Jurisprudence, penology, and crime control

Yesterday I posted the first part of my answer to Kurt’s comments on penology. We continue today with his point 4 where he asked that we address:

4. The current reality of harm reduction crime control models that are in place in other Western nations that have culled undesirable behavior, and have provided assistance for those trapped in cycles of self-destruction to be rehabilitated and cared for.

I fully agree with the point that he has made here. But, let me unpack what he said for those who have no background in this area and explain the parts with which I agree. Many other nations turned penology on its head when they began to ask a question different than the traditional practice. What was the traditional practice? Simple, if there is a behavior you wish to prohibit, you write a law. If someone breaks the law, then they are punished. If the punishment does not decrease the breaking of the law, you increase the punishment until it reaches levels that deter the behavior you wish to prevent. (Occasionally you misjudge and end up with a revolution.) One example of this is what Syria is trying now. You have troublesome protesters, you arrest them. If that does not work, you beat them up. If that does not work, you torture them. If that does not work, you begin wholesale killing. In other words, you escalate the punishment until you achieve the desired result. By and large, this is the USA model. And, while we are not like Syria, think about in how many movies or TV shows one of the heroes takes great delight in pointing out to someone that they are going to go to a prison where they will be known as Shirley and will be . . . . That is, if the crime is bad enough we tend to delight in the thought that the incarcerated person will be tortured by his/her fellow prisoners, and will live a life of fear and fighting as long as they are incarcerated.

But, other First World nations have turned that question on its head. They have asked what policies will result in a decrease in the behavior you want to prevent. In other words, they have decided that it does not matter whether one punishes or does not punish anyone. Rather, the only thing that matters is decreasing the behavior that you wish to eliminate regardless of what measures are necessary to bring success. This is a very important point to note. The goal is decreasing a certain behavior, whether it is drug usage or drunk driving or theft or murder or whatever. The means are flexible, thus if punishment is the best method, then that is used. If treatment is the best method, then that is used. If community service is the best method, then that is used. In other words, other countries are not hooked into a model which demands punishment, but rather into a model which looks for success. I would have thought that the USA would have thoroughly approved of a model in which success was the key aspect.

However, in the USA we are stuck with a model which, frankly, has more to do with vengeance than it has to do with anything else. Thus, in the USA we have ended up with both the largest prison population in the world, and the highest proportion of our citizens in jail. We also allow punishments to be meted out to youth which are prohibited in every First World country. While we may not go as far as putting children to death, remember that Florida actually sentenced two 11 year old boys to life in prison for murder. Fortunately it was overturned. Two years ago, Pennsylvania was trying an 11 year old for murder with a penalty of life without parole. It was only in 2005 that the Supreme Court finally intervened and prohibited the death penalty for juveniles. Yes, they wrote law, thank God. It was only in 2008 that the Supreme Court ruled that juveniles could only be sentenced to life in prison for homicide. Yes, they wrote law, thank God. As I commented in an earlier post, all too many Christians in the USA believe that grace is a concept that only applies inside a church building while a version of strict Old Testament Law applies everywhere else. Sadly, they only see the punishments of the Old Testament Law and not the requirements to help support the poor, etc.

In other Western nations, it has not mattered if the solution to certain problems is for the State to set up places of rehabilitation that are not jail, or to set up training facilities, etc. Here in the USA we view those as codling people. Every time a politician suggests an alternative treatment there never fails to rise up an opponent who calls him/her weak on crime. Sadly our population buys that argument, even though the proposed alternative treatment may actually have both better results and be cheaper than sending someone to jail as demonstrated by its success in other countries!

This brings us back to elective abortion. I am convinced that part of the reason why we have been singularly unsuccessful in banning elective abortion has not simply been the opposition of liberals. Rather, it has been our inability to answer the questions of what would happen to women in two cases, where they have had an elective abortion, and where they do not want an elective abortion but have been left alone or have insufficient resources.

Our national attitude towards women who are pregnant out of wedlock or are pregnant but have been abandoned is to simply tell them that this is their fault, they have thrown their lives away, they have to live with it. That is, the attitude is condemnation and now you have to live with the results. There is little doubt that a good number of abortions, particularly before it was legal, came from desperation as a result of the attitude of those around the pregnant young woman. It is not encouraging women to get pregnant if we try to set up a model that allows them to still have a future. It is also not encouraging if we tell them that we will help them through the pregnancy, but they have to give their child away. Frankly, in our efforts to stop elective abortion, we also need to have very clear answers as to how we would deal with pregnant young women so that they might still have hope and a future.

But, that is not the problem question. The problem question actually began to be asked about four years ago, and it is one that the pro-life movement has completely failed to answer. What happens to the young woman who has an elective abortion? We have clearly said that normally elective abortion is murder. And, both Florida and Pennsylvania have clearly shown that adolescents as young as 11 can be put on trial for homicide, with a penalty of life without parole. This clearly means that should elective abortion be outlawed, we are facing the clear prospect of putting girls between the ages of 12-25 on trial for homicide. That was the question that was asked and pro-life spokespeople have yet to answer in a clear and united way. Should elective abortions be banned will we begin trying girls who have had an elective abortion and putting them away in jail for life? Worse, since it is homicide, will we begin putting to death those who are over 18 and have had an elective abortion? The fact that pro-life spokespeople have yet to clearly and unitedly answer this question gives already the all too telling answer. This is the USA and we have only one model, which is strict punishment.

I am in favor of banning elective abortions, but I am not in favor of passing a simple plain law that bans elective abortions without clearly answering the questions above as part of the law.



  1. Alix Hall says

    I do not believe in abortion, however as a young woman (many years ago) I sat at the bedside of a young teen who was dying of sepsis from an illegal abortion. Her reasons for the abortion were noted to be a-her parents had stated many times that any child of theirs who got pregnant out of wedlock would be kicked out, b-total irresponsibility from the father who was an older person–(college age vs high school age of the girl) because if he stepped up his parents would kick him out and no longer pay for college, c-a church environment where if she told anyone she was pregnant, she would have to confess her sin in front of the whole church with the condemnation of all present, and d- no resources at all. It was my feeling at the time that her church, her parents, her boyfriend, his parents and society at large had set up a system in which a young girl (16) was doomed and damned any choice she made. I am not sure we have made much headway.

  2. Alix Hall says

    It should have been clear that I was speaking of the situation after the young woman made a tragic mistake. In the best of all possible worlds, no one would ever sin, but we live in a fallen world and all of us “miss the mark” at one time or another. IT is that fact that causes me to plead for mercy instead of “justice.”

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