A Review of the USCCB Pastoral Letter Responsibility, Rehabilitation, and Restoration
Last December, the United States Conference of Catholic Bishops released Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice. The document rightly points out that criminal justice is a major issue confronting our nation. It also rightly points out that "our Catholic faith can help us and others go beyond the current debate and gain a deeper understanding of how to reject crime, help heal its victims, and pursue the common good" (p. 15). Unfortunately, these objects are precisely what the document fails to achieve. Where one would hope for a unique perspective in light of Catholic moral teaching, the document omits and obscures that teaching, often sounding like a mere echo of the liberal establishment. In the following I will outline the major problems with the text. Space prevents an exhaustive critique, either of the document's virtues or vices.
It is worth clarifying from the start that in criticizing the work of the USCCB, one is not criticizing the American bishops as a whole. Despite its approval by the bishops, I would like to believe that many were aware of the document's defects, but simply could not bring themselves to publicly correct or reject the document because of episcopal "peer pressure."
Problems Of Prudence: The Document's Use Of Sociology
Where sociological statements err on the nature of man or the moral law, the bishops are within their rights to judge these errors. On entirely neutral matters, however, the bishops must speak with great caution, lest they make statements exceeding their competence. The same is true of the bishops even when they speak together.
The document violates this principle in many small ways, but chiefly in two glaring ones. First, the document makes the claim that our incarceration rate in the United States is excessive, grounding this claim on a comparison of other Western nations. "In 1998, the imprisonment rate in America was 668 per 100,000 offenders. This is six to twelve times higher than the rate of other Western countries." It then proposes the cause: "This astounding rate is due to policies such as 'three strikes you're out' and 'zero tolerance' for drug offenders" (p. 8). Really? What was the ratio before states started passing "three strikes you're out" and "zero tolerance" laws? We are never told. The document makes the assertion without evidence.
Are there other possibilities for this "astounding rate" of incarceration in comparison to other Western countries? The document itself provides one only two pages later, observing that "African Americans make up 12% of the U.S. population but represent more than 49% of prisoners in state and federal prisons" and "Hispanic Americans make up 9% of the U.S. population but 19% of the prisoners in state and federal prisons" (p. 10). From their own evidence, America's racial heterogeneity seems much more relevant than the recent enactment of mandated sentencing. But since the intention of the document is to criticize mandated sentencing, "three strikes you're out" laws are the culprits for high incarceration, not our racial heterogeneity.
Of course, it is not racial heterogeneity by itself that increases crime, but rather problems within those diverse populations. While the document can declare that, "the disintegration of family life and community has been a major contributor to crime" (p. 23), it seems unable to connect this "disintegration" with the African American or Hispanic communities. One wonders if the USCCB found it politically more comfortable to "blame the system" or "blame the politicians" than blame the problems within minority communities.
Even more serious than the laxity of the bishops' thought on incarceration rates is their understanding of rehabilitation. The document criticizes our society for seeming "to prefer punishment to rehabilitation and retribution to restoration, thereby indicating a failure to recognize prisoners as human beings" (p. 16). The writers do not seem to consider the possibility that rehabilitation has been abandoned largely because of its practical failure.
The "rehabilitative ideal," which flourished during the 1950s and 1960s, was called into question in the mid-1970s by Dr. Robert Martinson. In a provocative article in the Public Interest, Martinson's survey of 231 studies of rehabilitative programs over the period 1945-1967 revealed the following: "With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism."
Fifteen years later, in the U.S. Supreme Court decision Mistretta v. United States, the court told us that "rehabilitation as a sound penological theory came to be questioned and, in any event, was regarded by some as an unattainable goal for most cases." The decision goes on to cite a Senate Report from 1984 that explained the "outmoded rehabilitation model" for federal criminal sentencing, and recognized that the efforts of the criminal justice system to achieve rehabilitation of offenders had failed.
The USCCB is not under obligation to follow Martinson's conclusions, nor those of the Supreme Court or the Senate in this matter. They are within their rights to disagree, as indeed they do: "Programs in jails and prisons that offer offenders education, life skills, religious expression, and recovery from substance abuse greatly reduce recidivism" (p. 40). But they cannot dismiss this position as merely a "failure to recognize prisoners as human beings." If the document disagrees with the findings of Martinson and others, the authors should tell us why. The document provides no evidence for its claim that rehabilitative programs "greatly reduce recidivism."
Political Problems: Demonizing Conservative Legislation
In the document, the writers assert that they "wish to move away from the so-called 'soft' or 'tough' approaches to crime and punishment offered by those at opposite ends of the political spectrum" (p. 15), dissatisfied as they are with "the policy cliches of conservatives and liberals" (p. 2). One would then expect an even-handed treatment that criticizes both "soft" and "tough," conservative and liberal.
In fact the document is skewed toward the liberal perspective, with little pretense of even-handedness. It has been noted already in the preceding section that the document attributes only bad motives to those who doubt the efficacy of rehabilitation, which, according to the document, indicates "a failure to recognize prisoners as human beings," instead of failure of the rehabilitative ideal.
Elsewhere, the construction of new "Supermax" prisons and use of the death penalty "reflect legislative action at the federal and state levels that is adopted by legislators seeking to appear 'tough on crime' in response to often sensational media coverage" (p. 9). The document excludes the possibility that some politicians have the public safety at heart. It can only find bad motives for its opponents.
This shows most clearly in their remarks on sentencing and parole. The authors of the document declare, "we do not support mandatory sentencing that replaces judges' assessments with rigid formulations" (p. 28). The document has no criticism for the liberal judges whose lenient sentences have brought about the legislative initiatives for mandatory sentencing.
Similarly, the document criticizes the "tough" curtailing of the parole system: "Abandoning the parole system, as some states have done, combined with the absence of a clear commitment to rehabilitation programs within prisons, turns prisons into warehouses where inmates grow old, without hope, their lives wasted" (p. 40). Yet it offers no words of criticism for the badly managed parole programs that have allowed murderers to murder again, rapists to rape again, and so on.
The authors pretend that they are above the common labels used in the discourse on criminal justice issues. It is, however, disingenuous for them to claim that they are neither conservative nor liberal, and yet criticize conservative policies at every turn, and neglect to criticize liberal policies when the occasion demands it.
Theological Problems: The Denial Of Retributive Justice
In a text cited earlier, "retribution" is contrasted to "restoration": "Our society seems to prefer punishment to rehabilitation and retribution to restoration" (p. 16). "Retribution" seems to mean "punishment for its own sake." Oddly, one of the sources for this opinion is St. Thomas Aquinas: "Centuries ago, St. Thomas Aquinas taught us that punishment of wrongdoers is clearly justified in the Catholic tradition, but is never justified for its own sake. A compassionate community and a loving God seek accountability and correction but not suffering for its own sake. Punishment must have a constructive and redemptive purpose" (p. 20). It is worth noting that the document gives no reference for this teaching from St. Thomas. One might suspect the reader will look for it in vain.
It is true that retributive justice implies a "paying back" to the criminal for his wrongdoing, which would lead some to think that retribution differs in no way from revenge. But they are not the same. Vengeance seeks pain for the criminal out of hatred, while justice seeks the fitting punishment for the criminal insofar as he has willingly transgressed the law. By contrasting "retribution" to "restoration," the authors imply that retribution is nothing more than vengeance. Retribution, in the words of the document, becomes "punishment for its own sake."
"Punishment for its own sake" is certainly the bete noire of this document: "Jesus demonstrated his disappointment with those who oppressed others (Matt. 23) and those who defiled sacred spaces (John 2). At the same time, he rejected punishment for its own sake, noting that we are all sinners (John 8)" (p. 18); "punishment for its own sake is not a Christian response to crime. Punishment must have a purpose. It must be coupled with treatment, and, when possible, restitution" (p. 28); "This vital concern for victims can be misused. Some tactics can fuel hatred, not healing: for example, maximizing punishment for its own sake and advancing punitive policies that contradict the values we hold" (P. 35).
Since "punishment for its own sake" is never defined or explained, we are left to infer what it means. "Punishment for its own sake" is contrasted to punishment with "a constructive and redemptive purpose" (p. 20). In one stroke, the document seems to have abolished the whole notion of retributive justice, after conflating it with "punishment for its own sake": "We believe punishment must have clear purposes: protecting society and rehabilitating those who violate the law" (p. 16). By excluding retributive justice, the document fails to explain the primary end of punishment.
In a 1953 address to the Sixth Congress of International Penal Law, Pius XII noted that "most modern theories of penal law explain punishment and justify it in the last resort as a protective measure, that is, a defense of the community against crimes being attempted; and at the same time, as an effort to lead the culprit back to observance of the law." Pius XII, however, pointed out that, "one may ask if the modern conception is fully adequate to explain punishment. The protection of the community against crime and criminals must be ensured, but the final purposes of punishment must be sought on a higher plane."
What are these "final purposes" above the protection of society? "The essence of a culpable act is the freely chosen opposition to a law recognized as binding, it is the rupture and deliberate violation of just order. Once done, it is impossible to recall. Nevertheless, insofar as it is possible to make satisfaction for the order violated, that should be done. For it is a fundamental demand of justice, whose role in morality is to maintain the existing equilibrium, when it is just, and to restore the balance when upset. It demands that by punishment the person responsible be forcibly brought to order; and the fulfillment of this demand proclaims the absolute supremacy of good over evil; right triumphs sovereignly over wrong." Simply put, the principal end of punishment is redressing the disordered will, which has rebelled against the order of justice.
Lest some think that there has been a "development of doctrine" on this point, The Catechism of the Catholic Church reaffirms the teaching of Pius XII: "Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party it assumes the value of expiation. Punishment then, in addition to defending the public order and protecting people's safety, has a medicinal purpose: As far as possible, it must contribute to the correction of the guilty party" (n. 2266). The USCCB document ignores these texts, and worse, seems to equate "retributive justice" with "punishment for its own sake." Retributive justice, however, does not seek punishment "for its own sake," but rather for the sake of preserving respect for the law and for justice itself.
For the document, this "redress" only appears in form of restitution to the victim or society, never as the punishment merited by a disordered will: "The concept of redress or repair of the harm done to the victims and to society by the criminal activity, is also important to restoring the common good. This often neglected dimension of punishment allows victims to move from a place of pain and anger to one of healing and restitution" (p. 24). "Redress" is hence only between offender and victim or offender and society, not between the disordered will of the offender and the law he has offended.
Followed to its logical conclusion, the denial of retributive justice would lead to a denial of the justice of God. The souls of the damned, for example, suffer eternally for their rejection of God's law. The damned deserve the pain of Hell for their disordered wills. That is why the blessed are not disturbed at the pain of the damned, because their torment satisfies the retributive justice of God.
Spiritual Problems: Rehabilitation Instead Of Conversion
The authors of the document situate themselves as clear advocates for a greater expansion of rehabilitation programs within our prisons. They assert that "sexual and physical abuse among inmates and sometimes by corrections officers, gang violence, racial division, the absence of educational opportunities and treatment programs, the increasing use of isolation units, and society's willingness to sentence children to adult prisons — [are] all contributing to a high rate of recidivism" (p. 16). Therefore, "we call upon the government to redirect the vast amount of public resources away from building more and more prisons and toward better and more effective programs aimed at crime prevention, rehabilitation, education efforts, substance abuse treatment, and programs of probation, parole, and re-integration" (p. 39).
The document makes no attempt to highlight the importance of religion in rehabilitation. Note that in the text cited earlier, "Programs in jails and prisons that offer offenders education, life skills, religious expression, and recovery from substance abuse greatly reduce recidivism" (p. 40), "religious expression" comes third in the list, sandwiched between "life skills" and "substance abuse treatment." The document remarks that "attempts to limit prisoners' expression of their religious beliefs are . . . counterproductive to rehabilitation efforts" (p. 41), but fails to defend or explain the claim. One would think that the United States Conference of Catholic Bishops would highlight the place of religion in rehabilitation, but they do not.
If the authors had reflected on the place of religious conversion in rehabilitation, it might have allowed them to make their remarks on rehabilitation with greater caution. One cannot simply immerse people in religion and have them convert. They must freely choose the faith for themselves. There is no "program" for conversion. Similarly, no one can make criminals undergo a change of heart from mere counseling or "life skills" classes.
At times, the document sounds as if it accepts the "Officer Krupke" theory of criminality, that criminality is caused by social and economic conditions: "Prison inmates have high rates of substance abuse, illiteracy, and mental illness" (p. 10), which, although true, is not the cause of their criminality. Neither is the "disintegration of the family life and community life" (p. 23), although these things are certainly dispositive. We all know law-abiding people who are poor and illiterate. Finally speaking, social conditions do not create criminals. Criminality comes from the free choice of those who commit crimes.
Although the document reaffirms the freedom of the will with respect to the moral law (p. 20), it fails to apply this teaching to criminal rehabilitation. Just as some people become good despite a troubled background, so also others stay bad despite all the good influences available. It is not unreasonable to expect limited success from rehabilitation, especially among hardened criminals who have no desire to change. Giving hardened criminals "vocational training" and "life skills" is not an occasion for conversion, but a means for more refined criminality.
In other words, rehabilitation (to the extent that it is possible) is primarily a spiritual matter, a matter of someone voluntarily giving up his criminal mentality and undergoing a conversion. The document fails to make this point at all, and seems content to agree with the secular/psychological model. In a document promulgated by the United States Conference of Catholic Bishops on criminal rehabilitation, the spiritual aspects go largely untreated.
Conclusion
These criticisms touch the most fundamental matters of the pastoral letter, but they are by no means exhaustive. One could question the competence of the USCCB to address the sociological and legislative aspects of criminal justice at all, since it has not shown itself capable of doing so with care and objectivity. One could wonder about the failure of the USCCB to address divorce and contraception, concerned as it is with "the disintegration of family life." One could finally raise the concern that the number of pastoral statements put out by the bishops seems to increase as their authority decreases.
To illustrate this last point from the present document, the USCCB proclaims that, "the media must be challenged to stop glorifying violence and exploiting sexuality" (p. 30). Would the bishops consider challenging their own flock in this way? Would they be willing to condemn certain movies and television shows, and forbid Catholics to watch them on pain of sin? If the bishops do not feel comfortable challenging their own people in this way, the secular media have no incentive to take the bishops seriously.
We can be thankful that Responsibility, Rehabilitation, and Restoration has received little attention from the media. It nonetheless will exercise some influence in Catholic social activism. Considering its ambiguities and omissions, its careless scholarship, and its secularist compromises, the document, taken as a whole, is positively scandalous.
To the extent it is read and applied, it will confuse and mislead the faithful.
(Eusebio Cesar, a nom de plume, is a Catholic layman who works for the Church in an official capacity.)
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