Introduction: Ethics,Theology and the Contemporary Conundrum of State Punishment

The articles gathered in this issue of Studies in Christian Ethics were first presented at the third annual McDonald Symposium in Theological Ethics at Cambridge University, 13−15 May 2013. As with previous McDonald symposia which have resulted in publications in SCE, I wish to record my sincere thanks to Alonzo McDonald and the Agape Foundation for their considerable generosity in backing the conference, and Susan Parsons for her editorial skills in bringing this set of articles to publication.

The remoter background to the symposium was my own increasing concern, during 15 years of teaching at Harvard Divinity School (1993−2008), with the striking developments in policing and state punishment in the United States at the time, and the extraordinary rise in numbers of long-term incarcerations there. Thus, it is perhaps still not generally known that between 1970 and today the prison population in the US multiplied by seven, rising from the (then) relatively stable rate of 100 prisoners per 100,000 in the population to 750 per 100,000. The US thus currently has around 2.3 million people in prisons, of whom an inordinate number are ‘minorities’; ¹ indeed, a larger percentage of them in population terms are now in prison than even before the Civil Rights Movement, ² causing one to wonder whether imprisonment today symbolically represents a new, albeit occluded, ‘slavery’. It has been said that these developments have turned the US into ‘a society where criminal punishment is a massive industry, of a size and severity unknown anywhere else in the democratic world’. ³ The notable turn back to a ‘neo-classical’ retribution theory in this period, the relentless and punitive crack-down on minor drugs offences, the increasing privatisation of prisons, and the more recent and haunting fear of terrorist attack: all these factors have been undeniably important in the rise in prison populations, but they cannot explain the overall cultural acceptance of such an extraordinary state of affairs in ‘the land of the free’.

So although the pressing political and ethical issues encoded in these developments might seem obvious to the outsider, the non-incarcerated American populace appears to resist consistent acknowledgement of them: prisons, especially massive privatised prisons outside the city walls, are curiously invisible to many upstanding American citizens, and it is surprisingly difficult to gain entrance to them unless one is already part of the system. ⁴ Even so, the mere figures of incarceration call for ethical comment. What is perhaps less obvious is how theological ethics, specifically, may throw special light on the history and unfolding of these developments. It is the first aim of this issue of SCE to illuminate afresh the historic irony of a modern (theologically inspired) prison system which has now seemingly suffered a tragic amnesia about its original reformatory and atoning goals; the second and more exploratory aim is to suggest some ways in which, even now, theological ethics may be creatively brought to bear in thinking out practical modes of reform in the prison systems of the US and UK.

But, it might be objected, is this potential re-injection of theological thinking either a possibility or a desideratum at this particular juncture of world history? For there is a further problem here, of course, and it is not that of the supposed—and much disputed—‘secularisation’ of Western public life. ‘Religion’, far from being remote from public policy in relation to prisons, has, since 9/11 and the London bombings, become a central concern for governments and prison governors, qua fundamentalist Islam; and this crucial development is also faced head-on in this issue of SCE. ⁵ That the practices and beliefs of Islam (in all their manifold variety) represent a new force for solidarity and meaning-making in British and American prisons represents an ironic wrinkle in the historical story of a lost Western reformatory ideal (with its distinctive Christian promises of atonement and re-integration into a wider society). Thus, we cannot now reconsider the importance of a recovery of such Christian ethical sensibilities in American and British prisons without an honest analysis of how Christianity and Islam may mutually relate to each other in the structures of incarceration. ‘Religion’ and ‘theology’ may for some be newly tainted concepts in the face of radicalised Islamic politics; but they cannot be said to be irrelevant to the current discussion. At least theological ethics has a new place at the table of criminal law.

Throughout the articles gathered in this issue it is importantly acknowledged that no simple identification of the current prison scenarios in the US and the UK should be assumed or tolerated, the still-existing death sentence in many American states being the most obvious dividing factor. Yet no sense of British cultural superiority should be mandated, either. For there are worrying signs that Britain may have been drifting in some similar directions as the US in recent decades as regards its policies of sentencing and incarceration. The prison population in the UK has also risen dramatically since the late 1960s, ⁶ the trend towards retributive theories of justice has likewise been marked, and the privatisation of many prisons is leaving prisoners without any clear sense of being beholden to a wider public of ownership and responsibility. ⁷ Thus it is that a certain crisis point is being reached in the UK too—one urgently in need of more attention from theological ethicists and the churches at large than is currently evident. ⁸

It is in the context of discussion just described that the articles in this issue cluster around two central ethical/theological themes, and these form the constellating points of the discussion.

First, given the notable cultural favouring of retributive theories of punishment in recent decades (and yet the loss of any obvious accompanying meta-narrative of re-integration and restitution), what can be said about the place of mercy alongside justice and punishment in the contemporary penal systems of the UK and the US? Is mercy simply an outmoded theological spandrel in secularised penal thinking, replaced to some degree by the parole system and occasional reprieves from the death sentence? Or should it continue to have some vital systematic role to play in penal thinking and practice, lest the harshness of retribution continue to ratchet itself up to new and obscene heights? And if mercy does play such a role, how can that be thought through consistently and ethically? This debate is, of course, not new, ⁹ but it comes with new flavour and point given the evidences about current American and British prison populations revealed in our articles. If retribution continues unchecked—as mere life-long incarceration and unacknowledged societal invisibility—what does this tell us about the ethical outlooks of the wider societies concerned?

Secondly, and connectedly, for those practitioners on the ground (whether as criminologists, penal theorists, prison governors or judges) who seek to temper or correct the insistent drift to ever-greater punitive measures, what are the resources from theological ethics or meta-ethics that might inspire or illuminate their efforts? What are the conditions under which the quest for ‘redemption’, ‘atonement’, ‘forgiveness’ or the growth of ‘virtue’ might be fostered in prison populations or amongst persistent offenders? And how can differing religious systems come into constructive relation with each other, and with secular ethical thinking, in revisiting some of these questions constructively? Again, what our articles reveal is that these irreducibly theological questions are surprisingly hard to suppress, more especially now that the voice of Islam is joined to the debate; and that the horizon of ‘hope’ can be precisely the context in which researchers will find signs of unexpected growth in virtue and reform. ¹⁰

Let me end this short Introduction by indicating how I personally became involved (as a philosophical and systematic theologian) in the issues here discussed. During my time at Harvard I served for a short while as an assistant chaplain in a Boston gaol—an experience that forever changed my views about both prisons and ‘race’ in America. ¹¹ Not long after that first-hand encounter with the ‘Suffolk County House of Correction’, the opportunity arose to co-teach a seminar with Professor Carol Steiker of Harvard Law School on ‘Justice and Mercy in Jewish and Christian Tradition and American Criminal Law’. The seminar involved equal numbers of graduate students from Harvard Law School and Harvard Divinity School, who were paired together to work collaboratively. At the heart of the course was an analysis of the profound theological stock of ideas (justice, mercy and their relation in atoning and sacrificial practices) which Christianity inherited from—and continues to debate with—Judaism, and how these ideas seeped into the Calvinist ideas of punishment and reform which inspired the early settlers on the East Coast of America, and—rather differently—into the utilitarian and retributive ideas of classic modern European penal theory. To chart the extraordinary shift back to neo-classical retributivism in the last part of the 20th century then became a matter of new wonder, given the dominance of softened utilitarian or (secularised) welfare theories that was manifested in the period after World War II. Seemingly forgotten at this crucial, later juncture in the late 20th century was both the profound insight of early rabbinic Judaism that divine justice must always be tempered by divine mercy (for otherwise the world could not endure), ¹² and the equally insistent tradition of both Catholic and Protestant atonement theories—in all their variety—that divine justice must ever be mediated through the infinite mystery of Christ’s atoning sacrifice. What had been taken for granted even in Enlightenment versions of retributivism had been transformed into a seemingly grotesque secular analogue without apparent resources for hope or change. It is in this context that my former colleague Carol Steiker’s work has proved so significant in the American scene of criminal law, and her work lies influentially behind several of the articles gathered in this issue. Philosophically a pragmatist, Steiker has repeatedly urged that ‘mercy’ must be re-introduced, systematically and prudentially, into the workings of criminal justice. Without its tempering force on retributive theory, she argues, a reductio ad absurdum (the mass incarceration of ever larger proportions of the population of the United States) will continue unchecked. Without, therefore, the effective re-entry of classic theological notions of mercy and atonement (or some effective secular replacements), the prison system which was originally founded on these notions will become the theatre of the absurd—a veritable descent into hell and meaninglessness unworthy of a modern democracy. ¹³ Such is Steiker’s challenge, and it illumines afresh what Nicola Lacey has called the inescapably ‘symbolic’ nature of all our activities of public justice. ¹⁴

It is to be hoped that the articles gathered here will engender further discussion of these vital ethical themes, and that they will encourage further collaborative work between theologians, ethicists, penal theorists and politicians in both Britain and the United States. The relative neglect of these topics in contemporary Christian ethics is arguably part of the worrying invisibility of the very social phenomena this issue seeks to highlight.