Although we often speak of the separation of church and state, religion always has had - and always will have - a tremendous impact on our criminal justice system. And no less could be expected of religion - or of any set of ethical precepts - than to provide a basis for our shared views of what conduct should be forbidden and what consequences should flow from engaging in conduct that we, as a community, forbid by means of our criminal laws.
But whether religious views will ever have a salutary effect on our criminal justice system remains to be seen.
The impact of religion on our penal system is certainly nothing new - in this country and elsewhere. Yet, it seems that, notwithstanding all the lip-service given by so many to the essential teachings of Jesus, we don't really seem to understand - or perhaps we lack the courage and the wisdom to apply in our daily lives, and in our criminal justice system - the fundamental humane principles taught by Jesus.
In this country, history provides a rich and fascinating account of the impact of religion on criminal "justice." Just consider the laws in Colonial America. During the 17th century, the criminal justice system was in large part simply another arm of the prevailing religion. Some of the Puritan legal codes were downright bizarre in their religious orthodoxy. For instance, in Massachusetts, Anabaptists, Quakers, and Jesuits were, by law, to be banished. In 1658, the Massachusetts General Court allowed the death penalty for Quakers who returned after having been banished. (Quakers were considered particularly dangerous because, as stated in the Massachusetts code, they aimed to "undermine and ruine" authority.)
In New Hampshire, the law defined blasphemy as "Denying, Cursing or Reproaching the true God, his Creation or Government of the World," and allowed courts to put the blasphemer in the pillory, whip him, bore his tongue "with a red hot Iron," or make him stand on the gallows with a rope around his neck.
Profaning the sabbath by doing just about anything other than going to church and praying was also the subject of Massachusetts law. In 1656, a Captain Kemble sat in the stock for two hours because of "lewd and unseemly behavior" on the sabbath. As it turns out, the good Captain's "lewd and unseemly behavior" consisted of kissing his wife - after having just returned from three years at sea.
Although the prohibitions and the penalties may have changed, the impact of religion on our criminal justice system has not. Thanks to the Quakers, who had all the best intentions in the world, we developed penitentiaries - intended as places where penitence could be sought and achieved, mostly through enforced silence and meditation. Instead, inmates were driven stark-raving mad. The legacy of those early penitentiaries are now institutions in which our fellow human beings are subjected to the worst sorts of barbarity and dehumanization. And, if you are inclined to say to yourself, "But certainly not here," don't ever doubt that inmates in Utah have been subjected to brutal neglect, cruelty and, indeed, torture.
Here is a description several years ago by the United States Court of Appeals for the Tenth Circuit, in a case entitled Littlefield v. DeLand, of how a mentally ill man, not convicted of any offense, was treated several years ago at the Salt Lake County Jail:
Plaintiff, a young man suffering from mental illness, was arrested and charged with disorderly conduct based on certain bizarre but nonviolent activities in a service station. He was placed in a "strip cell" - a solitary cell long used by the county to punish disorderly pretrial detainees and to segregate prisoners with severe mental disorders. For a period of nearly two months (fifty-six days) he was held there without notice or opportunity to be heard with respect to the nature or duration of his confinement. The "strip cells" in which plaintiff was held for a substantial part of this period have no windows, no interior lights, no bunk, no floor covering, and no toilet except for a hole in the concrete floor which was flushed irregularly from outside the cell. During most of his fifty-six days of confinement, plaintiff was deprived of all his clothes and was given no bedding whatsoever. He slept naked on the concrete floor. Moreover, he was given no opportunity to engage in any recreation outside his cell during this long period and was not permitted to have any reading or writing materials.
I would venture to say that is not quite what Jesus had in mind regarding our treatment of our brothers and sisters - particularly those with disabilities.
And at the Utah State Prison, inmates have been sexually molested and raped by other inmates and by prison guards. Serious, life-threatening medical problems suffered by inmates have been ignored by the only persons who could possibly provide them with assistance. And mentally ill inmates have been routinely punished for conduct that is solely a result of their mental illness.
Imagine a severely schizophrenic young man - who is in prison because of conduct that was a product of his mental illness - locked down for 23 hours a day in a tiny cell, with no medical or psychological treatment. And imagine severely depressed or schizophrenic inmates who, for no more than expressing their sadness or following a suicide attempt, receive no counseling, no kindness, no compassion - but, instead, are forcibly subdued by the prison SWAT team, stripped naked, and strapped down in a restraint chair, sometimes for several days at a time, left sitting in their feces and urine.
Just how do those who claim to follow the teachings of Jesus rationalize such brutal, medieval treatment? In many cases, an escape from moral responsibility is probably achieved simply by claiming, "We did not know."
Well, now we know. What are we going to do about it?