The Crime Victims' Act at 25

This is National Crime Victims’ Rights Week. Events will be taking place across the country, as they have every year since 1981. President Obama's proclamation notes that this is the twenty-fifth anniversary of the Victims of Crime Act of 1984, which imposed various fines and other financial penalties on federal offenders to fund services for victims. The silver anniversary of such a laudable and historically momentous ongoing event should be more widely celebrated.

In world historical terms, the respect for victims represented by the victims’ rights movement is nothing less than astonishing. As Gil Bailie argues in Violence Unveiled, the awakening of empathy for victims in cultures influenced by the Gospels is the paramount driver of Western history. Throughout human history, human victims were considered expendable. When primitive religion needed a scapegoat to make society cohesive, no one was prepared to look too closely at the victims that made this cohesion possible.

In the Hebrew bible, however, and to a lesser degree in Greek tragedy, moral concern about the victims’ plight began to find expression. Then came the story of Jesus – a common criminal, subjected to a common execution, whose story the Gospels told in a way that, in fits and starts, began to turn the world upside down. The moral high ground, it turned out, was with this hapless victim, not the worldly powers who put him to death.

By the 1980s, when the Crime Victims' Act was passed, concern about victims had become so prevalent in the US that a considerable backlash had set in against the excesses of political correctness. PC had given rise to a type of Victomology that the critic Robert Hughes called a “culture of complaint.”

In 1987, I remember wondering about President Ronald Reagan’s rhetorical response to the senseless death of 37 sailors aboard he USS Stark who were mistakenly killed by an Iraq missile in the Persian Gulf. This was during the Iran-Iraq War, in which the US backed Iraq, so in essence the deaths were from friendly fire. Yet Reagan sought to elevate the randomly fallen sailors into full-fledged heroes. This was the same Reagan who not only signed the Victims' Rights Act, but who created a major controversy the following year by visiting SS graves in Bitburg and trying to recast Hitler’s storm troopers as victims of Nazism. (These episodes are recounted in Joseph A. Amato’s A History and a Theory of Suffering.)

One wishes Reagan had shown equal concern for the victims of Salvadoran death squads supported by the US military, but his reinterpretation of the victim / hero dynamic speaks volumes about our culture. Marginalized for millennia of human history, victims have now more and more moved to a central place as the Gospel unmasks the old scapegoating machinery.

I am not sure, however, that “rights” is the right terminology in which to cast this astounding reversal of victims’ status. At Valparaiso University School of Law, my jurisprudence professor, Richard Stith, taught me to be skeptical of the insistence on rights that permeates American society. Would it build more community, and yield better results, if we turned the equation around and spoke instead of duties?

After all, “rights” is not the only powerful word starting with R. Think of:

● Restoration (as in the restorative justice movement )
● Respect (as in dignity)
● Reconciliation (a deeply religious term)
● Recognition (with its Hegelian undertones)

And finally — the most powerful of all the R words for me — Resurrection!

I think of the Olson family in Minnesota. Rolf, Nancy, Sarah, and Karl lost their beloved daughter / sister Katherine to the demonic evil of the “Craig’s list killer,” who shot the vivacious 24-year-old in cold blood and left her to bleed to death stuffed in the trunk of her own car. At sentencing, her family spoke openly of their deep emotional wounds, of how the killer had stolen their future. Faced with this kind of excruciating pain and indescribable loss, the language of “victims’ rights” pales — and the Resurrection becomes an urgent hope.

Dog Years

When I began reading an essay about the Obama family’s new dog, Bo, on the op/ed page, I wasn’t looking for material to use in a blog post. As much as I embrace E.O. Wilson’s notion of “consilience” — drawing on all spheres of human knowledge for holistic problem solving — I really didn’t expect Bo to contribute much toward the illumination of criminal justice issues.

The more I read of Wayne Pacelle’s essay, however, the more striking the parallel seemed between the warehousing of dogs in “puppy mills” and the warehousing of humans in jails and prisons. Pacelle is the president and CEO of the Humane Society. He paints a disturbing picture of the conditions inside the factory farms that spew out 4 million puppies every year, nearly 2 million of whom end up being euthanized in shelters for lack of a good home. Within the puppy mills, disease is rampant, as dogs typically get no exercise, no opportunity to leave their cages, and precious little, if any, human interaction.

It was jarring to read about these miserable conditions and disconcerting to realize I had been so oblivious to then. It's not as if our culture has no standards for the treatment of dogs. In December 2007, Michael Vick, the former Atlanta Falcons quarterback, was sentenced to 23 months in federal prison and 3 years of probation for his part in a brutal dog-fighting conspiracy. A professor at Valparaiso University School of Law (my law school alma mater), Rebecca Huss, was appointed guardian to the 48 pit bulls seized from Vick’s property by investigators. The legal system does not go to the trouble of bringing down star quarterbacks, and appointing guardians, for species whose members are completely disposable.

Is there an analogy between puppy mills and American prisons? In one way, the situation is the exact opposite. Dog farms churn out the pups hoping to sell them to people who want them, whereas prisons provide a place to confine unwanted people. But the health hazards of warehousing are inescapable, whether the species is canis lupus familiaris or homo sapiens.

For American inmates, the belly of the beast is most exposed in California, where the prison healthcare system has broken down under the strain of constant overcrowding. With inmates triple-bunked in gymnasiums, hallways and other unlikely places, and their medical records in chaos, many have died of preventable illnesses or committed suicide over the past decade. The federal courts have found this to be cruel and unusual punishment, which is prohibited by the Eight Amendment. On February 9, a special three-judge panel announced its intention to cap the number of prisoners at slightly more than 100,000, a reduction of more than 50,000 from the current size of 156,000, which is twice the system’s designed capacity. (Coleman v. Schwarzenegger, 2009 WL 330960)

Michael Vick is scheduled to be released from federal prison in July. (Just in time for training camp?) How many unwanted dogs will still be languishing in puppy mill and shelters then, and how many unwanted humans in jails and prisons?

"Plush" Prison Conditions?

Working for a legislator is no easy task. In 1997, when I began working as a nonpartisan researcher for an oversight agency at the Idaho State Legislature, the agency director was candid with me about the dynamics of the work. Our little agency was to be an island of objective analysis in the sea of conflict that was the legislature.

This conflict-based model of legislative politics was a little hard for me to accept at first. Though I could certainly understand it at the national level, in big country like ours, it seemed reasonable to think things might be different in a small state of barely over a million residents whose legislators were overwhelmingly of one party. The joke was that all of the Democratic legislators in Idaho could fit in a phone booth, and considering that Republicans outnumbered Democrats 35-5 in the Senate, this was not too far from being the truth.

In practice, however, politics in a polity of any size involves the clash of interests, not only between parties, but sometimes within them. Conflict is inevitable and its resolution is not always pretty — a reality often summed up in Bismarck’s dictum that no one should know how laws or sausages are made.

With this understanding of politics as my point of departure, my expectations were relatively modest when I contacted my congressperson, U.S. Rep. John Kline (R-Minn.) in late March. I asked him to offer a bill in the House comparable to the one offered in the Senate (S. 714) by Jim Webb and Arlen Specter to create a blue ribbon panel to review US sentencing policies and recommend reforms. I thought I’d get a noncommittal response, perhaps a form letter, saying he was considering the issue. Instead, I received a voice mail from a staffer packed with peripheral, partisan comment.

Rep. Kline’s staff person told me that he would pass along to the representative my interest in prison reform, but he didn’t stop there. He added that the real problem was coddling criminals, keeping them in “plush” conditions while even military families must struggle to pay their bills in a tough economy.

My question had been a straightforward one: Would Rep. Kline support a House companion to S. 714? Yet here was his staff person, leaving a voice mail implying that the real problem was inmates living a life of leisure, maybe even playing tennis, on the taxpayers’ dime. He would have done his job better if he’d simply said he’d share my concern with his boss, instead of trying to redefine the issue as being about pampered prisoners.

Measuring the Unjust Pain

Act I, 1978: Analyzing the Birth of the Modern Prison

In 1978, Michael Ignatieff, a 31-year-old Canadian college professor, published his first book, A Just Measure of Pain. Like Michel Foucault’s Discipline and Punish (Surveiller et Punir), whose first American edition appeared the same year, it examined the origins of the modern prison during the Industrial Revolution. Both Ignatieff and Foucault described the turn away from punishments aimed at the body to those measured in units of time under supervision. Today, with over two million Americans in jail or prison and millions more on probation or parole, these books remain important reading for possible clues to the nature of our current Leviathan in embryo.

At least within the academic world, it was Foucault’s work that came to have the wider impact. The versatile Ignatieff moved to Britain the same year A Just Measure of Pain was published and established a second career as a public intellectual and media presence. Meanwhile, Foucault’s work, probing deeply into the dynamics of knowledge and power, became of great interest to academics in numerous disciplines. Though he is not as notorious as his fellow Frenchman Jacques Derrida, the two are sometimes lumped together among the postmodern “prophets of extremity” (Allan Megill). Indeed, the term foucauldian has become a word in its own right for the would-be unmasking of power relationships.

In Discipline and Punish, Foucault recounts how by the early nineteenth century, punishment as a public spectacle was in decline. Instead of publicly torturing an offender’s body, often accompanied by outright execution, a new understanding was emerging, focusing not on the sheer physical intensity of punishment, but on the certainty of it. On this view, justice in the sense of eye-for-an-eye violence is seen as actually counterproductive because it only incites more violence. As empathy for victims expands, executioners seem like criminals, judges like murderers, and tortured criminals “object[s] of pity or admiration.” (Discipline and Punish, Vintage Books edition, 1979, p. 9).

In place of torture, the theorists of the modern prison conceived of a response to crime in which offenders would be deprived of liberty for a set period of time and subject to close supervision. Every hour of the day would be closely regulated, as prisoners were reformed in factory-like settings into compliant, productive members of society. Foucault cites examples of the extremely detailed timetables the penitentiaries were to follow, seeking to reform prisoners and instill respect for institutional order.

Around the time Foucault was writing Discipline and Punish, the United States Supreme Court articulated the underlying rationale of incarceraton this way: Offenders are sent to prison not for punishment (physical pain), but as punishment (defined as the deprivation of liberty). The chioce of preposition here is crucial, and it reflects the way in which the modern prison grew up along with modern democratic conceptions of political freedom.

Act II, 2002-03: The Dubious Case for War In Iraq

What happens when an insecure American president wearing ideological blinders tries to export democracy to a Middle Eastern dictatorship by waging preemptive war? Given the debacle that Iraq so quickly became, it is hard to believe that the invasion of Iraq attracted a certain amount of support among opinion makers in 2002-03. Tom Friedman, for example, used his New York Times column to promote what he called “my war” — the personal pronoun sought to distinguish his case for invasion from the Bush administration’s. Instead of dubious WMD shenanigans, Friedman spoke of installing democracy in Iraq as a first step toward instilling it throughout the Middle East. Coming from the lauded author of From Beirut to Jerusalem, these words carried considerable weight.

Michael Ignatieff was essentially in Friedman’s camp. Though Ignatieff lacked the bully pulpit of the New York Times editorial page, he had come closer, since we last saw him in Act I, to direct political involvement. Leaving London in 2000, he moved back across the Atlantic in 2000 to direct the Carr Center for Human Rights Policy at Harvard University. From that perch, in the run-up to the invasion of Iraq, he sought to make a case for war in Iraq as a humanitarian and human rights mission.

Igantieff would come to at least partially recant of these apologetics, once the scale of the Iraq debacle became plain. The abuses at the Abu Ghraib prison had become widely known by the spring of 2004, and by then there was, to use the title of Charles Ferguson’s fine documentary, “no end in sight.” In 2006, after leaving Harvard to become deputy leader of Canada’s Liberal Party, Ignatieff tried to distance himself from his earlier views on Iraq, saying they reflected the theoretical enthusiasms of the academy, not the cold-eyed prudence of practical politics. As Katha Pollit suggested in The Nation, this is not a satisfactory explanation. Paul Wellstone may have been the only U.S. Senator to vote against it, but there was no shortage of professors against the war. Michael Ignatieff was not among them.

Act III: The Obama Administration Picks up the Pieces

On April 16, 2009, the Obama administration released memos detailing the brutal interrogation methods used by the CIA under President Bush, while also assuring the agents involved that they would not be prosecuted. The materials made public included legal memos from within the Bush administration trying to redefine torture to provide legal cover for actions of shocking brutality. The techniques will never be used again, President Obama said, but neither would he pin the blame on rank and file agents who acted in good faith.

The released memos contained long excerpts from the CIA’s interrogation manual, describing how each coercive method was to be used.

● Waterboarding (simulated drowning): Strapping a prisoner to a gurney at a 10- to 15-degree angle, covering the mouth with a cloth, pouring water over the cloth from 6 to 18 inches away, for no more than 40 seconds at a time

● Sleep deprivation for up to 180 hours

● Shoving against a wall “30 times consecutively”

The precision of these details is weirdly reminiscent of the prison timetable from the early nineteenth century described by Foucault. Only this time, the precision is used to inflict physical pain, not to set the prisoner on an institutionalized path to rehabilitation.
Ostensibly, under Bush, the purpose of the pain was to force detainees to provide information. But is there any scientific literature showing that tactics of this sort produce useable evidence? It may work on television to slam people against walls, as a means to extract information, or in movie to place prisoners in a dark, cramped box filled with insects (another CIA tactic). But if someone will say anything to make the pain stop, why should they be believed?

Roughly two centuries after the birth of the modern prison, America regressed in its “war on terror” to tactics that sound more like something from two thousand years ago. The limitation of shoving against a wall to 30 consecutive times recalls the “40 stripes” established in Jewish law (Deuteronomy 25:3) centuries before the birth of Christ. This was the limit on the number of lashes for someone being whipped. By the time of the apostle Paul, the number had been cut to 39 stripes, so that the punishment did not exceed 40 inadvertently or through excessive zeal.

In banning waterboarding and other brutal tactics, the Obama administration is doing much more than cutting back from 40 stripes to 39. Mr. Obama has reversed key Bush interrogation policies, not just scaled back on them. The scales of justice have not yet stopped balancing, however, after the unjust measure of pain our country inflicted in Iraq and on detainees around the world.

Wittgenstein's Poker and Easter Morn

If it were to happen today, it might make for riveting reality TV. Two celebrated philosophers — Ludwig Wittgenstein and Karl Popper — in a confrontation at the Cambridge Union on October 25, 1946.

The ambitious Popper, fresh from publishing the English translation of The Open Society and Its Enemies, had come to give an academic paper critical of Wittgenstein’s approach to ethics. The eminent Wittgenstein, seated by the fire, eventually picked up a poker from the grate and may or may not have threatened Popper with it during an argument about the nature of moral ideas.

Eyewitness accounts of the encounter differ in many details. Bertrand Russell, Stephen Toulmin, and the other luminaries present could not agree afterwards whether the poker was red-hot, or whether Wittgenstein actually brandished it. Popper himself later claimed he had told Wittgenstein to his face that an example of a self-evident moral principle was “Never threaten visiting speakers with pokers.” Others recall Wittgenstein leaving the Cambridge Union before Popper’s remark was made. All agree, however, that an acrimonious meeting took place, at which Wittgenstein picked up a poker.

Drawing on the research conducted by David Edmonds and John Edinow, the theologian N.T. Wright uses this incident to illustrate how so many of the conventional arguments against the truth of the Gospel accounts of Jesus’s death and resurrection are so off the mark. The fact that the Gospels differ in various details, and were not written down until about fifty years after the events they describe, does not mean that nothing happened. To the contrary, as a matter of evidentiary method, the differences suggest that something did happen — something too unpredictable and paradigm-breaking to be dimissed as merely the concoction of early Christians cooking the historical books.

Rereading the various accounts of the passion story during Holy Week, I tried to keep Wittgenstein’s poker in mind. Take, for example, the insightful centurion, who in the synoptic gospels speaks a word of affirmation immediately after the crucifixion. In Mark, the centurion says, “Truly, this man was God’s son.” In Matthew, the statement is essentially the same, but is uttered only after the occurrence of an earthquake Mark doesn’t mention. Luke, too, has a somewhat different emphasis, having the centurion say, “Certainly this man was innocent," using a Greek word (diakaios) whose connotations go well beyond the legalities of guilt or innocence to the realm of justice and right relationship with God. In John, the non-synoptic gospel, the figure of the centurion does not appear.

The divergence in the Gospel narratives doesn’t mean the underlying story of the empty tomb and a risen Christ is at heart a tall tale spread by a vast conspiracy. To the contrary, when one examines the evidence of the eyewitnesses, as reflected in an oral tradition recorded two generations later, and analyzes it in the context of what we know about the first-century Jewish world, the opposite inference is the more likely one. As Wright shows in Surprised by Hope, that world was most certainly not expecting the resurrection of one person as an event to usher in a new historical reality. Yet if something unprecedented didn’t happen, why did the usual Roman repression not succeed in vilifying the victim yet again? Why was the world, for so many, now turned upside down?

Ultimately, the answer to these questions depends on faith, not appeals to history. Wittgenstein’s poker, whether red-hot or not, is a useful analytical tool to help keep history from becoming a stumbling block that gets in the way of faith. I'm reminded of this pssage in T,.S. Eliot's East Coker:

"There is, it seems to us,
At best, only a limited value
In the knowledge derived from experience,
The knowledge imposes a pattern, and falsifies,
For the pattern is new in every moment
And every moment is a new and shocking
Valuation of all we have been."

Jesus put it more directly: "Behold, I make all things new."

A Sentencing Prayer

The convicted person does not always speak at the sentencing hearing, much less offer a word of prayer. Yet a prayer is essentially what Moises Aguilar Nieves offered at his sentencing on February 27 for unintentional second-degree murder.

Nieves, a 36-year-old man from the Minneapolis suburb of Richfield, received a 15-year prison sentence (with the final third to be served on supervised release) for driving his 5,000-pound GMC Yukon into David Ramirez, 46, in St. Paul last October. The prosecution argued successfully that Nieves did this in a fit of jealousy upon seeing Ramirez talking with Maria Rocha, 23, a former girlfriend of Ramirez’s with whom Nieves was in love — despite having five children with his longtime girlfriend.

At Nieves’s sentencing, a Spanish interpreter read a letter written by the longtime girlfriend, describing the suffering of the children without their father, particularly a 16-year-old son who had dropped out of school. A few feet away, a three-year-old son squirmed in his seat in the courtroom, not grasping the gravity of the scene unfolding in front of him.

When it was Nieves’s turn to speak, he asked for forgiveness not only from Ramirez’s family and his own, but from the Lord. He implored the judge for mercy, said he hoped one day to be free, and ended with “Amen.”

In fifteen years, Moises Aguilar Nieves will have served his sentence. But will he ever be free of the burden of the pain he caused? Even if his prayer is answered, neither God’s forgiveness nor the forgiveness of others can change the past. Nieves will have to learn to live with the sadness flowing from his decision to rev up his huge vehicle and take aim at his (supposed) rival. The mark of Cain was intended for protection, not a curse, but it has never been easy to bear.

Touching the Wounds

My dad was a police chaplain. It was a volunteer job, something he took on in addition to his regular duties as senior pastor of a Lutheran congregation in Farmington, Minnesota, a small town south of St. Paul that evolved into a suburb in the 80s and 90s. The police department supplied him with a pager, and his assignment was to be available to assist law enforcement officers sent to deliver terrible news to grief-stricken families.

I don’t know what I would say if I were sent, as my dad was, to tell the parents of a teenager that their child has just committed suicide. The key to being effective, however, probably lies more in the ability to listen than in than trying to provide theological explanations, which can all too easily turn into trying to justify the unjustifiable. As Henri Nouwen wrote in Out of Solitude, there is no substitute for being fully present to each other, prepared to share another’s deep pain and touch their emotional wounds in a gentle way, until the moment of despair passes.

There have been many such moments across the country recently, with seemingly one shooting spree after another. It's been a nightmarish travelogue: From Oakland to Alabama to Pittsburgh and so many other places, including a nursing home in North Carolina and an immigrant service center in Binghampton, New York. The victims have included family members, police officers, and complete strangers. Even as the dead are buried and the physical wounds of the survivors fade from the headlines, the spiritual fallout for those personally touched by these tragedies has barely begun. Will someone be there to bind up the emotional wounds?

It’s been about a year and half now since my dad passed away, so I was not able to conduct an oral history interview with him to gather more detail about the situations in which the police called upon him for help. Yet I recall very well the kinship he felt with law enforcement offers. Like ministers, they are on the front lines, in a very direct way, in helping people, and civil society itself, deal with the clash of good and evil. For years, the Minneapolis Police Department used “to protect and serve” as a motto on its squad cars; in a more spiritual setting, that is what pastors do, too. Sometimes they serve simply by being present and touching the wounds.

On a Moving Train

Though I majored in history and later earned a master’s degree in it, I did not hear of Howard Zinn’s People’s History of the United States until 2000. I can, however, recall the exact moment when I did. Along with several other members of a research and evaluation team from the Minnesota Department of Corrections, I was returning to St. Paul from a site visit to the sex offender treatment center at Moose Lake. A colleague of mine happened to mention Zinn’s People’s History as a remarkable book that every American should read. After mentally filing her recommendation away, my interest was piqued years later when I noticed my wife had added You Can’t Be Neutral on a Moving Train — a documentary about Zinn and his work — to our Netflix queue.

As shown in the film, Zinn has few illusions about the difficulty of challenging the powers that be on issues like racial injustice, prolonging the Vietnam War, or invading Iraq. Over and over again, history has been written by the winners, those who subscribe to some variation on Frederick the Great’s theme that God is with the big battalions. Yet Zinn still finds history hopeful, because it shows us that even the most unjust structures are not forever. Who would have thought a generation ago, for example, that apartheid would crumble, with Nelson Mandela released from prison and lionized around the world? Seen not from the perspective of the dominant groups but from below, history also contains many “fugitive moments of compassion,” Zinn says — moments that can inspire us to laudable acts of our own.

A recognition of our role as citizens in the unfolding story of American democracy is a good place to start as our cash-strapped nation grapples with the consequences of the past generation’s prison boom. An ever-rising tide of incarceration is not inevitable. History teaches at least that much, and each of us has a part to play in creating the future. That is why I sent an e-mail last week to U.S. Rep. John Kline, encouraging him to offer companion legislation in the House to S. 714, the bill sponsored in the Senate by Jim Webb, Arlen Specter and others to create a national criminal justice commission. The commission's task would be to study the issues in depth and recommend reforms in America’s sentencing laws and correctional policies.

Laws like those that impose Draconian penalties for low-level drug possession are not immutable holy wit. They are made by humans and can be changed by humans. Indeed, the process of doing so can itself be empowering. I'm not so naive as to think that writing to my congressperson (a cliché of civics 101) will change the world all at once. Maybe it will help to do that, maybe it won’t. After all, the prison industrial complex is a powerful force, and the political dynamics of any meaningful sentencing reform are unpredictable. The point is that, as psychologist Diana de Vegh says, "taking action frees you from the paralysis that comes from accepting what is called reality." Rep. Kline, if you happen to read this post, you can consider the note I sent about Sen. Webb’s bill a declaration of epistemological independence.