Penal Philosophy and Practice from a Historical and Theological Perspective

Abstract

This article critiques penal philosophy and practice in contemporary society through the lens of historical–ecclesial tradition. The article opens with a discussion of the penitential rituals in the first Christian monasteries and the eventual adoption of some of these rituals in the earliest state penitentiaries in the U.S. It is argued that a nonviolent and coherent penal ideology was advocated from the inception of Christian monasticism and subsequently maintained over the centuries due to three paradigmatic values and commitments. These values and commitments, which form the basis of the critique, are a theological metanarrative, a moral ontology, and a belief in sin as an existential fact. These tenets are used to interrogate the traditional justifications of punishment that have guided government policy throughout modern history, in the U.S. and abroad.

1. Introduction

Prison violence assumes many forms, including inmate-on-inmate, self-inflicted, staff-on-inmate, medical neglect, and the exploitation of inmate labor. While such expressions of violence are hardly unprecedented in the history of imprisonment, the severity and frequency of the use and abuse of the penalized subject in today’s society and in countries recognized as advanced, both culturally and economically, is alarming. For example, in England/Wales, and Scotland, where incarceration rates are 146 and 144 per 100,000 of the population, respectively, the rates of assault and self-harm have recently reached unprecedented levels, despite being vastly underreported phenomena (Widra 2024). The Ministry of Justice has reported that in 2024, there were 342 assaults per 1000 prisoners, an increase of 14 percent from the previous year (Ministry of Justice 2025). Also in 2024, in the most violent prisons in England and Wales, 1044 assaults were recorded, and more than half of them had been committed against staff (Mason 2024). More specifically, the number of assaults in the UK prison system have increased every year between 2014 (15,501) and 2019 (32,074), and after a dip during COVID, rebounded to 28,292 incidents in 2024 (Ahmed 2024).

Prisons in the UK have also experienced surges in cases of self-harm, which occurred during periods of relatively stable or declining incarceration rates (Ahmed 2024). In 2014, there were 23,529 incidents of self-harm, increasing to 73,804 by 2024. In the year 2022/2023 alone, 91 male inmate suicides were reported, the worst on record since 2016, when 111 suicides occurred (Gregory 2023). These trends in suicide and other serious forms of violence are not unique to men’s facilities. Over the past decade, a 63-percent increase in self-harm was reported in women’s prisons, setting a new record at 20,248 incidents (Gregory 2023).

In Canada, where the 20-year incarceration rate has hovered around 110 persons per 100,000 of the national population (World Prison Brief 2025), similar problems with violence have been observed. It is estimated that the 6-percent report rate for sexual coercion or violence experienced by inmates is underestimated by roughly two-thirds (Correctional Service of Canada 2023b). Suicide and overdose deaths, which were the leading causes of non-natural deaths in prison between 2019 and 2025, have also proven to be a persistent problem (Boulanger and Kohler 2025; Correctional Service of Canada 2023a).

It hardly bears mentioning that violence in U.S. penal institutions is substantial. In addition to the notorious national incarceration rate of 614 people per 100,000 of the population, the incidences of violence and abuse within state prisons and local jails are exceedingly high. The most recent national data compiled by the Bureau of Justice Statistics (2021) indicate that roughly 80 percent of states experienced an increase in their prison mortality rates between 2001 and 2019. Additionally, according to the most recent nationwide report, there were 36,264 allegations of sexual victimization in adult correctional facilities in 2020; importantly, it is estimated that only a quarter of these types of incidents are ever reported by inmates. These allegations include inmate-on-inmate incidents of non-consensual, abusive, and harassing sexual behavior, as well as staff-on-inmate sexual misconduct (Buehler and Kottke-Weaver 2024). Apart from sexual violence, there is the violence perpetrated by the operations of violent gangs. A 2016 U.S. Department of Justice report estimated that at least 200,000 members of violent prison gangs were housed in state correctional facilities (Pyrooz 2018).

In addition to sexual and physical violence, several states throughout the U.S. have adopted inmate labor policies that are openly exploitive. It is not uncommon for incarcerated workers to be paid between 13 and 52 cents an hour on average for the most commonly held jobs in a correctional facility (Mast 2025). More specifically, incarcerated workers across the South are paid on average less than USD 0.20 cents per hour (Mast 2025), and in seven states where a substantial portion of the U.S. prison population is housed (Alabama, Arkansas, Florida, Georgia, Mississippi, South Carolina, and Texas), nearly all work performed by inmates is uncompensated. In Louisiana, inmates are effectively uncompensated at the allotted wage of USD 0.04 cents per hour (Mast 2025). Labor practices of this kind are made worse by the fact that whatever little wages are earned are never seen due to automatic deductions or garnishments for taxes, court-imposed fines, legal fees, restitution, and costs of confinement. For example, many states charge incarcerated persons a daily cost-of-confinement fee for their mattress, food, health care, email and phone use, and commissary items, such as soap and shampoo (American Civil Liberties Union and the University of Chicago Law School Global Human Rights Clinic 2022; Eisen 2023). In states where wages are not earned, an outstanding bill for unpaid fees and fines may await the prisoner upon release, making reentry all the more challenging and costly.

Echoing convict-leasing systems of the past, inmates and pre-trial detainees can also be compelled to perform jobs all day at work camps that are often promoted to inmates as drug treatment facilities (Mast 2025). A substantial number of inmate work assignments at these facilities and elsewhere are outsourced to the private sector, including billion-dollar corporations (Mast 2025). Lawsuits filed in Alabama allege that inmates contracted to the private sector often work under dangerous and harsh conditions, including 30-degree temperature freezers without sufficient clothing, a work schedule of 12 hours or more a day, and sexual harassment (Rocha 2023). The abusive work conditions are further aggravated by the penalties that can be imposed in the form of extra work hours or parole denial for those who complain about the conditions under which they labor (Rocha 2023).

The violent and abusive prison environments found in the U.S. and abroad naturally invite questions about their causes and consternation over what can be done. While it is beyond the scope of this article to explore the myriad reasons for the normalization of violence and the “taken-for granted” reality that “rape is inevitable in prison” (Jesse Lerner-Kinglake; quoted in Abdollah 2023), the philosophies (i.e., retribution, deterrence, rehabilitation, incapacitation) that have guided penal policy over the centuries are considered as one potential factor in this reality. Specifically, we explore why these philosophies and the penal systems they have shaped have failed in their task of upholding punishment as a defensible moral option, despite their longstanding and prominent role in the messaging of penal officials, lawmakers, and society. In contemplating this question, these philosophies are critiqued on their own terms as well as from a theological–historical perspective. A theological–historical perspective is adopted to highlight how a lack of moral–historical insight has affected those subjected to penal measures.

In our survey of this history, religion occupies the unique position of being both an originator of certain penal values and traditions, and an interrogator of the secular penal philosophies that have supplanted those values and traditions. Thus, we trace the role of religion, particularly the early Catholic monastic tradition, in birthing nonviolent responses to deviant or criminal behavior in ecclesial and later secular institutional spaces (i.e., the penitentiary). We then turn to the philosophies that succeeded these theological inspirations and have been employed on a shifting basis as policy justifications ever since, to little positive avail. It is ultimately proposed that absent a stable moral ethic informed by a stable religious/transcendent paradigm, as will be described in this article, the current penal system will remain on its morally dubious path. Massive effort, financial costs, and human misery will continue to be collectively unleashed, revealing the absence of a consistent or convincing understanding of the end point, or telos.

2. The Monastic Traditions and Penal Confinement

Despite the commonplace existence of prisons across the world and, especially, the American landscape, they are, within the arc of history, a chronological novelty. This view is based on an understanding of prisons as institutions in which the detained are sentenced in a court of law to be sequestered for a period of time for one or several politically and legally approved aims, namely retribution, deterrence, rehabilitation, or incapacitation. However, the adjudication of fault and the method for its amelioration via confinement has a much longer history within Catholic penitential and monastic practice. To be clear, we visit the distant history of monastic communities not for the purpose of advocating a return to isolation and silence as normative responses to crime, but to emphasize the non-punitive and reintegrative sentiments that existed within this methodology.

Beginning with the first codified rules for communities of monks in the fourth century CE, penitential seclusion was mandated for incorrigible conduct. The first extant monastic rule of life was penned by Pachomius (292–346). He prescribed isolation for the recalcitrant for a set time or until they repent of their disruptive conduct. For instance, the contemptuous slanderer was to be “separated from the assembly of the brothers seven days” while the murmurer should be “considered as one of the sick and put in the infirmary where he shall be fed and left idle until he returns to the truth” (Pachomius 1981, 1.5.).

Several centuries later, the largest and most influential of the monastic orders, the Benedictines, was founded in Italy by St. Benedict (480–547). Benedict followed assiduously the patient and nonviolent prescriptions advocated by Jesus in the book of Matthew (18:15–17) (All Bible references are from the NRSV translation). In this passage, offenders within the community were to be confronted privately and respectfully on two occasions before the matter was ever taken to the community at large. If the individual resisted in their refusal to repent after this third and last measure, then separation from the church community was prescribed.

While Benedict was not reluctant to inflict corporal punishment for minor offenses (Benedict 1996), his zeal for the reform of the offender and calls for decency in this process were apparent for those guilty of serious infractions. The erring brother was to be placed in isolation but not solitary confinement, remembering the counsel of St. Paul, “lest he be swallowed up with overmuch sorrow (2 Cor:2,7).” Again, remembering Paul, Benedict writes: “confirm your charity towards him (2 Cor:2:8); and let prayer be said for him by all” (Benedict 1996, Ch. 27). Thus, he called upon wise older monks (senpectae) to accompany those undergoing penitential seclusion to aid in their healing and welcome them back into communal life. In fact, Benedict saw the role of the abbot as a mirror of the shepherd [Christ figure] in the parable of the lost sheep (Luke 15: 3–7). In this scenario, the value of every person is affirmed through the actions of a shepherd who leaves ninety-nine sheep behind to seek the one that is lost until he finds it. Once found, the shepherd rejoices, placing the sheep on his shoulders and carrying him back safely to the flock (Benedict 1996, Ch. 27).

Benedict’s influence in penal history is certainly noteworthy. There were roughly 37,000 Benedictine monasteries throughout Western and Central Europe in the Middle Ages (Catholic Knowledge 2017), and all reproduced the correctional directives of their founder. Even originators of other monastic communities also derived their penal directives from his influence. For example, seventh-century Archbishop Fructuosus of Braga writes that the unruly brother must be placed within a cell and fed on a diet of bread and water, consoled and encouraged by one of the monks as he regains his legitimate right to reenter the common life (Holstenius 1957).1 Seventh-century Irish missionary St. Columban similarly writes that the proud malefactor should be “placed in a cell apart to do penance, until his good will becomes manifest” (Ryan 1931, p. 281).

This methodology of compassionate pursuit, charity, separation, consolation, accompaniment, and reunification was also replicated in large monasteries, such as St. Catherine’s in Egypt where a separate ecclesial prison was constructed within the compound. St. John Climacus (d. 649) provides a glimpse of this methodology based on the thirty days he spent living with and accompanying the repentant monks (Climacus 1959). What is of interest in the recording of this experience is the absence of any mention of coercion due to the belief that external punishment is superfluous and ineffective compared to the internal upheaval revealed in the act of self-punishment. This upheaval caused by shame and self-deprecation could be transformed into humility and a resolve to amend one’s life. St. John writes of the penitents he observed,

Where could you see anything like laughter, or idle talking, or irritation, or anger? They did not even know that such a thing as anger existed among men, because in themselves grief had finally eradicated anger. Where were disputes among them, or frivolity, or audacious speech, or concern for the body, or a trace of vanity, or hope of comfort, or thought of wine, or eating of fruit, or the cheer of cooked food, or pleasing the palate? For even the hope of all such things had been extinguished in them in this present world. Where amongst them is there any care for earthly things or condemnation of anyone? Nowhere at all

(Climacus 1959, Step 5).

The observance of a penal theory and treatment that raises the level of care for the offender with the gravity of their offense could not exist or survive without a moral theology that has the soul’s relation to the divine and, by extension, to one’s fellows, as part of its original blueprint. The monastery was oriented in all respects to fostering the conditions for the re-emergence of that primal relation through silence, prayer, work, accompaniment, repentance, and self-denial. This integrative penal ideology was present from the inception of monasteries and subsequently maintained over the centuries, individual abuses notwithstanding.

3. The Religious Origins of the Penitentiary

Outside of ecclesial settings, this ideology was most fully realized in the first penitentiaries, which do not appear in society until the very early nineteenth century. The most widely celebrated of these penitentiaries were the Auburn Penitentiary in Western New York and the Eastern State Penitentiary outside of Philadelphia (Skotnicki 2000; Blomberg and Lucken 2010). Clearly, the name given to these institutions is significant as it signals a degree of coherence with the monastic values and traditions just described. It is also significant as it signals the possibility of the co-existence of these values and traditions in politically secular but culturally religious societies.

The architecture and other features of these penitentiaries were clearly emblematic of the values and practices of early Catholic traditions. The high-arched cathedral-style ceilings of the Eastern State Penitentiary’s hallways, for example, stood in stark visual contrast to earlier carceral spaces in the U.S. and abroad, whose only aims were to detain suspects prior to trial or execution of sentence, collect debt or ransom, or, in rare cases, detain for legal infractions for very short periods of time (Dunbabin 2002; Wolfgang 1990). The interior workings of Auburn also took inspiration from the prison of San Michele in Rome (1704), where the juvenile population worked and studied in common and in silence during the day and were housed in individual cells by night (Cajani 1996). Eastern State was similarly based upon the ancient monastic model with its rules of silence, solitude, work, and contemplation via the Bible, the only book that was permitted behind the walls of the institution (C. Smith 2009). Not unlike the wise monks accompanying the wayward in their monastic cells, chaplains alone were permitted to visit the prisoner in their cell to offer relief from the solitude (Kann 2005). To quote Caleb Smith, “[T]he penitentiary was not, in any narrow sense, a secular space. It often included a chapel and employed a chaplain, and its program of death and resurrection was a kind of modern, Protestant version of ancient Catholic ideals” (C. Smith 2009, pp. 13–15). French diplomats de Beaumont and de Tocqueville similarly observed that “The prisoner in the United States breathes in the penitentiary a religious atmosphere” (de Beaumont and de Tocqueville [1833] 1964, p. 94, as cited in Skotnicki 2000). One prison chaplain, convinced of the benefits of the penitentiary, proclaimed that “could we all be put on prison fare for the space of two or three generations, the world ultimately would be the better for it” (Rotman 1995).

There is little doubt that the chief aim of the penitentiary was the moral improvement of its inhabitants through nonviolent means. Religious and philanthropic ideals permeated the discourse and were espoused often by the “influencers” of the day. These influencers, who typically resided in Pennsylvania, Massachusetts, and New York, maintained that in facilitating the moral and intellectual improvement of the offender, prison officials should be inspired by benevolence, sympathy, kindness, and philanthropy (Blomberg and Lucken 2010).

With that being said, contradictions within the penitentiary system—in Philadelphia, Auburn, and elsewhere—were evident. These “noble” institutions were hugely imperfect in their operations and condemned by various panels and others for abuse, such as physical beatings and prolonged and austere conditions of isolation. These tactics were administered by guards and generally reserved for inmates who violated institutional rules, such as the rules of silence and unremitting attention to work (Graber 2011). However, several important truths within this abusive reality should not be overlooked. There were commissions empaneled to judge this behavior and fire or indict officials that allowed it, and there was vigilance, rather than acquiescence, exercised by prison chaplains and religiously inspired persons and groups to combat it. Inspections of institutions were common, and the Philadelphia Society (later known as the Philadelphia Society for the Alleviation of the Miseries of Public Prison), Society of Friends (Quakers), New York Prison Association, and Evangelical missionaries, such as Louis Dwight, were not only powerful reformers but insiders that were outspoken critics of the system. For example, John Duer, Chair of the Committee on Prison Discipline of the Prison Association of New York wrote the following:

We know that the abuses exist in our prisons,—I speak more especially of our city prisons:—the foul and loathsome Penitentiary [in New York City], the still more foul and loathsome Tombs; —we know that these abuses are frightful, appalling, almost unexampled, and in all their atrocity, quite unutterable; and now, that these abuses are exposed and known, if they are still to be tolerated in a Christian community, everyone who is silent and passive, who fails to denounce and resist, to expose and counteract them, will share the guilt of their continuance

(New York Prison Association 1846, p. 76, as cited in Skotnicki 2000, p. 54).

While there is no reliable data showing how successful the separation experiment was in changing the life course of the inhabitants, their demise and abandonment ultimately came not from criticisms of the intentions or religious sentiments that inspired the methodology—though there were many opponents—but from a constant motif in the history of American punishment, namely overcrowding and the inevitable strain on the public purse. It was scarcely cost-effective or feasible to expect moral reform through contemplation, quiet, and solitude when the swell of prison admissions allowed for none of these rituals. In the face of this practicality and other societal shifts, the religious foundations of the penitentiary quickly gave way to values and justifications that were, and still are, rationalist and secularist, including rehabilitation, retribution, deterrence, and incapacitation. That being said, this recollection of state imitating church should not be interpreted as a call to penal austerity. Rather, it is a continuing illustration of the values and sentiments that inspired and sometimes actually governed the penitentiary and are lost in the regnant philosophies that followed.

4. Penal Philosophies: A Critique

Turning to the central aim that was expressed in the Introduction to this paper (Section 1), this section provides a brief critical synopsis of traditional penal philosophies. We argue that conventional ethical justifications for punishment are problematic insofar as they harden rather than humanize the penal environment. While these philosophies have been subject to centuries of scrutiny within the philosophical community, they are judged here on somewhat different ethical grounds, namely their capacity to generate antipathy toward offenders and, in turn, a carceral environment that is violent and abusive. We contend that each philosophy operates under a materialist framework that, in the end, encourages pain and suffering in some form, either for those they judge or those whose interests they serve (Ignatieff 1978) As the legal philosopher Robert Cover has stated, criminal jurisprudence is “either played out on the field of pain and death or it is less (or more) than law” (Cover 1986, p. 1606).

We begin with the ancient philosophy of retribution and the post-modern rendering of retribution, as seen in the writings of penal philosopher Andrew von Hirsch (Von Hirsch and Gaylin 1976). Though it is not feasible to engage in a detailed critique of the retributive position, one can summarize its canonical presuppositions with some confidence. For example, both ancient and post-modern versions of retribution are predicated on the necessary imposition of pain or suffering upon perpetrators who are seen as deserving of that pain or suffering. The perpetrator is viewed as deserving of this fate as they are also viewed as morally autonomous creatures who are wholly responsible for their actions, including wrongdoing. Immanuel Kant, the most visible proponent of the position, explains the deontological foundation of this key principle of desert for the lawbreaker as follows: “For whatever his previous behavior may have been, whatever natural causes influencing him … his action is yet free and not determined by any of these causes” (Kant 1998, p. 6:41). H. L. A. Hart similarly expounds on the notion of desert or rather why punishment is morally deserved when stating that “If an individual breaks the law when none of the excusing conditions are present [unconsciousness, lack of muscular control, threat of coercion], he is ordinarily said to have acted ‘of his own free will, of his own accord, voluntarily,’ or it might be said, ‘He could have helped doing what he did’” (Hart 1968, p. 28).

Retributive theory equally addresses the ancillary question of “what is deserved?”. Kant answers this question thusly:

What kind and what degree of punishment does public legal justice adopt as its principle and standard?” None other than the principle of equality … Accordingly, any undeserved evil that you inflict on someone else is one that you do to yourself. If you vilify him, you vilify yourself; if you steal from him, you steal from yourself; if you kill him, you kill yourself

(Kant 1965, p. 547).

The requirement of proportionality is akin to the notion of equality in that the measure of pain extracted from the offender must be in approximate proportion or equivalence to the harm that was caused. Thus, while retribution imposes restraints on the amount of pain that can be inflicted, the pain must be inflicted, nevertheless. This pain functions to restore the equilibrium between victim and offender and ensure that no unfair advantage in society can been gained by wrongdoing.

Though treading upon different theoretical terrain than retribution and posited as a more rational antidote to the supposed “negative emotions” of retributivism (anger, vengeance), deterrence, with its utilitarian logic, is also predicated on the threat or imposition of painful consequences for those outside the law. Though Jeremy Bentham, the foremost exponent of the theory, believed punishment to be intrinsically evil, it was in the end also a necessity. He states the following: “Punishment is everywhere an evil, but everywhere a necessary one … No punishment, no government; no government, no political society” (as cited in Semple 1993, p. 25). However, the pain of deterrence diverges from the pain of retribution and is made morally defensible, at least in the view of its adherents, through the principle of social utility. This principle requires that any pain imposed by a government must serve the greatest good for the greatest number. Put differently, punishment is only justified if it contributes to the sum of human happiness by preventing or reducing the greater pain that is caused by crime. These “good” ends of punishment are ostensibly effectuated through sanctions that are certain, swift, and [sufficiently] severe, or based on more recent policy constructions of deterrence, extremely severe.

Even the early twentieth-century philosophy of rehabilitation, with its more benevolent instrumentalist aims (i.e., it benefits society and the offender), also relies on forms that are coercive, painful, and as many have argued, theoretically flawed (American Friends Service Committee 1971; Lewis 2011). Specifically, critics point to the theoretical fallacy of a fundamental distinction between the law-abiding and the delinquent (Skotnicki 2019). Or to employ the chosen vernacular of the old medical model of rehabilitation, critics reject the claim that the law-abiding are “normal” and the non-law-abiding are “sick” and “abnormal.” Notwithstanding the laudable aim of “curing” the lawbreaker of their disease, rehabilitation indeed exhibits persistent coercive undertones. These coercive elements are justified by scientific explanations of and interventions for the “sick” and “abnormal” others. Part of this prescription includes new penalties for those who fail to conform to the expectations of the normal citizen or conditions imposed by the system to bring this normalcy about; parole or release will be denied, and incarceration prolonged indefinitely. This eventuality is captured in the classic psychiatric idiom “be cured or be kept.”

These and other negative consequences of reform efforts based on this philosophy have prompted noted criminologists Tony Ward and Shadd Maruna to assert that rehabilitation is ultimately not about the welfare or benefit of the offender at all (Ward and Maruna 2007). Rather, it is a multifaceted attempt to quell the transitory fears and expectations of the public at large. Even the developers of the widely touted Risk, Need, Responsivity rehabilitation model, like Bentham, eschew punishment as a prima facie value. However, when faced with steadfast recalcitrance to programmatic treatment, even they have no recourse other than deference to a utilitarian calculus of repressive measures: “Studies suggest that we have to turn the dial to full in order to stop the targeted behavior completely” (Andrews and Bonta 2010, p. 443).

Unique to the late twentieth century, the “philosophy” of incapacitation makes no overt moral claims in defense of punishment whatsoever. Rather, incapacitation offers a crude rebuttal to the purported failures of rehabilitation using a simple strategy of containment and confinement. Though promising greater public safety, the reductivism of incapacitation is remarkably grim, given the tone of resignation that dominates the logic. O’Malley captures this resignation in the observation that “If criminals cannot be corrected with any reasonable degree of certainty, then at least risks can be reduced through incapacitating offenders in prison” (O’Malley 2010, p. 24). The devaluation of traditional philosophies of punishment is especially illustrated in the words of one Indiana prosecutor:

Basing felony crime reduction on rehabilitation and deterrence is at least problematic. Quite clearly, incapacitated felons will not commit crimes outside prison… Planners, police, prosecutors, and judges often cling to principles with which no one can disagree, such as justice and fairness. However, these high purposes should not be excuses for failure to formulate more specific and consistent objectives which can be measured

(Goldsmith 1985, p. 801).

This position is elaborated by Edwin Zedlewski in the article “When Have We Punished Enough?”. He writes the following:

…that the objective of this paper was to present research findings pertinent to the question of how much offenders should be punished. Rather than rely on traditional but difficult to quantify desiderata of punishment such as retribution and justice, a cost-benefit perspective was used to investigate whether society spends more money punishing than it gains from punishment

(as quoted in Goldsmith 1985, p. 778).

Overall, the incapacitation rationale assumes that the process of arrest, conviction, and detention, particularly of repeat offenders, lies outside the realm of serious moral scrutiny (Wilson and Herrnstein 1985). Rather, its main guiding principle is to prevent crime by thwarting the opportunity for its [re] commission. Thus, in preemptive-strike fashion, prolonged incarceration is advocated to avert the crimes that are assumed to be in the subject’s foreseeable future without definitive evidence that such acts will ever be committed.

The cost-benefit calculations that legitimize the rationale of incapacitation have instigated what is arguably a realpolitik approach to criminal justice (Lucken 2017). This economically pragmatic approach is distinct from previous ordinary concerns for cost-efficiency in penal policy, in that an ordinary concern seeks to minimize costs where possible, without minimizing the overarching objective. Under an ordinary concern for costs, dollar benefits exceeding dollar costs is neither a necessary nor a sufficient condition in establishing the desirability of a policy or program (Seckler 1971). The crude economic formula that now guides penal policy is captured by renowned criminologist James Austin, who writes that “if one wishes to restructure current public policy, then one must take into account the power of capitalism and traditional economic theory” (Austin 2011, p. 629). In such an environment, it is not surprising that private conglomerates, such as Core Civic (formerly Corrections Corp of America), the GEO Group, and Correctional Healthcare Companies (Stillman 2014) have become a staple of the penal system economy. CCA advises states that it can help states to reduce their capital outlays, avoid capital expenditures, design programs to meet contractual specifications, create jobs, and build facilities faster and cheaper while the GEO Group promises not only evidence-based results, but profitable earnings for investors.2

Having remarked on the less principled and largely economic values and commitments that guide penal policy today, it is important to note that policy considerations in the age of the historic penitentiary also paid heed to cost-efficiency. However, in those considerations, a different moral tone and tenor were evident. Historical documents spanning two centuries show that concern for the morality, improvement, health, and condition of the inmate was expressed regularly and not something to be sacrificed in the interest of defraying expenses, saving money or making a profit. For example, a striking indictment of economic considerations appears in an 1821 report of an inspector of the Ohio State Penitentiary. For context, the inspector observed that the penitentiary could operate more cost-efficiently if more of the products manufactured at the prison could be sold on the market. However, mindful that profits from sales of these products were only for defraying state expenses, the inspector emphasized that the value of cost-savings was indeed inferior to the other values of punishment, stating the following:

These details are gone into, merely as matter of interesting speculation, but not as having any bearing on the principle of the institution. The object is not, or ought not to be, to make money, but prevent crime, and promote the reformation of criminals

(Bates 1821, p. 80).

In another nineteenth-century publication discussing the expense of maintaining penitentiaries, the author refers to the practice of inmate contract labor in even harsher terms. He argues that “so barbarous a mode of reducing the tax, is unworthy of an enlightened, humane, or even civilized community” (The Philadelphia Society for Alleviating the Miseries of Public Prisons 1849). In assessing the practice of inmate separation in the Pennsylvania system, the same author strongly conveys the proper priorities of the system:

“The Pennsylvanian” or “separate system” is an ameliorated system, … and based on the principle that society has more interest in the benefits which a system of punitive imprisonment can confer on those subjected to its influence, than in one, the only or chief merit of which may be, that it saves expense. The idea of economy at all hazards, excluding all considerations of the duty which society owes to its unfortunate or depraved members, is a false economy. It may save money, but it will waste morality----

(ibid).

The assumptions associated with retribution, deterrence, rehabilitation, and incapacitation have been reviewed to show their limitations as viable safeguards against the use and abuse of the penalized subject. Retribution proposes that pain is deserved as the criminal has exhibited their “wickedness” and freely chosen immorality. Though retributivism imposes limitations on the pain that can be imposed, what constitutes restraint or proportionality is inevitably quite subjective. Deterrence also requires pain and even an unrestricted escalation of that pain if needed to effectuate results. In fact, pain is seen as the universal switch that stops the harmful behavior of the hedonistic actor. Though rehabilitation offers a less blameworthy or calloused view of the offender—since their criminality is presumably determined or structured by forces outside of their control—it still maintains the “otherness” of offenders by virtue of their abnormality. Thus, incarceration can be prolonged on the premise of needing more help or treatment. Or worse, contempt for the offender may develop should they refuse the assistance given or fail along the way.

The following subsections offer a counter-paradigm to these penal philosophies and the hostility they can evoke when taken to their logical conclusion. This paradigm is founded on the tenets of a theological metanarrative, moral ontology, and sin as an existential fact.

5. Religion as Interrogator

5.1. A Meta-Historical Narrative

The poet John Masefield once averred that “history is one damn thing after another.” While memorable for its cynical tone, there is a hard kernel of truth in the assertion if one subscribes to the materialist ideology that drives much of the philosophical and historical suppositions in the current social context. Lacking a transcendent view of the good, a materialist ideology confers little in the way of a consistent evaluative mechanism for gauging the meaning of historical affairs. Even the often-cited benchmarks of progress and civilization fall short as the trajectory and standards of progress are equally fluid and contested; consequently, one historical occurrence follows another, still producing “one damn thing after another.” Renowned twentieth-century theologian Langdon Gilkey relates that such destabilization is pervasive in secular thought, given the premises upon which it is based. These premises are most commonly known as contingency (no purposiveness to history); relativism (no perennial moral truths); transience (nothing is permanent); and autonomy (internal authority) (Gilkey 1969).

Conversely, theology would succumb to “a fatal disease” if it parted from its metanarrative of history, namely the idea that history is generated and guided by the divine hand, culminating in cosmic union (Milbank 1990, p. 1). Despite the inclination of secular philosophy and social theory to consign ecclesial matters to specific doctrinal disputes (e.g., papal infallibility, the role of the Holy Spirit, whether Mary was the mother of God), ethical quandaries (e.g., birth control, abortion, gay marriage, euthanasia.) or the sublime musings of religious insiders, theology must proclaim a providential guidance that purposefully accompanies the flow of events, situates the human panorama, and proclaims not the enslavement of mortals to a superior will but the ultimate triumph of grace. As the letter to the Ephesians in the New Testament (1:8–10) proclaims, “With all wisdom and insight [God] has made known to us the mystery of his will, according to his good pleasure that he set forth in Christ, as a plan for the fullness of time, to gather up all things in him, things in heaven and things on earth.”

For Augustine, this commitment to an unseen but sure resolution of all alienation, division, and violence in a glorious state of communion underscored his theology of history. This is hinted at in his classic account in The City of God of the earthly and heavenly societies existing side by side, and sharing a mutual desire for peace, but operating from vastly different starting points, ultimate measurements of value, and immensely different fates (Augustine 1984). Gilkey claims that Augustine was the first to view the historical process as “linear, teleological, and meaningful,” thus endowing it with “an intelligibility … not possessed before” (as quoted in Fortin 1979, p. 325). St. Thomas Aquinas recapitulates Augustine’s thought, stating that “law is nothing else but a dictate of practical reason emanating from the ruler who governs a perfect community. Now it is evident, granted that the world is ruled by Divine Providence … that the whole community of the universe is governed by Divine Reason” (Aquinas 1920–1922, I–II, Q. 91, a.1).

Despite this organic unity, a Christian view of history is not a recipe for measurable success in the temporal realm—a counterintuitive formula for accomplishing one’s way. It is instead a witness to “eschatological hope,” an anticipation and expectation of a time when all will finally be well. It is a commitment to the idea that no short-term denigration of the sacredness of life—here, thinking specifically of the imprisoned and condemned—can thwart the steadfast belief that goodness and peace will ultimately prevail. It is a recapitulation of the cosmic vison presented by the Old Testament prophet Isaiah (11:6–9) where assuredly one day “the wolf shall live with the lamb, the leopard shall lie down with the kid, the calf and the lion and the fatling together, and a little child shall lead them.” Such hope is a bulwark that sustains fidelity to the compassion and forgiveness that are incumbent upon Christians and to the call to behold the divine in the face of all of the imprisoned (Mt 25:31–46). Without this command or context for viewing the ultimate meaning or goal of history, the shifting allegiances of public opinion and the equally evanescent interests of elected officials will continue to [mis]shape social affairs, including those of the penal system.3 Nowhere is this cyclical and arguably futile pattern more apparent than in the proverbial adage of “reform without change” (Blomberg and Lucken 2010).

Philosopher Charles Taylor corroborates this systemic shifting and drifting when emphasizing the necessity of “orientation” in any endeavor, be it personal or social. In other words, one must be cognizant of the “big picture,” must know the end point in navigating one’s way, say, in deeply forested terrain, but at the same time, be able to situate oneself at each specific juncture of the journey relative to the goal. He states, “So the issue for us has to be not only where we are, but where we’re going; and though the first may be a matter of more or less, the latter is a question of towards or away from, an issue of yes or no” (Taylor 1989, p. 47). Taylor’s call for “orientation” in all affairs links the current critique of contemporary penality to the image of an institutional behemoth wandering aimlessly. It is without a clear and sustained understanding of where it is going and worse, a credible justification for the pain that it inflicts upon its subjects. To frame this predicament as an interrogative, is it possible to move past the current state of affairs without a cogent and shared understanding of the meaning and goal of history and, as discussed below, the intrinsically moral foundation of the human person?

5.2. Moral Ontology

Theological systems are predicated on the belief that life is at its core a moral enterprise and that there are directives and prohibitions sewn into the human heart and mind and, indeed, into the universe itself. St. Paul reminds his hearers that Gentiles do not need the Jewish law to tell them which conduct is in accord with God’s will for humankind (Rm 2:14–15): “When Gentiles, who do not possess the law, do instinctively what the law requires … They show that what the law requires is written on their hearts, to which their own conscience also bears witness.”

A central precept of moral ontology is the sacredness of life and of the human person. All possess an inviolable dignity that precedes any of the predicates that attach to their historical existence, among them, for our interest, whether or not they have been convicted of a crime. Natural law theory, dating back to the ancient Greeks and receiving its most comprehensive treatment in the thought of Thomas Aquinas, maintains that each person, at the core of their being, shares in the divine life (Aquinas 1920–1922, I–II, Q.91, a.2). This participation in divine life yields a set of guidelines for human action centered on the dictum that one must always do good and avoid evil. The concrete manifestation of the good involves three levels. In the first, humans share with all creation an inclination to defend and nourish life and resist those forces that seek to denigrate or extinguish it. In the second, shared with all animals, is the commitment to one’s spouse and to the offspring of that union. In the third, shared with all rational creatures, one is impelled to seek the truth, live in harmony with one’s fellows, and worship the Creator (Aquinas 1920–1922, I–II, Q.94, a.2). Human laws, for Aquinas, must reflect these conditions to maintain their validity as law: “I answer that, as Augustine says ‘that which is not just seems to be no law at all’: wherefore the force of a law depends on the extent of its justice” (Aquinas 1920–1922, I–II, Q.95, a.2). Put simply, any law that consciously seeks to demean, diminish, or destroy human life is morally wrong and a perversion of its functional mandate.

What do these directives concerning an ontological orientation to care, responsibility, and sociability yield concerning personal and social ethics? Charles Taylor writes that one common temptation of modern philosophy has been to answer “nothing” and then argue that moral commitments and factual beliefs reside in different spheres. To this point he writes, “It is one of the great achievements of modernity to have sorted this out, as against earlier views of an order of things, or great ‘chain of being’ in virtue of which certain ends held as valid for human beings—fulfilling our natures” (Taylor 2003, p. 305). Taylor goes on to observe that this rejection of an internal orientation to care for and nourish life, where fact and value are often held at odds, yields “a post Galilean stance [that] no longer understands the cosmos in terms of meaning” (Taylor 2003, p. 307). As a result, one must seek to construct a set of ethical guidelines, not to mention a penal system, based upon subjective states and preferences, one that, as Milbank (1990, p. 4) correctly suggests, can only function under the threat and/or reality of violence.

5.3. Sin as Permanent, Existential, and Redemptive

Proceeding to the third principle in this transcendent framework, there is in every major religious tradition a belief that sin, here understood as a willed alienation from others, nature, and a given tradition’s understanding of divine revelation, is what the prominent theologian Karl Rahner calls a “permanent existential” (Rahner 1978). In the early Middle Ages, French philosopher Peter Abelard termed this estrangement as “contempt of the creator,” a willful rejection of the good rendering the acting subject, in the words of the noted Protestant theologian Karl Barth, an “enemy of God” (Abelard 1971, pp. 5–7; Barth 1957, II, 2). Al-Ghazzali, an influential twelfth-century Muslim philosopher, placed the cause of sin in the relation between appetite and intellect: since appetite precedes the capacity to think, the attraction of sin is compelling and surrender to its demands inevitable (Stern 1979). The Medieval Jewish philosopher Maimonides similarly held that due to the inherent imperfections of their nature, all human beings act sinfully (Stern 1979). Reinhold Niebuhr, one of the most important public theologians of the last century, understood sin as the rebellion of the human being, perplexed and ultimately enraged by the unlimited nature of the imagination and the rigid constraints imposed by physicality, against the ethical norms established by God (Niebuhr 1964).

The assumption of the inevitable straying of humankind has been contemplated in different and distorted ways in both secular and religious spheres. As one might anticipate, the repercussions of these interpretations have impacted the culture and especially the practice of criminal justice in not so positive ways. For example, it is undeniable that certain religious adherents maintain a steadfast belief in a punishing God who uses the mechanisms of the civil and legal order to exact vengeance on the unlawful; this belief has led to continuing support for capital punishment, for example. However, historical and theological evidence reveal that such attitudes are incoherent with the restorative and nonviolent origins of the monastic practice of confinement outlined in the opening section and religious texts.

All the monotheistic faiths and, for the most part, the Eastern traditions, have an exitus/reditus (going forth and returning) theme. All life comes from God, and all life returns to God. This path of going out and returning takes place at both the cosmic and personal levels (Burrell 2011). The question that arises from this shared theme is what this return means in terms of sin/crime and reconciliation. A prominent stream of theological reflection, currently as well as in the past, has maintained that this “fall” from harmonious communion is a grace. Consider the teaching of St. Paul in Romans 5:20, who states that “where sin abounds, grace abounds all the more.” Therefore, as the cantor sings in the “exultet” at Midnight Mass on Easter, it is “a happy fault” that moved the divine to incarnate and bring humans from alienation to reconciliation. The Medieval mystic Julian of Norwich, reminiscent of Peter Abelard’s own belief, maintained that sin was an absence of good rather than an ontological reality and was its own punishment; a punishment that, left to itself, inevitably leads one upon the path of return: “First there is the fall, and then the recovery from the fall. Both are the mercy of God” (Julian of Norwich 1978).4 Biblical exegetes point to the fact that in the Hebrew Scriptures generally, and the Book of Genesis in particular, God does not impose retributive punishments, rather, sin produces its own set of painful consequences. These consequences are sown into the very fabric of the natural order. When Adam and Eve ate of the forbidden fruit, for example, their “eyes were opened” and they immediately felt shame and tried to hide (Gen 3:7–8). This guilt was extraneous to any form of juridical procedure or intervention.

The happy fault-dynamic is underscored by the conviction that no person is inherently evil, regardless of what they may have done. In its basic pattern, this stream of thought echoes Karl Rahner’s assertion that freedom as a transcendental condition is never separated from the concrete historical decisions that are made within the “necessary” restrictions imposed by the social world as well as one’s own genetic predispositions:

“For whenever I act freely as a subject, I always act into an objective world. I always, as it were, leave my freedom and enter into the necessities of the world … [Thus] the subject knows indeed who he is. But he can never objectify this original knowledge in a definite, thematic, propositional knowledge of absolute certainty”

(Rahner 1978, p. 97).

This doctrine maintains that humans seldom will commit evil with accurate knowledge concerning the object motivating the action or of their own mental, cultural, emotional, and genetic limitations. In Catholic theology, a sin must combine intellect and will within an objective normative framework. In other words, following Augustine—arguably the first person in the West to suggest the concept of mens rea—to bear full culpability for a destructive act a person must not only believe that the act being chosen is “mortally” sinful and give full consent of the will, but the act must also be harmful in an objective sense (Durham 1988). Thus, in only few cases could a person who commits a crime (here understood in a neutral manner detached from its social construction) do so in full understanding of the harmful effects of the act upon the victim, the world, and upon him or herself. It is a position held in many respects by Robert Cover. He wrote that one who has the power to judge and punish a given legal subject would reason incorrectly without first understanding the relation between a given defendant’s communal narrative, its conceptions of law and order, and the specific circumstances of the offense (Cover 1983)

In each theological tradition, the path of return subsequent to an offense, given the existential contours of wrongdoing just outlined, is largely understood in terms of recognition of one’s state of isolation, the sorrow it produces, the desire to amend the breach via acts of contrition and repentance, and the promise of forgiveness and reconciliation. For Al-Ghazzali, no less than Maimonides or Aquinas, the process of sincere repentance leads to a new state of self-awareness and the desire to develop the necessary virtues to replace the habitual acts that led to the destructive life choices (Stern 1979). Here again, there is a moral ontology that operates without the need to inflict suffering as a necessary addendum to a zero-sum game regarding human failures that are endemic to the species, not the sole province of those convicted in criminal court.

6. Discussion of Implications for Criminal Justice

Jurgen Habermas has written that institutions face a “legitimation crisis” when current actors within the system no longer recognize or are even cognizant of the vision or raison d’etre that motivated its founders (Habermas 1975, p. 4). The penal system, particularly in the U.S., has indeed suffered a legitimation crisis at least since the implosion of the rehabilitative ideal in the early 1970s. Prior to that, the punitive apparatus underwent continuous reform, driven by the promises of a more enlightened philosophy, greater systemic integrity, and safety and effectiveness (Rothman 1980; McKelvey 1977). Though not successful, as one might typically define success (i.e., eliminating or reducing crime), there was a discernable symbolic coherence and thus legitimation. Remembering the classic study of Berger and Luckman, the various roles of agents and their day-to-day conduct had become “typified.” They enfleshed the rules, linguistic meanings, and performance for each position within the institutional order. When the latter takes place, a “natural attitude” is assumed that carries its own momentum and rarely creates circumspection or critical distance (Berger and Luckman 1966). However, as David Garland suggests, in the wake of the rupture of meaning following the denunciation of rehabilitation, penal institutions were “deprived of the idiom, and indeed mythology, around which modern punishment had anchored itself” (Garland 1990, p. 6).

What has emerged in the wake of the post-rehabilitative ideal and all other philosophically guided policies are hybrid, fluid, and pragmatic accounts that appease the shifting demands and allegiances of various stakeholders (e.g., the public, elected officials, correctional administrators, and investors). While there is nothing new in their collective wish list to lower crime rates, deter future miscreants, create prosocial or submissive attitudes among the incarcerated and, failing that, corral those perceived to be the most disorderly, what is new is the overarching narrative or justification that has evolved to consolidate or rather legitimate their efforts. It is a regressive narrative that is unabashedly monetarist, with economic arguments displacing the more noble, albeit flawed arguments that once prevailed. In short, post-rehabilitation or rather post-traditional justifications for punishment are neither aspirational, religious, humanistic, or philanthropic.

The outline of the violent and abusive conditions of imprisonment that launched this article underscores the veracity of Habermas’ claim about the loss of legitimation and the systemic dysfunction that occurs in its wake, regardless of one’s theoretical or ethical commitments. In view of the reality presented, one could be forgiven for questioning whether a markedly different future for penal practice is possible and whether the ideals that inspired the penitentiary project so very long ago have been permanently lost to the hardening currents of politics, economics, culture, or criminality itself. In contemplating this question, it is important that one not wax nostalgic for the early penal incarnations of the church or penitentiary merely because the intentions that accompanied them were laudable and seemingly unadulterated. Nor is it practicable to ignore the very difficult circumstances in which criminal justice functionaries work, then and now. That said, reclaiming certain values and imperatives from that history (e.g., a moral ontology, a broad and informed historical perspective, and a sympathetic and compassionate understanding of the inevitability of sinful or alienating conduct), as opposed to revisiting the philosophical treadmill of retribution, deterrence, and rehabilitation, might yield something better in the daily treatment of the offender by those who have charge. By focusing on how the penalized subject is treated, irrespective of their intent to change, success in changing, or the penalty they should or should not receive, we offer what is potentially a more stable ethic of care. Nevertheless, we also take hope in the array of more tangible justice initiatives seeking to reform the penal order. These initiatives include the abolition of capital punishment, decriminalization of certain substances, the abolishment of minimum mandatory sentences, redirecting attention to authentic treatment, restorative justice (Braithwaite 2000; Lanni 2021), and decarceration or abolition (Hulsman 1991; Ruggiero 2010). While the ethics we espouse are more overarching than any one initiative and thus less susceptible to their respective limitations5, those mentioned do revive, to varying degrees, the non-punitive and/or reintegrative spirit of monastic penal practice.