I read Hilary Mantel's penetrating review of Sister Helen Prejean's book, The Death of Innocents [NYR,
May 12], the night before conducting an oral hearing of a life-sentence
prisoner in a prison in the west of England. The man, now aged
forty-six, had committed a gruesome murder of his next-door neighbor's
wife, masturbating himself once the woman was dead. He was twenty-two
at the time, deep in drink and self-loathing, nursing anger at his own
violent upbringing at the hands of a sexually abusive father.
Now, twenty-four years later, having completed a range of
challenging courses, including a sex offender treatment program,
discipline, psychology, and probation staff in the prison have written
a series of positive reports, recommending that he is ready to move to
open prison, in preparation, maybe, two years down the line, for
release on life license under probation supervision.
He is not exceptional. Each year in England and Wales some two
hundred lifers are released after the tariff or punishment period of
their sentence, set by a judge, has expired. At the end of the tariff
period, their cases are reviewed every two years by a parole board,
consisting of a judge, a psychiatrist, and an independent member, at an
oral hearing to test whether they can be safely transferred from secure
to open prison and from open to the community under license. The test
for release is whether the prisoner still represents a risk to life and
limb.
In England and Wales there are approximately five thousand lifers in
prison, most of whom will be released under license; there are less
than thirty lifers in the system serving a whole-life tariff. By
contrast, in the United States, one in four of the 130,000 lifers in
state prisons or federal institutions are serving life without the
prospect of parole. The reason for this appears to be not more crime in
the United States but the result of longer mandatory sentences and a
more restrictive parole policy.
The irony is that most released lifers do well, get jobs, settle
down with a new partner, and stay out of trouble. Why? Most have
matured over a period of ten to twenty years in prison, have got
themselves an education, taken responsibility for their past including
the devastating impact of their homicidal behavior on the victim and
his family, and are acutely aware that one false move could lead to a
return to prison. Less than 2 percent of the released group commit a
grave offense after release.
Containment is not enough. Whilst the truly dangerous will always
need to be locked up, perhaps for a lifetime, the majority of lifers
have the capacity, given the opportunity by a legislature and an
informed public, to mature, face the consequences of their past, and
start to lead responsible lives once more. Is Europe, or indeed England
and Wales, so different in respect of what we do about the ultimate
crime and punishment that we cannot learn from each other?
John Harding
Parole Board Member for England and Wales
Visiting Professor in Criminal Justice Studies, Hertfordshire University
Winchester, England
Hilary Mantel replies:
I'm indebted to John Harding for widening the terms of the debate.
"Lock 'em up and throw away the key" doesn't amount to a penal policy,
and it's dismaying to find US advocates of the abolition of capital
punishment—even those who are as compassionate and informed as Sister
Helen Prejean—offering the prospect of whole-life imprisonment as a
kind of consolation prize to a worried public. I concede that the
prospect of killers being released to kill again is terrifying, and
that there will always be some prisoners who, in any jurisdiction, must
never be released. But what should concern the public more immediately
is that basic defects in the criminal justice system have been revealed
by close examination of capital cases. Again and again, the mechanism
for establishing the facts of a case is shown to be flawed. If this is
true for cases where the death penalty is demanded, it is likely to be
true for all homicide cases; and for lesser cases as well?
On the question of whole-life sentences, the figures John Harding
quotes speak for themselves. Surely, there are very few human beings
wholly incapable of redemption? At least, it seems the mark of a
civilized society to think there are not. How, except by inhuman rigor,
do you contain a prisoner who has no hope? What does a prison look and
feel like, if it has abandoned the function of rehabilitation and is
devoted only to shutting away people who are regarded as dangerous
animals?
I felt tempted to add into my original review a passage which said,
"there is another way of doing things," and of course it's the way that
John Harding describes. But I didn't want to divert from the main
topic, or sound like a smug Brit. After all, there's plenty wrong with
our penal system, and we are not immune to pressure from "public
opinion" whipped up by tabloid newspapers. But our judges and lawyers
are not dependent on people-pleasing to keep their jobs; they don't
have to run for election and satisfy the ill-informed knee-jerk
retributionists. It's all a bit of a puzzle for democrats, I think.
Contact: SUSAN PACE HAMILL Email: Mailto:[email protected] Postal: University of Alabama School of Law P.O. Box 870382 Tuscaloosa, AL 35487 UNITED STATES Phone: 205-348-5931 Fax: 205-348-3917
ABSTRACT: This article severely criticizes the Bush Administration's tax policies under the moral principles of Judeo-Christian ethics. I first document that Judeo-Christian ethics is the most relevant moral analysis for tax policy because almost eighty percent of Americans and well over ninety percent of the Congress, including President Bush, claim to adhere to the Christian or Jewish faiths. I also show that evaluating federal tax policy under Judeo-Christian principles not only passes constitutional muster but is also appropriate under the norms of a democracy. I then provide a complete theological framework that can be applied to any tax policy structure. Using sources that include leading Evangelical and other Protestant scholars, Papal Encyclicals and Jewish scholars, I prove that tax policy structures meeting the moral principles of Judeo-Christian ethics must raise adequate revenues that not only cover the needs of the minimum state but also ensure that all citizens have a reasonable opportunity to reach their potential. Among other things, reasonable opportunity requires adequate education, healthcare, job training and housing. Using these theological sources, I also establish that flat and consumption tax regimes which shift a large part of the burden to the middle classes are immoral. Consequently, Judeo-Christian based tax policy requires the tax burden to be allocated under a moderately progressive regime. I discuss the difficulties of defining that precisely and also conclude that confiscatory tax policy approaching a socialistic framework is also immoral. I then apply this Judeo-Christian ethical analysis to the first term Bush Administration's tax cuts and find those policies to be morally problematic. Using a wealth of sources, I then establish that the moral values driving the Bush Administration's tax policy decisions reflect objectivist ethics, a form of atheism that exalts individual property rights over all other moral considerations. Given the overwhelming adherence to Christianity and Judaism, I conclude that President Bush, many members of Congress and many Americans are not meeting the moral obligations of their faiths, and, I argue that tax policy must start reflecting genuine Judeo-Christian values if the country is to survive in the long run.
Paper ID: St. John's Legal Studies Research Paper No. 10-0028
Contact: SUSAN J. STABILE Email: Mailto:[email protected] Postal: St. John's University School of Law 8000 Utopia Parkway Jamaica, NY 11439 UNITED STATES Phone: 718-990-1579
ABSTRACT: This paper explores the contribution of the foremost Catholic theologian in the church in the United States - John Courtney Murray - to the issue of abortion. Although Murray never directly spoke on the question of abortion, his distinctions between morality and civil law and between matters of public and private morality contribute to our thinking about that question. Indeed, Murray's views on how the Church should respond to legislative efforts to decriminalize contraception, as well as his statements generally about religious freedom, the separation of law and morality and the distinction between public and private morality have been influential in forming arguments concerning the abortion controversy.
In the mid-1960s, Murray wrote a memorandum containing recommendations regarding how Catholics should respond to a proposal to amend Massachusetts law to decriminalize contraception. In response, Murray wrote a memo arguing against Catholic opposition to the law, despite his view that artificial contraception was immoral. Because that memorandum has been used by others in an attempt to use Murray to justify a pro-choice position, I use it as a framework for exploring Murray's thought. This paper considers to what extent Murray's statements about how the Church should respond to contraception carry over into the development of a workable position regarding abortion and evaluates arguments that have been made based on his writings. I argue that Murray has something to say to both public policymakers and the Catholic Church about their approach to abortion. More specifically, I argue that abortion is a matter of public morality, making it a matter that the state is justified in regulating, but also that prudential considerations must be taken into account in deciding whether and how the law should intervene. Separating the questions of whether abortion is a proper subject for the law to address and what constitutes a good law with respect to abortion is a necessary step in moving from confusion to productive debate.
Paper ID: Minnesota Legal Studies Research Paper No. 05-42
Contact: DALE CARPENTER Email: Mailto:[email protected] Postal: University of Minnesota Law School 229 19th Avenue South Minneapolis, MN 55455 UNITED STATES
ABSTRACT: This article claims that three common arguments against gay marriage - the definitional, procreation, and slippery-slope arguments - are quite bad, the worst of the lot. The definitional argument asserts that marriage just is the union of one man and one woman, and that the definition alone is a sufficient defense against claims for gay marriage. The procreation argument claims that marriage's central public purpose is to encourage procreation, and so the exclusion of same-sex couples is justified. The slippery-slope argument claims that the acceptance of same-sex marriage logically entails the acceptance of other public policy changes - notably the acceptance of polygamy - that would themselves be bad, independent of whether gay marriage is bad.
While each argument has some appeal, and each has adherents both inside and outside the legal academy, each is badly flawed as a matter of logic, experience, politics, or some combination of the three. The article suggests that in the interest of focusing on the most important concerns about gay marriage, commentators should move on to other arguments against it that seem stronger and thus better test the affirmative case for gay marriage.
Thanks very much for your thoughtful posting, Tom.
About the middle of next year,the Cambridge University Press will publish my new book: Toward a Theory of Human Rights: Religion, Law, Courts. In the book, among other things, I explain why, in my judgment, the best understanding of the Fourteenth Amendment is one according to which states must extend the benefit of law to same-sex unions (whether or not states call them "marriages"). However, I also explain why the United States Supreme Court should NOT so rule. I then explain why the fact that the U.S. Supreme Court should not so rule does not entail that a state supreme court should not so rule under the antidiscrimination provision of the state constitution.
(Nor, of course, does it entail that a state supreme court should so rule.) So, my answer to your question about the court's decision in the Goodridge case is compex, and the best I can do now is issue a promissory note: I'll answer when the book is published. If anyone wants to see a draft of the relevant chapters of the book, please send me an e-mail message: [email protected]. _______________ mp
But, first, thanks to Tom Berg for his illuminating posting.
In my first response to Rick (here), I wrote: "I cannot myself discern any plausible such rationale. If you can, Rick, then we have the beginning of a conversation." I meant this to serve as an invitation to Rick to specify the rationale or rationales (for the differential treatment at issue in the Kansas case) that Rick finds plausible.
In his response to me (here), Rick wrote that he "believes ... that ... plausible, 'non-hating' rationales
exist for such legislation." But Rick didn't indicate what those plausible rationales are. I am not skeptical about the existence of non-hating rationales. I *am* skeptical that the non-hating rationales are plausible. Bear in mind that the legislation at issue here is the legislation that the Kansas Supreme Court unanimously struck down and about which Tom Berg wrote in his posting.
Let me be more precise in my invitation to Rick:
Please specify the rationale or rationales that you believe provide plausible grounding for the Kansas legislation at issue here. _______________ mp
Today, I posted a brief piece on SSRN. The piece will soon be published in a symposium issue of the San Diego Law Review. Thought that some MOJ readers might be interested. The title:
Why the Federal Marriage Amendment Is Not Only Not Necessary, But a Bad Idea
The abstract:
The proposed Federal Marriage Amendment states:
"Marriage
in the United States shall consist only of the union of a man and a
woman. Neither this Constitution, nor the constitution of any State,
shall be construed to require that marriage or the legal incidents
thereof be conferred upon any union other than the union of a man and a
woman."
In this paper, which is my contribution to a symposium
issue of the San Diego Law Review, I explain - as the title indicates -
why the Federal Marriage Amendment is not only not necessary, but a bad
idea. This paper is a response to another paper in the symposium:
Christopher Wolfe, Why the Federal Marriage Amendment Is Necessary.
To download/read the paper, click here. _______________ mp
Thanks to Rick for his post below. Rick asked what I (among others) think about what the Moscow Patriarchate said. Frankly, I'm not sure what the Moscow Patriarchate said (i.e., meant to say). It's far from obvious that his statement takes issue with the morality of human rights. Certainly the morality of human rights does not presuppose what the Moscow Patriarchate refers to as "the Enlightenment's teaching on man". (On "the morality of human rights", click here.) _______________
mp
Thought some MOJ readers would be interested in this new paper: Victor C. Romero, An "Other" Christian Perspective on Lawrence v. Texas.
(The paper will appear in the Journal of Catholic Legal Studies, Vol. 45, No. 1, 2005 (formerly The Catholic Lawyer). Here's the abstract:
The so-called "Religious Right's"
reaction to Lawrence v. Texas has been both powerful and negative,
characterizing the case as an assault on the traditional conception of
marriage and family life. This essay is an attempt to present a
different Christian view. Modeled on the life and teachings of Jesus,
this perspective celebrates the Lawrence case as consistent with God's
call to social justice for the oppressed. It also outlines a Christian
sexual ethic that lifts up genuine, monogamous, committed love between
two individuals, whether of the same or opposite sex.
To download/print this paper, click here. _______________ mp
This is not a column about who should be on the U. S. Supreme Court. It is about how various religious groups in pluralist America, this time particularly the agents of the Christian Right, conceive their contributions and hoped-for payoffs. It is occasioned by the stream of reports in print and voicings on talk radio from enraged members of this Right, who feel betrayed because they did not all get a candidate who would declare him- or herself on controversial Court issues.
David D. Kirkpatrick in the New York Times quoted a friendly expert, Professor David Green, who said of Christian conservatives that "they kind of expect to be betrayed. They see themselves as an embattled minority. They feel the culture is moving in the wrong direction ... they half expect to lose" ("The Crisis of the Bush Code," October 9). Marvin Olasky, editor of an evangelical magazine, says that "a whole lot of evangelical conservatives were eager for a rumble, to really fight it out with the devilish Dems," and now instead they have to fight each other about strategies and their place and fate.
The perception that Christian conservatives are an "embattled minority" will strike many as strange. In contrast to all other religious minorities, they "have" the Senate and the House, the White House and many agencies of foreign policy, and want to have -- and almost do have -- the Supreme Court. Can Catholics, mainline Protestants, African-American Protestants, Jews, Mormons, or any others match them for influence? We may be seeing in their frustration the education of this largest, most potent "minority" as it comes to understand the limits of its still very, very strong influence.
A history lesson: Catholics got "their" president in 1960, but got little out of it. Their bishops issue forthright statements on nuclear arms, the economy, and capital punishment, and get zero response. And they haven't gotten to "run the show" under the national political tent. African Americans and other racial minorities won much in the Civil Rights movement, 1954-1965, but the Kennedy brothers and Lyndon B. Johnson most of the time moved grudgingly and trudgingly; African Americans did not get to run the show. Jews, through lobbies, have tremendous influence in foreign policy respecting Israel, but not on any other parts of their programs. They don't get to run the show. Mainline Protestants might have run the show in an earlier century -- but even while, in their mid-twentieth-century prime of activism, they may have contributed to change, they were easily overlooked and bypassed in the halls of power, and were not able to run the show.
"Running the show" is a way of saying that a religious group seeks to call the tunes, hold the vetoes, overwhelm other religious groups (and "secular" forces), and have their religious motifs privileged in public places, etc. In the nineteenth century there was an earlier "Christian Party in Politics," but it, too, was frustrated. James Madison pretty well described an America in which no interest, faction, or sect would get to run the show (see References, below). If a group reached too far, others would thwart it.
Lord Acton's cliché about power corrupting and absolute power corrupting absolutely still has relevance. Though "others" have not organized against the "embattled minority," pluralism itself may act as a check.
References:
James Madison, Federalist Paper X: "A religious sect may degenerate into a political faction in a part of the Confederacy [meaning the federal republic]; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source"; Federalist Paper LI: "In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects." ---------- Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.
(May 12, 2005)
