Crime and Punishment

Editor’s Note/Bill Moyers

If you have been following any Washington news other than the debacle over health care and the intrigues surrounding The Russian Connection, you may have heard Attorney General Jeff Sessions talking tough about crime. Sessions is a “lock-’em-up-and-throw-away-the-key” kind of guy in the mold of Richard Nixon, who as president decided that one way to deal with “the racial problem” was to throw as many black Americans as he could into jail on drug charges.

As Eric Tucker wrote earlier this year, the US prison population swelled as prosecutions increased and the convicted received longer sentences. And it ballooned even more when Congress abolished parole in the 1980s as Ronald Reagan escalated the “war on drugs.” More than half of federal prisoners are now behind bars for drug crimes, and if Donald Trump and Jeff Sessions have their way, there will be more. Didn’t Sessions say “good people don’t use marijuana?” What a rich target the “bad people who do” make for SWAT teams inspired by the reckless rhetoric of a Jeff Sessions.

According to The Brennan Center for Justice, drug cases accounted for 40 percent of the convictions Sessions won as US attorney for the Southern District of Alabama. That record helped get him elected to the very US Senate that had denied him a federal judgeship on grounds of his reported racist attitudes. As Tucker reminds, last year Sen. Sessions opposed bipartisan efforts at criminal justice reforms and said that eliminating mandatory minimum sentences weakens the ability of law enforcement to protect the public.

He and Trump were made for each other, and hardly had he been sworn in as attorney general than Sessions announced that he will reverse the Obama administration’s decision to curtail the use of private prisons, which will provide him more cells to lock up more prisoners — the United States is now the world’s largest jail — and to satisfy the prison industry’s thirst for greater profits squeezed from human woe.

Don’t despair yet. Fortunately, hard-liners like Trump and Sessions and the predatory industry salivating at the prospect of bigger bottom lines face what James Forman Jr. calls a movement “for a more merciful criminal justice system.” The Yale legal scholar writes in The New York Times that even growing numbers of Republicans acknowledge the moral and fiscal imperative of shrinking the prison state.” You’ll want to read why he thinks “Donald Trump’s presidency doesn’t spell the end of criminal justice reform. It may just be getting started.”

All this stirs the conscience of my old friend, Donald Shriver, president emeritus of Union Theological Seminary in New York City and a longtime champion of redemptive justice. Among his books: An Ethic for Enemies: Forgiveness in Politics; Honest Patriots: Loving a Country Enough to Remember Its Misdeeds (which won the 2009 Grawemeyer Prize in Religion); and my favorite, On Second Thoughts: Essays Out of My Life.

Don, now 89, is as passionate for social justice as ever. Here is his latest essay on “Crimes and Punishment.”

–Bill Moyers


Crimes and Punishments

By Donald W. Shriver

“It was indeed an ‘unusual’ judicial sentence of two white teenagers for racist graffiti sprayed on a historic black school in northern Virginia: ‘read from a list of 35 books, one a month for a year, and write a report on all twelve to be read by your parole officers.’” — New York Times, Feb. 9, 2017, p. A20

I thought: “At last, a punishment that really fits a crime!”

The only downside was that, when carried out, the books, in the minds of these two readers, were likely to be shadowed forever by associations with punishment. For me that would be tragic, given the fact that for millions of readers, myself included, this list of 35 books long ago helped alert us to the deep wrongs of racism in modern society: among them, Cry the Beloved Country by Alan Paton, To Kill a Mockingbird by Harper Lee, I Know Why the Caged Bird Sings by Maya Angelou, Night by Elie Wiesel and Black Boy by Richard Wright.

The remarkable feature of this judicial sentence was how it clashed conceptually with the customary default question that suffuses our judicial system as a whole: How long a prison sentence does the crime deserve? That question penetrated many a conversation last year in the case of a university student in California sentenced to six months in prison for rape. A large protest greeted this mild sentence, but it provoked from the father of the accused the counter protest that even six months was a severe punishment for what was probably “20 minutes of action” for his rapist son. He did not suggest that anything but pleasant was the experience of the young woman.


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A strange mathematics is at work in our criminal justice system: for every crime, a matching time in prison. Philosophers speak often of the difficulty of comparing “apples and oranges.” Those are different fruits, not to be put into the same categorical basket. A more technical description of that maneuver might be “the fallacy of misplaced concreteness.” Translating the crime of racist graffiti into reading books that might reform the minds of two teenagers makes a certain concrete rational match with the crime. Putting them in prison for five years is no match at all.

Somewhere in the march from qualitative to quantitative assessments of human behavior, we tolerate leaps that deny rationality. In the recent era of mandated sentences for drug possession, judges themselves have sometimes protested the effects of such law. In 2002, in Utah, one Weldon Angelos, age 22, was issued a sentence of 55 years in prison for trying to sell a half pound of marijuana. Judge Paul Cassell, a Bush appointee, called his own mandated sentence “unjust, cruel and even irrational.” Twelve years into that sentence, another federal judge reduced the sentence and released Angelos.

Is there any consistently rational formula for matching years in prison to the seriousness of a crime? How much prison time per crime? Indeed, why prison as our customary response to virtually all of the 5,000 crimes counted by the Heritage Foundation on the 27,000 pages of the US Code? Without question the typical inquiry in any court about penalties for anyone found guilty of these and crimes-in-general centers on the question, “How much time in prison?”

The questions are old and embedded deep in our legal culture. Medieval castles routinely included dungeons in their building plans. In his Notes on the State of Virginia, written in the early 1780s alongside his tortured reflections on slavery, Thomas Jefferson proposed a “revised code to proportion crimes and punishments” drawn from traditions of English common law and ancient Roman precedent. He proposes to pre-Constitution readers a scale of crimes and punishments raging from the death penalty for “high treason” but to impunity for “suicide, apostasy and heresy” (which in a rationalistic age are “to be pitied, not punished.”) Prominent in his list of 22 matches is his assumption that murder and treason deserve the death penalty, but rape, sodomy and arson do not. Lingering from medieval law in his list is his apparent toleration of petty treason’s punishment by “dissection,” which recalls extra-special executions by hanging, disembowelment and dismemberment that remained in English law into the 19th century.

Still for the founding generation was a Bill of Rights that was to forbid “cruel and unusual punishment.” Prominent in Jefferson’s list, however, was his belief that justice for the taking of life or property should both require confiscation of the perpetrator’s property on behalf of victims and “the commonwealth.”


Scores known as risk assessments are increasingly common in courtrooms across the nation, used to inform decisions about who can be set free at every stage of the criminal justice system, from assigning bond amounts to even more fundamental decisions about defendants' freedom. (Photo by Spencer Weiner-Pool/Getty Images)

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A certain leap toward the irrational was inherent here. How to justify a return of stolen property to the state rather than the original possessor?