Introduction

At the height of the Northern Ireland Troubles, it was usual to distinguish between paramilitary prisoners and ODCs – ‘ordinary decent criminals’. The terminology is suggestive, even provocative: is it ever right to consider criminals as ‘ordinary’, much less ‘decent’? Certainly, it would be altogether wrong to trivialise the plight of victims, and especially victims of violent crime, by too lightly using a euphemism like ‘ordinary decent criminals’.

Yet there are significant issues that arise concerning the current emphasis in the State’s response to crime and those who perpetrate it. In a context where official figures indicate that there has been a fall in the overall level of crime over the last decade – although there has been an increase in the incidence of crimes of violence – there are more people in prison than ever before.¹

These prisons are often over-crowded, with too little in the way of rehabilitative facilities or follow-up from other State agencies when people who have been in prison return to society ‘on the outside’.² And since it is not clear that imprisonment ‘works’ – in the sense that it prevents re-offending – this would seem to indicate a predominantly punitive ethos, which is found also in Britain and the USA. This punitive ethos is encouraged by the tabloid description of the perpetrators of more egregious crimes as ‘monsters’ or ‘scumbags’: no longer human, in other words.

It is also true that the majority of those in prison come from disadvantaged backgrounds: perhaps the issue of crime is not simply a matter of ‘just deserts’, but is also a matter of how fairly we organise our society? Governments speak easily of a ‘war on crime’, but the war can often seem quite selective: it is interesting that ‘white collar’ crime, despite its enormous downstream implications, gets relatively little attention. Financial institutions are often subject to regulation rather than criminal law, and tax evasion is not treated like shop-lifting or any other form of stealing.

In the face of the many and complex issues involved in our concern about crime, especially the issue of the suffering of victims, how ought we to respond? Looking at this question from a Christian perspective, how might the demands of justice be satisfied in a way that transcends an exclusively punitive ethos and reaches out towards recognition of our common humanity?

In another article in this issue of Working Notes, Brian Grogan has very ably outlined many of the features of a Christian vision which may ‘raise questions in a few minds’.³ God wants us all to be saved; God has a special regard for the sinner (who may also be the criminal); we are asked as Christians to put on the mind of God and act accordingly; there is a basic solidarity which unites us all, despite the most extreme differences and opposition. The great Christian symbol of this vision is the Blessed Trinity, with the Cross of Jesus Christ at its core: God understood as love, as relationship, with a profound unity, which can yet embrace plurality and diversity, and even the diversity of sin and criminality.

This is a vision which respects the demands of justice, but tempers it with mercy, and locates it within the wider context of love. The cross of Jesus ‘is the overwhelming encounter of divine transcendent justice with love: that ‘kiss’ given by mercy to justice’.⁴ We are helped in an attitude of respect for the sinner, while repudiating the sin, by a truthful recognition of our own vulnerability to sin: we live in a world which God created and saw was good, but which is infected by what Christians refer to as Original Sin, so that Augustine could say without any false humility, ‘there go I, but for the grace of God’.

We are helped too by the theological categories of social sin and social grace first adopted by Liberation theologians. These refer to situations and structures (be they economic, social, cultural, political) which by their nature facilitate grace or, to the contrary, disgrace and sin. And so, for example, God’s justice in the Old Testament is a saving justice which has particular regard for the poor, calling the rich to conversion and to an observance of the Jubilee remission of debts. The passion of Jesus for the Kingdom of God is shot through with that preferential option for the poor, which Catholic social teaching identifies as intrinsic to the community of peace and justice which God wants to establish among us.

God’s justice then has regard not only for acts of individual responsibility, but also for the kind of society that forms the backdrop to such acts. The inequalities in Irish society, mirrored in our treatment of crime, must rightly disturb any complacency we might feel with regard to our criminal justice system.

The Christian Vision and the ‘Reality on the Ground’

Bismarck is supposed to have said that one couldn’t run a state by the principles of the Sermon on the Mount. In this he was merely reiterating what Augustine (with his notion of the Two Cities) and Luther (with his notion of the Two Kingdoms) had already stated: while one could expect the individual or the Church to be ‘holy’, or ‘justified’, this was not a legitimate expectation apropos the state. And the failed Calvinist experiment of a theocratic state seemed to bear this out, as today do the more extreme manifestations of Islamic Sharia states. Indeed, this kind of position is music to the ears of many contemporary liberal secularists, who would prefer the Church to limit itself to the private realm.

However, mainline Christianity and Catholic social teaching in particular think differently. There is no claim that Christianity has some blueprint for the organisation of society. But there is confidence that the Christian vision may offer a significant lens through which ways forward may be discerned – what T. G. Gorringe refers to as a ‘structure of affect’.⁵ And so, with regard to the criminal justice system, there is needed what Brian Grogan refers to as a dialogue ‘among the concerned parties on possible ways forward in the highly complex and emotional arena of crime and punishment’. This dialogue must take account of all relevant factors – the responsibility of criminals, even within an unjust society (only a very small minority of poor people resort to crime); the debt owed to victims; the nature and purpose of our response to crime, including wider societal factors, and so on.

What kind of ways forward might this dialogue be expected to produce?

Ways Forward

The Nature of Punishment
A dialogue might, firstly, produce a more holistic understanding of the vexed and somewhat controversial question concerning the nature of punishment as a response to crime. At a popular level, it can sometimes seem that this understanding is not so far removed from the Old Testament ‘lex talionis’ of ‘an eye for an eye’ – a measured vengeance which, at best, shades into a notion of ‘just deserts’. Instead, it would seem better to grasp punishment from diverse viewpoints, which taken together yield a more fruitful understanding.

So, punishment can be seen to involve:

Judgment on crime – a denunciation of what is wrong;
Retribution – in the sense of a proportionate response to satisfy the demands of ‘just deserts’, which might include restitution (in so far as this is possible) to the victim of crime, and a certain symbolic balancing of the injury done to the rule of law and the common good of society;
Deterrence – although the common-sense view that this is a major factor is disputed by criminologists;
Restraint and incapacitation – in the case of criminals who are dangerous to society;
Repentance, reform, rehabilitation, leading to atonement and full re-integration into society.

In the parable of the Prodigal Son, the young man suffers the humiliation of a life of poverty abroad and the shame of returning to his father – this is his ‘punishment’. But it is a punishment which is completely subordinated to the over-riding dynamic of the parable which is the unconditional love of the father and his desire to accept the erring son back into the bosom of the family.

This aspect of the Prodigal Son story suggests a challenge to us to allow the retributive aspects of punishment be subordinated to the overall purpose of reintegration and restoration. To do otherwise is to lock ourselves into the iron logic of a strict ‘just deserts’, which is the breeding ground for the resentment of the elder brother in the parable and, in the manner of the Pharisees, may easily become a hypocritical cover-up for our own sinfulness and need of mercy.

Societal Factors
This more holistic notion of crime and punishment must, secondly, take account of the wider societal context. Politicians find it easier to be ‘tough on crime’ than ‘tough on the causes of crime’. I have noted that the vast majority of prisoners come from disadvantaged backgrounds: it makes sense to suppose that where society is organised in a more just and equal way, with all being able to feel that they are stakeholders, there will be a decrease in levels of crime.

In Ireland we know that despite the great gains of more than a decade of economic success there have been downsides as well, including the lack of a social dividend in areas such as education and health (think of drug prevention and rehabilitation programmes) that impact on crime levels. There is the re-balancing to be done in terms of tackling white-collar crime with more serious intent. And there is the worrying coarsening of our society, perhaps attendant on such rapid economic success without an accompanying moral or spiritual compass, which has led to a trivialisation of sex, an upsurge in the recreational use of drugs, a widespread abuse of alcohol, a fragility in relationships and family, and, worst of all, a de-humanising violence which sees the ganglands replacing the paramilitary no-go areas. We need not exaggerate: compassion, fairness and generosity are present too in Irish society, often nourished by deep roots of spirituality and faith. Nonetheless, we do well to recognise the crude forces of a kind of social Darwinism at play in Ireland today, trumpeting the survival and flourishing of the strong and fit.

There is a wide agenda here for government, and indeed for civil society as a whole, and not just for the Minister for Justice, Equality and Law Reform: the issue of crime and punishment cannot be solved without attending to this wider context. It will not do, for example, to use prisons as a kind of ‘out-of-sight dumping ground’, and prisoners as scapegoats who carry our anger about crime. And it will not do either to allow ourselves to remain undisturbed by questions about societal injustices or how prisoners are to be re-integrated into a hopefully more just society.

One does not have to excuse or condone criminality to acknowledge that many criminals are themselves damaged and vulnerable individuals, victims in this sense of the injustices of our society.

Prison: A Place of Redemption?
Thirdly, it is sadly the case that prisoners themselves rarely experience the hope expressed by Pope John Paul II that prison might be ‘a place of redemption’.⁶ Despite some efforts at rehabilitation, our prisons are in general shot through with a punitive ethos. Several factors need to change here if the reality of imprisonment in our society is to be in harmony with the Christian vision.

We need, first of all, to use imprisonment as a sanction of last resort. It is a form of violence to deprive someone of their freedom. Sometimes violence may be justified – one thinks of surgery, for example. But there are other sanctions – fines, community service, problem-solving approaches which try to tackle the underlying causes of criminal behaviour. Judges, and we as a society, need to reconsider sentencing policy in the light of the reality of a growing number of prisoners and of calls for more prison spaces, and the clear evidence that in most cases imprisonment simply does not work. This is particularly true where non-violent crime is concerned, as, again, is the case predominantly with female prisoners, where the sanction of imprisonment has such drastic consequences for dependent family members and thus for society as a whole.

Furthermore, the prison experience itself ought to be one which is geared predominantly towards rehabilitation. This will mean, inter alia, the avoidance of over-crowding (over the last two decades we have rowed back from a century-long practice of single-cell provision); an attitude of respect on the part of all staff; the provision of educational and rehabilitative facilities (such as counselling services and drug treatment); permeable prison walls, in the sense of controlled access to and from the local community, involving fairly remunerated jobs and proximity to family members; and a chaplaincy service that relates to prisoners with those Christian virtues of courtesy, non-condemnation of the person, hope and understanding that God’s power is made perfect in weakness.

None of this need be starry-eyed and soft in a Pollyannaish kind of way: there is need for coercion and firmness, particularly in dealing with hardened, violent criminals. Nonetheless, we know that violence on its own simply breeds more violence. We need to create the kind of space where the person who has committed a crime can come to judge him/her self and to repent, and in doing so we need to trump the predominantly fearful ethos of a criminal justice system that looks to the past and to retribution, with a more hopeful Scriptural approach, which sees justice in the context of a resurrection forgiveness that looks more to the future. From the Christian perspective, it will never do to write someone off as less than human, as incapable of free conversion and repentance. In this context too it will be important to employ a multi-agency approach in the re-integration of the person into society after the prison term has been served.

If one adds to all this the conventional best-practice wisdom that imprisonment with a view to rehabilitation is best realised in smaller-sized units, close to local community and family members, and that women, young people, and people with mental illness should not be co-located with adult male prisoners, then one can see that many disturbing questions are raised about the prospective Thornton Hall project now under way in our State.

Victims
Fourthly, we need to respond much more sensitively and effectively to the needs of victims of crime.  It is true that we have become more aware in recent years of the trauma experienced by victims and the support they require to get their lives back on track, in particular where there has been violence involved. The parable of the Good Samaritan indicates the kind of practical and loving response which can make a great deal of difference to victims of this kind.

There is, however, also an issue in justice regarding the way our criminal justice system operates. The professionalisation of this system, and its specialised, formal, and to the lay person often very abstruse, ways of proceeding can result an alienating distancing of the victim from judicial proceedings. This arises above all because, in contrast to some traditional legal systems, the State takes the place of the victim in criminal law so that the process can become a contest between State and offender with the victim as an almost incidental witness.⁷ The introduction of victim-impact statements was clearly an attempt to address this problem, even if a not yet entirely unproblematic attempt.

Restorative Justice
Fifthly, we need to explore fully the potential of the various modes of restorative justice (including elements of mediation, re-integrative shaming, and reparation) which bring victim and offender, voluntarily, together in a controlled and respectful way, with the fall-back position of recourse to the conventional means of proceeding within the criminal justice system if this does not work.

One interesting feature of the success to date of this approach in other jurisdictions is the perhaps counter-intuitive finding that what victims want is not simple revenge or punishment but rather recognition, explanation, and some reassurance that no one else will suffer in the same way that they have. But then, again, perhaps we (and judges, who after all, do respond to public opinion) are over-influenced by tabloid vitriol when it comes to offenders: more considered attempts to establish what is public opinion have shown that the public is more interested in a justice that embraces reparation and rehabilitation than any simply punitive model.⁸

Indeed, it would seem that some kind of restorative justice model might work best not just for victims but for offenders and society as a whole, and be more in tune with the Christian vision of justice. To this end, one looks forward with interest to the outcome of the work of the seven-person National Commission on Restorative Justice, chaired by Judge Mary Martin, whose interim report was submitted in March 2008.⁹

Conclusion

I have noted that the Christian vision of justice does not admit of any simplistic application to the secular sphere, nor does it provide a blueprint which gives all the answers. However, it does provide an orientation which can be helpful in reinforcing our better instincts and taming our more savage ones. In this case, it points in a direction of a criminal justice system which legitimates proportionate punishment and the demands of victims for justice, but which locates crime in the context of society as a whole and prioritises the rehabilitation of criminals, with a reduced and more humane use of imprisonment as a sanction. This is a radical position, one which we are failing to take in this State.

I have indicated how this might affect current policy in a number of areas: one could apply the same logic of inference to all other areas of the criminal justice system, including, for example, the need for fair legislation and the resourcing and accountability of the police force.

The radical position indicated above would require a good deal of re-thinking of present theory and practice, but it is a position that apart from being more just to all concerned would also be to the benefit of all, for our common good. We are then, as often, faced with a choice: do we, like the Priest and Levite, pass by on the other side, and drift on? Do we care enough?

There does seem to be something like this kind of ‘drift’ operative often in Government policy and in our public response – instead of facing problems head-on, analysing them carefully, consulting all the interested parties and coming up with solutions which have widespread support, we tend to get ‘solo’ runs, with resultant adversarial recrimination and defensiveness. One thinks of issues such as the decentralisation of government departments and agencies; our health service in general and the co-location of private and public hospitals in particular; and now, in the justice area, the Thornton Hall project. And one contrasts this with the meticulously painstaking, intelligent, dedicated approach to a solution of the Northern Ireland problem. We are capable of better.

Notes

1. It is widely acknowledged that it is difficult to get a true picture on the extent of crime, due to the complexity of the phenomenon of crime, and the methodological problems in measuring it, such as under-reporting of incidents to the authorities.

   The official figures indicate that there has been a fall in the overall level of crime in the last decade. For example, total recorded offences in 1995 stood at 581,217 whereas the figure for 2006 was 406,163. Within this overall figure there have been increases in some forms of crime and decreases in others. What is of particular concern to the public and the authorities is the significant increase in the number of murders in the past ten years: whereas there were 43 murders in 1995, by 2006 the number had risen to 60.

   With regard to imprisonment, the daily average number of people detained in Irish prisons in 2006, the most recent year for which there are official statistics, was 3,331. In 2003, the daily average was 3,176 and in 2000 it was 2,919.

   The daily average in this decade is significantly higher than in previous decades: in 1990, the figure stood at 2,108; in 1980 it was 1,215 and in 1970, 749.

2.  For some background reading on the Irish criminal justice system, see Ian O’Donnell and Eoin O’Sullivan, Crime Control in Ireland: The Politics of Intolerance, Cork: Cork University Press, 2001; Ian O’Donnell and Finbarr McAuley, Criminal Justice History, Dublin: Four Courts Press, 2003; National Crime Forum Report, Dublin: Institute of Public Administration, 1998.
3. See also Christopher Jones, ‘Punishment and Justice’, in Christopher Jones and Peter Sedgwick (eds.), The Future of Criminal Justice, London: SPCK, 2002, pp. 43–56.
4. Pope John Paul II, Dives in Misericordia, 13 November 1980, n. 9.
5. T.J. Gorringe, Crime, London: SPCK (Changing Society and the Churches Series), p. 128.
6. Pope John Paul II, Message for The Jubilee in Prisons, 9 July 2000, quoted in The Catholic Bishops’ Conference of England and Wales, A Place of Redemption, London: Burns and Oates, 2004,
   p. 79; see also www.vatican.va
7. Gorringe, op. cit., pp. 116–117; p. 124.
8. Irish Penal Reform Trust, Public Attitudes to Prison, February 2007 (www.iprt.ie); O’Donnell and O’Sullivan, op cit, p. 73; Report of the Committee of Inquiry into the Penal System (The Whitaker Report), Dublin: Stationery Office, 1985.
9. National Commission on Restorative Justice, Interim Report, March 2008, Dublin (www.justice.ie).

Gerry O’Hanlon SJ is a theologian and a staff member of the Jesuit Centre for Faith and Justice.