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Betsy ShirleyJuly 17, 2020

It was week three of Gov. Gretchen Whitmer’s stay-at-home order, and some Michiganders had grown impatient. On April 15, thousands of protesters gridlocked downtown Lansing to demand the state’s reopening. In defiance of social distancing guidelines meant to slow the spread of Covid-19, many protesters crowded together outside the capitol building; few wore masks. They called for “freedom” and chanted “Lock her up.” “Gov. Whitmer We Are Not Prisoners!!!” read one sign.

The next day, Troy Rienstra joined a smaller group of protesters at the state capitol—not to protest the stay-at-home order but to advocate for the 38,000 people in the state who are actual prisoners. Aside from a few honking car horns, the protest was silent; people stayed in their vehicles and drove through the city, funeral procession style, to draw attention to the inmates and prison guards who had already died of coronavirus (then around a dozen but surpassing 70 by early June) and urge the governor to take swift action so those numbers would not increase. 

Mr. Rienstra understood why people were upset about the stay-at-home order, but as he explained over a video call in mid-April, his own coronavirus mantra is, “Always be mindful that it could always be worse.” Being cooped up at home was not ideal, but he had the company of his wife and daughter, two adorable Rottweilers, plenty of books and a Netflix subscription. He was not complaining.

“Twenty-two years in prison—with six years in solitary confinement—will get you ready [to appreciate] the comforts of home [while] being locked indoors,” he told me. When he talks with other formerly incarcerated people, they remind one another: “We’re a long way from the yard, and we definitely know what bad looks like. And this is nothing.”

American Exceptionalism

Mr. Rienstra was sentenced to life in prison for an armed robbery he committed in 1995; he was released on parole in 2016. He now works for Safe and Just Michigan, which seeks to reduce the harm caused by crime and incarceration, and Nation Outside, an organization led by formerly incarcerated people to build criminal justice policy reform. “People change. That’s the narrative we try to push,” he says. Ultimately, he would like to see the United States embrace a less punitive approach to criminal justice. 

“In other cultures, if you steal something [and] they ask you, ‘Why did you do it?’ and you say because you were hungry, they bring you more food,” said Mr. Rienstra. But in the United States we have a “punitive approach to justice as opposed to a restorative approach,” he explains. When someone harms us, we want retaliation.

He is right: In almost every way measurable, the U.S. penal system is extreme. There are currently more than 2.2 million people—nearly one out of every 100 people in this country—in U.S. prisons and jails. (Though the terms are often used interchangeably, a jail is a locally run facility where people awaiting trial or sentencing are held; prisons are federal or state institutions for convicted offenders serving sentences longer than one year). The rate of incarceration in the United States is greater than that of any other nation in the world. All told, the United States has 5 percent of the world’s population but 25 percent of its prisoners. 

It gets worse. “American authorities do not just impose more punishment: they also punish in a distinctive way,” wrote David Garland, a sociologist of crime and punishment at New York University, in a 2019 study. The most glaring example of this “distinctiveness” is the death penalty. Abolished in every other Western democracy and declared “inadmissible” in any circumstance by Pope Francis, capital punishment remains on the books in 28 U.S. states and is authorized by the federal government and the military.

Nearly one out of every 100 people in this country are in a U.S. prison or jail.

Yet the distinctiveness of American punishment goes further still. When compared with other Western nations, writes Mr. Garland, sentence length and time served are “much longer in the U.S. than elsewhere”; prison conditions are “more austere” and include “more solitary confinement” with less “rehabilitation, education, home leaves, and re-entry assistance”; and probation and parole in the United States are “more control-oriented, with multiple restrictions placed on supervisees’ behavior.” Consequences that affect former inmates after they are released—like not being able to vote, apply for public housing or clear their records—are “more extensive, more onerous, and more enduring in the USA than elsewhere.” All of this raises the question: How did our nation become like this? 

On Alleviating Misery

The U.S. penal system, now exceptional in all the worst ways, was once considered exemplary. In 1831, the French historian Alexander de Tocqueville arrived in the United States. Though he is more often remembered for his irresistibly quotable aphorisms about American life, de Tocqueville’s official assignment was not to document the young republic’s civic spirit but to study its recent penal innovation: penitentiaries.

Prisons are an ancient concept, but for most of history they functioned more like jails. In early America, this meant dozens of people crammed in a room until some other punishment—often some type of public humiliation, bodily pain, mutilation or execution—could be inflicted. Enter the Philadelphia Society for Alleviating the Miseries of Public Prisons, a group of Christian, mostly Quaker, reformers. These idealists saw the continued use of corporal punishment as “proof of the feeble operation of reason and religion,” as the group’s founder, Benjamin Rush, wrote in 1787. They were not against punishments altogether. “I only wish only to change the place and manner of inflicting them so as to render them effectual for the reformation of criminals, and beneficial to society,” wrote Mr. Rush.

So the group proposed an alternative: Those convicted of crimes would be sentenced to solitude, each confined to his own cell where he could become penitent and restore his soul. Yet too much solitude leaves a prisoner “prey to the remorses of his soul and the terrors of his imagination,” noted de Tocqueville and his colleague Gustave de Beaumont in their report on American penitentiaries, so prisoners would be assigned labor that “fatigues the body and relieves the soul.”

To our ears, solitary confinement and forced labor do not sound like ways to alleviate misery; nevertheless, abolishing corporal punishment was considered an enlightened—albeit never realized—goal at the time. Throughout the early 1800s, these ideals coalesced into a number of new institutions, including Eastern State Penitentiary and Auburn Prison in upstate New York. The idealism quickly faded when the cost of these new systems became too taxing, but the use of confinement and hard labor stuck. 

In devising this alternative, explained Andrew Skotnicki, a professor of religious studies at Manhattan College in New York City, these early prison reformers drew on the monastic practice of confining a wayward monk to his cell, supplying him with work and letting time heal so that he might be returned to the community. Yet as the Rule of St. Benedict makes clear, Mr. Skotnicki told me over the phone, this practice was only to be used when the conflict-resolution process outlined in Matthew 18 (“If your brother sins against you, go and tell him...”) had failed. When confinement was necessary, abbots were instructed to send in older, wiser monks to counsel the offending brother lest he be “swallowed up by overmuch sorrow.” Imitate the loving kindness of the Good Shepherd, urged St. Benedict; find the one that has gone astray and gently carry him back to the flock.

 “The ideology of confinement as it developed in church history never intended punishment as an end in itself,” wrote Mr. Skotnicki in a paper delivered before a 2015 roundtable at John Jay College of Criminal Justice, “but as a means to employ solitude and silence, aided by attentive mentors, as the motivation for the detained person to recognize their natural sociability and capacity for care and transcendence.”

But while this ideology may have inspired early American reformers, it is nowhere present in the U.S. prison system today, says Mr. Skotnicki. Absent loving kindness and community restoration, “we’re left now with this massive system, these gulags of jails and prisons, administering pain and punishment,” he told me. “And for the most part, you cannot get one coherent explanation anywhere—and I read this stuff for a living. We really don’t even know why we’re doing it.”

More Prison, Less Crime?

There is one thing we do know: Mass incarceration does not make us safer. Two graphs animate most conversations about contemporary incarceration in the United States. The first is a flat line that erupts upward to illustrate the population of state and federal prisons by year (not including jails). From mid-century until the early 1970s, the U.S. prison population hovered around 200,000 inmates. But in 1972 the line shoots upward, reaching 1.6 million inmates in 2009—an increase of more than 700 percent. In the decade that follows, the numbers drop slightly, to reach the current U.S. prison population of roughly 1.3 million people (2.2 million, if you include jails). 

The second graph shows a jagged peak, illustrating the rate of violent crime in the United States per 100,000 people. In the mid-1960s, the rate of violent crime begins to rise, builds over the next three decades and peaks in the early ’90s before declining, first rapidly, then more gradually, to the present. Today, the violent crime rate is less than half of what it was in 1991. 

Lauren-Brooke Eisen, an expert on crime data and mass incarceration at the Brennan Center for Justice, has spent much of her career explaining what these two graphs do and do not say. What they do show, she explained over the phone, is how widespread anxiety about increasing rates of violent crime in the 1970s and ’80s motivated the United States to drastically increase its use of incarceration. “There was a lot of fear” and widespread “zeal for harsh sentences” among the U.S. electorate, she explained.

Over the next few decades, this was translated into bipartisan support for a variety of “tough on crime” policies: the war on drugs; increased use of stop-and-frisk tactics; and “broken windows” policing. States imposed more mandatory minimums, eliminated parole and passed “three strikes” laws. Legislation like the 1994 crime bill, signed by President Bill Clinton, offered states billions of dollars to build new prisons if they imposed truth-in-sentencing guidelines, which ensured offenders spent more of their sentences behind bars. 

The result of these policies? The rise of mass incarceration in the United States. 

But what these graphs do not show—and what Ms. Eisen’s research emphatically disproves—is that increased incarceration caused the crime rate to decrease. In a peer-reviewed 2015 report, Ms. Eisen and her colleagues at the Brennan Center analyzed 13 different factors that have been thought to contribute to the decline of crime, including increased incarceration, growing incomes, less alcohol consumption, more police and an aging population. Though the report found some factors, like decreased alcohol consumption, contributed to a decrease in overall crime by an estimated 5 to 10 percent, they found that “increased incarceration had no observable effect on the violent crime decline in the 1990s or in the 2000s.” Researchers noted that in some states, imprisonment rates actually decreased while crime also decreased (and other states increased their imprisonment, but crime also increased). 

There is one thing we do know: Mass incarceration does not make us safer.

“More incarceration does not lead to less crime,” wrote Inimai Chettiar in the report’s executive summary. “The United States can simultaneously reduce crime and reduce mass incarceration.” These findings have been echoed by the National Research Council and the Vera Institute of Justice.

Ms. Eisen and other criminal justice experts have found that imprisonment is subject to diminishing returns: The more people confined, the less effective it becomes. Another reason is that prison is shown to have a “criminogenic” or crime-producing effect. People who are incarcerated are “separated from their community, not earning a living,” said Ms. Eisen. Often they do not get the education they need to eventually secure a job or the treatment to address substance-abuse or mental health issues that often are underlying causes of their criminal behavior. Plus, she pointed out, they are separated from their families and other sources of support. “It’s really a system that sets people up for failure,” she said.

Racism Plus X

It was day three after Gov. Gretchen Whitmer announced the end of the state’s stay-at-home order, and many Michiganders—and Minnesotans, New Yorkers, Mainers, Californians and Americans everywhere in between—were outraged. On the first weekend in June, following a week of growing outrage across the country, tens of thousands of protesters flooded cities around the world to demand an end to police violence against people of color. Ignited by the deaths of George Floyd, Breonna Taylor and the endless, hashtagged litany of Black men and women killed by the police, the crowds called for freedom and chanted, “Black Lives Matter.” Signs reading “Defund the Police” popped up everywhere. By Sunday evening, the Minneapolis City Council had vowed to disband the city’s police department. 

Racism is inextricably intertwined with both policing and imprisonment in the United States. As explained in bestselling books like Michelle Alexander’s The New Jim Crow and Bryan Stevenson’s Just Mercy, America’s original sin results in rampant discrimination in the way laws are enforced, whom a jury is willing to convict and the sentence those found guilty receive—not to mention who is perceived as “dangerous” and the treatment they get from the police. Overall, people of color account for 37 percent of the U.S. population but 67 percent of the prison population.

But when it comes to explaining the volume and severity of incarceration in the United States, systemic racism is not the only factor. The prison abolition activists and religion scholars Vincent W. Lloyd and Joshua Dubler offer a thought experiment in Break Every Yoke: Religion, Justice, and the Abolition of Prisons. Imagine that the United States suddenly released all state and federal prisoners who are Black, plus nonviolent drug offenders and anyone awaiting trial who cannot afford bail. This combination of measures would reduce the number of people behind bars in the United States by 50 percent—a major accomplishment. “What it would not do, however, is end mass incarceration,” they explain. “Even at half its current size, the U.S. incarceration rate would remain three times that of France, four times that of Germany and similar degrees in excess of where it was for the first three-quarters of the twentieth century.”

The comparative law expert and Yale Law School professor James Q. Whitman puts it this way: “Other countries are racist countries, but they are not countries with harsh criminal punishment on the American scale,” he writes in an article from 2007, “What Happened to Tocqueville’s America?” “That does not mean that racism plays no role in America,” he continues. “I believe it does. But racism as such cannot explain our practices.... Some other factor or factors must play a role; it can only be the case that ‘racism + x = harsh punishment,’ and if we wish to understand American punishment we must search for that x.”

Too Much Democracy?

And we have searched. The problem of “American penal exceptionalism,” as scholars often call it, has produced a vast body of research examining how mass incarceration has been driven by everything from a cultural emphasis on individual responsibility to the private companies that provide services within public prisons—food, phone calls, transportation, health care—and have a strong financial incentive (and well-paid lobbyists) to ensure incarceration remains the dominant way our society solves its problems.

Many scholars, including Mr. Whitman, locate that x in the unique structure of our political system. Public opinion in all countries generally favors tough-on-crime policies, not just the United States, writes Mr. Whitman. But where other democracies have insulated their criminal justice systems from populist political pressures, in the United States the public has considerable power in shaping everything from the state’s prosecutorial agenda to sentencing guidelines.

In the United States, for example, district attorneys (who decide whether and how severely to charge an arrested person and what punishment to pursue) and judges (who hand down sentences) are put into office through a political process, whether by running for office or by political appointment by other elected officials. In Europe, however, the people making these decisions are not elected but rather are “highly specialized, bureaucratic officials,” who “almost always maintain a professional distance from popular opinion,” writes Mr. Whitman. “Because they do not run for election, they are not obliged to bid for popular support.” In a nutshell, U.S. officials are motivated to be “tough on crime” to get into office; in Europe, those making criminal policy can focus on measures that actually promote public safety and reduce recidivism.

The punitive, populist zeal within the United States, coupled with courts fixated on whether procedures are followed fairly rather than defending higher ideals of human dignity—Mr. Whitman observes that Europeans outlawed flogging because it was degrading, but American judges prohibited the practice because it was applied unfairly—results in a legal system that does little to “discourag[e] the inclination to degrade persons on account of their race.” If the people think “tough on crime” sounds like a good idea, they can elect leaders who will deliver, regardless of whether those measures actually result in safer communities or intensify racial inequalities. 

Other scholars, like David Garland of New York University, locate the x among our social services, or lack thereof. “Why did American legislators, at the federal, state and local levels, repeatedly define the problem as too little punishment—rather than too much poverty, or unemployment, or social disorganization?” writes Mr. Garland in a research article in 2019. “And why did they enact measures of penal control rather than more pro-social measures such as prevention, social services, social and economic investment?” 

For Mr. Garland, the answer is that the United States has repeatedly shown little political will for enacting widespread social measures that would address the underlying issues that lead to crime, “especially where poor minorities are concerned.” While European countries can respond to rising poverty and social dislocation with “already-existing social service, public health agencies, community agencies, and professional caseworkers to deal in a non-penal manner with problems such as homelessness, mental illness, drug addiction, prisoner re-entry, and the needs of crime victims,” most of these systems are “underdeveloped” in the United States, resulting in “a default resort to police and punishment.”

Deflating Justice

To recap: Extreme punitiveness in the U.S. criminal justice system is a product of many related factors, including racism, individualism, economic pressures, our political structures and resistance to widespread social programs. But operating through all of these factors is a fundamental belief that the harm caused by crime is resolved by state-imposed suffering. And the story of how that idea became so deeply embedded in the United States is intertwined with the story of religion in America.

This is the argument of Mr. Lloyd and Mr. Dubler, who teach religious studies at Villanova University and the University of Rochester, respectively. In Break Every Yoke, they trace the influence of American religion on the underlying “carceral logic” that created the U.S. prison system. According to this logic, “violations of the law enact wounds to the collective that can only be healed through the deliberate infliction of suffering; and for those who violate the law, this suffering is potentially redemptive.” You can hear this logic working among Benjamin Rush and the Philadelphia reformers, Christians who believed criminals should “recover their former connections with society” but only after they had “expiated their offenses by the mode of punishment that has been proposed.” And it echoes still today. No matter the wrong, there is one way to make it right: Lock them up. 

Especially relevant to the rise of mass incarceration, they explain, is a shift in the way the American public understood the word justice. As the groundwork for mass incarceration was laid in the ’60s and ’70s, evangelicalism eclipsed mainline Protestantism as the nation’s dominant religious expression. Religion became less about imagining radical alternatives to uplift society and more about personal morality, write Mr. Lloyd and Mr. Dubler. As a result, justice ceased to mean the higher ideals toward which we strive but rather the proper workings of the police, courts and prisons. “Once justice was equated with law and order, calls for justice became calls for more law enforcement and punishment,” they write.

Or as Troy Rienstra told me: “To most folks in the U.S., ‘justice’ means ‘you pay for what you do, and you pay for it a long time.’” 

Blessed Are the Merciful

As a Christian, Mr. Rienstra believes churches should be the loudest advocates for forgiveness, yet that is not the message he often hears from pulpits. “We don’t teach redemption and forgiveness very well,” he said. He paused and then clarified: “We teach it as a principle, not as a practice—that’s the difference.” In principle, forgiveness sounds great, he said, but as a practice, offering real forgiveness is difficult. “We have to make a self-sacrifice of our own interest to go be made right with somebody who may have done us harm—as opposed to leaving them to the courts we have appointed to mete justice for us.”

The United States has repeatedly shown little political will for enacting widespread social measures that would address the underlying issues that lead to crime.

Kathryn Getek Soltis, who teaches Christian ethics and directs the Center for Peace and Justice Education at Villanova University, agrees. “Mercy seeks to bring the half-dead back to life. And mercy does this without being contingent on what is deserved,” she wrote in an article for Church Life Journal in 2019. “Mercy is such a profound commitment to liberation, healing, and restoration that it will not be undermined by the guilt or innocence of the half-dead.” But to most Christians, mercy merely means not getting the punishment we deserve, being let off “easy,” she explained in a telephone interview.

Is this impoverished understanding of mercy a uniquely American problem? Perhaps. Like Mr. Rienstra and many of the other experts I spoke with, Ms. Soltis points to the unique intermingling of racism, religion, politics and capitalism in this country, factors that have deeply ingrained in Americans the idea “that suffering is a currency that can reconcile and clear debts.” 

“So as long as you believe that suffering is a currency to pay back, then you’re going to feel that punishment is a holy endeavor,” she said.

But as Mr. Lloyd pointed out over the phone, the many different strains of Christianity in the United States have a vibrancy and dynamism that is not found in European Christianity. And while this has created “destructive alignments” that fuel mass incarceration, “the range of religious communities that flourish in the North American context are providing models not just to make softer prisons but to do justice with no prisons at all,” he said. “That’s a radical form of mercy.” 

Both he and Ms. Soltis point to the religious roots of restorative justice initiatives in the United States, including models developed by Howard Zehr and other U.S. Mennonites in the late 1970s. Today, there is a robust variety of organizations that offer alternatives to the legal system by working through violence and conflict with those who have been affected, including those who have harmed, those who have been harmed and those in the community. (Two notable examples include Project Nia, founded by Mariame Kaba, and the Precious Blood Ministry of Reconciliation, a project of the Missionaries of the Precious Blood). 

In short, “religious ideas and practices have played a particular role in the development of this problem,” Mr. Lloyd and Mr. Dubler have written, “and they are particularly well positioned to help end it.”

Editor’s note: This article has been updated to clarify the findings of the Brennan Center’s 2015 report.

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