Moral and Religious Influences

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Moral and Religious Influences

The influence of religion and morality on criminal justice has been of major importance throughout history. Morality is society's set of accepted rules and norms of behavior. Morality is commonly part of religious belief; a primary role of religion is to exert control over its followers by setting and promoting rules and customs for people to follow. In turn, these rules help establish criminal laws in a government's justice system.

The role of religion in defining crimes in America's colonial society of the seventeenth and eighteenth centuries was clear. Key crimes included blasphemy (showing a lack of reverence toward God), sexual deviance, and heresy (holding a belief that conflicts with church doctrine). Early punishments focused on shame and guilt as ways of bringing those who strayed back into the fold. This shame and guilt were supposed to make the offender apologize, ask forgiveness, and live a better life.

Earlier yet in the Old World execution was the favored means of punishing those who broke society's rules. The role of prison chaplains (reverends, priests, or rabbis) in the late fifteenth century was primarily to help those condemned to death repent their sins. During medieval times the Roman Catholic Church introduced incarceration as an alternative to death.

The idea spread as Protestants in northern Europe established corrections facilities in the late sixteenth century. The Catholics under Pope Clement XI built the Michel Prison in 1703 for youthful offenders, separating them from adults and providing work for rehabilitation. With the expansion of prisons in Britain in the early eighteenth century, Britain had assigned chaplains to all prisons by 1733.

Religion and crime

Those who settled North America from Europe were predominantly from the Christian faith, which greatly influenced the development of criminal justice systems in the United States. Basic Christian faith held that God created the world, established certain moral laws, and that breaking these laws could lead to suffering and punishment. U.S. criminal laws derived from those moral standards and set punishments for breaking them.

Morality establishes certain accepted standards called ethics. One standard is the integrity and fairness of the criminal justice system. Some of the ethics of early Americans were placed in the U.S. Constitution of 1789 in reference to liberty (freedom) and the pursuit of happiness. These ethics regulate such matters as how police use their legal power over citizens, particularly in regard to the use of force, deception, or invasion of privacy.

Many police departments have established codes of ethics to regulate police activity. Ethics standards also influence the punishment strategies of prisons, including the use of solitary confinement, strip searches, and allowing visitors like church officials and family members. In courtrooms, ethics concerns serve to buffer or guard against the desire for retaliation, lying on the witness stand, and for honest, unbiased interpretation of evidence.

Following decades of immigration, the United States has become much more religiously diverse. Each religion has its own traditions and offers many interpretations on crime and punishment. In addition, each member of a religion carries his or her own perspectives on crime and punishment.

Shame Penalties

Morality influences how much shame a person feels, or should feel, when committing a crime. In colonial America, punishment was handed out in public so the offender would experience shame and repent for his or her actions. These punishments involved whipping, branding, or being placed with the person's ankles and wrists in a wooden stock. Even hangings were conducted in public with the offender expected to offer an admission of guilt and ask forgiveness before being hung.

By the early nineteenth century punishment went behind the walls of the newly growing prison system. No longer was public humiliation and shame part of punishment. In the late twentieth century, however, as prisons filled and incarceration expenses rose steadily, society once more experimented with shame penalties. For example, convicted offenders of some nonviolent crimes, such as buying services from prostitutes, had to publicly apologize. Others had to wear T-shirts identifying their crime, such as shoplifting.

Shame penalties were applied to lesser white-collar criminals, first time offenders, and juvenile offenders, all guilty of nonviolent crimes. In some cases judges gave convicted offenders a choice between a shame penalty, a fine, or jail time. Critics began to question the legality of such practices, due to uncertainty about the psychological short- and long-term effects of public shaming.

Through the centuries religion has played an important role in criminal justice. In the fourteenth century, the Puritans of England introduced the concepts of bail, protection against self-incrimination, and jury trials. These ideas became central to English common law that the colonists brought to America. Religious organizations also sought to moderate punishment to fit the crime rather than setting harsh penalties on all crimes. They favored rehabilitation over retribution or vengeance. Some religious movements banned slavery, protected workers' rights, sought equality for women, and set standards for "indecent" behavior.

Religion in prisons

Religious organizations and their representatives have had a strong influence on how offenders are treated in prisons and jails. Churches, in fact, were one of the first institutions to build facilities to house offenders. The word "penitentiary" comes from the word penitent, meaning giving penance (confession and forgiveness of sin) or the idea that offenders would pay penance for their crimes.

The church provided offenders with an opportunity to admit their guilt and convert to religious traditions. An example in the American colonies was the Quakers of Pennsylvania who almost always favored incarceration over the harsher and permanent alternative, execution.

Many colonists immigrating to America in the seventeenth and eighteenth centuries came to escape religious persecution or oppression by their governments, in Britain and elsewhere. When the Founding Fathers wrote the first ten amendments to the U.S. Constitution in 1791, known as the Bill of Rights, they included the freedom of practicing religion in the First Amendment. How this freedom applied to prison inmates, however, would take years to fully resolve in the U.S. legal system.

The first state penitentiaries in the United States in the late eighteenth and early nineteenth centuries placed inmates in isolation, in their own separate cells. Religious officials or clergy interacted with inmates on a one-to-one basis. The Walnut Street Jail in Philadelphia provided inmates with a chance to reform by placing a copy of the Bible in their cells. It was believed that isolated inmates would have plenty of time to consider their actions and repent. Religious organizations began providing educational opportunities as a way to reform individuals as well. Prison chaplains would often be the prison's educator; they also helped keep prison records and performed other administrative duties.

Prison chaplains

As prisons began hiring administrators, teachers, and counselors through the nineteenth century, the role of the religious chaplain declined. By the early twentieth century the role and effectiveness of prison chaplains was questioned. In
response to the declining influence of prison chaplains and religion in general in prisons, the Clinical Pastoral Education movement grew in the 1920s and 1930s.

The pastoral movement helped bring about professional training programs for prison chaplains. Chaplains were able to advise inmates in terms of religious service, counseling, and education. For example, chaplains could provide mental health counseling to help inmates deal with the psychological stress of prison life. Chaplains and other faith representatives could also help inmates find work once they were released and helped improve damaged family relationships.

In the early twenty-first century religious programs had become a regular feature of prisons, with nearly a third of inmates participating. In addition to prison chaplains, volunteers representing various religious organizations also visit prisons to promote religious activities. Maude Ballington Booth, daughter-in-law of the founders of the Salvation Army (a religion-based service organization), was one of the first people to encourage the use of volunteers in prisons. Prison chaplains usually coordinate volunteer activities. Among the religious organizations operating in several states is the Prison Fellowship Ministries.

Practicing religion in prison

Since a series of court decisions in the 1960s and 1970s, the constitutional right of prisoners to practice religion has been widely recognized. Congress passed a federal law based on the rulings, recognizing prisoner religious rights known as the Religious Land Use and Institutionalized Persons Act of 2000. The most common right exercised is the right to attend religious services in various denominations. Not only are Christian religions represented, but prisoners have the right to worship Islam, Buddhism, and other recognized religions.

Some practices not considered part of an established organized religion are not allowed. Inmates can also observe special diets and possess religious items, such as prayer beads, feathers, medicine pouches, and prayer rugs, as long as they do not interfere with prison operations.

Which faith groups are active in a prison depend on the specific needs of its inmate population. Larger prisons often offer services in many different denominations on a daily basis. Smaller facilities may offer only nondenominational (not belonging to a particular religion) services held on Sundays, with smaller activities available a couple times a week.

The four major faith groups are Catholic, Protestant, Muslim, and Jewish. Other recognized faith groups include Hinduism, Mormonism, Native American religions, Jehovah's Witnesses, Christian Scientists, and more recently witchcraft and Satan worshiping. Besides regular services, some prisons host special programs to inspire inmates to become religious. In the supermax (the highest security) prisons where inmates are isolated from other prisoners, the ministry is individualized like in earlier times.

Inmates seek religion in prison for various reasons. Some hope to gain a sense of direction and purpose in their lives, peace of mind, a safe haven from the rest of the prison population, to meet other inmates with similar interests, have access to prison resources or special privileges, or to influence parole considerations. Because of the last reason, prisoners involved in religious activities are frequently met with skepticism or distrust from prison staff and other inmates.

Indeed some inmates have used the religious activities as an opportunity to pass contraband (forbidden items) in prison, such as weapons, foods, or drugs. Many skeptics believe some inmates are simply looking for an early parole. Instances where former inmates who were active in religious activities while in prison commit further offenses after release add further support to these feelings. However studies have shown that the more active an inmate is in religion in prison, the less likely he will be a repeat offender after release.

Capital punishment

Undoubtedly the most controversial moral issue affecting criminal justice is the centuries old debate over the death penalty. It has been estimated that between 19,000 and 23,000 people were executed in the colonies and the United States since the first known execution in 1608 in the Virginia colony. Over 7,000 of those executions occurred after 1900. In more recent times, almost 600 occurred after 1977 in thirty-one states. Over 80 percent of the executions after 1977 took place in southern prisons with 35 percent in Texas alone. Another 3,700 inmates were awaiting execution at the beginning of the twenty-first century.

Crimes punishable by death are called capital crimes, which is derived from the Latin word capitalis meaning "of the head." By the late twentieth century, however, most nations in the world had abolished capital punishment. England abolished capital punishment in 1965, and it is not allowed in many of the nations that joined the European Union. Other countries that abolished capital punishment include Canada, Australia, New Zealand, and a number of countries in Central and South America.

Deciding on capital crimes

The number and type of capital offenses have varied greatly among different societies as well as the manner of executions. Some cultures, such as ancient Greece, assigned the death penalty to almost every crime, even simple thefts of food. Ancient England also had harsh death penalty laws. It applied the death penalty to over forty crimes at the time of North America's initial colonization. This number more than doubled during the eighteenth century and jumped up to 220 capital crimes by the early nineteenth century in Great Britain alone.

Though each of the thirteen colonies made use of the death penalty, they chose to use it much less than Britain. Manpower was in short supply and every hand was needed to help the small, isolated settlements survive in their early years. Punishment for most crimes was fines and mutilation, such as branding or cutting off an ear. Most colonies listed about twelve capital offenses. The twelve included witchcraft, blasphemy, murder, adultery, kidnapping, conspiracy, manslaughter, sexual deviance, rebellion, and poisoning.

Can Killing Be Morally Right?

Although the trend worldwide in the last decades of the twentieth century was to abolish the death penalty in numerous countries, the debate still raged in the United States. Every execution commonly drew protestors opposing capital punishment outside the prison walls. Those in favor of the death penalty believe in retribution, claiming a person who has taken another person's life or performed some other terrible crime does not deserve to have a life. They also claim the death penalty poses a much greater deterrence to violent crime than life sentences without the possibility of parole. Additionally, even if incarcerated, some inmates kill again within the prison facility.

Opponents of the death penalty most frequently cite moral and religious reasons for not taking a person's life. For example, the Catholic Church constantly promotes the protection of life, not only in opposing the death penalty, but on other issues such as abortion. The church and some other religions state that the death penalty is contrary to the sacredness of life. Society, they say, should focus on forgiveness, redemption, and reconciliation of the victim and society. Ultimate justice, they say, is with God.

Opponents of the death penalty also believe mistakes are made in the criminal justice system. The prospect of executing an innocent person, no matter how infrequent, is too much of a risk. Death cannot be reversed like other penalties. They believe life in prison keeps the person from committing other crimes. It is obvious debate over the death penalty will continue well into the twenty-first century.

Pennsylvania had the fewest capital crimes with only murder and treason. By the American Revolution all but Rhode Island had at least ten capital crimes. These capital crimes were carried directly over into the new state laws. In 1790 the most common capital crimes were treason, murder, sexual deviance, rape, arson, burglary, robbery, and counterfeiting.

A reform movement in the late eighteenth century following the American Revolution began pressing for elimination of the death penalty. In 1794 the Pennsylvania legislature abolished the death penalty for all crimes except first-degree murder. This was the first time a government distinguished between different categories of murder. First-degree murder was the willful, premeditated (thought out or planned in advance) act of murder, or murder committed with another serious crime such as arson, rape, or burglary.

Though other states soon adopted the new distinction of first- and second-degree (an unplanned or accidental killing) murder, none sharply reduced the number of capital crimes like Pennsylvania. However, Pennsylvania slowly added more crimes back to its list of capital punishment crimes through the first decades of the nineteenth century.

Once again beginning in the 1830s a movement grew to abolish the death penalty. Some religious organizations supported the death penalty while others did not. In 1847 Michigan abolished all capital punishment except for treason, and other northern states followed. Yet in the South, capital punishment increased and black slaves were the most frequent victims.

In the 1830s only five capital crimes applied to whites in Virginia but seventy applied to slaves. The movement to completely abolish the death penalty lost momentum during the Civil War and was not revived until the end of the nineteenth century. Under renewed pressure, Congress reduced the number of federal capital crimes in 1897 from sixty to three—treason, murder, and rape. The movement to eliminate the death penalty was led by Quakers and liberal Christians seeking reform in the justice system. Between 1897 and 1917 a number of states abolished the death penalty altogether. Social upheaval in the first few decades of the twentieth century, however, brought a reversal as public support for capital punishment increased again.

Violent labor conflicts had become more frequent, political radicals had fierce confrontations with authorities, and street crime increased as the population grew. After the kidnapping and murder of the infant son of American pilot Charles Lindbergh (1902–1974), federal and state governments added kidnapping to their death penalty lists.

The number of executions rose steadily, reaching very high numbers in the 1930s and 1940s. The movements to reduce the number of executions began taking effect again and states once more reduced the number of capital crimes. By the 1960s murder was the most common capital crime in the United States, followed by rape, armed robbery, kidnapping, sabotage, espionage, and burglary. In 1965 nine states had no capital crimes and four others had very few.

Deciding who dies

The death penalty was automatic upon conviction of a capital crime in England and the colonies. To avoid always handing down such harsh punishment, exclusion rules were adopted by colonial courts. First clergy were excluded, then those who could read or write, and then women. Such rules were soon restricted during the 1700s and were abolished in England by 1827.

Other kinds of exclusions were created. States such as Pennsylvania distinguished between different kinds of murder
to avoid mandatory death sentences. In 1938 Tennessee was the first state to do away with automatic death sentences and give juries the power to decide between death and prison for a convicted offender. Other states followed this change, with New York being the last to adopt flexible sentencing for premeditated murder in 1963.

Flexible or "discretionary" procedures led to a 1972 U.S. Supreme Court ruling. The Court ruled in Furman v. Georgia that how state courts determined the death penalty in individual cases made it a cruel and unusual punishment and unconstitutional. The Court ruled that jury guidelines were often too vague, juries were not fully informed, and offenders were given the death penalty without following a comprehensive set of rules. After the ruling, states had to establish clear guidelines and require juries to consider the background and circumstances of an offender before determining a sentence.

Capital offense trials became two trials, one to determine guilt, and if found guilty to determine the sentence. Different evidence was considered in the sentencing phase than in the trial phase. The jury had to consider the offender's background as well as facts about the victim and crime. All states and the federal courts require appeals of anyone sentenced to death.

Capital punishment in modern America

The death penalty ruling of 1972 forced states to reevaluate their position on the death penalty as they created new laws to conform to the Supreme Court decision. The earliest new capital crime laws were also challenged, but this time the Court supported the states. In the 1976 case of Gregg v. Georgia the Court approved the new Georgia capital crime law by upholding the conviction of a person who had robbed and murdered two men. The Court said the new revised sentencing process, separate from determining guilt, did not violate the Constitution's protection from cruel and unusual punishment.

As the states reworked their sentencing procedures, fewer offenders were given the death penalty. Although murder was still a capital crime, it had to be related to another serious crime except when involving the death of a police officer or a child. Rape of an adult, armed robbery, kidnapping, and burglary were no longer considered capital offenses unless the victim died.

In the early twenty-first century thirty-eight states had the death penalty and twelve states did not. In the meantime Congress had passed the Violent Crime Control and Law Enforcement Act of 1994 to "get tough on crime," spurred by the newly Republican-controlled Congress. This increased the number of federal capital crimes to over fifty. Most involved murder during other crimes like bank robbery or kidnapping, or murdering someone on federal property. Capital crimes not involving murder included treason, espionage, major drug trafficking, and the attempted murder of a police officer.

Execution methods

Convicted offenders have been executed in many different ways. The Romans of 2,500 years ago burned, drowned, beheaded, and crucified offenders for a wide range of crimes from theft to murder. After the United States was founded and the Constitution was drawn up, torture was no longer practiced because of the Eighth Amendment, which prohibits cruel and unusual punishment. Offenders could no longer be burned alive at the stake (like the "witches" of Salem) or killed with burning oil as in early colonial times.

The most common method of execution in early U.S. history was hanging. At first the hangings were performed in public view, and drew large and rowdy crowds. Beginning in 1830, Connecticut hangings were moved to within prison walls away from the public. Public hangings still took place, however, into the 1930s in some states.

In 1888 New York adopted use of the electric chair. The first use of the electric chair came two years later when William Kemmler was executed in New York. Yet because of problems with the equipment, Kemmler's execution led to a prolonged and gruesome death that horrified the witnesses. Despite this troubled beginning, the electric chair became the execution method of choice for more states.

Other forms of execution included firing squads, lethal gas, and hanging through much of the twentieth century. In 1977 Oklahoma adopted lethal injection. The first lethal injection execution in the United States came in 1982 in Texas. Lethal injection became the preferred method everywhere in the United States by the early twenty-first century.

Religion and criminal justice in the twenty-first century

Morality and religious order continued to greatly influence public perception of crime and punishment in the early twenty-first century. The media, through newspapers, 24-hour cable news networks, investigative reports on major networks, Internet Web sites, movies, and political radio programs, filled the public with images of violent or socially deviant behavior. Unusual local crimes get national attention and despite a decline in crime rates, public fear continues to grow. This fear directly influences criminal justice. The results are zero tolerance policies, broader police power, and tougher laws and sentencing.

Religious organizations have often led the charge for crime prevention. The result has been less tolerance of criminal behavior and demanding people take more responsibility for their actions. As new patterns in crime arise, such moralistic reactions influence the response of the criminal justice system. Critics, however, claim these solutions are too simple and do not address the causes of crime.

In the early 2000s the state of Florida under Governor Jeb Bush, brother of U.S. president George W. Bush (1946–; served 2001–), established a series of state faith-based prisons. These were created by converting existing prisons. Inmates were then allowed to choose one of these prisons over a standard prison.

The faith-based prisons offered regular prayer sessions, religious studies, choir practice, and religious counseling. They were open to inmates of all faiths including Christian, Muslim, and Jew. To qualify for participation, inmates must be within three years of their release date and have a clean prison record. The religious goal was character development, the prison goal was to reduce crime by keeping inmates from returning to a life of crime after their release. Of the 73,000 inmates in Florida in 2002, about 44 percent were repeat offenders with the state spending $1.3 billion on prisons.

For More Information

Books

Acker, James R., Robert M. Bohm, and Charles S. Lanier, eds. America's Experiment with Capital Punishment: Reflections on the Past, Present,and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 1998.

Baird, Robert M., and Stuart E. Rosenbaum. Punishment and the Death Penalty: The Current Debate. Amherst, NY: Prometheus Books, 1995.

Bedau, Hugo A., ed. Death Penalty in America: Current Controversies. New York: Oxford University Press, 1997.

Dummer, Harry R. Religion in Corrections. Lanham, MD: American Correctional Associates, 2000.

Levy, Leonard W. Blasphemy: Verbal Offenses Against the Sacred from Moses to Salman Rushdie. New York: Knopf, 1993.

Nathanson, Stephen. An Eye for an Eye? The Immorality of Punishing by Death. Lanham, MD: Rowman & Littlefield, 1987.

Shaw, Richard D. Chaplains to the Imprisoned: Sharing Life with the Incarcerated. Binghamton, NY: Haworth Press, 1995.

Speller, Adrian. Breaking Out: A Christian Critique of Criminal Justice. London: Hodder & Stoughton, 1986.

Stark, Rodney, and Williams Sims Bainbridge. Religion, Deviance, and Social Control. New York: Routledge, 1997.

Stoyanov, Yuri. The Hidden Tradition: The Secret History of Medieval Christian Heresy. New York: Penguin Putnam, 1995.