Jonathan Rothchild, Matthew Myer Boulton and Kevin Jung (eds). Charlottesville: University of Virginia Press, 2007. 280pp. Cloth. $49.50. ISBN: 9780813926421. Paper. $19.50. ISBN: 9780813926438.
Reviewed by Brian Pinaire, Department of Political Science, Lehigh University. Email: bkp2 [at] lehigh.edu.
One of the difficulties involved in contemplating the “criminal justice system” in the United States is that what we are really talking about are the “criminal justice systems” in America, in the sense that each state and the federal government maintains its own system. What’s more, critical decisions are generally made (regarding incarceration, bail, representation, and so on) at the county and municipal level and often with little consistency, but for various statutory and constitutional mandates. A similar problem presents itself as we seek to imagine how “religion” may shape our thinking on issues of crime and punishment in the United States, given the myriad faiths that proliferate in this nation today and the moral complexity lying at the heart of these belief systems. And indeed, as readers of the Law & Politics Book Review are well aware, the constitution of “law” implicates the same imprecision. To merge such freighted notions then – asking how religious perspectives may influence modern thinking on the legal system or matters of criminal justice, or how the dilemmas of the justice system(s) invite us to call upon religious foundations for fresh insight – is the task toward which DOING JUSTICE TO MERCY is directed.
The book, edited by Jonathan Rothchild (Loyola Marymount University), Matthew Myer Boulton (Harvard Divinity School), and Kevin Jung (Wake Forest University Divinity School), is the product of a conference over several days, sponsored by the Martin Marty Center and the Institute for the Advanced Study of Religion at the University of Chicago Divinity School – with additional support from the University of Chicago Law School. There are fifteen different contributors, ranging from academics to activists, providing sustenance for the two main sections of the book: Part I, which deals with “case studies” in justice and mercy and Part II, dealing with “approaches” to justice and mercy. Ultimately, the “purpose” of the book is, as the editors put it, to encourage a “conversation” regarding the relationship between justice and mercy (p.2) – a project that they believe “can be complementary and provocatively constructive” for both law and religion (pp.2-3). In principle, it is hard to disagree with the call to “conversation”; the practice and the products of this discourse are, of course, the domains of detail where the “devil” resides. Reviewing a book with arguments spanning twelve distinct sub-topics (and three “Critical Responses” to various claims) is somewhat daunting, as the initiated know well. What follows then is a generally descriptive and necessarily economical account of each [*518] of the chapters, with some more general kudos and criticisms to follow.
Marc Mauer (Executive Director, Sentencing Project) begins the volume with an essay that “explores the hypothesis that the racial disparities produced by the punitive orientation of American criminal justice policy were not an unintended byproduct of a well-intended strategy to control crime, but were rather an outcome that was determined by the racial perceptions of the problem and that also could have been foreseen at various times of the adoption,” leading him to examine “both the framework by which policies have been developed as well as the processes by which they were implemented” (p.17). Criminal justice scholars will be very familiar with Mauer’s statistics and the sad state of affairs they portray, though he does conclude the essay with some reasons for relative optimism. Lois Gehr Livezey (McCormick Theological Seminary, Emerita) discusses the relationship between the churches and criminal justice as both confront problems of sexual and domestic violence. Providing some examples of reform and reconsideration from the legal realm over the last generation, Livezey’s primary claim seems to be that religious communities must more vocally and vigorously engage such problems in the public realm – requiring in the end that churches “reframe the issues of sexual and domestic violence as issues of power and investigate the spiritual, biblical, and theological roots of these meanings and uses of power” (p.47).
Ernie Lewis (Public Advocate for the Commonwealth of Kentucky) continues the conversation with some words “from the street” (my term). Specifically, Lewis (who also holds an M.Div. degree) notes at the outset that criminal justice in America is “mostly retributive” (p.51) and that “turning the other cheek” (my paraphrase – Lewis provides the literal biblical passage) is rare and he brings to bear his experience as the chief administrator of the statewide public defender system to stress that “mercy” – with respect to the death penalty, race, and sentencing – is detectable only in the form of “echoes.” The metaphor is a powerful one and provides a nice frame for Lewis’s realistic presentation of the prospects for “mercy” in a seemingly inhospitable punitive climate. Jonathan Rothchild (one of the co-editors) then considers the generally declining support for rehabilitation as a purpose for the criminal justice process over time, especially as manifest in the Federal Sentencing Guidelines which were designed to secure longer and more consistent terms of incarceration for offenders and which notably reduced discretion afforded to judges. Rothchild covers considerable ground in this essay, beginning with a discussion of the Walnut Street jail in Philadelphia in the early 1800s, and culminating in a call for “theological symbols and resources” to “challenge critically what we are and portray models of what we might become” (p.85). Rothchild realizes that his proposals are “inchoate” (p.85) – and his discussion of the various sub-themes is too abbreviated (I did not see even a reference to Robert Martinson’s (in)famous study, “What Works?”, arguably the most important assessment of rehabilitation in the twentieth century) – but this is forgiven by the breadth and significance of the questions he asks. [*519]
Albert Alschuler (Northwestern University Law and Law and Criminology Emeritus, University of Chicago) wonders whether “the concept of justice is so expansive that it leaves no room for mercy” (p.92) and concludes: “not quite” (p.92). With some fantastically thought-provoking examples along the way, Alschuler ponders the implications of mercy (for offenders), in terms of precedent established, and mercy (for victims), in terms of the well-being of those hoping to recover from their wounds. The example at the end, involving the murder of Matthew Shepard in Wyoming and the request of the victim’s family that the prosecutor not seek the death penalty, is a wonderful encapsulation of the themes of the essay – and the book as a whole. David Scheffer (Northwestern University Law) asks “Why International Law Matters in God’s World” and uses the essay to: argue for a new category of crimes (“atrocity crimes”), meeting his stipulated criteria and more obviously asserting the religious associations; to reject Robert Kaplan’s recent call for a “pagan ethos” in international affairs; and to demonstrate that accountability and forgiveness “reinforce each other” (p.113). Adopting this vernacular and these premises, Scheffer finds that we can “establish a credible means to pursue justice within a moral framework that recognizes the power of forgiveness in the proper context and for the appropriate category of criminals” (p.115). In a “Critical Response” to Scheffer, David Little (Harvard Divinity School) offers a sprawling critique that is sympathetic in some ways, but that ultimately presses Scheffer to develop his claims in greater detail. Why, for example, should the perpetrators of “atrocity crimes” be the target of retributive justice if, as the conference and this volume stress, “mercy” is the object of our desire – or at least our contemplation?
The essay by Matthew Myer Boulton (another co-editor) begins Part II of the book: “Approaches to Justice and Mercy.” Here, Boulton proposes a “theological account” of mercy as the “practice of transgressive care,” one which is “already pointing toward corollary accounts of both ‘justice’ and ‘neighborhood’” (p.130). In doing so, Boulton ably uses the story of the good Samaritan to develop his ideas and to draw some helpful contrasts with other authors’ accounts (e.g. Alschuler). The result is a quite persuasive account of “mercy” at a broader level, setting forth the notion of the “neighbor[hood]” as a trope for the consideration of the larger whole. Mark Lewis Taylor (Princeton Theological Seminary) argues that Christians are called upon to participate in “creative, popular movements against organized terror” (p.145) and then proceeds through four parts, specifying his understanding of “organized terror”; discussing the “theatric” components of such terror; presenting Christian practice as a “countertheatric”; and, orienting the above in terms of some examples from modern life. Many of my initial reactions to Taylor’s piece are fleshed out (much better than I could present them) in Sarah Coakley’s (Divinity, University of Cambridge) “Critical Response.” Specifically, Coakley pushes Taylor on his conception of “tactics” and the theory(ies) that would need to underlie them, as well as the particular relationship portrayed between Taylor’s notion of “terrorization” and the US prison system – a “terror” [*520] ongoing and expanding before our very eyes.
William Schweiker (University of Chicago Divinity School) develops his conception of “responsible mercy” from the perspective of Christian theological ethics. What this yields, according to Schweiker, is an understanding that such mercy is “nonnecessitated action, a forebearance, that enacts or discloses the worth of persons within a system of justice when that system has gone awry and threatens to eradicate or efface human worth” (p.185). The discussion and implications of “human wretchedness” is quite interesting in this chapter, but this piece seems (to me at least) to be the most removed from any immediate discussion of daily matters of law or criminal justice. There are some intimations at the end, but the essay mostly appears to be a (quite well done) discussion of various theological issues and philosophical stances (e.g. classical realist, amelioristic, and emancipatory approaches) that could have been improved with a more obviously practical contribution for the chapter. Kevin Jung (the final co-editor) sets forth a construction of justice and mercy as “belonging to independent but systematically related spheres of human action necessitated by the human condition of fallibility” and argues that human society must unite the two “in order to make it genuinely human” (p.207). To reject one in the interest of the other – even given their irreducible spheres and distinct purposes – is to miss their necessary relationship, Jung concludes, and throughout the essay provides a nice theoretical exposition of the book’s objectives and anticipations.
Peter Paris (Princeton Theological Seminary) follows this with a much too abbreviated essay for his compelling topic. Specifically, Paris’ most notable emphasis is to invite us to conceive of crime in terms of public health. Various scholars have begun to make this argument – e.g., that crime is an “epidemic,” requiring treatment along such lines – and Paris’ contemplation is at least in this spirit as he urges us to think of terms of problems to be rehabilitated rather than merely swept into the cycle of retribution. Inspired by the work of Norval Morris, W. Clark Gilpin (University of Chicago Divinity School) then provides a helpful overview of the history of prison conditions in the United States and uses Reinhold Niebuhr’s notion of equal justice as a means by which to evaluate the purposes of public theology. Gilpin’s essay draws a “Critical Response” from William Placher (Humanities, Wabash College), however, who finds that current conditions in the United States are ill-suited to explanations rooted in the language of sin. Placher uses the simple example of visiting prisoners as a way of illustrating his conception of the direction and degree of involvement (and resulting indignation) that is appropriate for Niebuhrian Christians.
There remains one final chapter to mention, which I will address below. But first, let me point to a few virtues in conclusion. With a few exceptions, the essays are well-written and scholarly (though also, obviously, fueled by the energy of faith and activism). The topics are generally all thought-provoking and take existing debates and dilemmas in new directions. And the editors have done a fine job of organizing the pieces [*521] into a logical sequence, such that the insights from the essays do accumulate in the reader’s mind while progressing through the book. The binary distinction between “case studies” and “approaches” did feel a bit forced at times (certain “cases” dealt with “approaches” and vice versa), but decisions of this sort do need to be made to satisfy publishers. Finally, the “Critical Responses” following three of the chapters were a nice touch and all that would have made them better is to have them following every chapter. Reading them, one felt as if one was really in the room to witness a commentary period.
But this “feel” of a conference leads me to a few criticisms as well. At least one author’s essay includes a sentence beginning with “For this presentation . . .” – a slip which is, I think, highly revealing of one of the book’s drawbacks: it is all over the map, much like academic panels and gatherings tend to be. This is good, to be sure, in that interdisciplinarity, creativity, and big, searching questions are at least my preference; but the book also lacks cohesion in many places because – while putatively focused on “justice” and “mercy” – several contributors make little effort to substantively address legal or criminal justice questions and seem, instead, to work only within their primarily theological training. (I will not address here the fact that all perspectives are, as well, from the Christian tradition, though this could also be a source of criticism for those hoping that the “Religion” in the sub-title might portend more heterogeneous contributions.) Where various essays do venture into legal or criminal justice debates, several do so without much attention to the immense literatures already associated with these fields.
In a sense then, “Law” and “Criminal Justice” do not necessarily belong in the sub-title. With a few exceptions, in fact, I would suggest that the cumulative focus of these essays is less specifically criminal justice and more social justice, a concept with obvious religious implications and one that is inclusive of its antecedent, but one that also affords the range of movement across quandries that seems to be preferred by the contributors. The actual policy matters of criminal justice that receive the most attention (the death penalty, incarceration, sentencing, rehabilitation) are the most commonly-considered ones and are, as conveyed in this text at least, actually issues of social justice mapped out on the plane of crime and punishment – especially because the authors’ collective attention is directed toward the underlying elements of race, class, anomie, and the like, that pervade criminal justice but which obviously transcend this context. Meanwhile, there are substantial numbers of legal and “criminal justice” questions that receive almost no attention at all, such as juries, judging, representation, enforcement, profiling, collateral consequences, trials and so on.
A final criticism lingered with me throughout the book, but was more apparent to me as I read William Schweiker’s “Postscript”: the volume could have really benefited from a deep and probing theoretical overview at the start. Schweiker acts the role of a discussant of sorts, attempting to draw various essays into conversation and to distill their collective themes, but because of the divergence of the essays [*522] (in their vernacular, historical periods, jargon, assumptions, intentions, references, and so on), the onus is on the editors, it seems, to pull things together in a more cohesive way at the outset so that the reader can make some sense of what the essays are going to accomplish as a whole. The editors do provide an Introduction, certainly, and in their individual essays one can see them working with the themes of the whole, but a more detailed road map from the start would have helped me as I looked for that intersection of Justice Avenue and Mercy Lane.
© Copyright 2008 by the author, Brian Pinaire.