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June 28, 2008

Noticing the religious right's prison awakening and a new politics

This New York Times piece, headlined "Unlikely Allies on a Former Wedge Issue," discussus the political activism of some evangelical Christians concerning prison reform.  Here are snippets from an effective piece:

During his years as the attorney general of Virginia, Mark Earley periodically visited his state’s prisons. In a very real way, he was looking at the human consequences of his career as a public servant, the men and women jailed for fixed, lengthy sentences without parole under laws Mr. Earley had endorsed. Not surprisingly, many inmates pulled back a few steps when introduced to their visitor.

Eventually, though, Mr. Earley took their measure. What he discovered, he recalled in a recent interview, were “not the Ted Bundys, the mass murderers” but “kids who reminded me of my kids, serving 5, 10, 15 years for drugs and going out and being rearrested again.”

In those moments of recognition, Mr. Earley began a startling transformation from a tough-on-crime crusader to an advocate for prison reform and a prominent critic of the very type of drug laws he had formerly promoted. Since leaving the attorney’s general’s position in 2001, Mr. Earley has taken his new cause to a position as president of Prison Fellowship Ministries, a national organization based in the Washington suburbs.

Motivated both by religious faith and a secular analysis of public policy, Mr. Earley and the fellowship’s vice president, Pat Nolan, a former California legislator, have regularly testified before Congress, written op-ed essays and given speeches on behalf of efforts to roll back mandatory-minimum sentencing, equalize penalties for crack and powder cocaine, and offer nonviolent offenders treatment rather than incarceration, among other initiatives....

“What’s distinct is that we’re in an ‘Aha!’ moment now,” Mr. Earley, 53, said in a phone conversation.  “The crime issue used to be such a driving wedge between liberals and conservatives, Democrats and Republicans, and now it’s not. In the presidential campaign this year, when have you heard crime as a wedge issue? It’s a common-ground issue, and no one would have envisioned that in the ’70s and ’80s.”...

“What the Prison Fellowship brings to the discussion is a different approach, a different perspective, that says this is not a liberal-versus-conservative debate,” said Marc Mauer, the executive director of the Sentencing Project, a group based in Washington, D.C. “This is about what is effective policy and compassionate policy.”...

What brought Mr. Earley and Mr. Nolan into the debate was a mix of factors. Before their arrival, Prison Fellowship Ministries — founded by Charles Colson after he served a prison sentence for his role in the Watergate scandal — had already staked out reformist positions on prison rape and prisoner rehabilitation.  Mr. Earley referred to his political evolution as “an attitude-adjustment by God.”  Mr. Nolan, 58, experienced his own road-to-Damascus moment while serving a two-year prison sentence in the mid-1990s on a corruption charge. “I went into prison believing in God, and I came out knowing him,” he said. “I understood how much he loved us, even in a dark place.”

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"Mr. Earley referred to his political evolution as 'an attitude-adjustment by God.' Mr. Nolan, 58, experienced his own road-to-Damascus moment while serving a two-year prison sentence in the mid-1990s on a corruption charge. 'I went into prison believing in God, and I came out knowing him,' he said. 'I understood how much he loved us, even in a dark place.'”

Wow. Religion has a place in life. But with all respect to believers, of whom I may or may not be one, it does not have a place in PUBLIC life.

When Pat Robertson opined that the 9-11 attacks were God's punishment for America's tolerating homosexuality, he was rightly ridiculed for engaging in religious blather.

The current version of it from Mr. Early is not as hateful but just as absurd. The idea that God has something to say about whether we should have mandatory minimums or discretionary minimums is preposterous.

I don't claim to know what if anything Divine Wisdom dictates for the particulars of secular law. What makes Mr. Early think that HE knows is beyond me -- except perhaps the odd (to put it charitaby) belief that he has a Special Pipeline to God.

Maybe he does, but there's no evidence of it. When I was growing up, people who thought they had a Special Pipeline to God were not regarded as authoritative, about prison or anything else. They were regarded as good candidates for Belleview.

Posted by: Bill Otis | Jun 28, 2008 8:23:18 AM

Bill,

I'm not a religious believer myself and I share your concern about mixing theology with public policy. Having said that, I think you're being more than a little unfair to Early. He's as entitled to his opinions as you are and if his faith informs his politics, then so be it, provided he can also provide a secular rationale for the positions he advocates, a rationale that is accessible to those of us who are not believers. And, of course, he expressly does just that. More specifically, he is not saying (at least to you and me) that "divine wisdom dictates the particulars of secular law," as you suggest, and still less that he endorses anything Pat Robertson has said about 9-11. I think it's more accurate to say (roughly) that his religious faith has persuaded him that our sentencing laws are too harsh, regardless of the details. You might disagree, to be sure, but that is certainly not an absurd position.

Posted by: anon | Jun 28, 2008 9:32:44 AM

Anon:

I agree that the position is not absurd (although I think it's wrong in part). My problem with these guys is that they seek to add authority to their views by announcing them in the name of religion.

I didn't mean to suggest, and I don't think I did suggest, that Early was endorsing anything Robertson said. What the two of them have in common is not any particular substantive belief (although they might, I just don't know), but the view that "What I say is inspired by God."

Well, maybe it is. But I sure wish they'd keep the inspiration to themselves. Religion is a private matter. If more vocational training in prison is a good thing (and I agree with Early that it is), let him make the case for it analytically and leave God out of it. If statutory minimums are a bad thing (and I disagree with him on that), same deal.

I don't want to come across as an enemy of religion. The most brilliant and compassionate person I ever met (an undergraduate professor of mine) was also one of the most religious. I would have to say that the majority of my friends who are happy, well-adjusted and stable are also religious, and I think their religion contributes to their well-being.

The problem (and the irony) is that religion can be used to bully people. Early doesn't do that, but there is a degree of sanctimony about him that I view as overboard and inappropriate for a discussion of secular law.

Posted by: Bill Otis | Jun 28, 2008 10:35:35 AM

Is the use of retribution by the criminal justice system just or unjust?

A large number of persons have commented on that question and there does not appear to be any sign of consensus. Why does it matter if the person posting is motivated by ideological or religious views? I think it is much more important that they get their facts right.

Posted by: John Neff | Jun 28, 2008 11:46:00 AM

Bill,

As a normative matter, my sympathies are with you. I agree that it can be sanctimonious to invoke the diety in support of one's political position. Moreover, if you can articulate a secular justification for a policy preference, then the religious justification is simply irrelevant and perhaps better saved for discussion with one's fellow believers. But whether religion is inherently a private matter is a very contentious question, as you must know. As a descriptive claim, it is clearly false. As a political or constitutional claim, I'm not sure. After all, even secular intellectuals like Jurgen Habermas and Larry Solum have recently argued that the expression of religiously motivated ideas does not necessarily violate the norms of public reason and should be accomodated to some degree as a matter of reciprocity. I think that the idea of public reason probably does screen out fundamentalisms of various sorts, but perhaps not all religious expression.

What I think is most interesting about the piece is Early's observation that his views began to soften when he actually met some of the folks who were serving lengthy prison sentences for non-violent drug crimes. It's also very easy to be sanctimonious about tough-on-crime rhetoric. It becomes more difficult to sustain that attitude when confronted with the realization that the difference between "us" and "them" is not a great as we commonly assume.

Posted by: anon | Jun 28, 2008 12:20:35 PM

John Neff:

"Is the use of retribution by the criminal justice system just or unjust?"

It's both just and wise. It was explicitly embraced by Congress in the Sentencing Reform Act of 1984 (which created the sentencing guidelines) and, more broadly, has been recognized for virtually all of the nation's history as being a just basis for punishment. Even the majority opinion in Kennedy v. Louisiana acknowledges the proper role of retribution, even while cautioning against its potential for abuse.

It's wise because there's going to be retribution one way or the other, and it can either be channeled by the state through law or express itself in vigilanteism and private vendettas.

"A large number of persons have commented on that question and there does not appear to be any sign of consensus. Why does it matter if the person posting is motivated by ideological or religious views? I think it is much more important that they get their facts right."

It doesn't matter whether the person posting is motivated by religion. It does matter whether he's trying to use religion to bolster the authority of his views by kinda, sorta announcing them in the name of God.

Yes, whether he gets the facts right is the important thing, along with the soundness of the reasoning from those facts.

Posted by: Bill Otis | Jun 28, 2008 1:36:11 PM

Bill Otis:

What I particularly like about our criminal justice system is that there is error detection and correction at almost every stage of the process. This slows down the process and increases the expense but it is necessary in order to reduce the chance of unjust retribution. I think it was very wise of the designers of the system to put in such safeguards.

Do the folks who claim the system is unjust have their facts straight? I think the folks who claim it is always just need to admit that there are mechanisms that can result in both gender and racial bias in the incarcerated population. The choice of incarceration over probation is such a mechanism and the selection of persons to parole is another. As you can see I don't agree with either side.

I wonder what God would decide was just retribution for mooning a police officer?

Posted by: John Neff | Jun 28, 2008 4:51:50 PM

John,

It would depend on whether the person doing the mooning was Jennifer Garner or Danny DeVito.

Posted by: Bill Otis | Jun 28, 2008 7:11:01 PM

Bill Otis wrote: "It's wise because there's going to be retribution one way or the other, and it can either be channeled by the state through law or express itself in vigilantism and private vendettas."

What's the difference then? When retribution is channeled through the State, the State--which is, after all, composed of individuals in a given community--becomes as irrational as any mob. Accuracy and justice get sacrificed to the god of vengeance just as easily by private individuals as when they act collectively. I would even argue this (the channeling of retribution through the State) is the fundamental flaw of our criminal justice system from which all others flow. And there's simply no need for it.

It is not true that "there's going to be retribution one way or the other." The modern State has sufficient power to prevent vigilantism and private vendettas, and State officials should be responsible enough to refrain from exploiting craven desires for retribution for political gain.

Because it is acting to deprive individuals of their liberty and even sometimes their lives, the State has an immense responsibility to get it right. Accuracy is paramount. Retribution compromises accuracy and, because it is not a necessary component to justice, should be avoided.

As a pure question of justice, retribution can never be just when the parties who maintain economic and social conditions that create crime--and do so for their own economic gain--go unpunished. Punishing the poor without punishing the rich is not and never can be justice. Retribution may or may not be just in an authentically egalitarian, authentically democratic country, but I know of no such place (although others are certain closer than this one).

Posted by: DK | Jun 29, 2008 6:53:04 PM

"When retribution is channeled through the State, the State--which is, after all, composed of individuals in a given community--becomes as irrational as any mob."

Sure. Here's what the state provides that's "as irrational as any mob": the right to presentment of charges by a grand jury; the right to a public trial by a petite jury of your peers; the right to counsel; the right to suppress illegally obtained evidence; the right to confront and cross-examine adverse witnesses; the right to subpoena your own witnesses; the right refrain from self-incrimination; the right to obtain exculpatory evidence from the prosecutor; the right to have your guilt determined beyond a reasonable doubt by an impartial and unanimous jury, or otherwise to be set free; the right not to be subject to cruel and unusual punishment if convicted; the right to appeal; the right to seek review from the highest court in the land; and the right to seek executive clemency.

I'm sure I'm missing some, put that will do.

And that, we are told -- a process of months and often years of publicly scrutinized adjudication in open courtrooms across this country -- is just like the inflamed ten minutes of frenzy by "any mob."

A person who has a view of the criminal justice system as warped and poisoned as that has simply lost touch with reality.

Posted by: Bill Otis | Jun 29, 2008 10:24:02 PM

Bill Otis wrote: "Here's what the state provides that's "as irrational as any mob": the right to presentment of charges by a grand jury; the right to a public trial by a petite jury of your peers; the right to counsel; the right to suppress illegally obtained evidence; the right to confront and cross-examine adverse witnesses; the right to subpoena your own witnesses; the right refrain from self-incrimination; the right to obtain exculpatory evidence from the prosecutor; the right to have your guilt determined beyond a reasonable doubt by an impartial and unanimous jury, or otherwise to be set free; the right not to be subject to cruel and unusual punishment if convicted; the right to appeal; the right to seek review from the highest court in the land; and the right to seek executive clemency."

I don't think you get it. All you are doing is telling me what is written on various pieces of paper, not what happens in the real world. When the State takes up the mantle of vengeance, all those rights become severely compromised and exceedingly difficult to get a trial or appellate court to enforce. Hence the danger and virtual equivalence to a mob. (Indeed, although I do not know how common it is, there are prosecutors who believe they represent crime victims.)

I'll concede one stands a fairer chance against the vengeful State than a mob, but, on the other hand, one can elude a mob far easier than the State. So there's something to be said for both practices, I suppose.

Posted by: DK | Jun 29, 2008 10:48:26 PM

"I don't think you get it..."

Oh, I get it. I litigated cases for about 20 years in federal court, in the Eastern District of Virginia (reputed to be a hard-line jurisdiction) and the Fourth Circuit. I have a pretty good idea of what actually happens there.

And your specific experience is......what?

"All you are doing is telling me what is written on various pieces of paper, not what happens in the real world."

No, I'm telling you what EXACTLY happens in the real world. You simply won't hear of it, because your ideology is so extreme and so controlling with you that facts don't count.

To illustrate the vitality and strength of every one of the protections I enumerated, I invite you to go look at the Fourth Circuit cases I litigated. As I have said before, they're easy to find. Unlike you, I do not post here anonymously.

You would see, if you could be momentarily pried away from your bitterness against the United States, that the guarantees I described are very much alive and kicking. But my guess is you won't look at the cases, because you've already made up your mind and that's that.

"When the State takes up the mantle of vengeance, all those rights become severely compromised and exceedingly difficult to get a trial or appellate court to enforce."

First, the state does not "take up the mantle of vengeance." It enforces democratically enacted laws. If you want to live in a society that either has no such laws or doesn't enforce them, feel free. I don't.

The assertion that vengeance cripples these safeguards is, not too surprisingly, unencumbered by any specific and verifiable information about what in your background or litigation experience enables you launch, much less document, such a claim.

In fact, the claim is false. Any commenter here can satisfy himself of that by reading, not my cases in particular, but by picking up any random volume of Fed. 3rd starting in on it. (For that matter, DK, you might spend a moment thinking about how many lynch mobs PUBLISH a Fed. 3rd. or do anything else to set forth publicly for the world to see who they are and to judge the legal rationale for their behavior).

"Hence the danger and virtual equivalence to a mob."

I'll say it again: A person who has a view of the criminal justice system as warped and poisoned as yours has simply lost touch with reality.

Posted by: Bill Otis | Jun 30, 2008 8:07:04 AM

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