Book Review: “Rethinking Incarceration” by Dominique DuBois Gilliard

I wish that Rethinking Incarceration by Dominique DuBois Gilliard were a better book—theologically and politically—because Gilliard has some important things to say. What’s more, he is generally a competent writer. Rethinking Incarceration is by no means a slog and if its readability were all that mattered I’d cheerfully endorse the book. Unfortunately, despite having things worth saying and generally saying them well, I’m not sure that the strengths of this book outweigh its weaknesses.

Summary

In some ways, this is too complex a book to neatly summarize. Part 1 of Rethinking Incarceration is a scattered look at our justice system both as it exists now, and as it has developed over time. Yet, this is not a straight-forward survey or analysis of American laws, courts, and prisons. Instead, it is a look at the motivations that have driven the development of the system, as well as the people who have been caught up in it (caught up at times unjustly, or so Gilliard claims). Gilliard argues that systemic historical discrimination and injustice have only been amplified by movements like ‘get tough legislation’ and the war on drugs. American educational, mental health, and immigration policies combined with a growing private prison system have created pipelines that feed directly into prison and have created our mass incarceration problems today.

Part 2 of the book discusses Christian interactions with the American justice system both historically and in the present. Gilliard argues that various developments in Evangelical (or mainstream—though that distinction is not always made clearly enough) theology have defined how Christians have approached the law in America, for better or for worse. He argues that in the past while wrapped up with the idea of ‘penal substitution’ as the heart of the Gospel (which it is—to go ahead and tip my hand now), Christians in America got too caught up with the idea of justice as punishment and the state as the legitimate dispenser of that punishment. Now we know better, and so the book ends with the argument that we need to let go of the idea of justice as punishment or retribution, and embrace the idea of justice as restoration because grace always wins over the law. Gilliard writes:

“Thus, while God’s story sometimes includes punishment, isolation, and harsh consequences, God’s justice moves toward restoration, reintegration, and redemption. God’s justice is inherently connected to healing the harmed, restoring what has been lost, and reconciling those who are estranged from God’s community. God’s heart and justice are inherently restorative.
Restorative justice gives shape to a communal ethic that is conciliatory in spirit and just in nature. It provides a structure for conflict resolution that facilitates truth telling, accountability, forgiveness, and restitution. The restorative nature of God’s justice is woven throughout Scripture. Divine justice induces relational rightness between hostile parties, the holistic reintegration of exiled individuals, and economic and systemic restitution in the face of harm. Throughout Scripture, God works amid brokenness, restoring victims, communities, and offenders.” (178-179)

Strengths

For all the disagreements I have with many of Gilliard’s assumptions, reasoning, and conclusions, it should be remembered that I think several of his practical political statements are right.

For example, there certainly are too many people in prison in America. With more than two million people currently incarcerated, we functionally lead the world in incarceration rates. When you factor in the people currently out of prison but on probation, something like seven million people are under the authority of some form of the American justice system. If nothing else, these statistics are signs that we need to give some serious thought to the way we do justice.

Even more, Gilliard is right that there are three groups who are massively overrepresented in prison: minorities, the poor, and men. (He focuses primarily, but not exclusively, on the first group.)

Likewise, he is correct that we need to rethink some of the punishments attached to our laws, especially those resulting from ‘get-tough’ legislation. A penalty of decades in prison for a non-violent drug offense is certainly unjust, and that fact needs to be faced right now by our society. More on this below.

Finally, he is correct that we need to think more about how we treat people once they’re out of prison, especially in terms of restoration and assimilation back into mainstream society. This rethinking should involve at least 1) adjustments to the way we treat people in prison; 2) adjustments to the way we treat people when they’re out of prison; 3) adjustments to the way our culture—especially within the church—thinks about people when they’re out of prison.

All together, I think these are important arguments that merit serious discussion and reflection and need ultimately to lead to changes in the way our justice system functions.

Theological Weaknesses:

The biggest and most glaring theological weakness of Rethinking Justice is Gilliard’s use and rejection of penal substitution. He both hangs too much on an alternative view of atonement (whatever that may be—beyond repeating the words ‘restoration’ and ‘grace’ he never really explains exactly how believers are atoned for by Christ) and puts too much blame historically on penal substitution.

For example, Gilliard argues that the original ‘get-tough’ movement in the Puritan era and the early Republic was a result of believers with a view of salvation that hinged on penal substitution treating the state as a divinely-ordained judge and executioner, which meant that punishment could be brutal without measure because that’s what we all deserve anyway.

I certainly don’t deny that there is some historical validity to those claims—or even that penal substitution has been used in that away at times (though I disagree with Gilliard’s claim that its an inherent and necessary conclusion of the doctrine). But, when Gilliard’s overall argument about the ‘cruelty’ in our system is used as the context of his historical analysis, we see that it’s not really the Puritans and their descendants who are to blame after all. In fact, we should remember that the New England Puritans were a part of the wider English tradition, and in many ways their modifications to the legal code involved lessening the harshness of punishments. Not always, of course, but often. Among the many possible examples, while Europeans were still burning witches at the stake, the New England Puritans hanged the handful that were convicted in Court. (Sure, sure, ‘witchcraft’ ought not be a crime punishable by the state, but that’s not the argument in question here—we’re talking about trajectories of the evolution of punishment.)

What’s more, Gilliard’s claim—his correct claim, remember—is that our system is unjust because it locks people away for decades in a way that is often disproportionate to the crime. That is certainly not a Puritan approach. I mean, we could argue about whether or not the Puritan/early Republic method of punishment was proportional to the crime, but locking people away long-term? That’s largely the result of the influences of the Social Gospel and Theological Liberalism. From what I understand, the theory of punishment in the Early Republic (and under the Puritans) was that, as brutal as it might be in our eyes, it should mostly be quick. A day in the stocks, flogging, branding, etc and then back to work and life as usual for the convicted criminal. It’s not until the idea that the criminal is a vile sinner goes away and the idea starts to spread (under the guise of Christian theology) that we’re all really good deep down, and just need time and education to bring out that inner goodness in order to restore/reconcile them to society; it is only after this development that we start locking people up so that they can read their Bibles and be reformed. After a century or so we start to assume that incarceration is the main way of dealing with criminals, and as a result ‘get-tough’ can only mean more and longer incarceration.

Image: IVP

That said, who is responsible historically is less important than the question of whether or our modern method of punishment by long-term incarceration is just. It is especially unfortunate that Gilliard hangs so much of his book on his rejection of penal substitution, given that it isn’t really necessary to his argument. If it is in fact the case that Christ was not pierced for our transgressions or crushed for our iniquities; if the punishment that brought us peace was not upon Him; if by His wounds we are not healed; and if some other action is the heart of our reconciliation with God, then some of what Gilliard says about the American justice system might necessarily follow.

But then again, even if penal substitution is the great pulsating heartbeat of the Gospel—if Christ became the curse for us, and if he is the propitiation for our sins—it might still be the case that there are problems with the way we do justice in modern America. Gilliard can still be right in his criticisms of American law and practice even while being wrong about Christianity.

Which raises the question of where this theological weakness comes from. Why does Rethinking Incarceration want so badly to connect atonement with modern American law? Assuming that it isn’t just a case of political views driving theology (that wasn’t the sense I got from the book in this instance, at any rate), I suspect that it is a result of a categorical theological error. This leads to the second major theological problem in the book.

Rethinking Incarceration mistakenly equates ‘The Law’ in Scripture with ‘the law’ in modern America. This isn’t of course completely inappropriate. There are places in Scripture where Christians are told to submit themselves to the civil law, and that civil laws are gifts from God for our good (e.g. Romans 13). And yet, Gilliard wants to transfer the Bible’s discussion of the relationship between Grace and Law from the Biblical Law to the laws passed by Congress (or Parliament, or whatever). For example:

“John 8:1-11 provides insight from an alternative vantage point concerning how Christians are supposed to view and respond to the law, especially when the law conflicts with God’s will and desire for shalom…. Rather than affirming the law and its ‘tough on crime’ approach, Jesus counteracts it and responds to the violator of the law restoratively. Where the law demanded punishment, Jesus offers grace. Where the law required bloodshed, Jesus calls for restoration, repentance, and forgiveness.” (57-58)

Obviously Gilliard is right in one sense—Jesus is showing that something different is being done with regard to our relationship with the Law. But it’s important to note that the Law in question is not the Roman (or even the Jewish) civil code, it is rather the Divine Law revealed by God Himself as a reflection of His character. Yes, under the old covenant that Law had a political component, but that’s one of the things the Incarnation changes. The old types are broken and set aside, since the Antitype has arrived and they are no longer needed. They have done their work in pointing towards Jesus as the Messiah, who came to perfectly fulfill the Law in His obedient life and substitutionary death.

And yet, even if we want to quibble about just what the fulfillment of the Old Testament Law means for us today, the broader point is that the Law in question in John 8 is not the speed limit, or drug regulations, or, well, any other law passed by a human government. Those kinds of laws are indeed often pale reflections of the Law of God, but it is a mistake to read John 8—or any passage dealing with the Law in Scripture—as a way of getting out of a speeding ticket. Gilliard has jumped in his discussion from one category (Biblical Law) to another (civil law) without adjusting his conclusions. It’s certainly true that there is now no condemnation from the Law of God for those who are in Jesus Christ, and as such we are restored to fellowship with God, but it does not follow that therefore the primary purpose of the civil law is likewise to restore. Perhaps the purpose of the civil law is to typologically represent Divine Justice, for example.

It’s probably telling that in a book with long-ish discussions of Grace and Law, there is a concept that never once makes an appearance: hell. In fact, the word itself only appears once (as a description of a prison as ‘hell on earth’, pg 130). A deficient (nonexistent?) view of hell and God’s wrath may explain some of Gilliard’s conclusions. If there is no idea that at least one function of the Law in Scripture is holding up a requisite standard of life and thought, and no idea that rebellion against that standard results in just condemnation leading to eternal punishment, then when the categories are mixed up it makes sense that the relationship between law and punishment might very well be a foreign one.

The final theological problem in Rethinking Incarceration is its sloppy exegesis. While I don’t necessarily think Gilliard’s theology is being defined by his political worldview, it’s hard not to conclude that at least some of his individual interpretations of passages are. For example, in his chapter on how laws can be used to pursue injustice, Gilliard uses the story in Acts 16 of Paul and Silas exorcising the demon from a slave girl, and then being jailed when the owners of the slave girl realize that her prophetic ability is gone, and hence their profit margins will suffer. Gilliard says:

“Corrupt judges convict Paul and Silas, sentencing them to be bludgeoned before being thrown into prison… The marketplace and its authorities collaborate to send a public service announcement: Anyone who disrupts the city’s status quo of economic exploitation will endure this fate.
Paul and Silas endure what would be analogous to police brutality before being imprisoned. Undeterred by this persecution, Paul and Silas continue to persist, bearing witness to the gospel. They refused to be silenced, repudiating the authorities seeking to silence them.” (56)

While it is true that Paul and Silas continue to preach the Gospel, despite being abused (abuse driven by the greed of the slave girl’s owners, no doubt), it is also true that the next few verses undermine the point Gilliard wants this passage to make:

“But Paul said to them, “They have beaten us publicly, uncondemned, men who are Roman citizens, and have thrown us into prison; and do they now throw us out secretly? No! Let them come themselves and take us out.” The police reported these words to the magistrates, and they were afraid when they heard that they were Roman citizens. So they came and apologized to them. And they took them out and asked them to leave the city.” (Acts 16:37-39)

If we must focus on the political in chapter 16 of Acts, the message seems to be: the system works, and Christians ought not be afraid to take shelter under the civil law. Yes, the people of the city made a mistake, but as soon as Paul points out what the law actually says the magistrates correct their actions and offer an apology. In other words, justice is done by the civil government. Now, I don’t think that’s the point of the passage—but I don’t think the injustice of government is the point of the passage either, particularly given the verses quoted above.

Time and time again Gilliard twists Scripture in this way to put it in service to his political point—and that’s unfortunate both because it’s not really necessary to make his overall point and because there is a way to Biblically condemn an unjust society without this kind of careless exposition. In terms of the former, the point can be made that the way we punish some kinds of criminals is currently unjust, even from a Christian perspective, without trying to drag Scripture into the service of our worldview (and apologies to Nathan Gilmour for the use of the “W” word). In terms of the latter a robust view of the two cities would provide a much more Biblical approach to condemning unjust practices in our society. The American criminal justice system is broken, but it is broken in general because it is a part of a fallen world. That doesn’t mean we shouldn’t be aware of and address its specific problems, but it does mean that we begin with the understanding that an actively good system isn’t going to happen this side of the eschaton. We can’t hope to begin to fix the specific problems if we approach them with a skewed worldview.

Practical Weaknesses in Q&A Format

Are there too many people in prison in America?
Absolutely.

Are the current penalties attached to some crimes unjust?
Yep.

Is the number of people in prison the result of systemic injustice?
Well… maybe.
But maybe not, and one of the major problems with Rethinking Incarceration is that Gilliard never really tackles the difficult questions that would help sort this out. For example, should drug use be illegal? What kind of… treatment, if we must avoid the word ‘punishment’, should we require if drug usage is to remained outlawed? To say that it should be “restoration” rather than “punishment” is functionally meaningless without providing actual details. I happen to agree that our current non-violent drug penalties are unjust and should be modified. For example, I think that 20 years in prison is unjust for drug possession/usage of pretty much any kind. But how should this change? What exactly does Gilliard want to see happen to people convicted of drug offenses—or does he think there should be no conviction at all and that many kinds of drugs just should not be illegal? These questions are not answered in Rethinking Incarceration, which means that we’re really left with no choice but to continue thinking incarceration…

With that said, there are a few case studies in the book that Gilliard intends to serve as examples of ‘restoration’, but they’re really not as useful as he seems to think they are. For example:

“Taylor, a sixth-grade boy who stole his teacher’s keys” [was punished through a ‘restorative model rather than a retributive model]: Taylor was invited into a circle with several of his classmates, the teacher he stole from, a school counselor, and the vice principal. Through the restorative circle, Taylor was able to hear directly from his peers, the teacher, and school administration about how his actions affected them. He was also able to share his thoughts and confess the underlying fears and assumptions that led to his violation. The group collectively formed a plan for how Taylor would make amends, which included helping his teacher after school to repair trust and writing an apology to the class.” (176-177)

While I’m neither a scholar of the English language nor an expert in Criminal Justice studies, a shame-circle followed by after school ‘helping’ and a written apology sounds an awful lot like punishment to me—and punishment of an especially pernicious kind. I freely admit that suspension probably would not have been appropriate (the alternative ‘punishment’ option held out by Gilliard in this case), but I can’t help but think that the school my parents attended would have been much, much more just here. If my father had gotten caught stealing his teacher’s keys, something like this would have happened:

  1. He would have been given the choice between being paddled or having his parents notified.
  2. For the love of God don’t call my parents!
  3. He would have been paddled.
  4. He would have apologized to the teacher.
  5. Life would have gone on with no long-term hard feelings on either side, and the incident almost certainly would not have been repeated.

Obviously there are problematic students and exceptions for whom this is not effective, but in general this approach worked. What’s more, this pattern sounds to me significantly more just than Gilliard’s model, and it is of course significantly shorter and less involved as well. Now, I’m not necessarily calling for a return to spanking in the public schools (at least not as schools currently exist—classroom sizes are far too large for something like that to be effective in any case), but I would certainly prefer that approach to Gilliard’s approach which falls squarely into what C.S. Lewis warns of:

“The things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old days when we called them punishments…” (158)

They will also be much worse than the old punishments, because they will eventually be limitless in their scope since they are done for the good of the individual rather than out of justice in response to the individual’s action. (I know Gilliard is aware of this challenge from Lewis since he quotes it—it’s probably telling that having quoted it he never directly responds to the quote.)

An important note: none of this is intended to deny the existence of systemic injustice. It’s just to say that Gilliard never really tackles that problem at all.

Anyway, to continue:

Are ex-cons treated unjustly once they’ve re-entered society?
Again, maybe. But this is a nuanced question that doesn’t get the attention to detail that it deserves. What kind of “ex-cons”? Is Gilliard against sex offender registries? Do arsonists freshly out of prison have as much right to work at the local fireworks stand as the high schooler who works there now? Should ex-cons be able to buy firearms? Gilliard does suggest that they should be able to vote, but doesn’t explain why the ex-con should get that right back and not the other rights that have been stripped by a felony conviction. For that matter,

At what point do we even consider someone an “ex-con”?
Under Gilliard’s “restorative” approach (at least, as much as I can tell from the vagueness of the book), someone might be years in re-education or group therapy or whatever it is that Gilliard wants to happen. Does his model even allow for a finite end? At least with the older model, once your day in the stocks was up life went on. Again, I think justice is on the side of the older model here.

Conclusion

All of this long-ish review to say that Gilliard raises good questions and raises them in a provocative way. I’m just not sold on either his answers or, given how vague his answers can be at times, the direction in general he seems to want us to go. Again, I don’t know if the strengths outweigh the weaknesses of this book, but I would still encourage you to pick it up and read it for yourself if only so that you can grapple with these questions for yourself.

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