INSIDE AND OUTSIDE THE FENCE:  CRIME AND PUNISHMENT – DISCOURSES OF POWER

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CHAPTER 3 – INSIDE AND OUTSIDE THE FENCE: CRIME AND PUNISHMENT- DISCOURSES OF POWER

 INTRODUCTION

Crime destroys the freedom and wholeness of society and communities claim their right as citizens to be protected and for justice to be served. In this chapter crime as a dominant societal discourse and imprisonment as a form of criminal justice are discussed. Attention is given to different theories of punishment, with the suggestion of restorative justice as a better and alternative way of dealing with the effects of crime and healing of society. The pervasiveness and uneven distribution of power in structures, ideologies and institutions give rise to abuse of power, oppression and social injustice.
The purpose of this chapter is to give a perspective on the practices of power and to raise awareness among the participants, the church and faith community, and the wider society, of the pervasiveness of power in theology, our societal discourses and practices which serve to oppress, marginalise, alienate and exploit. This serves as a call to reflect on our own participation and contribution to human suffering and oppression and hopefully to be moved to introspection, repentance, compassion and accountability. Ackermann (1998:82) reminds us that we are held responsible and accountable for the suffering and injustices of this world and have to become involved in the healing of society. Cochrane, De Gruchy and Petersen (1991:13) contend (drawing on the ‘pastoralhermeneutical circle’ of Holland and Henriot) that the social context of our ministry should be informed by a social analysis. Cochrane, De Gruchy and Petersen (:35) quote Albert Nolan as saying: ‘Social analysis is the instrument or tool we use to clear away the lies, the blindness, the confusion and propaganda, so that faith can discern the movement of the Spirit and indeed the forces of evil in our world today.’
These discourses call for a deconstruction of power, for the voices of the suffering and marginalised (offenders and victims) to be heard and to prepare a way for forgiveness, healing and restoration. In this respect the church can play a significant role in engendering healing to society through ministering to a suffering people in prison, assisting in the re-establishment of the ex-prisoner into society, as well as being involved with and sensitive to the needs of victims of crime.

CRIME AS A DOMINANT DISCOURSE

Crime is universal and evokes strong responses. Crime affects not only victims, but also those close to them and the whole of society. Like death, crime can enter one’s life at any time, destroy forever one’s sense of safety and security, and leave a legacy of anxiety and mistrust. Where crime is perceived to be increasing, random or out of control, it creates general trauma, even among those not directly affected by the crime. Crime creates a perception of restricted freedom and a fear of being the next victim (Marshall 2002b:1).
The traditional methods of dealing with crime focus on retribution and punishment, with imprisonment the crown in 20th-century policy. This policy’s failure is reflected in the statistics from every country and jurisdiction. Crime rates continue to rise, imprisonment numbers mount endlessly and costs become astronomical (Consedine 1999:7). Western countries see massive increases in prisons. The bulging prison population will create a crisis in society, yet this development has elicited little public debate (Bowen & Consedine 1999:8).
The available statistics show that in the USA, Canada, Australia and New Zealand the indigenous ethnic groups are imprisoned disproportionately when compared with their populations.8 Almost all the figures reflecting imprisonment of indigenous ethnic groups are increasing. This is shown most dramatically in Canada (3.9%), followed by the USA (2.3%), then New Zealand (1.6%), then Australia (1.1%), whereas the average for the whites is 0.1% or less. This average is about the same in Western Europe. The New Zealand average overall of about 145 per 100 000 (including the whole population) is about 50% greater than Europe.
The fact that New Zealand prisons are overpopulated with the poor and disadvantaged, with Maori and Pacific Islanders, with those at the bottom of the social and economic scale, is perceived by Marshall (2002b:8) as a reflection of the fact that criminal justice cannot be neatly separated from social justice. For all the countries studied, the parts of the population which are socially disadvantaged or discriminated against constitute those who are most likely to commit crime and end up in prison.
The consequences of mass incarceration as a solution to social problems are serious and far-reaching. Vivien Stern (1999:8) points out the dangers incarceration poses to the security of society by ‘creating an enormous, alienated, antisocial class hostile to society’s values and bound together in crime.’ The consequences for society are vast when such a large percentage of its population has formed their friendships and business networks, as well as affirmed their values within a prison culture. General concern for society is expressed over the large component of young men (and women) who during their imprisonment come to perceive society as their enemy and therefore could present a greater threat once they have been processed through the prison system than they did at the beginning of their criminal careers (Bowen & Consedine 1999; Duff & Garland 1994; May & Pitts 2000; Spitale 2002).
According to Marshall (2002b: 2) the exploding prison population is not necessarily a symptom of increasing crime rates (in New Zealand at least), but due to the community’s general perception about crime, as reflected in social and political policy. Marshall (:2) refers to The Republic of Ireland, with a population which equals New Zealand, but with half its prison population. This may mean New Zealand has more crime than Ireland, or a more punitive society, or has less imaginative judges and politicians, or more pronounced ethnically- related social and economic injustices.

DEFINITIONS OF CRIME

Varying definitions of crime reflect different accents attributed to the act of crime, including its perception as moral wrongdoing, an act of sin or acting unlawfully.
The term crime is defined by the Chambers English Dictionary (Schwarz et al 1992:336) as: ‘A violation of law, especially; if serious; an act punishable by law; such act collectively or in abstract; an act gravely wrong morally; sin; an accusation, a cause or motive of wrongdoing; to change or convict of an infraction of law.’
Following in the above steps, Emile Durkheim (quoted by Diochi 2001:68) defined crime as: ‘An act prohibited by the collective consciousness of the society. And a criminal is simply the human person in a society who has refused to obey the laws of the city or the laws guiding the society.’
According to Kaplan et al (quoted by Diochi 2001:64) the idea of crime is equated more broadly by some people as a social wrong-doing. The problem with this definition is that citizens and legislatures do not necessarily agree on what is right and what is wrong. Most acts which are regarded as immoral are also illegal, but the spheres of crime and morals do no more than intersect. An act may be immoral, but not a crime, for example abortion and adultery in certain communities (:69).
According to G. Bennett (quoted by Diochi 2001:69), ‘crimes are defined in and out of existence relative to the social, economic, and political climate of the times’ of which prohibition and abortion are examples. In times of economic depression, judges tend to impose heavier penalties than in times of prosperity. When considering the shifts in crime and the perceptions of what a crime is, one has to take into account the historical and contextual trends that influence the formulation of definitions. This point of view underscores the power of societal discourse in a certain time and period – a point of view that directly emphasises the power relations embedded in religious and criminal discourses. Stephen Tyler (quoted by Madigan 1996:51) reflects as follows: ‘Learning takes place within communities of discourse whose members – even in dissent – are guided by and constrained by notions of right, proper, and appropriate ways of saying, doing and thinking.’ Adopting a postmodernist perspective, it is proposed that the language we use constitutes our world and beliefs. It is in language that societies construct their views of reality. These realities are kept alive and passed along in the stories we tell and the traditions we hold (Freedman & Combs 1996:29–30).

DIFFERENT THEORIES OF PUNISHMENT

Marshall (2001b:98-143) in his book Beyond retribution: A New Testament vision for justice, crime and punishment discusses different approaches to punishment and its evolution in the West. These are the rehabilitation, deterrence and retributivist theories. He also discusses the human rights theory, and concludes his argument by a plea for a new paradigm, a model of restorative justice.
3.4.1 The Rehabilitation Theory
The Rehabilitation theory appeals to its capacity for generating change in the recipient. Punishment has a corrective goal; it might even be regarded as a form of ‘treatment’ for anti-social tendencies (Marshall 2001a: 99).
The aim of reform was relatively novel when raised by the philosopher Jeremy Bentham (1748-1832). Prison was considered a more humane alternative to capital punishment or banishment or public humiliation, as well as the potential means for reforming criminals so that they could be returned to society as upright citizens. Prior to this time, the system of punishment was largely arbitrary and often brutal. The function of imprisonment changed from being a system for detaining people before trial or sentencing to becoming a mode of punishment in its own right. ‘The age of sobriety in punishment had begun’, Michael Foucault (quoted by Marshall 2002b) observes, even if the intention was ‘not to punish less but to punish better’ – better because now the mind or soul of the criminal was being targeted, not just the body, and it was being done away from the public gaze behind prison walls (Marshall 2001a:100; 2002b:4). At first, reform strategies were unsophisticated and undifferentiated, but as human science developed, offenders were divided into categories and rehabilitation programs adjusted to meet their specific needs. In twentieth-century penal theory and practice, there was growth of concern for the reformation of criminals and their reintegration into society (Marshall 2001a:100).
The strength of the rehabilitative approach is the way it recognises that an offender does not stop being a member of the community while under correction. The offender’s interests are part of society’s interest, and it is in everyone’s interest that the lawbreaker is rid of the behaviour that injures the community (Marshall 2001a:100).
3.4.2 The Deterrence Theory
According to the deterrence theory, which claims its lineage back as far as Plato, punishment is designed to discourage future wrongdoing, by making the offender an example to others. In contrast to the reformative theory, the deterrence theory is more honest about what punishment is actually doing: it is delivering pain, not therapy (Marshall 2001a:104).
Punishment is not an adequate deterrent in itself, especially of serious crimes or crimes of desperation. Punishing the desperate or those without hope does little to deter offending in social contexts of economic despair, political hopelessness, or systemic violence. Most criminologists and sociologists agree that crime rates are more influenced by social and economic policies and by the prevailing political climate than by penal policies (Marshall 2001a:105).
Deterrence depersonalises the offender, seen as a ‘non-complier’ of the law, through fear. The courts are sending a message to future potential offenders. The greater the punishment, the stronger the message (Marshall 2001a:106-107). The punishment is largely functional and the moral or legal guilt of the offender is not addressed. Deterrence reasoning can lead to scapegoating, in that an individual offender is made to suffer not only the consequences of his or her own misdeeds, past and potential, but also the full weight of communal anxiety about crime (:107-109).
3.4.3 The Retributivist Theory
The term ‘retribution’ means ‘repayment’ – that is giving back to someone what he or she merits or deserves. It is normally used in the negative sense of punitive recompense for wicked deeds. Four key elements in retributivism may be identified (Marshall 2001a:109-112).
The first is the notion of guilt. Criminals are regarded as morally responsible agents who, by voluntarily breaking the law, incur personal, legal guilt that must be dealt with. From this flows the second element of desert. Punishment is deserved and it would be unjust not to punish. Wrongdoers deserve to suffer for what they have done, whether or not the punitive suffering produces any desirable consequences. Proponents of retributivism frequently use metaphors for punishment such as ‘repaying the debt to society’. The third key concept is equivalence, or proportionality. In order to be just, the punishment should be proportionate to the offense committed. The fourth concept is reprobation or denunciation. Punishment is the fundamental means by which society communicates its abhorrence for certain deeds and sets the boundaries of acceptable behaviour (Marshall 2001a:109-110).
There are significant strengths in the retributivist theory. In contrast to the deterrence theory, it focuses on the criminal as an individual, not on the betterment of society. It recognizes that wrongdoing entails personal choice and moral responsibility. Punishment is justified only if it is just, it is just only if it is deserved, and it is deserved only if the crime is the result of free will (Marshall 2001a:111).
A further strength is that it takes seriously the entitlement of the criminal to be treated as a rational human being with an inherent right to receive just repayment, positive and negative, for his or her own actions. To punish someone to intimidate (deterrence) is to treat the person as less than human; to punish in order to correct (rehabilitation), is to treat the person as a juvenile, but to punish because it is due, is to treat the person as a reasonable and responsible agent. It offers the offender a chance to make amends for the crime committed and to rejoin society’s moral consensus by choosing to live by society’s rules (Marshall 2001a:112).
One of the criticisms of retributivism is that it tends to focus on the individual. Theoretically the punishment serves to restore the social or even cosmic imbalance caused by the crime, but in practice, attention focuses on the criminal as an isolated unit in society. Crime is treated primarily as an offence against the law by an autonomous individual who is totally responsible for the crime and ignores the extent to which the negative aspects in the community have contributed to his crime. It is crucial to inquire into the societal causes of crime – and collective responsibility for it – rather than being content to divide individuals into categories of guilty and innocent, and calculating commensurate punishment for the guilty. Karen Kissane (quoted by Marshall 2001a:118) makes the following comment:
The legal principle that each person is responsible for his or her actions has collided with growing knowledge about how little control some people have over their lives; about the links between physical and emotional poverty and abuse and crime. How just is it for society to cast from its midst the misshapen creatures of its own making….Is not crime part of the body proper, a systemic illness?
The law which criminals break is not a neutral description of absolute morality. Barbara Hudson (quoted by Marshall 2001a:118) argues that the law predominately expresses the desires of the powerful, property-owning, whites, and that the justice system hits the poor and disadvantaged more heavily than the rich and powerful. There is also a significant link between types of punishment and business cycles. During economic depression, punishment increases and reform gives way to retribution. Thus the rehabilitative ethos in the ‘good’ 60’s gave way to a retributive ethos in the recessionary 70’s and 80’s. Retribution fails to provide ‘deserts’ which are ‘just’ in an unjust society which benefits from maintaining the status quo, i.e. the wealth gap (Marshall 2001a:119).
The exclusive focus on the individual offender also highlights another weakness in retributivism (shared by deterrence and reform theories) – neglect of the victim, particularly when the system redefines the victim as the impersonal state, not the human being actually hurt by the crime. Crime always involves the rupturing of relationships. Not only is the proper relationship between victim and offender distorted by the crime, but the emotional, material, and physical hurt experienced by the victim affects his/her relational world. Punitive retribution is an inadequate response, since it does little or nothing to bring about recovery. A more promising strategy is to begin where the problem began, in the fractured relationship (Marshall 2001a:119-120).
When biblical considerations are taken into account, it is debatable whether retribution, strictly understood, is as foundational to biblical conceptions of law and justice as is sometimes claimed. There is a theme of retribution in the Bible and it serves an important theological function (Marshall 2001a:122). In non-capital offenses, the emphasis in biblical jurisprudence falls on restitution rather than retribution (Lv 17-27; Nm 5-8). Theologically God’s justice is not retributory, but the expression of his love and concern for each of us. John Hayes (quoted by Marshall 2001a:125) explains: ‘The basic principle operative in Israelite law was for restitution…for restoration of the victim to the status prior to the wrong rather than punishment of the offender.’ Restitution restores shalom, which flourishes only when true justice has been done, where harm has been repaired between the offender and the victim (:125). As humans we can only administer rough justice, rather than the genuine justice of God. God deals with people not merely on the basis of external deeds, but on the basis of their intentions, motivations, and enduring moral character, which God alone can know perfectly (1 Sm 16:7; Mt 5:8) (:127-128).
Thomas Talbot (quoted by Marshall 2001a:128) argues that the retributivist theory of justice is basically flawed, because justice is only fully satisfied when the harm caused by wrongdoing is undone. Punishment does not achieve this. Paul Fiddles (quoted by Marshall 2001a:128) makes the point: ‘What justice demands is not payment but repentance; it is finally ‘satisfied’ not by any penalty in itself but by the change of heart to which the penalty is intended to lead.’ God’s justice can ultimately be vindicated not by retribution, but only by reconciling forgiveness, for only in this manner are things made right.
On its own, retributivism is inadequate to deal with the complexities of the social institution of punishment and the depth and the breadth of the biblical witness (Marshall 2001a:128-129).
3.4.4 The Human Rights Theory
Attempts have been made to conceptualise the problem of crime and punishment in fresh terms. In the human rights theory, crime is understood as an interference with the rights and freedoms of others, as is punishment, which therefore requires special justification. The general justification for punishment is the protection of human rights through crime reduction and the promotion of the positive freedom of victims and potential victims. There are limits to punishment guaranteed by the offender’s continuing possession of human rights, limits that cannot be set aside for utilitarian purposes. For example, capital punishment, torture, physical abuse, forced public humiliation and perpetual punishment are ruled out. Rights also imply corresponding duties, especially from a biblical perspective. If the state claims the right to punish the offender, it has a corresponding duty to ensure that it inflicts no more harm than was intended by the sentence. The intention of the punishment is the deprivation of liberty from which consequent suffering inevitably ensues, such as the loss of family ties, the limited ability to make decisions for oneself, impaired prospects for future employment, and the dehumanizing impact of the prison community. The state has a duty to offset these handicaps by rehabilitative efforts, which will also enhance the offender’s positive freedom by increasing his or her capacity to refrain from crime and to live as a responsible citizen (Marshall 2001a:130).
The human rights theory offers a helpful new framework for explaining and justifying criminal punishment, but whether it achieves fundamental shifts at the institutional level of the criminal justice system, remains to be seen. The current justice system is a hybrid of many different – and, to some degree conflicting – theories of punishment. The result is a profound crisis in the penal system itself and widespread confusion amongst the general public about what purpose punishment is intended to serve (Marshall 2001a:130). This places demands on those running the system. Prison administrators are required to deter, hurt and rehabilitate at the same time, then denied the resources to do so and widely criticized for failing to meet such an incoherent and contradictory remit (:130-131).
Howard Zehr (quoted by Marshall 2001a:131) argues that the Western penal system, although a mixture of several theoretical perspectives, remains largely committed to retribution. A fundamentally retributive model has been subjected to a number of utilitarian adjustments (such as the concept of rehabilitation and alternatives to incarceration) to make it work better or appear more humane. But none of these adjustments have remedied the basic dysfuntionality of the retributive model. What is needed, he argues, is a new paradigm, a model of restorative justice, committed not merely to administering punishment, but to making right what has gone wrong through crime, and employing appropriate institutional mechanisms for doing so.

DISCOURSES OF POWER

In order to co-create new meanings with the inmates in their lives and relationships through accepting the Christian faith, it was important to create an understanding of how certain kinds of negotiated meanings operate to subjugate, marginalise or trivialise people’s experience, or prevent it from being fully represented.
Discourse is a central term in Foucault’s writing and in its broadest sense is described as ‘anything written or said or communicated using signs’ and emphasises its dominant focus on language (Fillingham 1993:100). McHoul and Grace (1993:26) link Foucault’s idea of discourse to the historically specific relations between disciplines (defined as bodies of knowledge) and disciplinary practices (forms of social control and social possibility). According to this position, in any given historical period, we can write, speak or think about a given social object or practice only in specific ways and not others. ‘A discourse’ would then be whatever constrains – but also enables – writing, speaking and thinking within such specific historic limits (McHoul & Grace 1993:31). The direct social and historical context of any discourse is thus emphasised by Foucault and indicates that each era will define its own discourses and these definitions may vary radically over time (Fillingham 1993:101).
In order to sensitise and enable us to deconstruct the power structures embedded in discourses with regard to crime, punishment and religion, one needs to understand different perspectives on the concept of power. Discourses regarding knowledge and power are deconstructed within the social construction framework (Kotzé & Kotzé 1997:9). Within the post-modern paradigm the work of the French philosopher, Michel Foucault (1965, 1973, 1977) with his ideas on relational power, contributed greatly to an understanding of the concept of power. James Poling (1991) is a practical theologian and psychotherapist and addresses issues regarding the abuse of power in the Church. Joanne C. Brown and Carole Bohn (1989) look at Christianity, patriarchy and abuse from a feminist point of view. In the following discussions I explain some of the main themes as presented in the above literature, insofar they have helped me to gain a better understanding of the power relations embedded in my area of research.

CONTENTS
ACKNOWLEDGEMENTS
1 PRISON MINISTRY: A RESEARCH STUDY
1.1 INTRODUCTION
1.2 THE RESEARCH QUESTION
1.3 ‘MOMENT OF INSERTION’
1.4 NEED AND SIGNIFICANCE OF STUDY
1.5 RESEARCH QUESTIONS
1.6 THE PURPOSE OF THE STUDY
1.7 MY RESEARCH JOURNEY
1.8       OUTLINE OF RESEARCH REPORT
2 THEORETICAL FRAMEWORK OF THE STUDY 
2.1   INTRODUCTION
2.2   FROM MODERNITY TO POST-MODERNITY
2.3   SOCIAL CONSTRUCTION DISCOURSE
2.4 POST-MODERNISM, THEOLOGY AND PRACTICAL  THEOLOGY
2.5 A NARRATIVE APPROACH
2.6 A QUALITATIVE RESEARCH STUDY
2.7 ETHICAL CONSIDERATIONS OF RESEARCH
3 INSIDE AND OUTSIDE THE FENCE:  CRIME AND PUNISHMENT – DISCOURSES OF POWER
3.1  INTRODUCTION
3.2  CRIME AS DOMINANT DISCOURSE
3.3  DEFINITIONS OF CRIME
3.4  DIFFERENT THEORIES OF PUNISHMENT
3.5 DISCOURSES OF POWER
3.6 TOWARDS A MINISTRY OF HEALING AND RESTORATION:  A DECONSTRUCTION OF POWER
4 NARRATIVES OF FAITH, HOPE, HEALING AND  RESTORATION 
4.1 INTRODUCTION
4.2 THE BIBLICAL MANDATE FOR MINISTRY TO THE INCARCERATED
4.3 THE DIMENSION OF THE CROSS IN PRISON MINISTRY 77
4.4 STORIES OF DIVINE GRACE AND PERSONAL FAITH
4.5 STORIES OF HOPE AMIDST INCARCERATION
4.6 STORIES OF RECONCILLIATION, HEALING AND  RESTORATION
4.7 TOWARDS A RICHER DESCRIPTION OF IDENTITY: ‘DEFINITIONAL CEREMONY’ AND ‘COMMUNITIES  OF CONCERN’
5 ABOUT PASTORAL PRESENCE AND EXPANDING THE  CONVERSATION
5.1 INTRODUCTION
5.2 THE MINISTRY OF PASTORAL PRESENCE
5.3  A PRIESTHOOD OF SERVANTS: COMMUNITIES OF FAITH
5.4  CONFIRMING THE MINISTRY OF PRESENCE:   RITES OF PASSAGE – THE SACRAMENTS
5.5     EXPANDING THE CONVERSATION: TOWARDS A ‘RICHER DESCRIPTION’ OF PRISON MINISTRY
6   PRISON MINISTRY: REFLECTIONS AT THE END OF  A JOURNEY 
6.1 NARRATIVE AS RESEARCH AND BEING ALONGSIDE    ANOTHER
6.2 PASTORAL CARE AS ETHICAL CARE
6.3 REFLECTIONS ON POWER RELATIONS AND AWARENESS RAISING
6.4   TOWARDS RESTORATIVE JUSTICE: AWARENESS ACCOUNTABILITY, FORGIVENESS
6.5 LEARNINGS FROM THIS RESEARCH AND DREAMING THE FUTURE
6.6 APPEALS TO THE CHRISTIAN FAITH COMMUNITIES
WORKS CONSULTED

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PRISON MINISTRY: NARRATIVES OF FAITH, HEALING AND RESTORATION