in the case of domestic abuse (intimate partner violence or interpersonal violence), the offence can be one of a series of offences, often involving violence, which aim to control the person harmed. Indeed, it is this controlling aspect which urges caution on any communication between person who has harmed and the person harmed afterwards, including in relation to restorative justice. The vulnerability of the person harmed is such that the initial imbalance of power during the offence can continue and be exacerbated during communication afterwards. However, if this is not a domestic abuse offence and the person harmed and the person who has harmed are able to meet afterwards in a safe

276

Signals of Forgiveness in Restorative Justice

situation, as in restorative justice, then the power dynamic is likely to change. In a criminal court, it is clear that the person who has harmed is the one who is the most powerless – indeed, in the adversarial criminal justice tradition, the person who has harmed has been described as a ‘dummy player’ (Carlen, 1976), who is silent and whose contribution is masterminded and accomplished by others (such as the defence legal representative and judge). In that same tradition, though, the person harmed tends also to be powerless, a silent actor, whose participation, except when in the witness box, is dictated by the prosecutor, and whose evidence, even when in the witness box, has to be said according to the rules of the court (Rock, 1993). Adversarial criminal justice systems render both the person who has harmed and the person harmed mute, and rarely encourage or even permit direct communication (Strang, 2002). In contrast to this adversarial, representative approach, restorative justice involves communication between the person harmed and the person who has harmed with a neutral, impartial facilitator or mediator. This may be direct communication in a face-to-face meeting (as in victim-offender mediation) and may also involve supporters of the person harmed and the person who has harmed (as in conferencing), and/or people from the local community or those from the criminal justice system (as in family group conferencing or sentencing circles). Alternatively it may involve indirect communication mediated by the facilitator, such as questions and answers, or written notes, or video contributions (indirect or shuttle mediation). In such communication, particularly in a direct meeting, the balance of power shifts (Shapland et al., 2006). The main task of the facilitator is to encourage communication by both the person harmed and the person who has harmed, so there should not be the muteness and passivity of criminal court proceedings. However, it is the person who has harmed who is likely to be under pressure – and certainly it is the person who has harmed who tends to be the more nervous before such a meeting (Shapland et al., 2011). It needs to be remembered that, in any restorative justice process within the framework of criminal justice, by the time it comes to a meeting, the roles have been set (Shapland et al., 2006). The person who has harmed has acknowledged at least some responsibility for that offence and the person harmed has agreed they have been harmed. Moreover, though restorative justice meetings are definitely more informal than criminal court proceedings – participants are encouraged to ask questions and give answers without their words being constantly interrupted by lawyers or judges – there is still normally a list of topics that will be covered and an order in which participants will tend to speak. In that communication, there is an expectation that the person who has harmed will answer questions from the person harmed and also

277

CRIMINOLOGY AND PUBLIC THEOLOGY

acknowledge the harm that has been done. The harmer has essentially an obligation to answer to the person harmed for what they have done, and the person harmed has the authority (or right) to demand such answers, as far as the harmer can provide them. The person harmed will enumerate the harms that have been done as a result of the offence (and supporters of both parties may do likewise). The person harmed can then choose how to react to this. Clearly the balance of power has shifted so that the person harmed has the more dominant role. In this dyadic conversation of question and answer and statements on responsibility and harm, it is the person who has harmed who has the conceptual ground to make up, the person harmed who is being supported in their harm by the state. And yet, real restorative justice conferences are only very rarely a one-sided, ‘offender-blaming’ ritual. That plaudit belongs to court proceedings. What tends to be seen is exploration of how the offence came about and the circumstances lying behind the offending. Those who have been harmed tend to put themselves into a problem-solving, helping role, as may both parties’ supporters. This is most obvious as conferences turn to consider the future for both parties, particularly how the person who has harmed may stop offending. Mediation may not have this future-oriented phase. But how and why does this happen? It would not necessarily be expected simply because harm or hurt has occurred. That the person harmed expresses, often forcefully, the nature of the harm that has been done would be expected as a result of the offence. If the harmer acknowledges the harm that has been done and particularly if the person who has harmed apologises to the person harmed for that harm it can be seen as symbolic reparation (Shapland et al., 2006). But to then seek to understand the harmer’s world and to concentrate on the future wellbeing of the harmer? Moreover, given that each restorative justice meeting is a unique event, with a unique set of participants and matters to be discussed, it also needs to be explained why one can make generalisations about the processes that occur, the types of communication and the power balance at different points. Yet this pattern of asking and answering questions about how the offence occurred, then describing the effects it has caused, and then concentrating on how to prevent further offending seems to be resonant in restorative justice processes for very different kinds of offences and offenders in many countries. The work of Van Camp and Wemmers in Belgium and Canada, as well as our own in England (Van Camp and Wemmers, 2013; Van Camp, 2014, 2016; Shapland et al., 2011), provide significant clues to these communicative processes and why similar processes may occur in different restorative justice events. Van Camp (2014, 2016) undertook interviews with those who had been harmed by property and violent crime who had agreed to participate in

278

Signals of Forgiveness in Restorative Justice

restorative justice in England and Belgium, both immediately after they had agreed to be involved and again after the conclusion of the restorative intervention. Reasons why they wanted to be involved included a need to feel involved, self-related motives (such as reparation (in Belgium), telling the harmer how the offence had affected them, or requiring answers to questions) but also prosocial motives. The self-related motives were directed at healing and closure. The prosocial motives were to match the person who has harmed’s efforts in agreeing to meet, to allow the person who has harmed to move on and, particularly, to change their lives so that they could refrain from reoffending. Shapland et al. (2011) interviewed some English people who had been harmed (and people who had harmed) prior to the restorative justice event and similarly found both self-related and prosocial motives. They also interviewed a separate sample of several hundred people, harmed and harmers, some months after the offence. When asked to look back after the event, both parties said that they agreed to take part in restorative justice primarily for the other person, not for themselves. For those who had been harmed, this was primarily to enable the harmer to have an opportunity to realise what they had done, to change and to stop offending in the future. Both parties are therefore coming to the restorative justice event attending to each other and to each other’s future. Even though, in both studies, the person harmed and the person who had harmed rarely knew each other before the offence, their communication – and their wish to meet and communicate – had social elements related to healing (assuaging the effects of the harm of the offence) but also to their future lives and particularly to influencing desistance by the harmer (even if only minimally). Motives in both studies did not tend to change over the time of the restorative communication. Van Stokkom (2008) has similarly argued that many of those harmed show compassion towards the harmer, particularly if the harmer is young, seeing their wrongdoing as being attributable to lack of maturity. Van Camp (2016) draws on the work of Frazier et al. (2013) and Vollhardt (2009) to show that after a negative life-changing event (which might be a criminal offence, but might be a natural disaster) those who have been harmed are more likely to want to help others who have experienced adversity, and that prosocial behaviour is associated with better coping and increased wellbeing among trauma survivors, so that prosocial motives also enhance their holder. It seems that, for those who agree to participate in restorative justice, both prosocial and self-regarding motives are at work and both occur before and after the restorative justice process and across several different cultures (and types of restorative justice). Those harmed and those who have harmed are both interested in and concentrating on the other person

279

CRIMINOLOGY AND PUBLIC THEOLOGY

and their future, as well as on the past. Discussions of forgiveness, and of apology, have often essentially concentrated on the past – is that person going to apologise for their past conduct? Is that person going to forgive what happened in the past, or hold on to their hurt caused by a past wrong? We see now that communication and expectations of communication between the person harmed and the person who has harmed are more complicated than that. There is a social and communicative dimension which involves the future as well. That future may not be about the duo themselves – the harmer’s future conduct may not involve the person harmed at all, nor may the person harmed ever see the person who has harmed again. It is clearly, though, about social expectations and the wish of both to see each other functioning as full members of society. We should not overclaim in relation to this. Not every person harmed or person who has harmed wishes to engage in any way with the other person, nor would wish them well. Some will not agree to participate in restorative justice. There are surprisingly few quantitative findings on the proportions of those who have been harmed who are willing to participate in restorative justice, perhaps because other constraints (like not having correct contact details for victims from a criminal justice system which concentrates on the person who has harmed) render it difficult to know how many of those who have been harmed are actually contacted and given the opportunity to participate (see Kirby and Jacobson, 2015). However, estimates for adult persons who have been harmed seem to range from 25 per cent to just over 50 per cent, higher when the person who has harmed is younger, but also in no way minimal even when it is a serious offence (Shapland et al., 2011). Engaging in restorative justice, or at least wishing to do so, is therefore not a very rare possibility. If people do engage, then is forgiveness contingent on an apology or showing remorse on the part of the person who has harmed? Is there a necessary temporal sequencing whereby apology comes first and enables forgiveness to follow? Several restorative justice theorists have argued that there needs to be this temporal sequencing during a restorative justice conference. Van Stokkom (2008) concludes that clinical research shows that apologies influence whether forgiveness occurs. He suggests that an apology stimulates emotional dissonance and humility in those who have been harmed, which allows them to recognise their own transgressions and see the commonality between theirs and the harmer’s lives. Given the evidence on prosocial motives and that these motives do not suddenly change in the course of the restorative justice process, I am not sure that forgiveness is suddenly sparked by an apology. Nor would I concur with Bennett (2006) that the participants can be only going through a ritual, because the

280

Signals of Forgiveness in Restorative Justice

person who has harmed knows they will suffer bad consequences if they do not apologise. If it is purely a ritual, then there is necessary sequencing of apology followed by forgiveness and it is likely that both apology and, presumably, forgiveness are not sincere. However, Bennett was particularly writing about instances where restorative justice would occur instead of criminal justice sentencing and the person who had been harmed might (not surprisingly) be resistant to the harmer being diverted from criminal justice. For even moderately serious offences, however, as in the studies cited above, both the person harmed and the person who has harmed were participating in both restorative justice and criminal justice – and restorative justice was supposed to be voluntary for all participants. Apologies may not always be entirely sincere (Exline et al., 2003 have distinguished between weak and strong apologies) and indeed the person harmed will not always consider apologies as entirely motivated by remorse (Shapland et al., 2011), but it is difficult to see the communication between the person harmed and person who has harmed entirely as ritual. However, there is clearly a temporal sequencing in many restorative justice events in which apologies tend to precede, not follow expressions of forgiveness. The same is true of everyday life. We trip over someone; we apologise; and then they say it is fine, no problem. Why is there this sequencing? Both the person harmed and the person who has harmed can see the magnitude of the offence as it occurs and could judge the fault of the person who has harmed. So, forgiveness could be instantaneous – why wait? It may be that first, the person who has harmed needs to acknowledge responsibility for the offence. This is a prerequisite for restorative justice: acknowledgement that one has committed a criminal act against that person. If it were not that particular person who has harmed or that particular person harmed (that is, there is a mismatch and it is not the same offence), the result of any communication is likely to be a quarrel – no it wasn’t me. One cannot be forgiven or ask for forgiveness for acts one has not done. It has been argued that more than just responsibility for the offence needs to be agreed by the person who has harmed – that the person who has harmed needs to indicate remorse or empathy with the person harmed (Braithwaite, 1989; Morris and Maxwell, 2000). It is clear that remorse does not have to occur or be determined well before a restorative justice event (Robinson and Shapland, 2008) – it can be a response to what happens during the event, particularly when the person harmed describes the harm that has been done. It is not good practice only to offer restorative justice when a person who has harmed has indicated remorse well in advance. It is possible, though, that on some occasions forgiveness or closure can only occur when some remorse or empathy has

281

CRIMINOLOGY AND PUBLIC THEOLOGY

been communicated (though the example of Gordon Wilson indicates that this is not always true). For very serious offences, such as homicide, it may be that it is difficult or impossible for the person who has harmed to apologise, because the harm done is so great that any apology seems too small (Shapland et al., 2011). None the less, it may be possible for the person who has harmed to indicate empathy with the effects the person harmed has suffered, and say that he or she is present to be there to answer questions and minimise those effects. That can be acknowledged by the person harmed and I would argue that in this (admittedly rare) instance, one can see the possibility of forgiveness without apology first. Having explored the likelihood of this social patterning of communication, it is now possible to turn to the consequences of forgiveness and the messages it sends out.

Messages of forgiveness If a person harmed does forgive, what messages does this send out? One such message is that we will not seek revenge – Gordon Wilson pleaded with the Loyalists not to do a tit-for-tat attack in response. Forgiveness and revenge are incompatible, because in forgiving, the person forgiving is saying that there may be formal consequences of the act (like paying for the broken cup, or a court case) but further hostile action against the person who harmed will not be initiated (Exline et al., 2003; Griswold, 2007). Forgiveness is a sign (and if communicated, a declaration) of cessation of hostilities on the part of the person who forgives. Yet I would argue that forgiveness is not necessarily for ever. It could be time limited, not of itself, but dependent on the actions of the other person or group. Griswold (2007) has argued that the person harmed may require the person who has harmed to do work to satisfy various conditions for the person harmed to forgive, with the person harmed judging whether those conditions are satisfied and so whether the person harmed will forgive. For Griswold, those conditions include that the person who has harmed understands the harm done and communicates regret to the person harmed. I would see those conditions as possible conditions for forgiveness, but not as necessary ones, as argued above, particularly because it is possible for a person harmed to forgive though they do not know the identity of the person who has harmed (as with Gordon Wilson) so communication of regret would not be possible in that situation. Deliberate conditions on forgiveness, as Griswold proposes, sound a little like the person harmed prescribing a regime for the person who has harmed and trying to retain power for some time after the offence

282

Signals of Forgiveness in Restorative Justice

– like a carrot held in front of the person who has harmed, but one which cannot be attained without the person who has harmed first jumping over an obstacle course. That seems at odds with forgiveness reflecting the continuing humanity and potential of the person who has harmed as a person (Braithwaite, 1989), or providing healing in the relationship as well as for both parties (Zehr, 1990; Umbreit, 2000), as restorative justice theorists would propose. Setting deliberate conditions on forgiveness requiring work by the person who has harmed suggest that the person who has harmed is not yet fully seen as a member of that society. Bennett (2018) has argued that it is possible to have forgiveness with a ‘probationary’ period of time during which the harmer has to work through reparative work for the person harmed, or symbolic reparatory activity to turn their life around. I suggest that forgiveness, at least in the restorative justice setting, starts when it is declared and does not depend on definite ‘conditions’ being met thereafter, but can be withdrawn if the harmer subsequently does things which are at odds with their acceptance by the forgiver as them being a full member of that society. Those conditions on forgiveness set boundaries depending on the harmer’s conduct. One element of this is a further offence against the same person harmed. Though one may forgive a person one criminal act, a further act of the same kind may not be forgiven and the view of the person’s overall character may be put in jeopardy. Another would be resumption by the person who has harmed of a dominant power relation over the person harmed, in terms of controlling them with threats of harm. That is the essence of some more serious forms of domestic abuse. It is also why some religious groups and beliefs have been criticised for insisting on forgiveness from women who have been harmed by domestic abuse (Anderson, 2016) – that a wife should always forgive her husband, whatever her husband does, if the husband asks for forgiveness. Those religious groups and beliefs put the person harmed in the middle of a tug of war between, on the one hand, her social support network and social context and, on the other hand, continuing harm by her partner. They also negate the person harmed’s free choice as to whether to forgive, something which has to be at the heart of her own humanity. The time course and outcomes of forgiveness and family dynamics can take place over a long time span. In studies of desistance from persistent criminality, which does occur, even for the most persistent (Laub and Sampson, 2003), often those who have been offending persistently or have problematic drug habits have, by their early twenties, become estranged from their parents, who have put up with much and then decided they cannot cope with further contact (and further likely offending). The person who has harmed may remain in contact with other relatives, such

283

CRIMINOLOGY AND PUBLIC THEOLOGY

as grandmothers or aunts (Bottoms and Shapland, 2016) and if they start to desist, then they may restore relations with their parents in their midtwenties or thirties. But the harmer continuing to commit acts that harm definitely jeopardises a state of forgiveness.

Forgiveness and restorative justice It is interesting that one of the areas which has caused concern in relation to statutory restorative justice is where the person who has harmed has continued to commit offences. Statutory restorative justice for young persons who have harmed (as in Northern Ireland and New Zealand – see Campbell et al., 2005; Shapland et al., 2011) involves the person who has harmed, the person harmed and their supporters meeting together in a conference, facilitated by a neutral facilitator. In [Northern Ireland], restorative justice is voluntary for both the person who has harmed and the person harmed, but not for the sentencer – if the person harmed and the person who has harmed agree, the case must proceed to a conference prior to sentence, and the sentencer must take into account any outcome agreement or conference agreement made, in passing sentence. Restorative justice, compared with normal youth justice, therefore strongly facilitates communication between the person harmed and the person who has harmed. Where the harmer has gone on to commit further offences, it has been argued that they in some way do not ‘deserve’ a further conference. However, what has trumped that argument so far is that it may be a further offence for the person who has harmed, but it is normally a different person harmed – and who should deprive that second person harmed of the opportunity of communication with the person who has harmed and indeed of the opportunity of forgiveness? Restorative justice allows questioning of the person who has harmed by the person harmed – why me? Were you watching the house? Did you deliberately target me? Why did you take those things? (and so forth). It also allows the person harmed an opportunity to indicate how the offence has affected them, and the person who has harmed to apologise (or not). Apologies are definitely not compulsory, and it can be that they are not seen as appropriate by either party, if it is a very serious offence like a murder. Summing up the research results, the process tends to be seen as fair and very satisfactory by both the person harmed and the person who has harmed, and by both as providing closure after the offence (Umbreit et al., 2002; Shapland et al., 2011). I have argued previously (Shapland, 2016) that in England persons who have been harmed only rarely talk about ‘forgiveness’ or use the

284

Signals of Forgiveness in Restorative Justice

word ‘forgive’ at restorative justice events or in discussing afterwards their communication with the person who has harmed. It seems that ‘forgiveness’, in England, is taken as meaning forgiving or excusing the act, instead of, or as well as, the person who has harmed – in other words, making the act appear as though it had not happened. Clearly this is very much in contrast with the emphasis on communication and finding out by the person harmed exactly what did go on prior to the offence and during the offence. Hence if forgiveness is denying the act, it will not be something that those who have been harmed are likely to wish to see. Yet, believing that the person who has harmed can change is very much part of restorative justice for the person harmed. As we saw earlier, research in several countries has found that those who have been harmed agree to take part not just for their own reasons (to find answers, to have voice), but also for altruistic reasons – to help the person who has harmed to change, to stop offending, to do something positive with their life (Shapland et al., 2011; Van Camp, 2014). Taking part in restorative justice to help the person who has harmed to change is believing that they can become a ‘proper’ member of society, that they have potential that can be unlocked and that the person harmed’s part in unlocking is an active one. It is very much the same impetus that is behind declaring forgiveness to someone, that is, that they are a human being (not a ‘robot’ or ‘pre-programmed’) and that the essence of being human is the potential for change. The message from those harmed, in agreeing to take part in restorative justice, and indeed in the conversations of conferencing itself, is a message of hope for humanness. Supporters of the person who has harmed often feel similarly. The meeting involves communication to encourage that change, to persuade the harmer that he or she can change their life and do things differently – not necessarily become a different person, but no longer commit offences and instead lead a non-offending lifestyle. The word ‘forgiveness’, per se, may then, only occasionally be used in restorative justice, or in response to crime. Where it is used it is often by those with a Christian faith, for whom forgiveness is often a word used about their own problems and bad deeds. Yet what might be called the essence of forgiveness – that the person who has harmed is not intrinsically evil, can change, will not do it again – is often said and shown in nonverbal communication. ‘I forgive you’ is not said – but hands are shaken, hugs given, verbal support for the future offered. The moral worth of the person who has harmed is often referred to. The messages of forgiveness are the cessation of hostilities by the person harmed – at least as long as the person who has harmed does not offend again – and the declaration by the person harmed []that the person who

285

CRIMINOLOGY AND PUBLIC THEOLOGY

has harmed has the capacity to change and not to offend again, and that it is possible to move on from the wrongful act. Yet this seems rather negative or empty, whereas the emotive message of forgiveness is often stirringly positive: that I, the person wronged, believe in you, the harm-doer. It has also been argued that forgiveness is also a message to oneself, that it is possible to move on, not to ‘harp on’ about the injury, that closure, rather than the repeating cycle of revenge, is a possibility (Field et al., 2013). There is an evolving scholarship regarding groups in conflict, particularly in relation to transitional justice (Lynch and Joyce, 2018). Here too, forgiveness, though elusive, can break through the paucity of communication between the groups, which have driven themselves far apart.

Audiences for forgiveness Talking about messages of forgiveness suggests there are audiences for those messages. I wish to argue in this chapter that there are multiple audiences, and that the power, nature and consequences of forgiveness lie in that multiplicity. The key person is the person who forgives – normally, in the case of crime, the person harmed. The person harmed can of course choose whether to forgive or not to forgive. Cultural expectations about forgiveness have changed significantly over time and with culture. The Victorian English view, based on what they saw as a Christian stance, was that it was – if the person who harmed showed remorse – the duty of the person harmed to forgive. This sees forgiveness as being tied to apology in a duality between the person harmed and the person who has harmed, with others looking on. It had, as Anderson (2016) has argued, a highly paternalistic and unhelpful effect in relation to intimate partner violence, whereby victims/survivors were almost required to forgive their attackers, which of course could allow the abusive nature of the relationships to continue. Anderson suggests that the person harmed in such a situation needs ethically to withhold forgiveness to create a changed relationship with the person who has harmed. In other words, forgiveness should be withheld until and unless the person who has harmed is prepared to give a proper account of their behaviour and so rectify the unjustness of the injury. I would agree with Anderson that neither equity nor restorative justice require the person harmed to forgive (Shapland, 2016), and that forgiveness can be in tension with accountability and indeed with the voluntary nature of restorative justice. However, in my view, forgiveness does not always require duality, nor apology. It is possible, as Chris Bennett (2003) has argued, to offer

286

Signals of Forgiveness in Restorative Justice

forgiveness proactively as a person harmed, as part of the person harmed’s preferred moral quality of relationship with the harmer. That is what Gordon Wilson did and it definitely added to the power of his statements. It was a clear choice, made by the person harmed himself. Moreover, forgiveness has functions for the person who has been harmed, though I am not suggesting that these were important necessarily for Mr Wilson. As Field et al. (2013) have suggested, forgiveness allows the person harmed to resile from any feelings of revenge, to move back from a continuing cycle of bitterness. It may also, I have argued (Shapland, 2016), promote closure – the ability to ‘move on’ from one’s attention being fixed on the offence and the past, towards a future not dominated by flashbacks and feelings of injustice. Apology can perform similar functions for the person who has harmed, though research suggests that it needs to be performed apology, rather than just the wish to apologise. Those who harmed who participated in restorative justice in our national evaluation said that they wished to participate because it offered the opportunity for direct communication with the person harmed (Shapland et al., 2011). They felt there was still ‘unfinished business’ for them from that offence and that they could not move on in their lives, to try to change and desist, until they had communicated that apology to the person harmed. This was despite the fact that they had already participated in the full conventional criminal justice system, been in court and been sentenced (often to imprisonment, because these were serious offences). So, apologising to society or the judge was not enough; it needed to be an apology to the person harmed. They did not expect the person harmed to forgive them – indeed they expected the person harmed to be angry and tell them off. The function of the apology was closure for themselves and, they hoped, some benefit for the person harmed. Here we can see the corollary of forgiveness being a present to the person harmed – that apology can be a present to the person who has harmed. So, though the dual audience of person who has harmed and person harmed definitely has importance for communication of apology and forgiveness, we have seen it is not essential for the effect of forgiveness to take place. But we should not see the duality as the furthest reach of forgiveness (or apology). One other party is the state – because crime, particularly serious interpersonal crime, is a crime against the state and society, not just a crime against the particular person harmed. It is noteworthy, however, that although apology can be directed, and often is directed towards the state (in the person of the judge), the state tends not to respond with forgiveness. Those representing the state are not known to spice their sentencing homilies with forgiveness, but rather to ram

287

CRIMINOLOGY AND PUBLIC THEOLOGY

home the awfulness of the conduct (and sometimes, unfortunately, the awfulness of the harmer as a person as well). Nor does the state indicate forgiveness later on in the criminal justice system, when the penalty for the offence has been served. We do not have reconciliation rituals in our criminal justice system; indeed, in England and Wales, we tend to perpetuate ‘offender status’ through criminal record checks in relation to employment or even housing. In a restorative justice conference, however, it is common for supporters to be present – people who are important to the person who has harmed or to the person harmed, who are often family, close friends, or perhaps key workers (Shapland et al., 2011). The conference tends to proceed from questions about the offence, to encouraging all those present to talk about the effects of the offence on them, starting with the person harmed, but continuing with the harmer’s supporters and the supporters of the person who has been harmed as well – because the effects of an offence are often very hard on the family of the person who has harmed, not only on the person harmed and those close to the person harmed. Harmers often apologise first to the person harmed, but then to that person’s supporters and indeed to their own family as well, for what they have put them through. And forgiveness, spoken as continuing care and love, can be said by any supporter, though it may be conditional on cessation of offending on the part of the person who has harmed. So, it is not just those harmed who may forgive, but also those others affected by the offence, particularly those close to the person who has harmed. Our circle of forgiveness is widening. So, forgiveness is potentially closure for oneself, but also pardon and closure for the person who has harmed. It conveys messages about the past and the relationship with the past, but it also conveys messages about the future. In restorative justice terms, it may reintegrate the person who has harmed into communication with the person harmed, if they encounter each other again. But it also may reintegrate the person who has harmed into day-to-day relations with those close to them, if it signifies a turn away from hurting others to a less prickly existence. Restorative justice theorists such as Braithwaite (1989) and Zehr (1990) would now make the conceptual leap from this immediate circle around the person who has harmed to the community or wider society. They suggest that restorative justice may reintegrate the person who has harmed into the community. I find it difficult, though, to make that conceptual leap without specifying some mechanism through which it may occur. Our own society is so seclusionist and condemnatory about people who have harmed that reintegration seems a far-off place. So what might that mechanism be?

288

Signals of Forgiveness in Restorative Justice

It must involve communication – that is clear. Criminal justice itself shames and is exclusionary, and part of the difference with restorative justice is the way in which restorative justice brings all those affected by the offence into communication. But communication of what? The reaction of the family of the person who has harmed may give some clue. Forgiveness there, born of long trials, is dependent on change for the future in the harmer’s conduct. Forgiveness offered by the family of the person who has harmed may be, like that of the person harmed (discussed at the beginning) and that of a person harmed by intimate partner violence, time-limited and conditional forgiveness – conditional in the sense that it is dependent on the harmer’s continued attempts to try to change their lives towards desistance and away from continuing offending.

A wider audience for forgiveness? Some of the audiences for forgiveness (or lack of forgiveness) are, then, the person harmed, the person who has harmed and both parties’ supporters (as well as the state – though the state does not seem to be able to take in the message). In the communication of forgiveness to the person who has harmed, however, the message may go wider. Those beyond the immediate circle of the person who has been harmed and their supporters (that is, those who know the actors but are not directly involved in the restorative justice process) will be looking on to see how the harmer is dealt with. If the supporters condemn or ostracise the person who has harmed, then others will tend to follow their lead. However, if the conceptual work done by the harmer – through participating in the restorative justice event and trying to change his or her life towards desistance – is acknowledged by supporters and/or the person harmed, then that message also may resonate out to the community. Messages of forgiveness will be noticed by the wider community – and the expectations implicit in the supporters’ acknowledgement are such, I would argue, that those in the wider community may be expected to give a cautious welcome and forgiveness to the person who has harmed. The supporters’ reactions may be seen as models of relations for the future. In the communication between supporters and their own wider community, forgiveness (however conditional) carries expectations of response by others. At least, it carries messages that others may need to justify their own views, whether that be to copy the forgiveness, even if more warily, or to reject the person who has harmed, but to have to give reasons for that rejection. I am arguing that forgiveness, as its message spreads out wider, carries questions for its audiences – ‘And for you?’, it is saying.

289

CRIMINOLOGY AND PUBLIC THEOLOGY

A stone thrown into a pond causes ripples to move out from the splash. It has been argued that an offence causes a ripple of disquiet and possibly fear to move out through those who hear about it. Those close to the person harmed feel that ripple most deeply, but through crime talk (Girling et al., 2000) at the local shop or pub, it spreads through that area. More serious crime is likely to produce a deeper and probably wider ripple. It is that ripple of disquiet that has led Innes and Fielding (2002) to propose that the authorities may, in response to the ripple of the signal crime, need to produce signals of reassurance. That postulate has led to the adoption of reassurance policing in England and Wales following incidents causing disquiet (Innes, 2004; Millie and Herrington, 2005). What I have been wondering in this chapter, however, is whether that initial ripple of disquiet could then be followed by another, second ripple, as to how those involved react to that offence. Action and reaction are not just the province of the state, the state’s authorities and the media. They also can involve the community, particularly those closely affected by the offence. Often the second ripple may also be one of disgust and rejection – Braithwaite’s (1989) shaming, typically administered in our society by the courts and the media. However, it is possible that the second ripple could be followed by a third ripple of reaction – by the person harmed and by supporters – a community ripple. Unlike the state response, which will be repressive and normally exclusionary, this third-person-harmed/ supporters/community ripple could be a reintegratory ripple, signals of forgiveness and hope that the person who has harmed may change, as well as rejection of riposte and revenge. That was the message that Gordon Wilson’s reaction gave off. In other words, I am suggesting that the initial ripples of disquiet could, if communication by those harmed and supporters of both parties is allowed, lead to a subsequent forgiveness ripple, which equally demands that those who hear react to it and consider their own responses. Notes 1

2

A first version of this text was presented at the conference on ‘New perspectives on criminological questions’ at the Humanities Research Institute, University of Sheffield, 24 May 2017. I am very grateful to Christopher Bennett for his insightful comments on the manuscript. The term ‘person who has harmed’ or ‘the harmer’ will be used in this chapter instead of ‘offender’ or ‘ex-offender’, because the idea of forgiveness lies in the area between being an offender and an ex-offender. The term ‘person who has been harmed’ will be used instead of ‘victim’, but given that the chapter is about those who have been harmed through crime, it is not proposed that the person who has been harmed will not have or retain victim status.

290

Signals of Forgiveness in Restorative Justice

References

Anderson, P.S. (2016) ‘When justice and forgiveness come apart: a feminist perspective on restorative justice and intimate violence’, Oxford Journal of Law and Religion, 5(1): 113–34. Armour, M.P. and Umbreit, M.S. (2006) ‘Victim forgiveness in restorative justice dialogue’, Victims & Offenders, 1(2): 123–40. Belfast Telegraph (2008) ‘Interviewing Gordon Wilson was nearest I’d ever get to being in presence of a saint’, 5 October, www.belfasttelegraph. co.uk/sunday-life/interviewing-gordon-wilson-was-nearest-id-everget-to-being-in-presence-of-a-saint-28491343.html Bennett, C. (2003) ‘Personal and redemptive forgiveness’, European Journal of Philosophy, 11(2): 127–44. Bennett, C. (2006) ‘Taking the sincerity out of saying sorry: restorative justice as ritual’, Journal of Applied Philosophy, 23(2): 127–43. Bennett, C. (2018) ‘The alteration thesis: forgiveness as a normative power’, Philosophy & Public Affairs, 46(2): 207–33. Bottoms, A.E. and Shapland, J. (2016) ‘Learning to desist in early adulthood: the Sheffield Desistance Study’, in J. Shapland, S. Farrall and A.E. Bottoms (eds) Global Perspectives on Desistance: Reviewing what We Know, Looking to the Future, London: Routledge, pp. 99–125. Braithwaite, J. (1989) Crime, Shame and Reintegration, Cambridge: Cambridge University Press. Braithwaite, J. (2016) ‘Redeeming the “F” word in restorative justice’, Oxford Journal of Law and Religion, 5(1): 79–93. Campbell, C., Devlin, R., O’Mahony, D., Doak, J., Jackson, J., Corrigan, T. and McEvoy, K. (2005) Evaluation of the Northern Ireland Youth Conference Service, NIO Research and Statistical Service Report No. 12, Belfast: Northern Ireland Office, www.restorativejustice.org.uk/ resources/evaluation-northern-ireland-youth-conference-service Carlen, P. (1976) Magistrates’ Justice, London: Martin Robertson. Exline, J.J., Worthington, E.L., Hill, P. and McCullough, M. (2003) ‘Forgiveness and justice: a research agenda for social and personality psychology’, Personality and Social Psychology Review, 7(4): 337–48. Fiddes, P. (2016) ‘Restorative justice and the theological dynamic of forgiveness’, Oxford Journal of Law and Religion, 5(1): 54–65. Field, C., Zander, J. and Hall, G. (2013) ‘“Forgiveness is a present to yourself as well”: an intrapersonal model of forgiveness in victims of violent crime’, International Review of Victimology, 19(3): 235–47. Frazier, P., Greer, C., Gabrielsen, S., Tennen, H., Park, C. and Tomich, P. (2013) ‘The relation between trauma exposure and prosocial behavior’, Psychological Trauma: Theory, Research, Practice, and Policy, 5(3): 286–94.

291

CRIMINOLOGY AND PUBLIC THEOLOGY

Girling, E., Loader, I. and Sparks, R. (2000) Crime and Social Change in Middle England: Questions of Order in an English town, London: Routledge. Granovetter, M. (1973) ‘The strength of weak ties’, American Journal of Sociology, 78(6): 1360–80. Griswold C. (2007) Forgiveness: A Philosophical Exploration, Cambridge, UK: Cambridge University Press. Innes, M. (2004) ‘Reinventing tradition? Reassurance, neighbourhood security and policing’, Criminology & Criminal Justice, 4(2): 151–71. Innes, M. and Fielding, N. (2002) ‘From community to communicative policing: “signal crimes” and the problem of public reassurance’, Sociological Research Online, 7(2): 1–12. Kirby, A. and Jacobson, J. (2015) Evaluation of the Pre-Sentence RJ Pathfinder, London: Institute for Criminal Policy Research, https://core.ac.uk/ download/pdf/141223924.pdf Laub, J. and Sampson, R. (2003) Shared Beginnings, Divergent Lives: Delinquent Boys to Age 70, Boston, MA: Harvard University Press. Lynch, O. and Joyce, C. (2018) ‘Functions of collective victimhood: political violence and the case of the Troubles in Northern Ireland’, International Review of Victimology, 24(2): 183–97. Millie, A. and Herrington, V. (2005) ‘Bridging the gap: understanding reassurance policing’, Howard Journal of Criminal Justice, 44(1): 41–56. Morris, A. and Maxwell, G. (2000) ‘The practice of family group conferences in New Zealand: assessing the place, potential and pitfalls of restorative justice’, in A. Crawford and J. Goodey (eds) Integrating a Victim Perspective within Criminal Justice, Dartmouth: Ashgate. Robinson, G. and Shapland, J. (2008) ‘Reducing recidivism: a task for restorative justice?’, British Journal of Criminology, 48(3): 337–58. Rock, P. (1993) The Social World of an English Crown Court, Oxford: Clarendon Press. Shapland, J. (2016) ‘Forgiveness and restorative justice: is it necessary? Is it helpful?’, Oxford Journal of Law and Religion, 5(1): 94–112. Shapland, J. and Hall, M. (2007) ‘What do we know about the effects of crime on victims?’, International Review of Victimology, 14(2): 175–217. Shapland, J., Atkinson, A., Atkinson, H., Chapman, B., Colledge, E., Dignan, J., Howes, M., Johnstone, J., Robinson, G. and Sorsby, A. (2006) ‘Situating restorative justice within criminal justice’, Theoretical Criminology, 10(4): 505–32. Shapland, J., Robinson, G. and Sorsby, A. (2011) Restorative Justice in Practice, London: Routledge. Strang, H. (2002) Repair or Revenge: Victims and Restorative Justice, Oxford: Clarendon Press.

292

Signals of Forgiveness in Restorative Justice

Umbreit, M. (2000) The Handbook of Victim Offender Mediation: An Essential Guide to Practice and Research, London: John Wiley. Umbreit, M., Coates, R. and Vos, B. (2002) The Impact of Restorative Justice Conferencing: A Review of 63 Empirical Studies in 5 Countries, Minneapolis, MN: University of Minnesota Center for Restorative Justice & Peacemaking. Van Camp, T. (2014) Victims of Violence and Restorative Practices: Finding a Voice, London: Routledge. Van Camp, T. (2016) ‘Understanding victim participation in restorative practices: looking for justice for oneself as well as for others’, European Journal of Criminology, 14(6): 679–96. Van Camp, T. and Wemmers, J. (2013) ‘Victim satisfaction with restorative justice: more than simply procedural justice’, International Review of Victimology, 19(2): 117–43. Van  Stokkom, B. (2008) ‘Forgiveness and reconciliation in restorative justice conferences’, Ethical Perspectives, 15(3): 399–418. Vollhardt, J.R. (2009) ‘Altruism born of suffering and prosocial behavior following adverse life events: a review and conceptualization’, Social Justice Research, 22(1): 53–97. Witvliet, C.V., Ludwig, T.E. and Vander Laan, K. (2001) ‘Granting forgiveness or harbouring grudges: implications for emotion, physiology, and health’, Psychological Science, 12(2): 117–23. Zehr, H. (1990) Changing Lenses: A New Focus for Crime and Justice, Scottsdale, PA: Herald Press.

293

13

The Restorative Gaze Eric Stoddart

Introduction Jon watches CCTV footage of petty vandalism targeted at a local corner shop. The recording lasts barely a few minutes and Jon concludes that his best interests will be served if he agrees that these are images of him. The surveillance gaze in which Jon has been caught might follow him through the retributive criminal justice process. However, the assessment of his eligibility, such as previous record and absence of intimidation, place him below the boundary of those deemed not suitable (in other words, too risky) for a restorative justice conference. Alice, the owner of the corner shop, was initially reluctant to participate; she knows her area of town has a bad reputation and the statistics frighten her. However, Alice is willing to embrace her fear and give Jon a chance to listen. Jon is under a restorative gaze. Surveillance is a dimension of restorative justice but, as this chapter will demonstrate, not limited to evidence gathering. Strategies of gathering and analysing personal information feature at many points during a restorative justice process. Furthermore, the participants in, and promoters of, restorative justice processes are themselves shaped by cultures of surveillance in everyday life. This chapter makes an original contribution by bringing together two discourses and practices: surveillance and

295

CRIMINOLOGY AND PUBLIC THEOLOGY

restorative justice, and framing the intersection as the restorative gaze. For this first time a theological perspective on surveillance is deployed as a critical tool in the context of restorative justice. The proposed theological paradigm challenges a traditional framing of watching and being watched. Instead of motifs of supervision from on high, this chapter draws on the notion of surveillance from the cross. Cruciform surveillance privileges solidarity with all under unjust and discriminatory surveillance. The Jesus who watches the world in self-giving love models a paradigm for practising surveillance that turns traditional models through 90 degrees. Cruciform surveillance differs from that suggested by the iconography of Christ, the glorified judge/emperor; Christ pantocrator as he is portrayed in the apse of a basilica. Such an image of the divine gaze too readily lends support to patriarchal and kyriarchal1 models of oppressive watching which, in turn, underpin retributive modes of justice. In distinction, surveillance from the cross offers a lens shaped by servanthood, friendship and agape as self-giving, unconditional love. Cruciform surveillance critiques pantocratic surveillance by interrogating the form of power deployed as well as foregrounding issues of discrimination on the basis of ethnicity, socioeconomic status and so on. The cruciform paradigm also reframes claims to knowledge that might be gained by systems of digital surveillance. Agapic, solidaristic surveillance is profoundly relational and, as a result, mere data gathering is problematised by the theological notion of relational knowledge; that within which all are held in God’s covenant love. In the context of restorative justice a dichotomy cannot be forced between relational knowledge and digital information. This is because surveillance data have an important part to play in detection of an offence, monitoring of an offender and, more significantly still, in shaping victim, offender, facilitator and institutions with broader cultures of everyday surveillance. With this in mind, I will propose that the restorative gaze serves as a concept to recognise the tension between relational knowledge and digital information. This tension is articulated in the notion of relational information. The outcome is a heightened awareness of how surveillance technologies may drag restorative justice away from its relational emphasis. Conversely, we can appreciate the valuable contribution of digital data gathering to what is otherwise a profoundly relational practice.

Surveillance ‘Surveillance’ is a morally freighted term in popular (and often intellectual) imagination. In much public perception, risky others such as ‘brown’

296

The Restorative Gaze

terrorists are legitimate targets of state and citizen surveillance (Selod, 2018). Similarly, black bodies are under significant and disproportionate monitoring and suspicion by the police (Hattery and Smith, 2018). To be further down the socioeconomic ladder entraps people in circles of algorithmic oppression when claiming welfare benefits, as well as when seeking credit or insurance (O’Neill, 2016; Noble, 2018). At a trivial but still concerning level, a number of English local authorities have used surveillance techniques (and anti-terrorism legislation) to tackle socalled bin crimes involving domestic refuse (Moore, 2008). Oppressive states keep their opponents in fear of reprisals under illegitimate scrutiny by way of an intermittent (and unpredictable) watchful gaze. (The Muslim Uyghurs of Northwest China are a contemporary example of a group facing significant repression by multiple forms of surveillance (Chung, 2018)). Charles Taylor (2004: 23) has given us the concept of ‘the social imaginary’ as ‘the ways people imagine their social existence […] and the normative notions and images that underlie [their] expectations’. George Orwell’s (1949/2001) Nineteen Eighty-Four (perhaps more as a cultural icon than a closely read text) profoundly shapes underlying popular notions of surveillance. However, this ‘Orwellian’ lens means that everyday, often consumer-driven, surveillance is rendered invisible. Furthermore, when ‘Big Brother’ is the intrusive and threatening source of state surveillance, attention to ‘Him’ means that the possibilities for surveillance to be an act of care simply never occurs to people (Stoddart, 2011). For example, the benefits of data gathering to monitor epidemics of disease or movementdetection devices in the homes of frail elderly people are not how most people conceptualise 21st-century surveillance. In order to secure a more nuanced understanding we need a critical definition. Michel Foucault’s genealogical investigation described a late 17thcentury example of measures of spatial partitioning and monitoring to be effected when a plague hits a town (Foucault, 1977: 195–8). One of his key insights lay in paying attention to how such processes become internalised. While prisoners experience the panoptic gaze in penitentiaries the same effect occurs in everyday life in hospitals, schools and workplaces. Surveillance is thus a method that ‘induces in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So, to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action’ (Foucault, 1977: 201). Panopticism is thereby ‘a generalizable model of functioning; a way of defining power relations in terms of the everyday life of men’ (Foucault, 1977: 205). This analytical model is partial, especially given more recent socio-technological developments.

297

CRIMINOLOGY AND PUBLIC THEOLOGY

As Gary Marx notes, observation is now not necessarily about a ‘suspected person’ nor is it confined to persons, but is directed towards geographical places, networks and – most importantly now that digital technologies permit – to categories of persons (Marx, 2002). We are no longer in a realm of mere gathering of coded information but, as David Lyon (2007: 54, emphasis in original) observes, such practices become ‘means of supervision’. Lyon’s most recent definition of surveillance unpacks the notion into three interrelated components: ‘surveillance means the operations and experiences of gathering and analysing personal data for influence, entitlement and management’ (Lyon, 2018: 6). Whereas panoptic surveillance (the few watching the many) was prevalent (in prisons, schools, hospitals), mass media, particularly in a digitally networked age, create copious opportunities for synoptic surveillance: ‘the situation where a large number focuses on something in common which is condensed’ (Mathiesen, 1997: 219). Panopticism and synopticism interact on social media platforms where the many are watching the few while sellers observe the individual in his or her transactions and choices (Mathiesen, 1997: 224). With the capacity to unobtrusively and quickly record and upload video of a minor misdemeanour or dispute on the street, the public place each other under surveillance. Often this is with a view to shaming the perpetrator quite out of all proportion to the seriousness of the ‘offence’ (Trottier, 2018). Crucially for our discussion in this chapter, Lyon includes subjective experiences of surveillance (not only technological processes) in his definition. This step is important because it foregrounds the subject who will be shaped – to a greater or lesser extent – by surveillance that is not necessarily a function of the immediate process of restorative justice. (I will return to this when considering the dispositif/apparatus.) However, we need to resist the gravitational pull of negative associations of surveillance. It need not be about imposed constraint but, as Michalis Lianos (2012: 183) argues, be ‘often optional, or even desired by a sovereign subject’. Similarly, the surveillance subject is not passive but a political actor with skills and strategies for her active response; ‘tacit knowledge and everyday forms of cultural know-how that allow surveillance subjects to contest surveillance in a variety of local and specific settings’ (McCahill and Finn, 2014: 186). At the same time, we are prosumers of data in what Shoshana Zuboff has rightly dubbed ‘surveillance capitalism’: ‘a new economic order that claims human experience as a free raw material for hidden commercial practices of extraction, prediction, and sales’ (Zuboff, 2019, frontispiece).

298

The Restorative Gaze

Algorithmic oppression and actuarial justice Within surveillance systems lie biases and discrimination. There is ‘asymmetrical transparency’ (Hall, 2015: 19) required from categories of people. This can be regarding race/ethnicity, class, age, gender, sexuality or other identity marks and be acute at the intersections. A young black mother may have a quite different, and less positive, experience of surveillance within the welfare system than an older white childless man. On the other hand, the latter’s economic and class position, for example, in an area of high unemployment might require him to be more transparent to the Department for Work and Pensions that a young black mother in a relatively more affluent region of the country. But not only is transparency asymmetrical in terms of traditional metrics. In a world of ‘automated inequality’ we are sorted into new categories, what Cathy O’Neill (2016: 171) terms ‘behavioural tribes, generated entirely by machines’. Where the context is one in which poverty is, in effect, criminalised by the authorities (bolstered by media representations of the undeserving or fraudulently poor), surveillance bears down as a deterrence to legitimate welfare claims. It is not necessarily that people are worried about being caught making a fraudulent claim but that their citizenship status, disability or ‘more generalised anxieties around information sharing’ (Magnet, 2011: 83) inhibit them. The ‘digital poorhouse’ (Eubanks, 2017) means not merely barring access to public benefits, but worse, the classification and criminalisation work by including poor and working-class people in systems that limit their rights and deny their basic human need. The digital poorhouse doesn’t just exclude, it sweeps millions of people into a system of control that compromises their humanity and their self-determination. (Eubanks, 2017: 181) Despite assumptions of ‘scientific objectivity’ it is vital to understand algorithms as ‘value-laden propositions’; termed by Safiya Noble as ‘algorithmic oppression’ (Noble, 2018: 171). Surveillance within policing strategies can be particularly problematic along racial/ethnic lines. The policing of black bodies for being black in ‘white spaces’ is part of the culture of surveillance in which a person can be deemed risky by ‘transgressing mainstream norms of behaviour, for the mere possibility that they might engage in crime’ (Hattery and Smith, 2018: 212). As Goddard and Myers (2016: 155–6) observe with reference to the US, ‘In too many measures, poor youth, particularly youth of

299

CRIMINOLOGY AND PUBLIC THEOLOGY

color, are positioned to earn more points than their similarly delinquent middle-class counterparts, mostly for reasons entirely out of their control.’ By sorting people into groups that are designated levels of threat or risk, surveillance is part of a strategy of ‘managing danger’ (Feeley and Simon, 1994: 173). One consequence within the criminal justice system is that prisoners’ ‘needs’ are less about a claim for resources to be allocated than it is ‘a calculation of criminal potential (or risk of recidivism)’ (Hannah-Moffat, 1999: 84). Goddard and Myers make the useful point that this approach also deflects attention from broader political responsibilities: ‘the current actuarial youth justice model is quite troubling because the approach privileges individual-level interventions and discourages policy change at the community or structural level’ (Goddard and Myers, 2016: 162). On the other hand, actual systems can have a positive contribution to make: ‘to produce forms of usable knowledge that constitute types of “networked social action”’ (HannahMoffat, 2019: 456). This is in addition to providing an impetus (and evidence base) to improve services: ‘In principle, if risk considerations improve and expand services for “at-risk” young people, discovering “atrisk” youth through assessment could be positive’ (Goddard and Myers, 2016: 157). But, as Muncie (2005: 40) argues, albeit some fifteen years ago, ‘Juvenile/youth justice has become progressively more disengaged from philosophies of welfare and/or justice in favour of improving internal system coherence through evidence-led policy, standardized risk assessments, technologies of actuarial justice and the implementation of managerial performance targets.’ Where the context is pressure to cut costs in a justice system that is heavily criticised for either its failure to support offenders or its failure to prevent (all) egregious harms, ‘actuarial justice offers beleaguered personnel at least a chance to succeed, although only through a redefinition of goals’ (Kempf-Leonard and Peterson, 2000: 68).

Culture(s) of surveillance Surveillance technologies are ubiquitous: CCTV in supermarkets, facial recognition at border control, and tailored recommendations while online shopping are among the most familiar. Our subjective experiences of such technologies are commonplace; acceptance, welcome and canny complicity on the part of some people contrasts with resistance, resentment and canny subversion from others. Lyon (2018: 30) argues that we are now creating a culture of surveillance and being formed by it: ‘surveillance has become part of a way of seeing and of being in the world.

300

The Restorative Gaze

It is a dimension of a whole way of life.’ It is not simply that devices are commonplace but that there is a process of normalising surveillance. The questions then become ones regarding what behaviour and identity are deemed ‘normal’ and how they become so (Lyon, 2018: 103). It might be having the ‘wrong’ skin colour in a particular part of town that triggers focused scrutiny by CCTV operators. Failing to be ‘normal’ will make it more expensive to secure credit. On the other hand, if within media representations of people receiving welfare benefits ‘normal’ is constructed to mean having a propensity to fraud, then being honest marks one out as a deviant, and likely viewed as a person more skilled at covering up fraud than actually being honest. In response to vandalism, petty crime, welfare ‘scrounging’, children’s under-achievement, health ‘time-bombs’ such as an ‘obesity epidemic’ (to list only a few), the cry is that ‘something needs to be done’. When surveillance is normalised that ‘something’ will now include, if not actually be first and foremost, a form of digital monitoring and analysis. Twenty-first-century everyday life is made possible through surveillance technologies. An Orwellian social imaginary alerts us to the dystopic in its contemporary form of algorithmic oppression. Foucauldian sensitivities draw our attention to how we internalise the gaze, whether today it be that of corporations or the state. With the origins of the word lying amidst the brutalities of the Committee of Surveillance during the French Revolution it is unsurprising that the term is so freighted with negative associations. Health data can save lives through early intervention for susceptible groups. Similarly, children’s underachievement can be tackled pre-emptively thanks to data analysis by government departments of education. People working for the good of society can be protected by digitally managed access to local government offices. Surveillance is both a way of caring and a means to oppress. There is a public theological contribution to be made in viewing surveillance through the lens of care, not to merely redress a balance in public appreciation of the technologies and those working in the industry. Rather, there is a more fundamental issue as I have explored in detail previously (Stoddart, 2011); probing how all surveillance might be practised carefully. In the context here of a putative restorative gaze we must now turn to a theological paradigm of surveillance.

Surveillance from the cross I argue that thinking theologically about surveillance involves a significant paradigm shift, from images that readily suggest dominating power to

301

CRIMINOLOGY AND PUBLIC THEOLOGY

ones that point towards care. This requires turning our conceptual paradigm of God’s surveillance of us through 90 degrees. Rather than the familiar vertical surveillance (from heaven), we need to think of surveillance from the cross. Here, Christ, one who knew what it was to be under surveillance himself, is in horizontal solidarity with all those unjustly treated, marginalised and oppressed. It is his solidarity that is our solidarity with those for whom surveillance is both disproportionate and unjust. David Hollenbach (1996: 13) makes this point with reference to Christian ethics more broadly: ‘The cross is the revelation of divine solidarity with every human whose experience is that of forsakenness and abandonment […] The sign of the cross thus opens the possibility of an ethics of compassionate solidarity.’ Given the dystopic and technologised baggage attached to surveillance it may appear counterintuitive, even inappropriate, to deploy the term in relation to God’s actions. A leap is required in order to open imaginative space for an Orwellian Big Brother to be replaced by a Davidic big brother (the allusion here being to Romans 8:29 and Hebrews 2:11, 27). We are brought into the metaphorical sphere of the good shepherd who watches over his sheep (John 10). Such imperial allusions of Jesus the judge there might be in Christian iconography are to be understood in the light of his cross. Kyriarchy is lordship redefined by servanthood. To put this another way, the cross is not only something that happened to Jesus. Rather that he was executed is revelatory of his character. He is one who surrenders to others’ barbarity as a political action that coheres with the kingdom of God. He is not so much performing a function, as being who he is when he lets himself be captured in the Garden of Gethsemane and taken eventually to Golgotha. It is in this sense that we can speak of Christ keeping us under surveillance from the cross. It is not to say that in those fateful hours he has omniscient knowledge of all our actions. Neither is he gathering information about us from across time and space. That is too literal an approach to what I am suggesting. Rather, it is the Christ of the cross – whose nature was demonstrated to us on the cross – who keeps us under surveillance. To talk in metaphorical terms of cruciform surveillance is to say something about the character or qualities of the person undertaking the surveillance. It is Christ – the identifier with us, the one in solidarity with us, who is the one who keeps us under surveillance. (More broadly, see Newlands (2006) on Christ’s solidarity as a basis for a notion of human rights.) Surveillance is not co-opted to be a tool for oppressive religious control but redeemed to be a practice of care. The new criteria for evaluating surveillance is therefore its contribution to care, not its economic efficiency nor its capacity to control.

302

The Restorative Gaze

This proposal is underpinned by three hermeneutical principles: God in history, solidarity and the sacramental potential of technology. The church is but one element in the history of God’s dealings with the world: God being glorified includes the liberation of creation so that, wherever this liberation happens, it is the Holy Spirit who is at work. In experiences of liberative self-transcendence, it is the one and the same Spirit of God in Christ who is at work. So, when people are able to step back from a technological or economic or political paradigm that determines surveillance, and in those moments see possibilities for resisting, reshaping –perhaps even subverting – ill-judged, disproportionate or unjust surveillance such critical reflection is the work of the Spirit of God in their history, and in the history of their community. I am, therefore, with Jürgen Moltmann in understanding God in the world and therefore history as a sacrament, ‘a reality qualified by God’s word and made the bearer of his presence’ (Moltmann, 1974: 321, 37). There is no space here for triumphalism and utopian aspirations for surveillance strategies that somehow or other always, and only, ever lead to liberation. The hope is for moments of the presence of God, but a presence understood in the light of our participation in the history of the crucified and, not only, the risen Christ. Such moments, what Moltmann (1974: 338) terms as praesentia explosiva, are, we might say, woven with suffering as much as with liberation. In the moments of fragmentary liberation, and crucially in the days, months or years between those moments, solidarity is vital. Eucharistic prayers express Christians’ unity in Christ; another way of talking about solidarity in, and through, Him. What it perhaps less easily acknowledges is solidarity, in Him, with the bodies of fellow Christians throughout time and, perhaps much more importantly, across space in our own time. A worshipper might be able to recognise this in the presence of her neighbour at the altar rail but that this solidarity extends to the impoverished and wealthiest Christian is less immediately present. Not only did the Word become flesh, but as Lisa Isherwood (2001: 124) argues, ‘flesh becomes word’. Here lies a still more radical dimension of inclusion of all human flesh in this model of solidarity. Jon Sobrino considers the multitude of ways in which people in the global South are suffering. Their poverty and slow death warrants their description as ‘crucified peoples’ because, through systemic injustice, they are being put to death (Sobrino, 1994: 254f). For Sobrino, given his context in Latin America of embedded Christian practice, it is the poor of the Church who are the victims who constitute the image of the ‘Crucified Christ.’ Ignacio Ellacuría goes a step further in positing poor and oppressed people around the world as ‘the preeminent locus

303

CRIMINOLOGY AND PUBLIC THEOLOGY

of Christ’s embodiment’; in Ellacuría’s (1993: 546) terms there is a ‘true body of Christ outside the Church’. God’s solidaristic engagement is in history that is deeply technologised. Technology is part of the history of God’s world, and similarly sacramental – at least potentially. We do not need to transcend the technologised world – as if God’s grace is only associated with pastoral scenes of pre-industrial, agrarian landscapes – in order to be surprised by ‘praesentia explosiva’. As Elaine Graham (2002: 233) puts it, ‘the fabricated, technologized worlds of human labour and artifice [are] as equally capable of revealing the sacred as the innocence of “nature”’. So, at the same time as we might look for liberation from surveillance that is discriminatory, overly intrusive or otherwise unjust the same technological systems might prove to be sacramental in the sense that they are a means of liberation. It might be the information regarding injustices with which surveillance confronts us which propels us to political or individual response. But it might be that surveillance offers a way of practising care-full oversight and monitoring for the protection of any or all who are vulnerable to the harm planned by others. Ours always must be a critical theology of surveillance; neither veering into the ditch of despair nor careering over the crest of utopian trust in data gathering. While attention to the actual technologies is important, equal – if not perhaps more – attention needs to be paid to the social imaginary in which surveillance operates; the culture of surveillance and its concomitant constructing and reinforcing of discriminatory stereotypes of the ‘risky’ individual or group.

Restorative justice For this chapter I use Zehr’s (1990: 181) classic definition of restorative justice: ‘Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in search for solutions which promote repair, reconciliation, and reassurance.’ The locus of intervention is thus at the micro level and recognises that offence is not primarily against the state but against specific people (see also Chapter 12, this volume). As a consequence, the focus of justice includes emotional effects on individuals in its concern for constructive outcomes that are to the satisfaction of those who are directly affected. The means to those outcomes involve, as a normative principle, direct decision making by those affected rather than this being in the hands of judicial authorities. Instead of sanctions or obligations imposed on

304

The Restorative Gaze

an offender, she or he is given the opportunity to demonstrate remorse and, in some way or other, to make things right (McCold, 2004: 18–19). Such a distinction between restorative and retributive justice ought not be pushed into a simplistic dichotomy. As Declan Roche (2007: 88) concludes, attempts at fairness in retributive justice theories require to be acknowledged, as should critical thinking about a possible place for punishment within restorative processes. A restorative process will likely take the form of one of three prototypes: victim-offender mediation (VOM), group (usually family) conferencing, and circles. In VOM there is typically one victim and one offender for whom a facilitator ensures a safe and guided process in which both can speak and be heard. The crucial difference in conferences lies in the inclusion of the family (or supporters) of the victim and offender. Circles extend the range of participants to include interested members of the wider community (who may or may not have direct knowledge of the particular offence under review) and criminal justice partners (in this situation as equal participants rather than neutral facilitators) (Raye and Roberts, 2007). Those unfamiliar with the process can find case studies available (for example, Restorative Justice Council, 2019).2 Giuseppe Maglione (2019) analyses restorative justice as a Foucauldian dispositif. A dispositif comprises three dimensions. First, it is an ensemble of ‘discourses, institutions, architectural forms, regulatory decisions, laws, administrative measures, scientific statements, philosophical, moral and philanthropic propositions’ (Foucault, 1980: 194). Second, dispositif is the connections between the ensemble of elements. Third, it is the strategic instantiation in a particular historical context; as a response to a need (Foucault, 1980: 195). Giorgio Agamben (2009: 14) moves beyond Foucault to conceptualise the dispositif/apparatus as ‘literally anything that has in some way the capacity to capture, orient, determine, intercept, model, control, or secure the gestures, behaviours, opinions, or discourses of living beings’. The point for Agamben is that in the ‘relentless fight’ between living beings and apparatuses, subjects results (2009: 14). Such an approach to restorative justice is helpful because it problematises not merely the context within which it is practised but the possibility of restorative justice being implicated in a wider neoliberal project, here surveillance capitalism (whether or not individual participants understand it as such) (Maglione, 2019). While there may indeed be resistance by particular individuals, restorative justice is ‘producing subjectivities consistent with ethopolitical imperatives’ (Maglione, 2019: 665). Maglione argues that one dimension of such subjectivity is based on a particular notion of community within which membership is anticipated (as the goal of the restorative process) for the offender in ‘alignment with an idealized

305

CRIMINOLOGY AND PUBLIC THEOLOGY

citizen marked by homogeneity, regulated deviance and belonging’ (Maglione, 2019: 664). Identity construction takes place within the apparatus of restorative justice. This is so for both victims and offenders. Kelly Richards argues that we ought not take the construction of victim identity for granted but instead appreciate that what might appear to be ‘common sense’ is actually ‘culturally and historically specific’ (Richards, 2005: 392). She contends that an ‘Oprahfication’ of victimhood comprises three discourses: expanded victimhood (in which almost everyone has in some sense been harmed at one time or another); talking cures (of expressing and, crucially, being heard); and closure (as a goal) (Richards, 2005: 384). Adam Crawford (2009) identifies a similar self-help discourse (such as the language of ‘closure’ following a harm). However, with this discourse lies one that is arguably even more powerful: the contractualised self. Crawford (2009: 174) argues that the notion of contract as a form of social organisation has been penetrated by ‘consumerist and commercial values and modalities of control’. A similar claim is advanced by Maglione, that of the privatisation and marketisation of public space. Such ‘refeudalisation’ of social decision making occurs on the airwaves, in the derogation of government responsibilities to private providers, to commercialised educational sites and in shopping malls as ‘public’ spaces for private profit (Maglione, 2013: 78). Both Crawford and Maglione consider such a move to have an impact on restorative justice, not least through the shaping of ‘the community’ (Maglione, 2013; also Brown, 2015) and of the offender (Crawford, 2009). The contract as a commitment to responsible behaviour assumes a particular (consumerist) form of agency. There is an implied act of choosing (the consumerist ideal of ‘choice’) which can be an unrealistic expectation on the part of both offenders and victims. The particularly serious problem in restorative justice is the blame that is subsequently placed on the offender who does not comply with norms of good behaviour: ‘failure to comply becom[ing] symptomatic of poor choices made by uninformed individuals, unmotivated, incompetent, or irresponsible individuals’ instead of addressing issues of systemic social or structural forces (Crawford, 2009: 191).

Cruciform surveillance in the restorative justice process Within the apparatus of restorative justice participants encounter surveillance technologies directly and indirectly. The institutional

306

The Restorative Gaze

context of restorative justice might well be itself thoroughly implicated in surveillance. For example, schools that use restorative approaches (McCluskey, 2018) are also sites of close monitoring, whether of the corridors of the building (via CCTV) or of the minds of the students (via standard assessment tests). Were a restorative process to be at the encouragement of the police then surveillance is integral to the force’s identity as well as its practice. Eligibility for a restorative justice process can be determined on the basis of both data-driven and subjective criteria, for example (United Nations Office on Drugs and Crime, 2006: 73). Should the precipitating events fall within the orbit of social services then here too is a surveillance institution, including the monitoring of staff performance as well as clients’ compliance. Where the philosophical underpinning to restorative justice for a community comes from its religious heritage this too presents a connection with a culture of surveillance. Religious groups monitoring their members’ behaviour, if not always their beliefs, are ancient practices of oracular confession to a priest, group accountability (as in early Methodism) and more recent forms of fervent Christianity, such as the (heavy) shepherding movement in some charismatic churches. We can consider more specific encounters with surveillance technologies prior to, within and after a restorative justice conference. It is quite possible that the harm precipitating a particular restorative conference was recorded on a CCTV system. An offender might have unwittingly acted under a surveillance gaze that makes denial of culpability close to impossible. Online journalistic reports or a passer-by’s smartphone images, shared online, could have generated a mix of support and opprobrium through peer surveillance. In such cases, the many could well have been watching the few – even watching just the one. The self-identification of the offended as ‘victim’ will have been constructed in relation to data gathering in attitude to crime and incidence of crime surveys. Similarly, the offender may understand his social location and life chances through snippets of information noticed from the demographics that have fed into the cultural standing of his neighbourhood. On their way to the restorative justice conference all the participants will have passed through the gaze of at least a few, if not many, CCTV devices attached to buildings or on high poles that have blended with other street furniture. Access to the building in which the conference is taking place could have required authenticating the identities of the victim, offender and facilitator. Any CCTV camera in the conference room may be switched off – but even its temporary offline status being drawn to the group’s attention may unsettle as many as it reassures. The offender’s compliance to promises of good behaviour or restitution could later be monitored – possibly over an extended period

307

CRIMINOLOGY AND PUBLIC THEOLOGY

of time – via data gathering by officials. Where a restorative process has supplemented criminal proceedings, electronic monitoring by RFID or GPS3 technologies in an ankle bracelet generate a considerable volume of surveillance data. An offender’s compliance with a community service order would likewise render him or her a subject of surveillance. As part of a wider study of the effectiveness, and perhaps efficiency, of restorative justice, data on the participants and outcomes might be gathered and fed into a regional or national survey. The paradigm of cruciform surveillance pushes against the securitisation of educational and other nurturing spaces. Whereas pantocratic models can legitimate hierarchical, threatening forms of watching by emphasising the importance of the distant, central gaze, solidaristic models can promote mutual respect and responsibility for one another. Similarly, where there is racial/ethnic and/or social class disproportionality in school discipline practices (McCluskey, 2018: 584), this is foregrounded for remedy by recalling the solidarity in cruciform surveillance that is expected of those who are in positions of privilege. When the context of a restorative justice conference is a local police station, it is salutary to recall that it was the legal authorities who had Jesus under surveillance and who effected his execution. The gaze of the one on the cross falls critically on – in the sense we are using it here – 21st-century police forces. There is no unequivocal support for ‘law and order’ but rather a critical support for policing. Such critical support arises out of solidarity with those who require the protection of the police from those who would do harm. It is the same solidarity that is suspicious of policing where it expresses prejudice and hatred of the other. The approach to social services is similar. Cruciform surveillance encourages one to attend to CCTV systems and other means of capturing images as potentially sacramental. The facility offered by these technologies can be an expression of God’s loving interest in victims and in the opportunity opened up for the restoration of offenders. We need not revert to a mistaken interpretation of technological devices as neutral tools in order to appreciate that the intention of users is morally, and theologically, significant. A moment of the in-breaking of the power of God’s kingdom might occur in the capturing of an offence in digital images, which might be used not for shaming but as a step towards an offender’s restoration. Crime statistics might not seem an obviously sacramental technology. However, a victim’s or an offender’s act of critical reflection on how they are being shaped by this data gathering and analysis might be disclosure of God’s grace. If the prodigal son came to his senses in a pig-pen and transcended the boundaries of that predicament and its shaping of his self-image (Stoddart, 2007), then 21st-century opportunities might lie

308

The Restorative Gaze

in being confronted with surveillance data about one’s own conduct. Such an approach does not imply any simplistic or mechanistic glimpsing beyond this world through technology into a beatific vision. The point is that cruciform surveillance affirms many aspects of a 21st-century technological gaze because it can be a vital expression of society’s mutual caring and a possible stimulus to critical reflection about oneself and, particularly in relation to others (and those who are othered). This becomes a sharp critique of the contractualised self and the construction of victim and community identities. Grace-full solidarity, possibly at a cost to oneself, pushes against the marketed, contractualised relationships. Surveillance capitalism is set under the gaze from the cross and found to lack sufficient attention to notions of gift. The social imaginary of bodies instrumentalised as sources of data for exploitation encounter an alternative imaginary. This need not be naïve or idealistic but critically conscious of biases embedded within surveillance systems – and how those biases are reproduced by the application of surveillance. In other words, if a suspicious group is the target of surveillance then, so the argument would go, it must be in need of being under scrutiny. In effect, ethnic, religious or class prejudice circulates within surveillance capitalism and is the imaginary in which both offenders and victims (and likely facilitators too) are easily entrapped. This theological approach neither eschews punishment or repudiates monitoring of compliance by convicted offenders. Rather, by the 90º turn from kyriarchal surveillance, this paradigm confronts (but does not abandon) authority. This confrontation subjects the practice of the power to surveil to the paramount consideration of those unjustly affected. Such a theological claim does not exclude the possibility that disproportionate surveillance might be just. It does, however, mirror the parable of the Sheep and the Goats in which it is in attending to those in need that the righteous discover in the eschaton that it was indeed Christ whom they served (Matthew 25:31–46). (The pantocratic element in this parable – of Christ the eschatological Judge – is not wholly problematic to the claims advanced in this chapter because it is lordship practised in servanthood and thereby heavily qualifying kyriarchal paradigms). Cruciform surveillance keeps bringing our attention back to a tension between human relations and surveillance data within restorative justice processes. To consider this from a theological perspective we now turn to the creative proposals of Rachel Muers (2004) in which the notion of God’s hearing with love invites reflection on the nature of what God hears and, thereby, the difference between knowledge and information. Being a metaphor of the auditory, it can be transposed into the oracular by way of the wider concept of God’s knowing – just as surveillance, although

309

CRIMINOLOGY AND PUBLIC THEOLOGY

etymologically rooted in vision extends beyond images to all means of information gathering. It will be necessary to push further than Muers in order to consider the tension between embodied and digitised encounters; what I call relational information.

Relational knowledge and the restorative gaze Rachel Muers argues that God’s is a ‘listening silence’ (Muers, 2004: 65– 8). This grounds her theological ethics of communication in which she then engages with contemporary debates on privacy by, usefully for our purposes here, challenging certain understandings of knowledge. One can gain information about someone with respect to minor or distinguishing characteristics. A much more complex picture of someone might be drawn using details from psychological or medical assessments. In some cases a person may have a corpus of published works from which detailed accounts of their views may be obtained. Whether trivial or significant, proffered or extracted, this is information about, not knowledge of, a person. This information may be correct in the sense of being accurate but, according to Muers, it would not necessarily be true. Truth, she contends, does not subsist in mere accuracy of data but truth is profoundly relational. Fundamentally, a person is known only to God; each of us is an ‘ultimate secret’ (Muers, 2004: 207). This is not because God alone is capable of gathering all possible information about us. Rather, we are known within God’s covenants, within the commitment of God in Jesus Christ. God does not hold information on us but holds us in relational knowledge; accepting responsibility for us. Muers develops Dietrich Bonhoeffer’s ‘truth telling’ in which the ethical evaluation of speech is bound not only to what is spoken about but to whom it is being spoken (Muers, 2004: 189). Withholding speech may be more truthful than speaking what is accurate (the discussion is regarding a theology of privacy). Speaking what is factually correct may not always be truthful; vindictive wounding, shaming or betraying a confidence are examples (Muers, 2004: 190). Muers queries the idea of omniscience framed as comprehensive knowledge (what is, in effect, information). Turning to the narratives of God’s hearing of people crying out against injustice in the Hebrew Bible, she contends that God’s knowledge is always linked to God’s action (Muers, 2004: 196). That hearing action is in the context of God’s covenant faithfulness. In Christological terms Muers (2004: 197) argues that God’s knowing ‘cannot be considered apart from God’s entering into a relation with the world characterised by intimacy and risk’. The implications for human knowing (and not being entitled to

310

The Restorative Gaze

know – that is, respecting another’s privacy) are significant: ‘The model of “hearing knowledge” […] asserts the inseparability of knowledge from responsibility and love, and from the formation of persons in the temporal processes of “being known” and “coming to know”’ (Muers, 2004: 202–3). So, speech can be true only when it is speech within not any relationship but within a relationship of responsibility for, and to the one spoken about (and the one who is being spoken to). Information (abstracted from such relationship) is just information – and can be damaging for being so, notwithstanding its accuracy. Such information includes data and therefore we can consider digital information in terms of its accuracy but it is never truthful, in the sense of being relational knowledge. For these purposes I define the restorative gaze in the following terms. The restorative gaze is a way of looking that holds in tension relational knowledge and digital information derived from surveillance systems. The restorative gaze is, therefore, relational information within a restorative justice process. We can properly talk of relational knowledge within the restorative gaze given the commitment of the parties in a restorative justice process. The practice is shot through with notions of ruptured relationships expressed in, and resulting from, the offender’s actions. By agreeing to the process, a victim is taking a path that frames an offence as a relational, not primarily an illegal, act. Offender and victim encounter one another in direct relationship rather than distanced parties in a judicial system. An offender’s hearing the effects of his actions on his victim is akin to a listening silence. The offender takes responsibility for his victim, expressed in taking responsibility for his offence. In a sense, the victim takes responsibility for enabling the restoration of the offender’s relationship with himself, as well as with the victim, and the wider community. Zehr’s classic definition, arising as it does from his appreciation of the Judea-Christian theme of shalom, locates restorative justice within God’s covenants: The Torah is thus a pattern for living in shalom under the old covenant. We misunderstand if we see it primarily as a set of imperatives, of rules that must not be broken. It is a promise, an invitation, an example of what life should be like. (Zehr, 1990: 143) The knowledge that is spoken and heard within a restorative justice conference is predicated on human covenant. A victim agrees to listen

311

CRIMINOLOGY AND PUBLIC THEOLOGY

to an offender’s response to hearing the effects of his offence from the lips of his victim. The outcome is not guaranteed but the possibility of restoration is held out in the gracious initiative of the victim. We might also draw on one aspect of the theological idea of the resurrection of the person (Swinton, 2000), in which those who have been rendered non-persons by society’s stigmatising are reborn into full personhood in the eyes of, in this case, their victims. Those who might otherwise be treated as data (categorised by surveillance data into ‘risky’ persons) are rehumanised by the restorative gaze. Such a gaze does not ignore the data about the offender but declines to avert its gaze at that point. The restorative gaze holds the gaze on the offender as she is reconstituted within the covenantal grace-full relationship offered by the victim. From a theological standpoint, the encounter holds the potential to be a praesentia explosiva; a moment of liberation woven with participation in suffering. Digital information also circulates within a restorative conference. We have seen how different types of surveillance data are available to the parties – not least in evidence of the offence. Evaluations of the process and possibly the monitoring of the offender’s compliance with restitution also generate surveillance data.

Relational information It would a mistake to press a dichotomy between relational knowledge and digital information in the restorative justice process (and in most other contexts too). Deploying a CCTV system in a neighbourhood is, at least in part, an act of care for the community on the part of the local council authority. It is unnecessarily cynical to view this equipment as, in popular terms, ‘Orwellian’. At its best, concern to protect and to thereby keep open the possibility of good relationships can be a motivating factor in maintaining a CCTV system. This is notwithstanding motives to protect the aesthetics of consumer space such as shopping malls. In a similar vein, statistics of the effectiveness of restorative justice processes may be, on the one hand, generated with a view to fiscal efficiency (and be part of political contesting of the merits of retributive justice). On the other hand, the same data gathering can be grounded in a concern to establish best practice in caring for victims and offenders. (This is more than merely a question of the use to which the statistics are put but about the intention in collecting the data at all.) The paradigm of cruciform surveillance, with its critical affirmation of surveillance, foregrounds such nuanced considerations. It is the interaction between relational knowledge and digital information which constitutes the restorative gaze. What, in effect, we have is relational

312

The Restorative Gaze

information. It is a way of articulating the challenge faced in actual encounters where a priority is given to covenantal relationship and there exists a critical appreciation of the value of surveillance data. A tension occurs in, on the one hand, not idealising relationships because one knows these are formed and sustained within cultures of surveillance, and on the other hand, in refusing to be wholly shaped by surveillance – itself an apparatus in the broad, capturing sense in which we have seen Agamben use the term. This is not so much using surveillance data to justify the need for a restorative justice conference nor deploying surveillance techniques to monitor compliance by an offender to commitments he has made. Rather, it is keeping an eye on surveillance and its contribution to and effects on the construction of victim identity and offender identity. At the same time it is a matter of appreciating how the disciplinary dimensions of surveillance may help the offender to keep his commitments to changed behaviour. The restorative gaze is about, in this context, holding the tension between data and knowledge, and doing so creatively.

Conclusions Surveillance cultures and technologies circulate alongside and within the profoundly relational processes of restorative justice. The depth of human interaction towards the goal of repairing a breach of relationship is not diminished by recognising that those interactions are partly constructed by technologies. The gaze held (or perhaps avoided) between victim and offender across a restorative justice conference table is, to a considerable extent, unmediated. Yet it is a gaze taking place within systems and cultures of surveillance, and between people whose subjectivity is enacted with those same systems and cultures. There is a restorative gaze; a surveillance-inflected gaze. This gaze is restorative in the sense that it is a component of restorative justice practice. The victim is at once a gazer and one on whom the restorative gaze also falls. Victims may be rendered as (mere) data points within cultures of surveillance in which policing is so heavily dependent, sometimes driven, by data (as that which is measurable). The restorative gaze, by recontextualising data that generates fear on the part of a victim (as another statistic in an ‘epidemic’ of crime) rehumanises the victim. The victim is pulled by the relational pole to reassess not necessarily the particular data regarding their incident – but the wider data world in which their sense of (threatened) self is created. The originality of this discussion lies in its bringing a critical theology of surveillance into dialogue with restorative justice with the result that

313

CRIMINOLOGY AND PUBLIC THEOLOGY

a new hybrid concept, relational information, can articulate the tensions between knowledge and data in contexts where human interaction remains significant. Relational information can be used to analyse, for example, ecclesial contexts where membership (customer) management software and pastoral care overlap. Similarly, relational information has the potential to offer understanding of teaching and learning within technologised and marketised classrooms. Rather than bifurcating technology and spirituality, relational knowledge opens questions of the interaction – and potential disclosive capacity – of the tension between devices and transcendence. In the specific sphere of restorative justice, cruciform surveillance encourages practical steps such as ensuring that participants are aware that monitoring devices built into rooms used for occasional conferences are switched off. It means consideration is given to the surveillance systems through which participants must pass in order to reach the conference room. How necessary are these? What implicit messages about the risk posed by the offender do these systems communicate? Should risk assessment calculations feature in decisions as to the suitability of an offender for a restorative process, the notion of the restorative gaze alerts all parties to the ways in which these algorithms shape identities, much more than merely categorising. The digital footprints left by offenders might well be subject to a measure of erasure as time passes but data retention regulations do not touch the emotional impact to which the restorative gaze draws attention. The extent to which surveillance shapes attitudes within restorative justice practices requires future research. In the broad terms of public theology, the restorative gaze of relational information contributes to the debate over where cultures of surveillance should be affirmed and where challenged. While focused here on restorative justice, there is wider relevance. If contract depersonalises, covenant repersonalises. In other words, the ideas in this chapter demonstrate that relational knowledge can be subject to a powerful gravitational pull (in other language, a temptation) towards the pole of digital information. Tokens of trust become almost invariably technological at the expense of personal interaction. At the same time, the supposed objectivity of digital information can be recontextualised to respect the integrity of the person. However, while human relations bear hallmarks of bias and prejudice, the pull towards relational information must be viewed critically, not idealistically. Jon and Alice (and the facilitator) in our opening vignette practise, and are subject to, a surveillance gaze. Public theology here will help them to choose between two ways of seeing. Pantocratic surveillance is associated with kyriarchal and patriarchal oppression, retributive forms of panopticism, and synoptic surveillance that shames subjects. Cruciform

314

The Restorative Gaze

surveillance assembles servanthood, friendship and agapic solidarity within which the possibilities of God’s liberation might be released by the restorative gaze. Notes 1

2

3

Kyriarchy is more extensive than oppression within gender systems (hence its differentiation from patriarchy). It operates along axes ‘of race, class, heterosexual culture, and religion’; in effect, ‘structur[ing] the more general system of domination’ (Schüssler Fiorenza, 2001: 123). Meredith Rossner’s (2013: 46–74) microanalysis of one restorative conference provides transcripts of sections of the dialogue. Radio-frequency identification or global positioning system.

References

Agamben, G. (2009) What Is an Apparatus? And Other Essays, translated by D. Kishik and S. Pedatella, Stanford, CA: Stanford University Press. Brown, W. (2015) Undoing the Demos: Neoliberalism’s Stealth Revolution, New York: Zone Books. Chung, C.-P. (2018) ‘China’s Uyghur problem after the 2009 Urumqi riot: repression, recompense, readiness, resistance’, Journal of Policing, Intelligence and Counter Terrorism, 13(2): 185–201. Crawford, A. (2009) ‘Restorative justice and antisocial behavior interventions as contractual governance: constructing the citizen consumer’, in P. Knepper, J. Doak, and J. Shapland (eds) Urban Crime Prevention, Surveillance, and Restorative Justice : Effects of Social Technologies, Boca Raton, FL: CRC Press, pp. 167–94. Ellacuría, I. (1993) ‘The church of the poor, historical sacrament of liberation’, in I. Ellacuría and J. Sobrino (eds) Mysterium Liberationis: Fundamental Concepts of Liberation Theology, Maryknoll, NY: Orbis Books, pp. 543–64. Eubanks, V. (2017) Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor, New York: St. Martin’s Press. Feeley, M. and Simon, J. (1994) ‘Actuarial justice: the emerging new criminal law’, in D. Nelkin (ed.) The Future of Criminology, Thousand Oaks, CA: Sage, pp. 172–201. Foucault, M. (1977) Discipline and Punish: The Birth of the Prison, London: Penguin Books. Foucault, M. (1980) Power/Knowledge: Selected Interviews and Other Writings 1972–1977, New York: Harvester Wheatsheaf. Goddard, T. and Myers, R.R. (2016) ‘Against evidence-based oppression: marginalized youth and the politics of risk-based assessment and intervention’, Theoretical Criminology, 21(2): 151–67.

315

CRIMINOLOGY AND PUBLIC THEOLOGY

Graham, E.L. (2002) Representations of the Post/Human: Monsters, Aliens and Others in Popular Culture, Manchester: Manchester University Press. Hall, R. (2015) The Transparent Traveler: The Performance and Culture of Airport Security, Durham, NC: Duke University Press. Hannah-Moffat, K. (1999) ‘Moral agent or actuarial subject’, Theoretical Criminology, 3(1): 71–94. Hannah-Moffat, K. (2019) ‘Algorithmic risk governance: big data analytics, race and information activism in criminal justice debates’, Theoretical Criminology, 23(4): 453–70. Hattery, A.J. and Smith, E. (2018) Policing Black Bodies: How Black Lives Are Surveilled and How to Work for Change, Lanham, MD: Rowman & Littlefield. Hollenbach, D. (1996) ‘Social ethics under the sign of the cross’, The Annual of the Society of Christian Ethics, 16: 3–18. Isherwood, L. (2001) Introducing Feminist Christologies, London: Sheffield Academic Press. Kempf-Leonard, K. and Peterson, E.S.L. (2000) ‘Expanding realms of the new penology: the advent of actuarial justice for juveniles’, Punishment & Society, 2(1): 66–97. Lianos, M. (2012) The New Social Control: The Institutional Web, Normativity and the Social Bond, translated by R. Nice, Ottawa: Red Quill Books. Lyon, D. (2007) Surveillance Studies: An Overview, Cambridge: Polity. Lyon, D. (2018) The Culture of Surveillance, Cambridge: Polity. Maglione, G. (2013) ‘Problematizing restorative justice: a Foucauldian perspective’, in T. Gavrielides and V. Artinopoulou (eds) Reconstructing Restorative Justice Philosophy, Farnham: Ashgate, pp. 67–90. Maglione, G. (2019) ‘The restorative justice apparatus: a critical analysis of the historical emergence of restorative justice’, Social & Legal Studies, 28(5): 650–74. Magnet, S.A. (2011) When Biometrics Fail: Gender, Race, and the Technology of Identity, London/Durham, NC: Duke University Press. Marx, G.T. (2002) ‘What’s new about the “new surveillance”? Classifying for change and continuity’, Surveillance and Society, 1(1): 9–29. Mathiesen, T. (1997) ‘The viewer society: Michel Foucault’s “panopticon” revisited’, Theoretical Criminology, 1(2): 215–34. McCahill, M. and Finn, R.L. (2014) Surveillance, Capital and Resistance: Theorizing the Surveillance Subject, London: Routledge. McCluskey, G. (2018) ‘Restorative approaches in schools: current practices, future directions’, in J. Deakin, E. Taylor, and A. Kupchik (eds) The Palgrave International Handbook of School Discipline, Surveillance, and Social Control, Cham: Springer International Publishing, pp. 573–93.

316

The Restorative Gaze

McCold, P. (2004) ‘Paradigm muddle: the threat to restorative justice posed by its merger with community justice’, Contemporary Justice Review, 7(1): 13–35. Moltmann, J. (1974) The Crucified God, London: SCM Press. Moore, M. (2008) ‘Half of councils use anti-terror laws to spy on families of “bin crimes”, it has emerged’, Daily Telegraph, 1 November, www. telegraph.co.uk/news/uknews/3333366/Half-of-councils-use-antiterror-laws-to-spy-on-bin-crimes.html Muers, R. (2004) Keeping God’s Silence: Towards a Theological Ethics of Communication, Oxford: Blackwell. Muncie, J. (2005) ‘The globalization of crime control – the case of youth and juvenile justice: neo-liberalism, policy convergence and international conventions’, Theoretical Criminology, 9(1): 35–64. Newlands, G. (2006) Christ and Human Rights: The Transformative Engagement, Aldershot: Ashgate. Noble, S.U. (2018) Algorithms of Oppression: How Search Engines Reinforce Racism, New York: New York University Press. O’Neill, C. (2016) Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy, London: Allen Lane. Orwell, G. (1949/2001) Nineteen Eighty-Four, London: The Folio Society. Raye, B.E. and Roberts, A.W. (2007) ‘Restorative processes’, in G. Johnstone and D.W. Van  Ness (eds) Handbook of Restorative Justice, Cullompton: Willan, pp. 211–27. Restorative Justice Council (2019) ‘Nick’s story’ [case studies], https:// restorativejustice.org.uk/resources/nicks-story Richards, K.M. (2005) ‘Unlikely friends? Oprah Winfrey and restorative justice’, Australian & New Zealand Journal of Criminology, 38(3): 381–99. Roche, D. (2007) ‘Retribution and restorative justice’, in G. Johnstone and D.W. Van  Ness (eds) Handbook of Restorative Justice, Cullompton: Willan, pp. 75–90. Rossner, M. (2013) Just Emotions, Oxford: Oxford University Press. Selod, S. (2018) Forever Suspect: Racialized Surveillance of Muslim Americans in the War on Terror, New Brunswick, NJ: Rutgers University Press. Schüssler Fiorenza, E. (2001) Wisdom Ways: Introducing Feminist Biblical Interpretation, Maryknoll, NY: Orbis Books. Sobrino, J. (1994) Jesus the Liberator: A Historical-Theological Reading of Jesus of Nazareth, Tunbridge Wells: Burns & Oates. Stoddart, E. (2007) ‘Spirituality and citizenship: sacramentality in a parable’, Theological Studies, 68: 761–79. Stoddart, E. (2011) Theological Perspectives on a Surveillance Society: Watching and Being Watched, Aldershot: Ashgate.

317

CRIMINOLOGY AND PUBLIC THEOLOGY

Swinton, J. (2000) Resurrecting the Person: Friendship and the Care of People with Mental Health Problems, Nashville, TN: Abingdon. Taylor, C. (2004) Modern Social Imaginaries, London/Durham, NC: Duke University Press. Trottier, D. (2018) ‘Coming to terms with shame: exploring mediated visibility against transgressions’, Surveillance & Society, 16(2): 170–82. United Nations Office on Drugs and Crime (2006) Handbook on Restorative Justice Programmes, Criminal Justice Handbook Series, Vienna: UNODC. Zehr, H. (1990) Changing Lenses, Scottsdale, PA: Herald Press. Zuboff, S. (2019) The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, London: Profile Books.

318

14

Conclusions Andrew Millie

There has seldom been any crossover between criminology and theology, yet what I hope this book has demonstrated is that such crossover can be fruitful in terms of theoretical discussion and practical application. As noted in the introduction, both public criminology and public theology aim to engage various publics and to have relevance to practice. It is hoped the chapters in this book have such real-world application. Through the various contributions some common themes have emerged. In this concluding chapter these themes are brought together in proposing a form of criminal justice framed within the context of hope, mercy and restoration, that radically challenges the retributive orthodoxy. As I noted in Chapter  7, this may be accused of utopianism, or ‘naïve idealism’ (Forrester, 1997: 30) as major changes to criminal justice practice are not likely in the immediate future. Similarly, in terms of theological engagement with policing, in Chapter 10 Alistair McFadyen has noted how a Christian focus on love for enemies might be met with suspicion, that it does not relate to ‘the gritty reality of damaged and damaging human reality’. Yet, it is suggested in this chapter that shifts in emphasis are possible: that demonstrate love, that change the focus from the infliction of pain to the offer of hope, and where mercy and the full restoration of the offender into community are prioritised over exclusion. Historically, Christian theologians have often supported retribution with a literal interpretation of lex talionis or an eye-for-an-eye, that sin should not go unpunished. For instance, I noted in Chapter  7 how Aquinas saw ‘evil doers’ as lacking human dignity. And Richard Bourne

319

CRIMINOLOGY AND PUBLIC THEOLOGY

in Chapter 8 observed how from Aquinas to Luther and Calvin, and then through to modernity, retributive justification for punishment was strengthened. In Chapter  5 Tim Gorringe highlighted the influence of Anselm’s satisfaction theory of atonement on criminal justice, in legitimating the notion that people have to suffer for their offences. Yet according to Gorringe, this interpretation was never hegemonic. There is an alternative history of Christian thought that has taken a different view of the cross, including the Lollards, Anabaptists, Diggers and Quakers through to 20th-century liberation theology. Gorringe quoted Blake in observing that the conventional theology of atonement of his day was ‘a horrible doctrine’. An alternative understanding of the cross could lead, according to Gorringe, to ‘a more reconciliatory understanding of society’. For Richard Bourne, Jesus utterly repudiated retribution. As retold in Matthew 5:38–9, rather than ‘[e]ye for eye, and tooth for tooth’ we are instructed: ‘Do not resist an evil person. If someone strikes you on the right cheek, turn to him the other also’. It is a difficult message to square with contemporary criminal justice practice. While each contributor to this volume has their own take on the relationship between public theology and criminological concerns, a common theme of dignity has emerged, that those who encounter criminal justice agencies are met with respect, irrespective of what they have done. Furthermore, the various contributors have noted how hope ought to be offered rather than pain, that mercy is given rather than cruelty, and that restoration becomes an overriding concern, rather than retribution. This is not only restoration of the individual, but restoration of relationship in community. In this chapter the notion of dignity, along with hope, mercy and restoration are each considered in turn. A way forward for greater cross-disciplinary learning between criminology and public theology is then proposed. The expectation is that this is not a one-off collaboration, but the start of an ongoing conversation between criminology and theology. If the ideas discussed in this book are taken seriously then they offer a fundamental challenge to our contemporary view of criminal justice.

Dignity The notion of dignity is central to the golden rule, as Jesus expressed in the Sermon on the Mount, that we should ‘do to others what you would have them do to you’ (Matthew 7:12). In Chapter 7 I highlighted how this egalitarian approach to morality can affect our view of others and informed the Kantian belief that we all have dignity. In Chapter 2

320

Conclusions

Anthony Bottoms observed how the ‘modern risk-oriented criminal justice system’ can fail to treat offenders as, ‘in the full sense, persons’. For contemporary criminal justice, respect as persons is thus something that is earned, rather than something that is due to all (Darwall, 1977; Millie, 2009a). In Chapter 12 Joanna Shapland similarly noted how forgiveness can sometimes be seen as something to be earned through passing various conditions, suggesting that ‘the person who has harmed is not yet fully seen as a member of that society’ – that they do not yet deserve equal recognition. In Kantian terms, the person who has harmed is often seen as a means to an end, with the end being the deterrence of others, the prevention of future threats or as a means to express society’s retribution. Yet, if all have inherent dignity as humans, then offenders ought to be regarded as ends in themselves and not as means to an end. How we treat others was seen by both Anthony Bottoms (Chapter 2) and Andrew Skotnicki (Chapter  11) in terms of the difference in emphasis between I-It and I-Thou relationships (Buber, 1970). In Skotnicki’s case this was regarding how we treat someone with mental health problems as a threat or symptom (I-It), rather than as a fellow person (I-Thou). An I-It relationship sees the other as somehow lower and not to be treated with equal human dignity. And according to Skotnicki the result is that, ‘[t]he overwhelming number of US citizens diagnosed as mentally ill are housed in the nation’s jails and prisons’ (see James and Glaze, 2006). For Skotnicki, those who are locked up and mentally ill are inadvertent prophets, that their ‘voices of acrimony become unwitting mouthpieces of God’s indictment of national policies’. Those displaying ‘outlandish behaviour’ are often sent ‘to a police lockup rather than a clinic’. An I-Thou relationship would have quite different outcomes. Quoting Alison Liebling (2015: 27), Bottoms noted that an I-Thou relationship means that ‘I stand in relation to him’. It offers dignity in relationship. The Christian motivation for recognising dignity in all, including those who have wronged us, is that God is seen in all; as Jonathan Burnside notes in Chapter 3, ‘Prisoners are made in the image of God’. Jesus made this explicit in the parable of the Sheep and the Goats: ‘For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’ […] ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’ (Matthew 25:35–6, 40)

321

CRIMINOLOGY AND PUBLIC THEOLOGY

For Eric Stoddart (Chapter 13), Christ is in solidarity with all ‘under unjust and discriminatory surveillance’. In Stoddard’s contribution he introduced the notion of cruciform surveillance, or surveillance from the cross. The gaze from the cross is not like other forms of surveillance; rather: ‘Here, Christ, one who knew what it was to be under surveillance himself, is in horizontal solidarity with all those unjustly treated, marginalised and oppressed.’ Identifying others as made in God’s image, and recognising Christ’s solidarity with the downtrodden may have little meaning within a secular criminal justice setting. However, the notion of equal worth and dignity for all ought to translate, and that we take special care of those who are seen by the rest of society as being lower. Dignity for all is also displayed in the biblical instructions to love neighbours and to love enemies (as considered by Alistair McFadyen in Chapter 10 and in my contribution in Chapter 7). According to Paul Ricoeur (1990: 397), the instruction to love enemies ‘is not ethical but supra-ethical’. For Robin Gill (2017) it reflects a moral passion that demonstrates God’s grace. As the apostle Paul instructed in the book of Romans (12:18–201): ‘If your enemy is hungry, feed him; if he is thirsty, give him something to drink. In doing this, you will heap burning coals on his head’. Dignity for all is preserved, even for those who have wronged us. The reference to burning coals hints at feelings of shame that the enemy may feel. In line with John Braithwaite (1989), this may be reintegrative shaming that hopes to restore to community, rather than a shame that stigmatises and excludes. For Alistair McFadyen the instruction to love enemies is a challenge for policing, ‘a world populated by “enemies” whose behaviour needs to be challenged, confronted and contained’. But loving enemies can be seen in limiting use of force to what is ‘necessary, reasonable and proportionate’ and in the interest of neighbourhood. According to McFadyen, love for neighbour could be interpreted as love for neighbourhood, with the police ‘constantly protecting, keeping alive, restoring, extending the conditions that make it possible to be neighbours’. Suspects would be treated as both current and future neighbours.

Hope A second theme to emerge from the various chapters was that of ‘hope’, that a criminal justice system informed by public theology may shift focus from the infliction of pain to the gift of hope, as reflected in offers of empathy and grace. The starting point was recognition that we are all offenders, meaning we can empathise in some way with those who have

322

Conclusions

wronged us. Gorringe drew on Karl Barth (1995) to note that ‘we are all offenders. We are all unclean.’ Similarly, inspired by Charles Wesley (1738), he stated that ‘To look at the criminal was to acknowledge the sin we both shared.’ In Chapter 6 Christopher Marshall highlighted how Jesus identified with those shamed by his society, ‘those on the margins of the community’. According to Marshall, Jesus’ ‘public solidarity with such groups evoked furious condemnation from the religious leaders’. Jesus was himself a lawbreaker. His dying the most shameful of deaths on a cross, hung between two other lawbreakers, was, according to Marshall, ‘a display of divine empathy for human destitution’. Returning to the theme of dignity Marshall noted how, in dying in shame and dying ‘to the power of sin and shame, once and for all’, Jesus affirmed ‘the absolute worth of every person’. In Chapter 9 Lol Burke recalled the Zulu word uBuntu, which expresses ‘human interconnectedness, group solidarity, compassion, respect and human dignity’. According to Burke we are challenged to ‘see ourselves in others and others in us’. Such empathy offers hope to the offender, hope for a restored relationship. In terms of probation practice, Burke argued that offenders ‘should still be met with the respect […] which is their right as human beings’. Failure to do this denies them their humanity ‘which we should be attempting to model’, In Chapter 13 Eric Stoddart also talked in terms of solidarity and mutual respect, our ‘responsibility for one another’. In my own contribution (Chapter 7), and drawing on Ricoeur (1990), I referred to Jesus’ instruction in the Sermon on the Plain to love enemies without expecting anything in return as an economy of gift with a logic of superabundance. It was argued that such generosity is a form of empathy, ‘a gift of hope’, rather than the pain of retribution, ‘where reciprocity may be desired, but not demanded’. The hope is for restoration of relationship with community or neighbourhood. It is a free gift and does not come with specific conditions, although it may be hoped that the receiver comes to realise that someone cares for them. Resultant change – a turning around or metanoia (Bottoms, Chapter 2) – may be hoped for, but not demanded. Put simply, it is a gift relationship, rather than an exchange relationship. In Christian terms we talk about grace as an unmerited gift from God; and in Chapter 9 Lol Burke quoted Bryan Stevenson (2015: 18) in stating that ‘we all need some measure of unmerited grace’. In Chapter 8 Richard Bourne highlighted that in ‘the gift of grace’, Christ demonstrated the possibility of ‘a union of justice and mercy’. But it is a different understanding of justice from that which we might experience within contemporary retribution and just deserts. It is a justice centred on the gift of hope rather than on pain.

323

CRIMINOLOGY AND PUBLIC THEOLOGY

The notion of gift was further highlighted by Aaron Pycroft in Chapter 4 in claiming that ‘housing, employment and stable relationships in developing a non-criminal identity’ can be understood as forms of gift. Referring to probation work, Lol Burke cited Rob Canton (2013: 591) in highlighting the importance of treating people ‘with dignity and respect’ but not in a way that is ‘dependent on its contingent outcomes as an instrumental means of reducing reoffending’. In a criminal justice setting the gift of hope may include recognising offenders’ equal worth, treating them with respect and dignity, and working with them to restore relationship with community and/or neighbourhood. The opposite of gift is the pain of prison, probation and other involvement with the criminal justice system. In Chapter 12 Joanna Shapland identified what might also be regarded as an opposite to gift, in the perpetuation of ‘offender status’ that removes hope, with criminal records checks that can affect future employment and housing.

Mercy Related to the notion of hope is mercy. This was a theme common to several contributions. It is offered as an alternative to cruelty and is characterised by compassion and forgiveness. In Chapter 8 Richard Bourne started by quoting Matthew 5:7, that ‘Blessed are the merciful.’ As Bourne states, ‘Who could possibly disagree?’ Bourne highlighted that in contemporary retributive justice, mercy is part of the calculation of punishment, ‘a leniency calculated as a reduction in the punishment deserved’. He considered the relationship between mercy and justice and, drawing on Barth, argued that to be merciful ‘does not cancel out justice’. But as noted, God’s idea of what is just may be quite different from ours. In Chapter 9 Lol Burke cited Fergus McNeill (2019: 8) in highlighting that philosophers of punishment have pointed out that ‘part of the point of mercy is that it is undeserved’ (for example, Murphy, 1988; Walker, 1991). Similarly, drawing on Stevenson (2015) Burke stated that ‘mercy is most potent when it is aimed at those deemed undeserving’. To be merciful is to show compassion to those who may not appear to deserve compassion (Marshall, 2012) – and is not part of a sentencing calculation involving aggravating and mitigating circumstances. Such a calculation reflects a relationship of exchange whereby reduction is offered only to those deemed to be ‘deserving’. But by adopting a relationship of gift – or an economy of gift – we offer hope and mercy to all, including those who have wronged us and are ordinarily seen as undeserving.

324

Conclusions

Mercy is also connected to forgiveness. According to Richard Bourne, drawing on Hannah Arendt (1958), we do not forgive because God or others have forgiven us. Instead we forgive ‘because forgiveness marks the possibility of new action’. In my contribution at Chapter  7, the Lord’s Prayer was highlighted where we ask for God’s forgiveness because we have forgiven others who have sinned against us. Like hope and mercy, forgiveness is a gift. It is not something that can be insisted on. In Chapter 12 Joanna Shapland gave the example of Gordon Wilson who forgave those who planted a bomb in Northern Ireland that killed his daughter. His is a powerful example where apology was not required for forgiveness to occur (see also Cantacuzino, 2016). Such forgiveness is an example of underserved mercy. It does not ignore the offence committed and the harm caused, but a decision is made to still forgive. Shapland noted that the state does not usually get involved in the business of forgiveness; however, it is something that might be considered. According to Shapland forgiveness is ‘intrinsically social’. While the message of forgiveness is to the person who has harmed, there can be a ‘ripple of reaction’, ‘a community ripple’ that spreads the impact. As Bourne highlighted, there is the ‘possibility of new action’ and this is for the person forgiven and for the wider community. Shapland’s (2016 and Chapter 12, this volume) focus was restorative justice and within this context forgiveness is not always apparent. But the act of meeting an offender as part of a restorative justice conference is a sign of mercy and offers hope of the restoration of relationship. It is to restoration that I now turn.

Restoration The final theme that was common to several chapters was restoration – whether this was restoration of the individual or restoration of the offender into community. There is a reconciliation that is apparent in restorative justice programmes or in Braithwaite’s (1989) notion of reintegrative shaming (rather than stigmatisation). According to Christopher Marshall (Chapter 6) shame ordinarily motivates ‘a turning inwards and turning away from others’. Furthermore, shame can lead to violence, while violence can lead to shame ‘in a self-perpetuating cycle of ruin’. The kind of reintegrative shaming suggested by Braithwaite offers something different from such destructive shame; it aims to reintegrate back into community. For Joanna Shapland (Chapter 12) restorative approaches are quite different from conventional adversarial criminal justice systems which ‘render both the person who has harmed and the person harmed

325

CRIMINOLOGY AND PUBLIC THEOLOGY

mute’. Rather, communication is central, with both parties given a voice (see also Burke, Chapter 9). As I noted in Chapter 7, wrongdoing is acknowledged but through a relational framework. According to Shapland, the message from the person harmed is one of ‘hope for humanness’. There is a social dimension to restorative justice, and a ‘wish of both to see each other functioning as full members of society’. In Chapter  4 Aaron Pycroft spoke of the gospel as revealing ‘the responsibility that we all have in carrying each other’s burdens’, including ‘victims, perpetrators and communities’. For Pycroft, this made the gospel ‘completely at odds with individualistic and reductionist conceptions of modern justice’. Inspired by the gospel, reintegration is into community (or neighbourhood). There is hoped for desistance, but as noted, following calls to love neighbours and love enemies, this is not a prerequisite for treating those who have wronged us with dignity and mercy, and for offering hope for the future. In Chapter 8 Richard Bourne spoke about ‘relational desistance’. And building on his earlier work (Burnside and Baker, 1994), in Chapter 3 Jonathan Burnside suggested the need for a relational justice – as opposed to prison, which is ‘highly unrelational’. For Burnside, justice needs to be more community-centred, with communities better informed and having a sense of ownership. Alistair McFadyen (Chapter 10) also stressed the importance of the local, with the neighbourhood identified ‘as a place for human flourishing’. If drawing on biblical ideas of relationship, the type of relationship between offender and victim/community is one of covenant rather than contract. The idea of contract has been an important feature of criminal justice practice for several years (for example, Crawford, 2003); yet as Eric Stoddard highlighted in Chapter 13, ‘If contract depersonalises, covenant repersonalises’. While contracts are based on obligations and requirements backed by threat of censure, biblical covenant is based on relationship. As Aaron Pycroft highlighted in Chapter 4, covenant is a gift. The aim is to restore relationship.

Conclusions Christian ideas of hope, mercy and restoration may seem unlikely to appeal to contemporary criminal justice practice, which emphasises retribution and just deserts. Yet, what the various chapters in this collection have shown is that shifts in emphasis are possible, which demonstrate love, change the focus from the infliction of pain to the offer of hope, where mercy is offered rather than cruelty, and the full restoration of the offender into community is prioritised over exclusion. Such restoration would be

326

Conclusions

based on covenant relationship in community rather than ‘depersonalised’ contractual arrangements (Stoddart, Chapter 13). Such an approach would be grounded in an understanding that all have dignity, including those who have wronged us. The approach would have relevance to all aspects of criminal justice including policing, probation and imprisonment. An emphasis on relationship and dignity would also be a direct challenge for jurisdictions that persist with the death penalty. In Christian theology our inherent dignity is because all are made in the image of God. Of course, such an idea would have little purchase in a secular criminal justice system. But the idea of equal dignity for all ought to apply to the religious and secular alike. As Thomas Hill (2000: 69) has stated regarding a Kantian view – as informed by the golden rule – that respect should be shown to all ‘regardless of how their values differ and whether or not we disapprove of what they do’. Such an understanding offers hope for all. In his biography of the apostle Paul, the theologian Tom Wright (2018) considered the meaning of hope in the early Christian world and concluded that it was something quite different from optimism: The optimist looks at the world and feels good about the way it’s going. Things are looking up! Everything is going to be all right! But hope, at least as conceived within the Jewish and then the early Christian world, was quite different. Hope could be, and often was, a dogged and deliberate choice when the world seemed dark. It depended not on a feeling about the way things were or the way they were moving, but on faith, faith in the One God. (Wright, 2018: 45, emphasis in original) An approach to criminal justice informed by Christian public theology would not be blind optimism for a utopian future. It would not be an easy choice but would be ‘a dogged and deliberate choice when the world seemed dark’. Such hope for everyone’s future would require faith. In a secular context this would not be faith in the One God, but instead a faith in each other’s potential – the uBuntu or interconnected humanity that Lol Burke highlighted in Chapter 9. We lead by example recognising that we are all offenders and hopeful that we can all turn our lives around – including those officially recognised as criminals, but also the institutions that constitute the criminal justice system and the rest of us as humanity. This collection has concerned itself with the interplay between criminology and public theology. The focus has been on aspects of the criminal justice system – important criminological concerns but admittedly not all of criminology. As suggested in the introductory

327

CRIMINOLOGY AND PUBLIC THEOLOGY

chapter, criminology is a broad church and has diverse interests from everyday incivilities and anti-social behaviours (Millie, 2009b), through to the crimes of corporations and governments (Whyte, 2008) and the harms of environmental degradation and climate change (White, 2018). The question is whether public theology has much to say about these broader concerns. Christian theology is certainly interested in the environment with, from the book of Genesis onwards, humanity having the task of being custodians of God’s creation. It is useful here to return to Micah 6:8 as quoted in the Introduction: ‘And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.’ This would be a good point of departure for the ongoing conversation between criminology and theology. Justice, mercy and humility are relevant to wider criminological concerns; but as suggested, the meaning of justice might be different from that adopted by secular criminal justice. In line with God’s ‘special concern for the poor and oppressed’ (Gardner, 1995: 125), justice informed by Christian theology would have a special concern for social justice. Note 1

See also Proverbs 25:21–2.

References

Arendt, H. (1958) The Human Condition, Chicago, IL: University of Chicago Press. Barth, K. (1995) Gespräche 1959–1962, ed. E. Busch, Zurich: Theologischer Verlag. Braithwaite, J. (1989) Crime, Shame and Reintegration, Cambridge: Cambridge University Press. Buber, M. (1970) I and Thou, translated by W. Kaufmann, New York: Charles Scribner’s Sons. Burnside, J. and Baker, N. (eds.) (1994) Relational Justice: Repairing the Breach, Winchester: Waterside Press. Cantacuzino, M. (2016) The Forgiveness Project: Stories for a Vengeful Age, London: Jessica Kingsley. Canton, R. (2013) ‘The point of probation: on effectiveness, human rights and the virtues of obliquity’, Criminology and Criminal Justice, 13(5): 577–93. Crawford, A. (2003) ‘“Contractual governance” of deviant behaviour’, Journal of Law and Society, 30(4): 479–505. Darwall, S.L. (1977) ‘Two kinds of respect’, Ethics, 88(1): 36–49. Forrester, D. (1997) Christian Justice and Public Policy, Cambridge: Cambridge University Press.

328

Conclusions

Gardner, E.C. (1995) Justice and Christian Ethics, Cambridge: Cambridge University Press. Gill, R. (2017) Moral Passion and Christian Ethics, Cambridge: Cambridge University Press. Hill, T.E. (2000) Respect, Pluralism, and Justice: Kantian Perspectives, Oxford: Oxford University Press. James, D.J. and Glaze, L.E. (2006) Mental Health Problems of Prison and Jail Inmates, Bureau of Justice Statistics Special Report, NCJ 213600, Washington, DC: Bureau of Justice Statistics. Liebling, A. (2015) ‘Description at the edge: I–It/I–Thou relations and action in prisons research’, International Journal for Crime, Justice and Social Democracy, 4, 18–32. Marshall, C.D. (2012) Compassionate Justice: An Interdisciplinary Dialogue with Two Gospel Parables on Law, Crime, and Restorative Justice, Eugene, OR: Cascade Books. McNeill, F. (2019) Pervasive Punishment: Making Sense of Mass Supervision, Bingley: Emerald Publishing. Millie, A. (ed.) (2009a) Securing Respect: Behavioural Expectations and AntiSocial Behaviour in the UK, Bristol: Policy Press. Millie, A. (2009b) Anti-Social Behaviour, Maidenhead: Open University Press. Murphy, J. (1988) ‘Mercy and legal justice’, in J.G. Murphy and J. Hampton (eds) Forgiveness and Mercy, Cambridge: Cambridge University Press, pp. 162–86. Ricoeur, P. (1990) ‘The Golden Rule: exegetical and theological perplexities’, New Testament Studies, 36(3): 392–7. Shapland, J. (2016) ‘Forgiveness and restorative justice: is it necessary? Is it helpful?’, Oxford Journal of Law and Religion, 5(1): 94–112. Stevenson, B. (2015) Just Mercy: A Story of Justice and Redemption, New York: Scribe Publications. Walker, N. (1991) Why Punish? Theories of Punishment Reassessed, Oxford: Oxford University Press. Wesley, C. (1738) And Can It Be [hymn]. White, R. (2018) Climate Change Criminology, Bristol: Bristol University Press. Whyte, D. (2008) Crimes of the Powerful: A Reader, Maidenhead: Open University Press. Wright, T. (2018) Paul: A Biography, London: SPCK.

329

Index

A actuarialism 32–5 acute/functional shame 117–18 Adam and Eve 114 adultery 9, 95, 97, 156 algorithmic oppression 299–300, 301 Allen, F.A. 2 Anselm 99–101, 169, 178 Aquinas, T. 148, 172–3, 174, 175–6 Arel, S.N. 115, 116, 118, 119, 123, 135, 139 Arendt, H. 177, 325 Aristotle 184 asceticism 186–8 atonement 107, 124, 126, 139 Blake on theology of 104–105 Jewish rite of 80–3, 85 sacrifice of 124 satisfaction theory 99–101 secular justice and 139–41 shame and 124–5 attachment theory 116–17 Augustine, Saint 168 axiological dimensions of moral theory 36 Azazel 81, 85

B Badiou, A. 72, 74 baptism 84, 176 Barker, M. 75, 81–3, 84 Barrett, T. 201 Barth, K. 96, 176, 177, 180, 222, 323

Bartollas, C. 74, 80, 82, 84 Bayles, M.D. 50, 67n8 Becker, E. 259, 260, 261, 274 Belfast Telegraph 273 Berger, P. 264 Bible see New Testament; Old Testament biblical justice 55–6 relational character of 60–5, 175 biblical law absence of imprisonment in 65–6 Jesus’ attitude to 23–7 relational character of 59–60, 66 ‘seriousness of offence’ 47–51 Blair, Tony 156 Blake, W. 104–105 Bottoms, A.E. 11, 27, 29, 63, 66, 147, 221, 284 Bourne, R. 153 Braithwaite, J. 120, 152–3, 275, 281, 283, 290, 322, 325 Breton, S. 72–3, 76 Brown, D. 100 Buber, M. 35, 268, 321 Burawoy, M. 6–7 Burke, L. 196, 201, 205, 206, 208 Burnside, J. 10, 47, 49, 50, 52, 56, 57, 58, 59, 60, 326 Burridge, R. 22, 24, 25, 31

C Cain and Abel 112 Canton, R. 206, 212, 324

331

CRIMINOLOGY AND PUBLIC THEOLOGY

capital punishment 2 Aquinas’ defence of 148 Catholic Church’s position on 87, 148–9 US National Association for Evangelicals view on 6 capitalism Christianity and industrial 94 late consumer 185–6 surveillance 298, 305, 309 categorical imperative 150–1 Catholic Church 87, 148–9 celibacy 188 character of the offender 50, 67n8 Charland, L. 251–2 chronic/dysfunctional shame 118–19, 134 church-building programmes 101 church reports 222 Circles of Support and Accountability (COSA) 105–106, 107 collective repentance 29–30 common sense 263–5 communities affected by crime 63 expectations and responsibilities in justice system 62 forgiveness and healing in 85, 289–90 founded in gift 85, 86–8 mediating between victims and perpetrators 86–7 offences and threat to 49–50 punishments carried out by and in 64–5 value of grassroots justice in 61 compassionate justice 10 consumerism 185–6, 306 contracts 306, 309, 326 contractualised self 306, 309 contrition 174 covenants 81–2, 88, 313, 314, 326 between God and Israel 24, 59, 128 restorative justice within God’s 311–12 Crawford, A. 62, 306, 326

creatio ex materia 73, 75, 85 crime communities affected by 63 control 61–2 desistance from 28–9, 204 and forgiveness 283–4 issue of identity change 85–7 mercy, desire and possibility of 181–9 pains occurring in efforts for 181 ordering of public space and 230–1 and sin 95–6 ways of dealing with 96–7 Criminal Justice Act 1991 46, 212 Criminal Justice Act 1993 50 criminal justice system 1–2, 71–2 ‘acceptance of sinners’ 31–7 actuarial youth justice model 300 applying principles of Jesus’ teachings to 25–7, 28 attempting secular redemption and rehabilitation in 139–41 centralisation 61 challenge of dealing with shame 112–13, 139 collective repentance for mistakes in 29–30 ‘culture of control’ 61–2 as default psychiatric hospital/clinic system 253, 267 empathy with offenders 158, 159 Johnson’s proposed reforms 71 ‘love your enemies’ and implications for 155 neoliberal market 72 offer of hope rather than pain 145, 156, 158–60, 326–7 public theology, relational justice and reform of 58–65 reintegrative shaming 152–3 rendering offender and victim as mute 277 theological engagement with 221–5 see also policing; probation service

332

INDEX

crucifixion Blake’s reading of 104–105 of Jesus 52, 54, 55, 132, 133–4 shame of 132–4 cruciform surveillance 296, 301–304 in restorative justice process 306–310, 314 cruelty, systems of 98 cultural criminology 185–6 culture of control 61–2 custody, police 233–5

D Day of Atonement 80, 81, 83, 126 de Young, M. 251, 253, 255, 268 Denning, Lord 95 deontic dimensions of moral theory 36 ‘desistance from crime’ 28–9, 204 and forgiveness 283–4 issue of identity change 85–7 mercy, desire and possibility of 181–9 pains occurring in efforts for 181 Diagnostic and Statistical Manual (DSM) 251 DiFrancisco, L. 126–7 dignity 87, 151, 153–4, 209, 319–22, 327 Christ’s affirmation of 134–5 death penalty an attack on 148–9 Kantian ethics and 149, 151, 159, 209 of offender 158, 159, 206, 212 shame and 117, 139 ‘discursive naturalism’ 264 domestic abuse 276, 283, 286 Douglas, M. 82 drugs test 34–5 du Bois-Pedain, A. 34 Duff, R.A. 4, 6, 28, 101, 171–2, 173–5, 206, 209 Durkheim, E. 63, 99 Durnescu, I. 202 dysfunctional/chronic shame 118–19, 134

E economy of gift 150, 157–8, 159, 207, 208 Eichmann, A. 267 empathy 134–5, 158 inclusive 158, 159 enemies love of 225–6, 235–6, 236–8 Sermon on the Plain and focus on love for 154–5, 157, 159 Engels, F. 93–4 Enlightenment 65, 98, 249, 250 Eubanks, V. 299 Eucharist 83, 84, 303 Evangelical movement 149, 196

F faith-based units (FBU) 51–2, 65 evaluation of 56–8 relevance of Christianity to 52–6 family group conferencing 277, 288–9, 305 social order founded on 63 Faulkner, D. 55, 62, 64 Fingarette, H. 249, 250, 252, 254, 264 forgiveness 79, 81, 155–6, 177, 273–93 apologies and 280–2, 284, 287 audiences for 286–9 constraints on occurrence of 275 and crime against the state 287–8 deliberate conditions of 282–3 of Gordon Wilson for IRA bombers 273, 275, 282, 287 Lord’s Prayer and 147 mercy and 170–1, 325 messages of 282–4, 285–6, 289 relation with power 276–7 restorative justice and 277–82, 284–6, 288 ripples out into wider community 289–90 of Saul 83–4 Tutu on 155 varying by cultural and social settings 276, 286

333

CRIMINOLOGY AND PUBLIC THEOLOGY

forgiveness (continued) verbal and non-verbal expressions of 274–5 Formula of Humanity 149, 151, 157, 160 Forrester, D. 3, 5, 8, 9, 146, 159, 221, 319 Foucault, M. 13, 86, 248, 249, 250, 251, 253–4, 255, 266, 297, 305 Francis, Pope 87, 148 Freud, S. 98–9, 107n3 Fulton, R. 101–102 functional/acute shame 117–18

Heidegger, M. 260, 261 Heschel, A. 257, 263, 265 Holy Spirit 54, 138, 147, 187, 303 Homeboy Industries 87–8 Homer 248 honour 130–1, 132, 135 hope 322–4 gift of 156, 158–60, 324, 326–7 for humanness in restorative justice 285 House of Commons Justice Committee 30 human decency, concern for 53 human rights 87, 153

G Gardner, E.C. 153, 328 Garland, D. 2, 61–2, 63, 94, 102, 103 gift, an economy of 150, 157–8, 159, 207, 208 Gilligan, J. 111–12, 118, 139, 256 Girard, R. 79, 80, 85, 86 Glaze, L.E. 247, 252, 321 Golden Rule 151, 152, 155, 157–8 good lives model (GLM) 183–5, 188 Good Samaritan 10, 177, 212–13, 229 Gorringe, T. 3, 73, 81, 82, 101, 147, 148, 221, 228 grace 84, 135, 139, 159, 178, 179–80, 188, 322, 323 grassroots justice 60–1 Gregory of Nazianzus 187 Griswold, C. 274, 282 guilt 98, 99, 112, 125, 126 pain of remorse and 173–4 shame and 121–3, 128, 129

I ‘I-Thou’ and ‘I-It’ relationships 35, 268, 321 identity change of 85–7, 137–8, 181 construction and restorative justice 306 desistance 181 ideology 93–4 imago Dei 53 imprisonment absence in biblical law 65–6 Christian concerns for prisoners 52–3 Christian views of punishment of 65–6, 222–3, 224 and concerns for human decency 53 coping with shame and stigma of 140 and impact on relationships 53–4, 66 of mentally ill 247–8, 252–5 psychological and theological factors leading to 258–61 seriousness of offence and 48 social and racial factors leading to 256–8 US mass 2 ‘In Dulci Jubilo’ 95 The Independent 201

H Habermas, J. 5 Hall, S. 72, 186, 299 Halsey, M. 34 Hardwick, N. 1–2 Harvey, A. 22, 23, 36 Hegel, G.W.F. 170

334

INDEX

insanity see mental illness insight 262–3 Islamic criminology 4 iustitia 172, 175, 176

J jail mentally ill sent to 252–5 reasons insane are in prison and 255–61 James, D.J. 247, 252, 321 James, W. 248–9, 261–2, 262 Jesus and the adulteress 9 conquest of shame and 130–2 Crucifixion 52, 54, 55, 132, 133–4 dying in shame 132, 133–4 ethics of 21–43 attitude to law 23–7 call to repentance 27–30 legal principles suggested by 25–7 ‘open pastoral acceptance of sinners’ 31–7 ‘strenuous commands’ 22, 34, 35, 36 Foucault’s interpretation of life of 266 identification with criminals 52–3 rejection of retribution 177 sacrifice of atonement 124 Sermon on the Mount 132, 151, 155, 156, 320 Sermon on the Plain 154–5, 157, 159 sin and 129–30 spiritual transformation through faith in 54–5 surveillance from the cross 296, 301–304, 308 undoing of shame 134–8 Jesus movement, persecution of 76–7 Jewish criminology 4 Johnson, Boris 71 judicial rehabilitation 205

just deserts 2, 152 gift of hope rather than 159, 160 justice Christian concern for 55–6 compassionate 10 mercy as operative condition of 175–81 at odds with mercy 199–200 Saul’s experience and implications for 85–8 see also biblical justice; relational justice; restorative justice

K Kainos Community 56–8 Kant, I. 149, 150–1, 157, 160, 170 Kearney, R. 86 Keynes, J.M. 93 Kierkegaard, S. 259, 260, 261 King, M. Luther, Jnr 266 Knight, C. 208 Knox, D.B. 53–4 kpr 81–3, 126 Kuhn, T. 263 Kwon, D. 112–13

L Laing, R.D. 260, 268 Last Judgement 56 law impartiality of 26–7 Jesus’ attitude to 23–7 origins of 98 popular knowledge of 62 prison regimes 25–6 see also biblical law legal values 48 Lewis, C.S. 199 lex talionis 6, 148, 152, 153 Liebling, A. 26, 32, 33, 35, 321 Loader, I. 4, 7, 8, 24, 257 Loader, W. 25 ‘logic of superabundance’ 157, 158, 159, 160 Lonergan, B. 255, 262–3, 264, 265

335

CRIMINOLOGY AND PUBLIC THEOLOGY

Long Lartin 26–7 Lord’s Prayer 147 love of enemies 225–6, 235–6, 236–8 Sermon on the Plain and focus on 154–5, 157, 159 of neighbourhood 226, 228–36 Luckmann, T. 264 Luther, M. 10 Lyon, D. 298, 300–301

M MacIntyre, A. 87, 184 Maglione, G. 305, 306 Mair, G. 196 managerialism, systemic 32, 40n24 example 34–5 Marshall, C.D. 10, 113, 131, 134, 160, 177, 178, 180, 221, 228, 232, 324 Maruna, S. 74, 85, 140, 147, 182, 183, 184, 205, 210, 212 Marx, K. 93–4 mass, celebration of 94–5 McFadyen, A. 220, 234, 240 McIntyre, J. 100 McNeill, F. 4, 181, 202, 203, 205, 206, 324 McWilliams, B. 149, 197, 198 Mead, G.H. 99 mental illness 247–71 flexible definitions of sanity 248–52 imprisonment and 247–8, 252–5 racialized discourse of 253 reasons for incarceration of people suffering from 255–61 socioeconomic status and 253–5, 258–9 theology of ‘mad’ prophets 261–5 mercy 167–94, 195, 324–5 communication, penance and 171–5 contemporary application 200–204 desire and possibility of desistance 181–9 forgiveness and 170–1, 325

in contemporary probation practice 204–210, 211 at odds with justice 199–200 as operative condition of justice 175–81 police court missionaries and notions of 197–9 retribution and eclipse of 168–71 Mercy Seat 85 Merton, T. 267, 268–9 metanoia 27, 28–9, 31, 37, 38–9n14 Milbank, J. 79 military force 219 Millie, A. 2, 3, 7, 8, 146, 150, 151, 156, 158, 206, 207, 208, 210, 321, 328 misericordia 172, 176 monistic justifications 36 Moore, J. 201 Moore, M. 170, 173–4, 297 moral rehabilitation 205 theory 36 Muers, R. 309, 310–11 Murphy, J. 170–1 myth, interpreting 78–80

N naive idealism 146, 147, 159, 319 Nancy, J.L. 86–7 Nathanson, D. 118 natural shame 116–17 neighbourhood crimes and ordering of public space 230–1 love of 226, 228–36 Nellis, M. 210, 211 neoliberalism 72, 257, 305 neurosis 260–1 New Jerusalem Bible, 1985 77–8 ‘new penology’ 32–5, 39n22 New Testament Matthew 22, 31, 53, 59, 98, 132, 147, 151, 152, 153, 155, 156, 167, 177, 179, 188, 229, 248, 309, 320, 321, 324

336

INDEX

Mark 24, 27, 52, 119, 131, 132, 133, 229, 266 Luke 10, 31, 52, 76, 83, 85, 104, 131, 134, 150, 154–5, 159, 177, 178, 229, 266 John 9, 78, 83, 84, 134, 302 Acts of the Apostles 75, 76, 77–8 Romans 54, 55, 84, 119, 124, 125, 127, 128, 129, 130, 134, 138, 152, 176, 177, 178, 179, 180, 185, 187, 188, 302, 322 1 Corinthians 114, 120, 136, 140, 248 2 Corinthians 137, 140, 174 Galatians 75, 77, 84, 104, 128, 133, 134, 137, 138, 159, 181, 187 Ephesians 147, 179, 180 Philippians 75, 76, 128, 130, 136, 137 Colossians 147, 148, 179, 180 1 Timothy 53, 119, 124, 138 Hebrews 11, 55, 104, 119, 120, 124, 126, 130, 132, 137, 141, 188, 302 James 85, 167, 179 1 John 179 Revelation 56, 98 Nicolet-Anderson, V. 187–8 Niemöller, M. 96 Nietzsche, F. 72, 73, 98

O O’Donovan, O. 10–11, 151, 172 Offender Rehabilitation Act 2014 30 offenders ‘acceptance of sinners’ 31–7 character of 50, 67n8 Christian values and treatment of 5, 223–5 feelings of deadness in persistent 111–12 metanoia 28–9, 37 mutual trauma of victims and 206 neighbourhood confrontation of 233–5, 236–7

perpetuation of criminal status of 288 shame-induced violence 112–13, 118, 256 surveillance of 307–308 we are all 155–6, 158–9, 322–3 Old Testament Genesis 53, 66, 97, 112, 115, 153 Exodus 60, 61, 62, 151, 176, 179 Leviticus 48, 59, 60, 62, 80, 81, 95, 126, 229 Numbers 50, 125 Deuteronomy 6, 23, 24, 25, 48, 49, 50, 59, 61, 62, 64, 66, 83, 97, 133, 148, 152 Joshua 50 Judges 66 1 Kings 50 2 Chronicles 61, 64 Psalms 53, 126–7, 129, 133 Proverbs 152 Jeremiah 175, 256 Hosea 107 Amos 55, 97 Micah 9, 328 Zechariah 60

P panopticism 297, 298, 314 Pattison, S. 115, 116, 118, 140 Paul, Saint 72, 74–8, 134, 137, 152, 159, 174, 181, 185, 187 alternatives to retributivism 104 background 75–6 baptism 84 conversion 74–5, 77–8 creatio ex materia 73, 75, 85 dealing with his past 74–5 developing a new identity 85 feelings of shame 128–9 interpreting experience of 83–5 interpreting Scriptures on 78–9 on justice and mercy 178–9, 180 no requirement to atone or repent 74, 84–5

337

CRIMINOLOGY AND PUBLIC THEOLOGY

Paul, Saint (continued) persecution of Jesus movement 76–7 on sin 127–8 penal policy alternatives to retributivism 103–105 under Johnson 71–2 satisfaction theory and 101–103, 107 theological literature and engagement with 222–4, 228 ‘Transforming Rehabilitation’ policy 30 penitential time, gift of 168, 179, 180–1, 184 philanthropia 187–8 Pinel, P. 256 Plato 248, 262 pluralistic justifications 36 police court missionaries 196–9, 211 policing absence of theological engagement with 217–19, 220–1, 224–5, 238 Christian ethics and consideration of force in 219 code of ethics 220 consent to searches 242n17 cruciform surveillance of 308 enforcing good social order 229–30, 235 investigative space created by powers of detention 232–5 as love of enemies 225–6, 235–6, 236–8 as love of neighbourhood 226, 231–6 powers of arrest 233–4, 235, 242n15 reassurance 290 religion and faith communities in relation to 219–20 responsibility for suspects’ wellbeing 238 serving a specific social order 226–8

use of force in interactions with suspect 237–8, 239–40 Poplin, M. 154 Porter, R. 248, 267–8 poverty confining those in 253–4 sentencing and taking account of 197–8, 201 and suffering in global South 303–304 surveillance of those in 299 praesentia explosiva 303, 304, 312 pre-sentence reports (PSR) 200–201 Preston, R.H. 2, 11, 66 prisons overcrowded conditions 1–2 as part of society 64 population in UK 51, 66 regimes in 25–6 release on temporary licence (ROTL) policy 32–4 religious conversions in 140 vulnerability of disadvantaged people in 26–7 women in 200 see also faith-based units (FBU); imprisonment probation service application of mercy in Woodward case 200–204 case for mercy in contemporary 204–210, 211 creation of 196–9 deprivation and pains of supervision 202–203 economy of gift in relation to 207, 208 perceptions of supervision orders as ‘soft option’ 201–202 pre-sentence reports (PSRs) 200–201 pursuing a humanistic 208–210, 211–12 ‘Transforming Rehabilitation’ policy 30 US offender-funded model 201

338

INDEX

Prodigal Son parable 10, 31, 131, 177–8 prophets inadvertent 256–8, 267 necessary message of 266–9 stigma and persecution of 265–6 theology of ‘mad’ 261–5 common sense 263–5 insight 262–3 public criminology 6–8 public shaming 119–21 public sociology 7 public theology 4, 8–11 criminal justice reform, relational justice and 58–65 and growth of faith-based prisons 51–8 sentencing and 51 ‘seriousness of offence’ and 46–51 punishment church reports’ focus on 222 communicative justification of 171–5, 209 Conservative policy and necessity of 71–2 contemporary theory 35–6 fundamental to retributivism 101 in Scripture 6, 97–9 by and in the community 64–5 as an inclusionary practice 34 and increased feelings of shame 112–13 ‘masters of suspicion’ on religion and 98–9 as a means to atone for sins 139 need to challenge retributive 3, 113, 212–13 person-oriented vs. act-oriented 50 reasons for 96–7 satisfaction theory and 100, 101, 107 satisfactory 173 ‘seriousness of offence’ and 47–8 theological engagement with 222–5, 227–8 to deal with sin and crime 96–7 Pycroft, A. 72, 74, 80, 82, 84, 87

R racialized discourse of madness 253 radaph 61 rage, feelings of 256–7 Rainer, F. 196 recidivism 33, 106, 181, 182, 211, 300 reciprocity 151, 156–7, 160 of mercy 179–80, 197 redemption scripts 74, 140, 147, 184 rehabilitation as ‘inherently Christian’ 146–7 judicial 205 merging treatment and punishment for 71–2 models of 182–4 moral 205 reimagining 204–206 social 205 ‘Transforming Rehabilitation’ policy 30 turn away from ideal of 2, 199 reintegrative shaming 152–3, 325–6 relational desistance 181–2 relational information 296, 310, 312–13, 314 relational justice 10, 58–9 biblical justice and 60–5, 175 national priority 61–2 part of vocation of humanity 60–1 popular knowledge of law 62 proactive role of victim 63–4 punishments in community 64–5 social order founded on family 63 biblical law and 59–60, 66 project 58–9, 60 relational knowledge 296, 310–12 relationships imprisonment and impact on 53–4, 66 promoting quality of 59–60 release on temporary licence (ROTL) policy 32–4, 40n25

339

CRIMINOLOGY AND PUBLIC THEOLOGY

remorse pain of 172, 173–4, 181 restorative justice and 281–2 repentance collective 29–30 ‘desistance from crime’ and 28–9 Jesus’ call to 27–30 mercy and 174–5 restoration 325–6 restorative gaze 296, 313–14 relational information and 312–13 relational knowledge and 310–12 restorative justice 5, 304–306 audiences for forgiveness 286–9 Circles of Support and Accountability 105–106, 107 contractualised self and 306 cruciform surveillance in process of 306–310, 314 estimates of willingness to participate 280 forgiveness and 284–6 as a Foucauldian dispositif 305 identity construction 306 motives for participation 279–80, 285, 287 shame and 120 temporal sequencing 280–2 victim-offender mediation 277–82, 305 wider community and 289–90 retribution 96, 152, 153, 319–20 and eclipse of mercy 168–71 Jesus’ repudiation of 177 pain of remorse and 173 reconciliation and 147, 153, 155 and separation of justice from mercy 172 retributive desert theory 199 retributivism 101–102, 103, 169–70, 172, 175, 177 alternatives to 103–105, 107 Ricoeur, P. 151, 152, 157–8, 159, 207, 322, 323 righteousness 59–60 risk assessment 32, 39n23 preparing prisoners for release 32–4

surveillance and 299–300, 314 risk, need and responsivity model (RNR model) 182–3

S Sampley, J. 73, 84 sanity flexible definitions of 248–52 gap between insanity and 267–8 pretence of 247, 266–7, 268–9 sarx 83 Satan 55, 85, 104 satisfaction theory 99–101 penal policy and 101–103, 107 Saul see Paul, Saint scapegoating 79–80, 81, 82 Schama, S. 74 schizophrenia 251, 253, 257–8, 259, 262 Schutt, R. 250–1, 259 secularisation 4–5 sentencing accountability in 64–5 custodial 51, 66 creating a breathing space 234–5 perceptions of suspended supervision orders 201–202 public theology and 51 restorative justice and 284 taking account of social deprivation 197–8, 201 ‘seriousness of offence’ 46–51 descriptive registers 48 extent of impact 49–50 ‘harm’ and ‘wrong’ 49 in biblical law 47–51 problem of 46–7 public theology and sentencing 51 semiotics 47–8 stigma and character 50, 67n8 use of multiple jurisdictions 49 Sermon on the Mount 132, 151, 155, 156, 320 Sermon on the Plain 154–6, 157, 159 Shakespeare, W. 195

340

INDEX

shame compass of 118 constructive feelings of 123 dying in 132–4 dying to 134–8 affording a new identity 137–8 exposing and cleansing of personal shame 136–7 new source of spiritual empowerment 138 subversion of stigmatisation and social shaming 135–6 worth of every person 134–5 economic status and 256 guilt and 121–3, 128, 129 in Garden of Eden 115 -induced violence 112–13, 118, 256 Jesus and conquest of 130–2 Paul’s feelings of 128–9 problem of definition 114–15 secular attempts at redemption and rehabilitation to relieve 140–1 sin and 127, 128–9 soteriology of 124–5 varieties of 116–21 acute or functional shame 117–18 chronic or dysfunctional shame 118–19, 134 natural shame 116–17 social or public shame 119–21 shaming, reintegrative 152–3, 325–6 Shapland, J. 2, 29, 204, 274, 276, 277, 278, 279, 280, 281, 282, 284, 285, 286, 287, 288 Sheep and the Goats parable 309, 321 ship of fools 249 sin 124, 147 atonement to detoxify contagion of 126, 139 crime and 95–6 ways of dealing with 96–7 as guilt, shame and servitude 125–9

Jesus and problem of 129–30 purifying of 140 sinners, open pastoral acceptance of 31–7 Skotnicki, A. 3 Sobrino, J. 105, 303 social order founded on family 63 good 229–30, 235 in late modern consumer capitalism 185 policing serving a specific 226–8 social rehabilitation 205 social shaming 119–21, 131 resisting 120 subversion of stigmatisation and 135–6 Society of St Dismas 87 socioeconomic status in late modern consumer capitalism 185 and mental illness 253–5, 258–9 shame and unequal 256 sociology 5, 7 Sparks, R. 4, 7, 8, 26, 27 spiritual transformation, concern for 54–5 Stacey, Dame G. 30 Stark, R. 5 Stephen 76 Stevenson, B. 195, 209, 323, 324 Stoddart, E. 3, 297, 301, 308 ‘strenuous commands’ of Jesus 22, 34, 35, 36 ‘structure of feeling’ 94–5 superabundance, logic of 157, 158, 159, 160 surveillance 296–8 actuarial youth justice 300, 314 algorithmic oppression 299–300, 301 asymmetrical transparency 299 capitalism 298, 305, 309 from the cross 296, 301–304 in restorative justice process 306–310, 314 cultures of 300–301

341

CRIMINOLOGY AND PUBLIC THEOLOGY

suspended sentence supervision orders 201–202 synopticism 298 systemic managerialism 32, 40n24 example 34–5 Szasz, T. 265

victims discourses of victimhood 306 in scapegoating 80 mutual trauma of offenders and 206 pain of 145, 155, 160 proactive role of 63–4 punishment and value of 170 ‘rebalancing’ of criminal justice in favour of 71–2 violence breaking cycles of 85–8 income inequality and 256 perpetrators’ reasons for use of 111–12 shame-induced 112–13, 118, 256

T technology 304 sacramental 304, 308–309 surveillance 300–301, 306, 307–308 Ten Commandments 24, 59, 85 Teresa, Mother 154 Thompson, E.P. 94 Torah 23–5, 59, 97, 311 torture 102, 133, 237–8 ‘Transforming Rehabilitation’ 30 Truth and Reconciliation Commission, South Africa 155, 206 tsedaqah 59–60, 175 Tutu, D. 2, 155, 207

U uBuntu 206–207 United States of America (US) mass incarceration 2 mentally ill people in prison 247–8, 252–3 National Association for Evangelicals (NAE) 6 offender-funded probation 201 Unnever, J. 6 Ure, A. 94

V Van Camp, T. 278, 284, 285 Vatican 149 Veerkamp, T. 103, 104 victimless crimes 49, 50

W Ward, T. 182, 183, 184 Warren Hill 32–4 Wesley, C. 96 Whitaker, R. 251, 256, 257, 258 will to power 73, 85 William the Conqueror 101 Williams, R. 94 Willis, G. 184 Wilson, G. 273, 275, 282, 287, 290 Winlow, S. 72 Wittgenstein, L. 250, 252, 255 Woodward, L. 200–204 Woolf, Lord 59, 65 Wright, T. 29, 54, 327

Y youth justice 300

Z Zaibert, L. 35–6 Zehr, H. 283, 288, 304, 311 Ziesler, J. 128 Žižek, S. 6, 72, 73, 75

342

“Criminology has neglected its inevitable relationship with theology for decades. This important collection offers vital resources for reimagining how we might best understand and attend to human dignity, hope, mercy and restoration in criminal justice.” Fergus McNeill, University of Glasgow

“A pioneering study of what Christian theology and ethics could contribute to a more humane understanding of criminology, which engages with those few theologians who have paid careful attention to the issues raised within criminology.” Robin Gill, University of Kent

“Criminology is full of ‘theological’ ideas – punishment, justice, transgression, mercy, forgiveness and hope. This insightful book brings these fields together, showing that the deepest yearnings of humanity lead us to love and justice.” Alison Liebling, University of Cambridge

Andrew Millie is Professor of Criminology at Edge Hill University.

At a time when criminal justice systems appear to be in a permanent state of crisis, leading scholars from criminology and theology come together to challenge criminal justice orthodoxy by questioning the dominance of retributive punishment. This timely and unique contribution considers alternatives that draw on Christian ideas of hope, mercy and restoration. Promoting cross-disciplinary learning, the book will be of interest to academics and students of criminology, sociolegal studies, legal philosophy, public theology and religious studies, as well as practitioners and policy makers.

ISBN 978-1-5292-0739-2

@policypress

@BrisUniPress BristolUniversityPress bristoluniversitypress.co.uk

9 781529 207392