Posted by anderc8 on Thursday, February 2, 2017 in Justice, Mercy and Mass Incarceration, News.

Written by Vanderbilt Law School Professor Edward Rubin

As a law professor, the opportunity to co-teach with Graham Reside, a faculty member from the Divinity School, and have a class with a large representation of Divinity School students, has been a wonderful experience. Everyone is aware of the crucial role that religion has played in our society, of course, but most of my teaching up to this point has been immersed in another mode of thought, that is, the legal system. My co-teacher and students in this class are a constant reminder for me to engage with a different conceptual framework, and to expand the range of my own approach to the crucial issue that the course is addressing.

From a legal perspective, the natural way to think about our nation’s incarceration policy is as a violation of constitutional rights. The book I wrote with Malcolm Feeley just as the astronomical rise in the prison population was beginning (Judicial Policy Making and the Modern State:  How the Courts Reformed America’s Prisons) focused on the way that the conditions in our prisons, particularly those in the Southern states, violated the rights of the prisoners by denying them adequate food and medical care, subjecting them to corporal punishment, forcing them to perform debilitating labor to support the prison, and using other prisoners (armed with guns in some states) as guards.  The story of the book is how the federal judiciary finally realized that treatment of this sort was “cruel and unusual punishment” and thus prohibited by the Eighth Amendment.  This may seem obvious, but a change in legal doctrine was necessary for courts to recognize it and begin to remedy the situation.

When I began thinking about teaching a law school course on the current conditions in American corrections, my inclination was to approach the topic in terms of constitutional rights again. It is obvious, to any reasonable person, that sentencing people to imprisonment for twenty years, thirty years or life for possessing a small amount of a substance that harms only themselves (cocaine is not an explosive), or stealing videotapes or golf clubs from a store after having been convicted of two previous non-violent offenses (the result of California’s “three strikes” legislation), is also cruel and unusual punishment. It is equally clear that the wildly disproportionate imprisonment of African-Americans, as a result of statues (a former 100:1 ratio between penalties for crack and powder cocaine, now “mercifully” reduced to 18:1) and enforcement practices, both policing and prosecutorial, is a violation of the Equal Protection Clause. The federal judiciary’s unwillingness to remedy this situation is once again the result of its failure to rethink outmoded doctrinal rules. Having done so in the case of prison conditions, however, that mental lead should not have been a difficult one; the real reason seems to be political cowardice.

Now that I’m teaching the course with Graham, and to a number of Divinity School students, I’ve had the chance to think about the issue in religious terms as well. There is a lot to be said about this topic, but the basic point is that our incarceration policies are as obvious and as extensive violation of Christian principles as they are of constitutional principles. To begin with, Roman persecution meant that many of the Christianity’s seminal figures were incarcerated. Paul and Silas were beaten, cast into “the inner prison, and [had] their feet [made] fast in the stocks,” a condition from which they were freed by divine intervention (Acts 16:22-40). Peter was imprisoned by Herod, and released by similar means (Acts 12: 4-11).  And, of course, Jesus, who could have chosen any form for His sacrifice, allowed Himself to be subjected to the standard, and incredibly cruel mode of execution that the Romans used for lower class inhabitants of the Empire. It is hard to read such accounts without recognizing their tendency to elicit sympathy for those in prison or subject to capital punishment. Beyond that, Matthew 25:36 explicitly states that those who lack sympathy for prisoners, and make no effort to ease their conditions, will suffer eternal damnation. Many religious leaders in our country, and many voters who identify themselves as devout Christians, have based their political preferences on opposition to abortion and birth control, topics to which the New Testament does not devote a single word. (There is, in fact, a strong negative implication. Luke, by tradition the author of both the Gospel named for him and the Acts, and certainly a follower of Paul, was a gentile physician (Colossians 4:14), which meant that he took the Hippocratic Oath.  Although the Oath contained a direct prohibition on performing abortions, this supposedly important moral topic never came up in either his writings or Paul’s, which together constitute more than half of the New Testament.) Yet many Americans who proudly and insistently identify themselves as Christians, base their votes on abortion or birth control policies and are willing to tolerate, and indeed endorse politicians who support our massive and unjust system of incarceration.

Beyond the Biblical text (I’m still a text-oriented law professor, I admit), it seems to me, as I proceed with the course, that the spirit that imbues the New Testament, and that guides most of the serious theologians who have written in the Christian tradition, is entirely contrary to our current incarceration practices. Ideas about mercy and forgiveness are central to Christianity. More basically still, the religion centers around a sense that all human beings are equal before God, and urges us to show empathy toward one another as fellow sufferers and sinners. The Romans, despite the sophistication of their ethical thought (we also read a section of Plato’s Laws in the course), were shamelessly hierarchical. Plebeians were denied the basic rights and privileges granted to patricians, slavery was accepted without question, gladiators and criminals were slaughtered in arenas for the entertainment of the public, and prisoners of war were executed without mercy. In short, a large part of the population was regarded as disposable, meant to serve no other purpose than the needs of the elite. Christianity set itself in opposition to this prevailing attitude, insisting on the worth of every human being. (While modern scholarship has refuted the idea that it flourished first among poor people, there is no question that it accepted them on a relatively equal basis.) Yet we are willing to impose sentence that essentially take people’s lives away from them for non-violent and essentially trivial offenses (think about the life experience of someone sentenced to thirty years in prison, at the age of twenty-five, for an addiction he could live with, and might otherwise get over in a few years’ time). If the excuse for doing this is to deter others from taking drugs, or committing minor offenses such as shoplifting, we are really no better than the Roman elite who enslaved and slaughtered people for their own entertainment and convenience. The continued support for imprisonment policies among those who identify as Christians is evidence of the same shameless hypocrisy that would also allow them to vote for a racist and a sexual predator for president of their nation. It disgraces the religion they claim to believe in.