The New Religious Prisons and Their Retributivist Commitments

Authors

Marc O. DeGirolami, St. John's University School of LawFollow

Document Type

Article

Publication Title

Arkansas Law Review

Publication Date

2006

Volume

59

First Page

1

Abstract

The rise of the religious, or "faith-based," prison at the turn of the twenty-first century bears witness to the remarkable resilience of religion in shaping the philosophy of punishment. In the last decade, prisons that incorporate religion in various ways have sprouted around the country and there are some indications, though preliminary, inconclusive, and hotly contested, that inmates who participate in religious instruction and “programming” recidivate at lower rates than those who do not. The early success of these programs (and, some say, the preferential treatment accorded to participants in them) has resulted in high demand and long waiting lists.

Religious prisons raise questions of constitutionality and effectiveness, and most of the critical commentary to date has focused either on the various complicated Establishment Clause concerns or the programs' inconclusive recidivism results. This essay explores the criminological commitments of religious prisons. Though religious prisons serve rehabilitative aims, this essay emphasizes the importance of their retributive goals—what Professor R.A. Duff has termed the censure-communicating purpose of punishment and the "Three 'R's of Punishment" (repentance, reform, and reconciliation)—in justifying the use of religious programming in prisons. The focus of this article is narrow: it offers an argument in response to skeptics who claim that religious programming serves no criminological purpose absent an unequivocal showing of rehabilitative effectiveness. It claims that even if the evidence of reduced recidivism has been inflated or manipulated, religious programming can be justified in theory by reference to its potential for a special manifestation of retribution that might not otherwise exist.

The article, in Part II, provides a brief history of the use of religious programming in prisons in the United States in order to trace the shifting influence of religion in American prisons. In Part III, the article discusses two organizational models of religious programming that have emerged in the last decade—Florida's religious prisons (the Lawtey and Hillsborough Correctional Institutions) and the InnerChange Freedom Initiative, a Christian non-profit organization operating in several state prisons. Part IV explores the two conceptions of punishment that best justify religious programming in prison: rehabilitation and retribution. Rehabilitation is the most obvious and has received the most attention, partly because of the prisons' emphasis on curtailing recidivism rates and the scrutiny applied to allegedly positive results on that front. But the prisons' capacity to use religion to impose a particular kind of penance that is connected to the historical justifications for introducing religion into prison life has not yet been studied in any detail. After surveying the place of penance in several world religions, this section examines whether penance can serve retributivist aims, drawing substantially on Professor Duff s theory of secular penance in Punishment, Communication, and Community, as well as that of Professor Stephen Garvey and others. In Part V, the essay next considers how and whether various manifestations of religious penance—a significant part of the programming offered by some of the new religious prisons—are compatible with Duff s theory of secular penance. The article concludes by positing that there may be potential value in religious penance as both a rehabilitative and retributive instrument of criminal punishment.

None of this discussion is intended to minimize Establishment Clause concerns generated by religious prisons and state-sponsored religious penance. Those concerns are legitimate and raise problems that this article neither addresses nor denies. Rather, this article asks the reader to set these important doubts aside for the moment and consider here the range of possible secular justifications for reintroducing religious penance as punishment into prison life. While this discussion does nothing to allay doubts about the constitutionality of religious prisons, it does seek to explore the extent to which religion can and cannot support our secular, criminological commitments.

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