Judicial Reform

Patrick B. McGuigan | May 6, 2009

For the Sake of the Ten

Patrick B. McGuigan

It's time for an interim study on the restorative justice in Oklahoma.

The end of the legislative session is nearing. Issues small and large, including education policy, have dominated debate and discussion this year, the first in which Republicans have controlled both houses. And another 800-pound gorilla-the cost of prisons, jails, and incarceration-is starting to receive more attention.

Critics of Oklahoma assail our high levels of incarceration, including of women. Less often reported is the fact that our relatively high level of imprisonment has at least one pragmatic effect: Oklahoma has one of the lowest rates of recidivism (repeat offenders).

The point is there are benefits to the high imprisonment rate, just as there are costs. Consideration of issues surrounding crime and punishment cannot stop with liberal vs. conservative, soft-on-crime vs. throw-away-the-key stereotypes.

As Daniel Van Ness of Prison Fellowship has written, "Crime involves four parties: the victim, the offender, the surrounding community, and the state." But the criminal justice process generally focuses on just two of those: the offender and the state.

Van Ness notes that in the roots of Western law, the Old Testament, "all four parties were involved in fixing responsibility for a criminal act and in bringing restoration to the victim. For example, thieves and other property offenders were required to pay restitution to the victim. The community was to help the offender and victim work out a fair payment. If they had difficulty in doing this, the case was taken to priests or judges for final determination."

Herb Titus, a former law professor at the University of Oklahoma, has observed that at its origins the Law-in the fundamental strictures given to Moses and passed on to us in the books of Exodus, Leviticus, and Deuteronomy-"was intended to be a principled guide for tailoring all remedies, civil and criminal, to restore a person injured in accordance with the blameworthiness of the wrongdoer and the seriousness of the injury of the person wronged."

The philosophy of restitution did not disappear with the arrival of the New Testament. In the story of Zacchaeus, the repentant sinner pledges to Jesus that he will repay "fourfold" anyone he has wronged.

The restitutionary purpose of criminal law-restoration of the victim, and required recompense from the criminal-continued into the modern era and is, even today, not eradicated. But as government has grown more powerful, the role of mediating community institutions has comparatively weakened. As that has happened, the resort to imprisonment has become habitual. It has replaced the function, utility, and moral purpose of nongovernmental means to hold the guilty accountable, while reaching their hearts and souls.

Some studies estimate that nonviolent offenders constitute one-third to perhaps one-half of the population of prisons and jails. In the modern era, few analyses put the number at less than one-fourth. Including all drug offenders in either category can skew the numbers somewhat, but the "one-fourth" vs. "one-half" numbers more or less represent the parameters of the debate over violent and nonviolent offenders incarcerated.

Imprisonment is justified for four reasons: incapacitation, deterrence, rehabilitation, and punishment. There is a rational purpose behind each of these, especially when it comes to violent offenders. But that doesn't mean that every prison policy, let alone every imprisonment, is right.

Consider this story. Recently the Oklahoma Department of Corrections blocked Wingspread, a Christian ministry, from sending Bibles, books about Jesus, and other faith-based materials to prison inmates. A lawsuit, filed by the Virginia-based Rutherford Institute, is under way to force a change in the policy.

After a Marlin Oil Corporation advertisement concerning the incident appeared in The City Sentinel, the weekly paper where I am managing editor, people contacted me to say that policies blocking circulation of religious literature are, in some cases, now extending even to communications from family members to loved ones behind bars.

As the Marlin commentary observed, "Keeping the good news away from incarcerated people is one way to make sure that prisons simply remain graduate schools of crime. Protecting access to the good news for every willing human heart is a way to make sure that conversion remains possible, that restitution and repayment to victims and society might be not only a possibility under the law, but an operational reality of the system."

To be sure, "Nothing changes the mind, and heart, of a person faster than the recognition that ‘I once was lost, but now am found.'"

This is a magazine about public policy, not philosophy. So, here's a modest policy proposal.

A bipartisan team of legislators should undertake a comprehensive interim study, with the help of corrections officials, workers, and faith-based organizations, on how to go "back to the future"-returning to the roots of Judeo-Christian legal traditions. Oklahomans can make the system better. Specific steps should be considered to make it easier for people of faith to leaven the despair that can abide within the jailhouse walls.

There are many reasons the faithful, even those who have themselves been victims of crime, should not give up on those behind bars. Convicted criminals may be out of sight, but if they're out of mind, we're falling short of possibilities.

In the 18th chapter of the Book of Genesis, our father in faith, the patriarch Abraham, was visited by three men he eventually discerned were angels. They spoke with God's authority. Among other things, they informed Abraham and his wife Sarah that, after years of barrenness, she would bear a child.

In that same story, Abraham learns the mysterious visitors are on their way to the city of Sodom, to investigate its evil. In one of the great intermediary prayers recorded in all of the monotheistic tradition, Abraham walks with the visitors, pleading for the minority to be spared.

Abraham asks, What if there are 50 righteous men in the city? The angel responds that for the sake of those, he could spare the city. The sequence continues, through 45, 40, 30, 20 and 10. And then, after Abraham's final plea, the angel says, "I will not destroy it for ten's sake" (Gen. 18:32 KJV).

Eventually, sad to say, in Sodom there were no righteous. And the judgment was terrible, indeed.

That was then. This is now.

What if, in Oklahoma's worst prison-McAlester, let's say-there are 50 people who could yet be redeemed, becoming men who are "convicted" of the necessity to make amends for criminality? What if there are ten?

What if, perchance, there is one? If so, then we need to make McAlester a place where faith can be lived. And it seems clear we need policies that send to McAlester only those who absolutely need to be there.

One day we shall stand before the Judge of all. Knowing of his concern for "the least of these, my brothers," including prisoners, we dare not abandon the ten, or even the one.

OCPA research fellow Patrick McGuigan (M.A. in history, Oklahoma State University) is the author of two books and the editor of seven, including Crime and Punishment in Modern America (1986).

Patrick B. McGuigan

Independent Journalist

A member of the Oklahoma Journalism Hall of Fame, Patrick B. McGuigan is founder of CapitolBeatOK, an online news service, and editor of The City Sentinel, an independent newspaper. He is the author of three books and editor of seven, and has written extensively on education and other public policy issues.

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