COMMENTARY: Practical or moral, for the sake of the ten

Oklahoma City — American prisons are often graduate schools of crime, places where foundational purposes of Western law – restitution and justice – are myths. 

In Oklahoma, prisons and jails are more crowded than ever, as Corrections trails only Health Care as a cost-driver. People convicted of comparatively minor offenses, including low-level drug crimes, receive such long average sentences that the state has the top incarceration rate for women, and one of the top five rates for men.

Over the last three years, the state Legislature edged toward reform, but the journey ahead is long.

There is new cause for concern about what has been called “justice reinvestment” for Oklahoma. Will folks who consider themselves “tough on crime” slow-play reform to death?

“Smart on crime” policies advanced across America, including by the “Right on Crime” group based at the Texas Public Policy Foundation, divert those who are not violent into treatment programs that include work and restitution.

Experts clash over whether or not there is a link between crime rates and particular public policies. But after a half-decade of reforms pioneered under Gov. Rick Perry, violent crime fell 8.3 percent in the Lone Star last year – even as the incarceration rate fell 1.45 percent. At the very least, those policies have not harmed crime fighting, while reducing imprisonment rates (and attendant costs).

Some states are saving money while incapacitating the worst among us, and trying to salvage the rest. This is both practical, and moral. 

Years ago, Daniel Van Ness of Prison Fellowship wrote, “Crime involves four parties: the victim, the offender, the surrounding community, and the state.”

The criminal justice process generally focuses only on the offender and the state. Yet, Van Ness notes. 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.”

The ideal of restitution (victim restoration), well explained in the writings of Van Ness and of former University of Oklahoma Law Professor Herb Titus, did not disappear in the New Testament. In the story of Zacchaeus, the repentant sinner pledges to Jesus that he will repay “fourfold” anyone he has wronged.

Restoration of victims and recompense from criminals continued into the modern era — and is a policy inclination not yet quite eradicated. But as government has grown more powerful, the role of mediating community institutions has weakened.

The resort to imprisonment has become habitual. It has replaced the function, utility, and moral purpose of non-governmental means to hold the guilty accountable, while reaching hearts and souls.

Some studies estimate nonviolent offenders constitute one-third to perhaps one-half of the population of prisons and jails. Few analyses put the number at less than one-fourth. 

Including all drug offenders might skew numbers, but the “one-fourth” vs. “one-half” numbers more or less represent the parameters of the debate over violent and nonviolent offenders incarcerated.

All of us should care, but I assert people of faith should lead the way. Even those who have themselves been victims should not give up on those behind bars or in other forms of custody. Convicts may be out of sight, but if they’re out of mind, we’re falling short.

In the 18th chapter of Genesis, the patriarch Abraham was visited by three men he discerned were actually Angels. They spoke with authority. Among other things, they informed Abraham and his wife Sarah that, after years of barrenness, she would bear a child.

Abraham learns the visitors are on their way to Sodom, to investigate its evil. In one of the great intermediary prayers recorded in all of Scripture, Abraham walks with the visitors, pleading for the minority to be spared.

He 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. After Abraham’s final plea, the angel says, “I will not destroy it for ten’s sake” (Gen. 18:32 King James Version).

In that story, in the end, there were no righteous. Judgment was terrible.

That was then. This is now. What if, in Oklahoma’s worst prison – McAlester — there are 50 people who could yet become “convicted” of the necessity to make amends for criminality? What if there are ten? What if there is one? 

McAlester or any other facility should be a place where faith can be lived. Public policies should send to McAlester only those who absolutely need to be there.

Those who believe there is a final Judge — One concerned for “the least of these, my brothers” (Matthew 25:40, KJV), including prisoners — dare not abandon the ten, or even the one.
NOTE: This essay is revised and updated from a 2009 commentary that appeared in Perspective Magazine, monthly publication of the Oklahoma Council of Public Affairs. McGuigan is the editor of ‘Crime in Punishment in Modern America’ (1986, University Press of America).