May 2016

“The claims of justice, if they are to become operational in political society, must be defined with some meaningful degree of particularity...Justice as an abstraction is not enough. We must work out an understanding of justice in particulars, lest we fall into the trap of moralizing about politics while having nothing to offer in time in terms of a moral critique that speaks to particular situations in time and space.” – Paul Henry¹

Benjamin Ridder

Last month President Obama commuted the sentences of 61 inmates in an effort to change how the U.S. justice system treats nonviolent drug offenders. The President’s actions come as Congress debates measures to reform the criminal justice system, including sentencing and re-entry programs. The surge of bipartisan support in both the legislative and executive branches is evidence of much needed change.

One in every 100 adults in the United States is in prison or jail; the rate of incarceration is higher than any Western European nation or other liberal democracies.² Furthermore, the prison buildup disproportionately impacts poor, minority men, and over 50% of the prison population has been diagnosed with a mental illness.³ What has led to these disturbing statistics and what might be done to improve matters?

Bryan Stevenson argues that mass incarceration is the result of “misguided drug policy and excessive sentencing,"⁴ while Bibas Stephanos laments the absence of community participation in the justice system. Stephanos contends that the divide between “insiders” (judges, prosecutors, defense counsel, and police) and “outsiders” (victims, defendants, and the general public) undermines democracy. Because the public is generally uninvolved and misinformed about average sentences, their influence is primarily through legislation and referenda. The lack of public oversight has resulted in a system that emphasizes plea bargains, excludes victims, and “silences defendants.”⁵

One in every 100 adults in the United States is in prison or jail; the rate of incarceration is higher than any Western European nation or other liberal democracy.

Stephanos ultimately argues that a failure to vindicate and heal is the most serious failing of “mechanical criminal justice.”⁶ This, however, assumes a particular purpose for the state, as well as the community, in the criminal justice system. Is the state simply responsible for extracting individuals from the community and punishing them for breaking the law? Should the state facilitate reconciliation between victims and offended community members? Or perhaps there should be a combination of the two?

While the differences between the two propositions are more nuanced than rehabilitation v. punishment, the contrast gets at the heart of the issue. Does the current system—with an emphasis on retribution—match the will or the needs of our society? Retributive justice responds to the offence committed, but often neglects preventing future offences. Instead, it relies on the promise of punishment to deter future action. The purpose is to punish the offender with as much punishment as fits the crime. Advocacy groups, on the other hand, argue that sentencing alternatives, like restorative justice practices, offer better results in community safety and offender rehabilitation.

Meanwhile, restorative justice seeks offender rehabilitation. When appropriate, it invites reconciliation between the offender, the victims, and the community. The gospels portray Jesus as forgiving and non-retaliatory, traits that he commanded of his followers. While others might question to what extent we can extract public policy positions in a secular democracy from the life of Christ, Christopher Marshall argues that a criminal justice system mirrors the example and teaching of Jesus Christ by making forgiveness and reconciliation central to any justice system.⁷ This does not eliminate the role of punishment, but instead looks beyond retribution.

The President’s actions and the debates in Congress, including changes in minimum sentencing and re-entry programs, are steps in this direction. Problems have been identified, but what role will the next president play in further reform?

Candidate stances

• Donald Trump:
• John Kasich:
• Hillary Clinton:
• Bernie Sanders: