“Historically, mass incarceration has its roots right after the Emancipation Proclamation and during Reconstruction, with what is known as the “Black Codes” -- legislation that criminalized blackness with things like vagrancy laws. Blackness in and of itself became criminalized, and that led to the convict leasing system. You had people who were incarcerated, working for people who owned them just months prior” [Gilliard, 6].
“The same is true for women, whose incarceration rates have for decades risen faster than men’s, and who are often behind bars because of financial obstacles such as an inability to pay bail” [Sawyer, 30-1]. The Type of Offense data also demonstrate that the types of offenses that have been criminalized skew prosecution towards persons of color. For example, many return to prison for what are considered “technical offenses” associated with violations of probation or parole, not for new offenses. This is especially true for the 63,000 youth in confinement in the United States. “Too many are [confined] for a “most serious offense” that is not even a crime. For example, there are over 8,100 youth behind bars for technical violations of their probation, rather than for a new offense. An additional 2,200 youth are locked up for “status” offenses, which are behaviors that are not law violations for adults, such as running away, truancy, and incorrigibility. [Sawyer, 25] New work by Bazelon also demonstrates the role of the prosecutor in selecting the charge to be brought before the court. Bazelon reports that more than 90% of cases end in plea bargains that give even more power to prosecutors. She discusses 2 ancillary issues associated with the prosecution portion of the legal system. The first, confirmation bias, is the tendency to seek and interpret information such that it confirms a previously held belief, such as implicit racism. Secondly, institutional pressures reward conviction rates rather than appropriate application of sentencing. Both of these elements lead to bias in the charges brought against alleged perpetrators.
Racism is antithetical to our Faith Traditions’ sacred texts and historic teachings. The founder of Bahá’i, Bahá’u’lláh, said, “Know ye not why We created you all from the same dust? That no one should exalt himself over the other…” [Sobhani, 18]. Abrahamic faith traditions understand that there is something that reflects the Divine One in every person. “Because people are created in God’s image, all human life has special value” [Telushkin, 261]. The founder of Quakerism, George Fox, said, “There is that of God in everyone.” The Sanskrit word Namaste, means “the Divine in me acknowledges and greets the Divine in you.” The Sikh Tradition states, “God resides in all, therefore every individual is linked to the other by the ties of mutual co-operation and co-existence. We are tied with other with an invisible string is this in the hands of God ‘In all selves art Thou abiding. In Thee are all sharers; to none dost Thou appear alien’ (Sri Guru Granth Sahib, 97)” [Alag, 21-22]. Allah said in the Quran, ‘O people, We have created you male and female and made you into nations and tribes that you may know one another. Verily, the most noble of you to Allah is the most righteous of you. Verily, Allah is knowing and aware.’ Quran (49:13). “Racism ascribes false values to human difference. Therefore, it is inherently sinful. The true evil of racism gives license to the use of power to dominate others” [The Episcopal Diocese of Arizona, 1]. See also Faiths’ Response to Racism on the AFN website.
How can persons of faith engage with elements of the criminal legal system that oppress persons of color? Study and understand legislation that seeks to reform mandatory sentencing. Explore the fwd.us website for information on criminal justice reform and immigration reform legislation. Contact the African American Christian Clergy Coalition for information about bills currently before the AZ legislature. Applaud and support the internal activities of associations of prosecutors who are seeking to eliminate bail for many non-violent offense charges, changing the classification of some offenses from criminal to misdemeanors. Elect District Attorneys who support these changes. Address the School to Prison Pipeline that funnels young people of color into the criminal justice system. Participate in AFN programs such as Smart Justice Café programs and calls for action in its Mission Focus Topic, Criminal Legal Reform.
Justice vs. Revenge
There are four models of incarceration:
Retribution (punish the perpetrator) - revenge driven,
Rehabilitative (reform/modify the behavior of the perpetrator),
Restrictive (restrain the perpetrator in order to protect society),
Restorative (create reconciliation between the perpetrator, the victims, and society).
Much of the current US criminal justice system sentencing approach is based on the first, punishment. While some convicted offenders are so violent that they do need to be removed from the community as a whole, at least for some period of time, that restrictive aspect of incarceration does not have to be predicated on a punishment model.
Mandatory Sentencing emerged from the “Get Tough on Crime” and “War on Drugs” policies of the 1980’s and 1990’s. Playing on white middle class fears, many of these penalties were meant by their harshness to serve both as punishment of the offender and as a deterrent to others. While they have done the former, current studies indicate that they do not serve as deterrents for other persons who might be potential offenders. Economic drivers are the most critical for non-violent crime. Studies show that even murder is most frequently driven by emotional responses rather than rational decisions. In addition, the War on Drugs has incarcerated 6 times the number of persons for possession as for selling drugs, and the drug crises of today includes the misuse of prescription drugs, which are not inherently illegal.
Our faith traditions and sacred texts affirm that the punishment should fit the crime. The oldest law code, Hammurabi’s from the 2nd millennium before the common era, limits punishment to “an eye for an eye,” rather than the death penalty for stealing bread. Other examples of the concept can be found in TANKH, Ex. 21:23-27, NRSV Luke 6:38-46, and the Qu’ran 16:126 for example. These texts address our human tendencies for escalation and revenge. The repetition of the word Justice in the Hebrew Torah, “Justice, Justice you shall pursue” (Deut. 16:20) “is not only for emphasis, but signifies that just ends must be reached by just means” [Rabbi Bonnie Sharfman, email dated 4/13/2019]. “Clarence Jordan has pointed out that the Greek for “evil” can mean either “by evil means” or “the evil person.” Either translation is equally good according to Greek grammar; the decision must come from the context. The context is that Jesus repeatedly confronts evil, but never by evil means, and never by means of revengeful violence. Therefore, the context favors the instrumental “Do not resist by evil means.” [Stassen, 138]. “See that none of you repays evil for evil, but always seek to do good to one another and to all” (NRSV, 1 Thes. 2:15; similarly, Luke 6:22-36, Romans 12:15-19). The Qu’ran says, “They give food, in spite of the love for it, to the needy, the orphan and the prisoner.” “Shall I inform you of a better act than fasting, alms, and prayers? Making peace between one another: enmity and malice tear up heavenly reward by the roots.” [Prophetic Hadith in Nasr, 238]. The Hadith reports that the Prophet, Peace be upon Him, said, “I enjoin you to treat the captive well.” So the question for persons of faith is whether prison acts to “do good to” or to “love” the prisoner? “No religious group which takes its values seriously should rest content until (we) demand and get a system which will correct and not merely punish, rehabilitate and not debilitate, which will treat prisoners and not merely stigmatize them, which will regard them as human beings whom we must strive to restore to usefulness and not as open targets for social vengeance” [Vorspan, 203]. “The Quran warns Muslims, in no uncertain terms when it states, “Let not hatred of a people cause you to be unjust” (5:8). Grievance can turn to anger and hatred, but that cannot be the basis of blind revenge” [Nasr, 263]. This goes beyond rehabilitative justice to restorative justice. The focus of our faith traditions is on restoration of relationship and community for the victim and victim’s family, the offender, and the offender’s family, and the community itself.
Mass incarceration has also reduced the amount of support available for individuals when they have completed their sentence. There is little to no governmental system to help persons re-enter society. “Confinement is just one piece of the larger system of correctional control. There are another 840,000 people on parole and a staggering 3.6 million people on probation. Given the onerous conditions of probation and the steep consequences for technical violations, policymakers should be wary of “alternatives to incarceration” that can easily lead to incarceration for people who pose no threat to public safety” [Sawyer, 30]. A staggering 1 in 4 Americans has a criminal record. “Technical violations are the main reason for incarceration of people on parole or probation, not new crimes” [Sawyer, 22]. However, in the conversation about criminal legal reform and mass incarceration, the term “justice” tends to take on the singular meaning of punishment. The Pew Charitable Trust reports, “…all states have become more punitive. Even though overall crime and arrest rates are down from the early 1990s, states are exacting sentences at a rate 165 times harsher than they were for the same crimes previously. Prosecutors now seek felony charges after an arrest much more frequently than they did even a decade ago” [Stetzer, 2].
However, in our faith traditions, the words translated justice (and in English too, for that matter) all convey a much broader range of meaning:
1. Deliverance of the poor and powerless from the injustice that they regularly experience,
2. lifting the foot of domineering power off the neck of the dominated and oppressed,
3. stopping the violence and establishing peace, and
4. restoring the outcasts, the excluded, the exiles, and the refugees to community.
[see for example Stassen 349].
The Hebrew words tsedaqah (deliverance and community restoring justice) and mishpat (vindication of the rights, especially of the poor and powerless) and the Greek word dikaios (action or legal decision which vindicates or establishes the right) all include these broader concepts of justice that go beyond punishment. Micah 6:8 (TANAKH and NRSV) links doing justice with steadfast love. The Qu’ran addresses this broader meaning of justice in Sura 5 for example; “O believers, be steadfast before God, witness for Justice (Q5:8)” and “God loves the just (Q5:42).” Bahá’u’lláh said, “The light of men is justice. Quench it not with the contrary winds of oppression and tyranny” [Sobhani, 43]. In fact, imprisonment as punishment does not occur in the Hebrew Torah. It did not exist as punishment in Roman law. “Although these are transgressions against God, repentance is accepted and the Hadith strongly limits the application of hudûd, as we also see in the case of Jewish Law” [Nasr, 152].
Therefore, people of faith are called upon to do justice on behalf of prisoners by caring for them during their incarceration rather than warehousing them, and for caring nurture as they re-enter the community upon their release from incarceration. “Restoration, not punishment, is at the heart of God’s justice…Divine justice is restorative and reconciling, not retributive and isolating. And the restorative nature of God’s justice is woven throughout Scripture. God works amid brokenness, restoring victims, communities and offenders” [Gilliard, 2]. All our faith traditions affirm that the criminal, too, is a human being and that transformation of all persons is possible (TANKH and NRSV Ez. 3:11; The Qu’ran, 8:70). “With all other forms of punishment, the individual suffers the penalty, is cleansed of his sin, and is then restored to freedom where he is expected to resume a productive life in the making of a more G‐dly world. As a prisoner, however, one is denied the freedom to fulfill his divinely ordained mission, and hence, his reason for living. To allow one to live and yet to deprive him of living, is inhumane” [Schneerson, 18]. “Remember the humanity of prisoners and how to uphold the rights of those who have wronged us and most importantly, the ability for reform, tawbah, is always there” [Nsour, 3].
How can persons of faith engage with restorative justice? Find ministries within your own faith community with which to participate, such as the Buddhist organization Compassion Works for All, the Presbyterian Church’s Prison Partnership Program, and the Ministry to Arizona Correctional Facilities by the church of Jesus Christ of Latter Day Saints. Read and engage with your faith tradition’s statement on restorative justice. A partial listing is included in the references below.
Capital Punishment
Since this reflection is focused on reforms of mass incarceration, the issue of capital punishment is not addressed in depth. However, many of our faith traditions have taken formal positions against capital punishment.
How can persons of faith engage with the issue of capital punishment? Read and engage with your faith tradition’s statement on capital punishment.
The Big Business of Incarceration
“Private prisons are most often situated in sparsely populated rural communities that need jobs and economic revitalization. So when you bring a private prison, you bring jobs. The prison has a contract that dictates bed minimums, which range from 70 percent occupancy every night to 100 percent occupancy. In Arizona, they have three private prisons that require 100 percent bed occupancy every night. If you have unoccupied cells within the facility, you’re in violation of the contract and the private prison company can sue the community. That has happened.” [Gilliard, 6].
Although some states have more private prisons than others, in 2016 Arizona ranked third in the nation for the number of prisoners incarcerated in private prisons, 8,285 [sentencingproject.org]. Nonetheless, less than 8% of all incarcerated people are held in private prisons; the vast majority are in publicly owned prisons and jails. [Sawyer, 6]. However, the issue is that the private prison industry has lobbied to maintain high levels of incarceration. In addition to contract fees if 100% occupancy is not maintained, most prisons - public and private - rely on the labor of incarcerated people for various in-house operations, and they pay incarcerated workers far below the minimum wage. Sawyer et al report that on average, incarcerated people earn between 86 cents and $3.45 per day for the most common prison jobs and many states pay nothing at all. Workers who are incarcerated have few protections. “Forcing people to work for low or no pay and no benefits allows prisons to shift the costs of incarceration to incarcerated people – hiding the true cost of running prisons from most Americans” [Sawyer, 20]. In addition private industries and public agencies profit from the overall prison system - public and private. Contracts for food and health services, telecom, and commissary is a multibillion dollar business with no public oversight. “By privatizing services like phone calls, medical care and commissary, prisons and jails are unloading the costs of incarceration onto incarcerated people and their families, trimming their budgets at an unconscionable social cost” [Sawyer, 18]. Many city and county jails rent space to other agencies, including state prison systems, the U.S. Marshals Service, and Immigration and Customs Enforcement (ICE).
Our sacred texts abhor those who profit from the misfortunes of others and oppress the poor, the weak, and the disenfranchised for economic gain. “The Islamic, and more generally the Semitic, concept of law, which is associated with the Will of God and is meant to determine society rather than be determined by it…” [Nasr, 115]. The Abrahamic faiths understand that God created all humans in God’s own image, tzelem Elokim in Hebrew, therefore, maintaining human dignity is a foundational principle for our faiths. “Know thou that all men have been created in the nature made by God [from the Tablets of Bahá’u’lláh in Sobhani, 41]. Right Vocation, the Fifth element of the Buddhist Eightfold Noble Path starts, “One must not engage in any business or profession that involves cruelty or injustice to either men or animals” [Goddard, 648]. Even those who act unjustly require just treatment.
How can persons of faith engage with the Big Business of Incarceration? Ask about oversight commissions on prisoner fees, such as telephone and food, request reports on prisoner employment and remuneration, and continue to advocate for the reduction of private prisons within the state of Arizona and nationally.
CONCLUSION
Starting in the 1990s, the “get tough on crime” policies in America resulted in building a new prison every two weeks. While violent crime has decreased by 51 percent 1991-2019, property crime is down by 43+ percent, and overall crime rate is less than half of its 1991 numbers, nonetheless spending on jails and prisons reached nearly $81 billion in 2010. Today, nearly 7 million people are incarcerated, on probation, or on parole in the U.S. With the escalation of numbers has come escalation of abuses. People of faith are called to participate in the processes that will lead to reform of the entire system. The Arizona Faith Network invites persons of all faith traditions to participate in AFN’s Mission Focus Topic, Criminal Legal Reform.
CITATIONS FROM SACRED TEXTS
Ahamed, Syed Vickar, translator. The English Translation of the Message of the Quran. (Lombard: Book of Signs Foundation) 2006.
Alag, Sarup Singh. Some Universal Sayings from Sri Guru Granth Sahib. (India: Alag Shabad Yug Trust) 35.
Goddard, Dwight. A Buddhist Bible (Boston: Beacon Press) 1994.
The Holy Bible: New Revised Standard Version. (Nashville: Thomas Nelson Publishers) 1989.
Sobhani, Mouhebat. Bahá’i: Teachings for a New World Order (New York: Waldorf) 1992.
TANAKH: The New translation of the HOLY SCRIPTURES According to the Traditional Hebrew Text. (Philadelphia: The Jewish Publication Society) 1985.
Unal, Ali. The Qur’an with Annotated Interpretation in Modern English (Somerset: Tughra Books) 2008.
REFERENCES
The 214th General Assembly (2002) Presbyterian Church (U.S.A.). Resolution on Restorative Justice. PDS #OGA-02-050.
Achtemeier, P. J., Harper’s Bible dictionary (1st ed.) (San Francisco: Harper & Row) 1985.
Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press) 2010.
American Baptist Churches. Policy Statement on Criminal Justice, Adopted by the General Board of the American Baptist Churches - December 1983. (General Board Reference #7034:12/83)
Archives of The Episcopal Church, Office of Government Relations. Research Report: Policy Advocacy on Criminal Justice. June 6, 2018.
_____. Resolution Number: 2015-A011. Title: Urge Advocacy for Policy Changes to End Mass Incarceration Practices. Legislative Action Taken: Concurred as Substituted and Amended. Acts of Convention 2015.
Baylor, Barbara. The Interfaith Witness for Criminal Justice Reform Spring 2015 http://www.uccfiles.com/pdf/criminal-justice-2015-interfaith-witness.pdf
Baylor, Barbara. Criminal Justice & Mass Incarceration: Fast Facts Spring 2015 http://www.uccfiles.com/pdf/criminal-justice-2015-fact-sheet.pdf
Bazelon, Emily. Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (New York: Random House) 2019.
The Black Theology Project https://btpbase.org/
Coppock, Jane. Quakers in Action: Reformers in Criminal Justice. Jan 2017. https://www.fgcquaker.org/cloud/new-haven-friends-meeting/resources/quakers-action-reformers-criminal-justice
Church and Society. Criminal Justice Reform. http://www.umc.org/what-we-believe/political-community#criminal-justice
Church and Society. “Stop Criminalizing Communities of Color in the United States” in the 2016 Book of Resolutions #3379 https://www.umcjustice.org/who-we-are/social-principles-and-resolutions/stop-criminalizing-communities-of-color-in-the-united-states-3379
EJI. Mass Incarceration. https://eji.org/mass-incarceration
Evangelical Lutheran Church in America. A Social Statement on The Church and Criminal Justice: Hearing the Cries. The thirteenth biennial Churchwide Assembly on August 17, 2013, at
Pittsburgh, Pennsylvania. https://www.elca.org/Faith/Faith-and-Society/Social-Statements/Criminal-Justice
Ferguson, Sinclair B., David F. Wright, and J. I. Packer. New Dictionary of Theology, (Downers Grove, IVP) 1988.
Gilliard, Dominique D. Mass incarceration is antithetical to the gospel https://www.faithandleadership.com/dominique-d-gilliard-mass-incarceration-antithetical-gospel March 6, 2018.
Grenz, Stanley J. Theology for the Community of God (Grand Rapids: Eerdmans) 1994.
Harvard Divinity School, Christianity, Race, and Mass Incarceration. October 13, 2017 https://hds.harvard.edu/news/2017/10/13/christianity-race-and-mass-incarceration
Hedges, Chris. “Why Mass Incarceration Defines Us As a Society: Bryan Stevenson, the winner of the Smithsonian American Ingenuity Award in social justice, has taken his fight all the way to the Supreme Court,” in Smithsonian Magazine. December 2012. https://www.smithsonianmag.com/people-places/why-mass-incarceration-defines-us-as-a-society-135793245/?no-ist
Islamic Community Center of Tempe. The Basics of Islam at a Glance, (Tempe) 2010.
Jewish Council on Public Affairs -criminal legal reform - various articles. https://www.jewishpublicaffairs.org/
Jewish Prisoner Services. Relevant Citations http://jpsi.org/resources/relevant-citations/
Nasr, Seyyed Hossein. The Heart of Islam: Enduring Values for Humanity (San Francisco: Harper Collins) 2002. Kindle Edition.
Nsour, Rami. Islam and Muslims in the U.S. Prison System. https://www.taybafoundation.org/articles/2020/islam-and-muslims-in-the-us-prison-system
Russell, Joshua. Race and Mass Incarceration February 2, 2016. https://mcc.org/stories/race-mass-incarceration
Sawyer, Wendy and Peter Wagner. Mass Incarceration: The Whole Pie 2019. March 19, 2019. https://www.prisonpolicy.org/reports/pie2019.html
Schlabach, Rachelle Lyndaker. A First Step for Criminal Justice Reform. February 25, 2019. https://mcc.org/stories/first-step-criminal-justice-reform
Schneerson, Rabbi Menachem Mendel quoted in Insights No 12 Summer 1996.
The Sentencing Project https://www.sentencingproject.org/
Sorensen, Sandy. The United Church of Christ & Criminal Justice Reform Spring 2015 http://bit.ly/ucc-criminal-justice
Stassen, Glenn H. and David P. Gushee. Kingdom Ethics: Following Jesus in Contemporary Context (Downers Grove: IVP) 2003.
Stetzer, Ed. The Biblical Call for Justice: Mass Incarceration and the Role of the Church. April 14, 2019.
Stevenson, Bryan A. “Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases,” Harvard Civil Rights-Civil Liberties Law Review Summer 2006. 339-367. http://web.archive.org/web/20101008003046/http://www.law.harvard.edu/students/orgs/crcl/vol41_2/stevenson.pdf
Telushkin, Rabbi Joseph. A Code of Jewish Ethics, Volume. 2: Love Your Neighbor As Yourself (New York: Bell Tower) 2009.
Unitarian Universalist Church in American. Criminal Justice and Prison Reform:
2005 Statement of Conscience https://www.uua.org/print/action/statements/criminal-justice-and-prison-reform
United States Conference of Catholic Bishops. Department of Justice, Peace and Human Development, Office of Domestic Social Development. Criminal and Restorative Justice and Sentencing Reform. CSMG January, 2016
Van Ness, Daniel W. The Role of the Church in Criminal Justice Reform. Justice That Restores Forum. Orlando, FL. 14-16 March 2002.
Virginia Interfaith Center for Public Policy. Faith Statements on Restorative Justice. https://www.virginiainterfaithcenter.org/issues/criminal-justice/faith-statements/
Vorspan, Albert. Great Jewish Debates and Dilemmas (New York: Union Theological) 1980. 203.
Yes, U.S. locks people up at a higher rate than any other country https://www.washingtonpost.com/news/fact-checker/wp/2015/07/07/yes-u-s-locks-people-up-at-a-higher-rate-than-any-other-country/
Winter, Jesse. A Criminal Justice System. October 8, 2015. https://blog.brethren.org/2015/a-criminal-justice-system/
WEB BASED REFERENCES - Racism
https://ag.org/Beliefs/Topics-Index/Racism (Assemblies of God)
The Black Theology Project https://btpbase.org/
“Becoming the Beloved Community Where You Are.” https://www.episcopalchurch.org/racial-reconciliation
The Council of National Black Churches https://www.thecnbc.net/
https://www.elca.org/Our-Work/Publicly-Engaged-Church/Racial-Justice-Ministries (Evangelical Lutheran Church in America)
https://www.elca.org/Faith/Faith-and-Society/Social-Statements/Race-Ethnicity-and-Culture
The Episcopal Diocese of Arizona. An Anti-Racism Theological Statement. Diocesan Anti-Racism Committee. Phoenix, July 2013.
https://www.episcopalchurch.org/racial-reconciliation (Episcopal Church)
Department of Justice, Peace, and Human Development. Office of Domestic Social Development, the Roman Catholic Church. Racism: Confronting the Poison in our Common Home. (Washington: #csmg2016) January 2016.
Horan, Daniel P. “Examining Our Social Sins” in https://www.americamagazine.org/faith/2015/02/11/examining-our-social-sins February 23, 2015.
http://mennoniteusa.org/what-we-do/undoing-racism/ (Mennonite Church)
Moore, R. York, Race in America: Corporate Repentance, and the Cross We Collectively Must Bear https://www.christianitytoday.com/edstetzer/2016/october/race-in-america-corporate-repentance-and-cross-we-collectiv.html
“National Church Dialogue on Anti-Racism” in Province I Convocation of the Episcopal Church. Racial Justice: How do we get there from here? 2001
New Catholic Encyclopedia, COPYRIGHT 2003 The Gale Group Inc. https://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/social-sin
https://oca.org/news/headline-news/assembly-of-bishops-responds-to-racist-violence-in-charlottesville-va (Orthodox Church in America)
https://facing-racism.pcusa.org/ (Presbyterian Church in the USA)
https://reconciliationministry.org/who-we-are/the-initiative/ (Disciples of Christ)
https://reformjudaism.org/jewish-views-civil-rights
Theological Declaration on Christian Faith and White Supremacy, https://www.redletterchristians.org/theological-declaration-on-christian-faith-white-supremacy/
Unity Declaration on Racism and Poverty Letter to the United States Congress, January 31, 2018. https://bread.org/sites/default/files/downloads/circle-of-protection-unity-statement.pdf
https://www.ucc.org/justice_racism (United Church of Christ)
https://www.umc.org/en/content/ask-the-umc-what-does-the-united-methodist-church-say-about-racism (United Methodist Church)
http://www.usccb.org/issues-and-action/human-life-and-dignity/racism/index.cfm (US Council of Catholic Bishops)
https://www.uua.org/action/statements/toward-anti-racist-unitarian-universalist-association (Unitarian Universalist)
