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Criminal Justice Reform on Tennessee’s Agenda

Governor-elect Bill Lee and various state legislative leaders have voiced an interest in working on criminal justice reform during the next legislative session. This is not a topic that I would normally wade into, but it points to what I perceive to be a systemic issue in “reform” efforts in modern politics.

Understanding How the Present System Works

I mean no disrespect to anyone in state government, but let’s be realistic. Any serious consideration of reform within any social sphere has to begin with a recognition that very few people will be really knowledgeable about that sphere, particularly when the relevant pool is only state policy makers.

The number of legislators that have interacted with the criminal justice system is rather small, and even fewer have interacted with all the components of our criminal justice system, from the law enforcement officer’s beat on the streets to a person’s release from prison. They will need information beyond what they themselves possess to understand the situation.

Understanding How the Current ‘System’ Developed

Understanding the present situation is important, but when it comes to reform, I’ve come to see how important it is to know and understand how we got to where we are. We have to know how that which we are going to reform came to be as it is, examine what changes have been made over the years (centuries), and the assumptions made at the time of those changes. If we don’t understand that history, we may find ourselves trying to fix something that we’re only doing because we’ve done it in the past.

For example, last year I was reading Law and Revolution—The Formation of the Western Legal Tradition by Harold Berman. He made this statement:

[T]he legal systems of all Western countries . . . are a secular residue of religious attitudes and assumption which historically found expression first in the liturgy and rituals and doctrine of the church and thereafter in the institutions and concepts and values of the law. When these historical roots are not understood, many parts of the law appear to lack any underlying source of validity.

Then Berman explained how the doctrine of the atonement (being made right with God) articulated by St. Anselm in the 11th century led to our modern system of criminal law.

Prior to Anselm, the law focused on vindication of the victim, restitution, and restoring the divine order of things. That’s because offenses were seen as being committed against God and the victim.

But Anselm moved the focus in atonement to the individual needing to “pay for” his or her sins against the law of God committed after being baptized. And, in a similar fashion, the focus in civil law began to shift away from vindication of the victim and restitution to vindication of the law itself, a “crime” against the body politic. And that’s why, today, we have this sense that every “crime” needs to lead to jail time so that the criminal “pays his debt to society.”

Concern for restitution and the individual victim has been largely pushed aside in favor of punishment, per se. Maybe we need to consider where restitution to victims over prison terms makes more sense. After all, law abiding citizens are “victimized” by having to pay for the prison, meaning the criminal’s victim is victimized twice.

Understanding the Larger Context

Another obstacle to reform is the increasing tendency in modern society to see all of the different spheres within our social order as fitting into some particular silo, with each silo distinct from the others. But silo thinking brings only limited reform at best, because those doing the reforming fail to see the interconnectedness of things in a universe. As the previous section just demonstrated, theological concepts provided a foundation for thoughts about justice and crime that live on to this day.

So, criminal justice reform that looks only at issues of legal representation, sentencing, and prison conditions but doesn’t look at what contributes to and lies at the root of criminal acts will fall short of what needs to be done if we are to have a just society, not merely a different looking system labeled “justice.”

Understanding the Influence of Worldview

But this last point shows the point of real departure when it comes to reform—dealing with divergent worldviews. How one sees the world will determine how one views any proposed reform.

This was underscored for me when, as a young state senator serving on the Oversight Committee on Corrections, I heard one of my colleagues say that education in prison was the key to eliminating recidivism.

Don’t get me wrong, being educated and being in a better employment position once released from prison is a good thing. But there are educated people sitting in prison and many uneducated people who are not.

Nevertheless, we have those who will still insist that criminals, are just victims of something outside themselves. And if that is one’s worldview, then he or she will want civil government to “fix” everyone’s circumstances. Before you know it, criminal justice reform turns into a demand for “social justice.”

I, on the other hand, believe wrong conduct is not a consequence of being unable to read, write, and do arithmetic or really the consequence of anything outside the person. Jesus said it is not that which is external to a person that causes him or her to do wrong. The Apostle Paul said he knew what was right, but he just didn’t do it. The root of the wrongs we commit are found within us, present company included.

So, if Governor-elect Lee and the Legislature really want criminal justice reform, they better think through the worldviews of those they will task to lead that effort. And therein lies the systemic problem of reform today; modern politics insists on a diversity of worldviews being at the table, which makes agreement on reform all that much harder. Those worldviews will determine the goal and the scope of the work to be done and the suggested reforms that will come forth, and it’s hard to find agreement when those at the table disagree at the most basic, fundamental level.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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