Morality Without Punishment?

I am generally what might be called an asportsual; I follow football and baseball only if New England teams are winning. But January 20 found me in front of the TV watching the Patriots win the AFC championship in Kansas City in about the most exciting football game I had ever witnessed in my lifetime. They went on to win the Super Bowl in a considerably duller game.

But the pleasure of watching that league championship is now tarnished by the news that the billionaire owner of the Patriots was caught up not once but twice in a police sting operation in Jupiter, Florida paying for sex at a massage parlor. Right before that league championship game in Kansas City.

A couple of details in the sordid story stand out for me. The massage parlor is called the Orchids of Asia Day Spa, located in a strip mall in Jupiter, FL, near to Mr. Kraft’s Florida home in Palm Beach. Saturday afternoon, the day before the game, he was driven to the parlor by his chauffeur in a white 2014 Bentley. Sunday, the day of the game, he was driven to the spa about 11 am in a blue 2014 Bentley. Later that day he flew to Kansas City to watch his team win that incredible game.

Mr. Kraft is charged with soliciting for prostitution, which normally is disposed of by paying a fine. While some of the circumstances may raise red flags for human trafficking, no charges of human trafficking have yet been lodged against anyone connected with the sting.

I bring this up because it’s an instance where my feelings are at odds with what I think my religion teaches. I want to throw the book at Robert Kraft, but my religion counsels forgiveness.

This month, the Social Justice Committee is sponsoring a series of Saturday morning workshops looking at the criminal justice system. I worked in the criminal justice system as a defense attorney for 25 years, and now I have been a minister for twenty. As I contemplate the system today, I have three areas of concern. First, Mass incarceration: we are locking up too many of our people. Second, racism: too many of those we lock up are people of color. And third, the driving force behind the first two problems is retribution. The Kraft case illustrates this, though not in a way you may think.

In law school, I was taught that there are four recognized purposes for criminal punishment. The first is incapacitation – we lock up an offender so that that offender will not commit more crimes. The second is deterrence – we lock up this offender to serve as an example to others not to commit crimes. The third is rehabilitation – we lock up this offender so that we can give him the skills he needs to live in the world without having to commit crimes. And the fourth is retribution – we lock up this offender or otherwise cause him pain because in committing the crime he caused others pain and it somehow is just to inflict pain to give the offender a taste of his own medicine.

As I look at the criminal justice system today, the purpose that is dominant is retribution. We punish people, we vote for a system which inflicts harm on them, because it seems to us just to inflict harm on those who have inflicted harm on others.

Now why am I telling you this in a sermon? This is not a law school class. But my idea is that our attitude towards punishment for those who do wrong is at the heart of religious witness.

Start with Jesus. In the Sermon on the Mount, Jesus put the kibosh on retribution when he said (Matthew 5:38-42)(NRSV): 38 "You have heard that it was said, 'An eye for an eye and a tooth for a tooth.' 39 But I say to you, Do not resist an evildoer. But if anyone strikes you on the right cheek, turn the other also; 40 and if anyone wants to sue you and take your coat, give your cloak as well; 41 and if anyone forces you to go one mile, go also the second mile. 42 Give to everyone who begs from you, and do not refuse anyone who wants to borrow from you.”

The religious imagination has created two great images of retribution, one is a place and one is an event. The place is hell. If you search literature for the purest examples of vengeance, you will find it in descriptions of hell such as the one I read earlier from Virgil’s “Aeneid.”

I recently read a review of a book in the New Yorker that made me reach for my device and order a copy of the book online before I had finished the second paragraph of the review. The book is The Penguin Book of Hell edited by Scott Bruce, a medievalist at the University of Colorado at Boulder. This may be the book I have been waiting for to get me back into the topic of Evil, for Hell and its punishments are the most acute images of evil we have.

I am just getting into the book, but so far it has confirmed one of my ideas and upended the others. The idea it has confirmed is that not all the ancient world believed in Hell if that is defined as a place of punishment in the afterlife. Death was universal and final, but it was not universally associated with punishment. There was the realm called Hades in Greek which seems pretty close to Sheol in Hebrew, which simply meant the place where souls go after death. It was morally neutral.

And this is one way of thinking abut the afterlife which is still with us today. There’s a beautiful hymn in the shape-note tradition called Idumea which describes the afterlife as

A land of deepest shade

Untouched by human thought

The dreary regions of the dead

Where all things are forgot.

This Hades/Sheol view of death as quiet and forgetting is diametrically opposed to the view of death as active torment below or active bliss above.

The idea of mine that the book upended was that Christians had invented Hell as the place of punishments in the afterlife. Dr. Bruce cites three descriptions of a punitive regime in the afterlife from pagan Greek sources and one from a pagan Roman source, Virgil. Virgil’s is the most vivid and complex.

His epic poem, The Aeneid is like the Odyssey in that it follows a hero of the Trojan War in his travels after that war. Part of Aeneas’ travels include an extended tour through the underworld, and his guide is the seeress Sybil. Apparently the underworld does have a section where souls are simply at rest, as well as a section called Elysium where the good souls are blessed. But it also has a region called Tartarus, where the souls are in unremitting torment. Each tortured soul has a specific punishment for a specific crime.

The other great retributive product of the religious imagination is an event: there will come a time when all the dead will be gathered and God or Jesus will pass judgment on each person. This judgment will determine where each soul will spend the rest of eternity. The interplay between Hell the place and Judgment Day the event produced purgatory, a sort of temporary hell where one might work off ones sins in the hope of getting into heaven at Judgment Day.

The thought I have had growing on me for several weeks, since I got this book, is that people conceive of punishment in the afterlife because the punishment in this life is so often disappointing or nonexistent. We all know people who deserve to have something bad happen to them because they have broken every rule in the book by the way they’ve been living. And sometimes the do get their comeuppance before they die, but an awful lot of the time, they die rich and apparently happy. They cheat and they win. An unsatisfying outcome.

This is why the religious imagination or the literary imagination comes up with a region of the afterlife specifically devoted to torture and punishment. This is seen as a way to bring the scales of justice into balance.

If I’m right that Hell was thought up to balance the scales of justice, where do Universalists fit in? Our early theological ancestors in America preached that God was too good and loving to torment souls for all eternity and thus there was no Hell. But the predominantly Calvinist country did not know what to do with that. If you didn’t believe in punishment in the afterlife, what incentive did you have to do good in this life? The fact that Universalists were no more inclined than the rest of the citizenry to lives of crime didn’t seem to faze the Calvinist majority.

But because of this objection, Universalists were barred from taking oaths, whether an oath of office or the oath of a witness. The theological function of an oath was to submit yourself to eternal damnation if you did not fulfill what you were swearing to do, to faithfully execute your office or to tell the truth. People who didn’t believe in hell couldn’t be trusted.

Because of this issue, the Universalists gathered at Winchester, New Hampshire in 1803 to draft a statement of faith included a proviso to the effect that virtue was its own reward. Specifically they said “We believe that holiness and true happiness are inseparably connected, and that believers ought to be careful to maintain order and practice good works; for these things are good and profitable unto men.”

In other words we’re not being good because we’re afraid of hellfire, we’re being good because being good makes us feel good here and now.

But the idea that there is no hell in the great beyond leads to the idea that there should not be hells in the here and now. It is no accident that Universalists in the nineteenth century took a lead on opposing the death penalty and reforming prisons.

Rev. Charles Spear lived from 1803 to 1863.[1] For four years he was minister of the Universalist Society in Brewster, just up the road. He devoted himself to the abolition of the death penalty, and he edited a newspaper called the Prisoner’s Friend, championing prison reform.

In opposing the death penalty, Spear argued "Spare the criminal. The taking of his life will not bring back his victim; it will not prevent others from the commission of crime."

Now it is not that Universalists must be opposed to all punishment. Quillen Shinn, the great Universalist evangelist of the later nineteenth and early twentieth centuries held that a punishment for a limited purpose was consistent with the idea of a loving God. As he put it, love punishes to cure.

This week a woman caused me great pain. Ooh, how it hurt. It was probably worse than anything I’ve had in years. She knew perfectly well how much pain she was causing me, and yet she showed absolutely no remorse.

For she knew she was curing me. She was an experienced, professional periodontal assistant. I not only willingly submitted to her pain, I approved it. Though I was very glad for the novocaine that blocked 90% of the pain.

Can we have a morality which does not depend on deliberate infliction of pain? Is retribution the key to teaching people the right conduct?

What about raising children? Does the child have to fear punishment in order to learn right from wrong? I remember being spanked very rarely as a child and I can’t remember spanking my own children. I certainly think that if there is corporal punishment, it doesn’t teach anything after the age of four or so. I am a believer in withholding rewards from a child to give them an incentive to behave well, and that is itself a form of punishment. Don’t eat dessert until you’ve eaten your dinner; no watching TV if you haven’t done your homework.

But to get back to the criminal justice system, the problem seems to be that we as a people have supported a prison system based on retribution. We lock people up for incapacitation, that is to prevent them from committing further crimes, but we lock up a lot more people than necessary if safety were the primary purpose. As for deterrence, it is very hard to prove one way or the other that locking up John Smith gives any message to Jim Jones as to whether he should commit a crime or not.

Yet we have to acknowledge that there are large symbolic functions performed by the criminal justice system. Our psyches are writ large by how we feel about events we only read about in the newspapers.

For example, Robert Kraft. From a civil liberties perspective, prostitution can be regarded as a victimless crime. Under normal circumstances, the prostitutes’ customer might be expected to pay a small fine.

But in this case there is a lot of public outrage. I am outraged by the contrast between the couple of dollars this woman received for her services and the two Bentleys that delivered Mr. Kraft to her door. The most serious aspect of the case is sex trafficking, but to this moment actual trafficking charges have not been lodged. Yet the New York Times had a good article Saturday about how these massage parlors are set up.

Typically the women are recruited from China or other foreign countries and they thus acquire a debt for their transportation to the US, and they have a strong incentive to work in the sex trade to pay off their debt. In a sense this is voluntary, and in a sense it is coerced.

What is clear is that there is a tremendous imbalance of power and social position between a billionaire football franchise owner and an immigrant Chinese woman whose ability to get a foothold in America requires her to do such work. I would bet that I lot of you, like me, emotionally want for Kraft to be punished beyond having his name in the newspaper. If the courts don’t do it, maybe the NFL owners group should do it. Some on social media have suggested there will be a double standard if the owners look the other way on this gross public sex scandal when they have refused to hire Colin Kaepernick for simply kneeling to protest police abuse.

Let’s say we recognize that we have an emotional need for Kraft to suffer for what he has done, and we have enough perspective on our emotions to realize that this impulse is not necessarily going to get us to justice. Nor is comparing Kraft to Kaepernick, for the cases are not related at all.

If we were serious about finding a just resolution of Kraft’s case, I don’t think we do it in the abstract, and it may be we don’t do it within the criminal justice system. What we need to be looking at is a resolution which is practical, particularly tailored to the facts and personalities involved, and which points towards restoration rather than retribution.

Here’s my takeaway: our position as the spiritual heirs of heretics who denied the existence of hell calls us to insist that the criminal justice system include a pathway to restorative justice and away from retributive justice. Restorative justice asks, in the wake of an offense, what it would take to restore the parties to the balance which was upset by the wrongful act. It is often accomplished by bringing together in a circle all the affected people: offender, victim, police, employers, people who suffered collateral damage, probation officers. Typically they have a symbolic item like a feather and only the person holding that item can speak, and then it is passed on to the next. They talk until they come to consensus on what is to be done, and then they all own that resolution.

We will show a film on Restorative Justice in he American context March 16 and then on March 23, we will hear from a physician from Rwanda abut the restorative program set up in the wake of the genocide in that country 25 years ago.

I don’t know what a restorative justice resolution to the Robert Kraft story would look like. He has billions of dollars. The current massage parlor industry, according to the Times article, exploits immigrant women in financial need. What would happen if Kraft funded a rotating account from which those women could borrow as an alternative to going into the sex trade?

Retribution seems to satisfy our more primitive impulses to vengeance, but it is really just a sugar high. It doesn’t solve anything permanently. If we want a criminal system which is congruent with the values Jesus taught in the Sermon on the Mount, we need to look towards rehabilitation and restorative justice.


Reading for Morality without Punishment

From Virgil’s Aeneid, tr. Robert Fagles (Viking Press, NY 2006) 6.637-727.

The seer rose to the moment. “Famous captain of Troy,

no pure soul may set foot on that wicked threshold.

But when Hecate put me in charge of Avernus’ groves

she taught me all the punishments of the gods,

she led me through them all.

Here Cretan Rhadamnthus rules with an iron hand,

censuring men, exposing fraud, forcing confessions

when anyone up and above, reveling in his hidden crimes,

puts off his day of atonement until he dies, the fool,

too late. That very moment, vengeful Tisiphone, armed

with lashes, springs on the guilty, whips them till they quail,

with her left hand shaking all her twisting serpents,

summoning up her savage sisters, bands of Furies....

“Here those who hated their brothers, while alive,

or struck their fathers down

or embroiled clients in fraud, or brooded alone

over troves of gold they gained and never put aside

some share for their own kin – a great multitude, these –

then those killed for adultery, those who marched to the flag

of civil war and never shrank fom breaking their pledge

to their lords and masters: all of them, walled up here

wait to meet their doom.”


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