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Published online by Cambridge University Press: 25 September 2015
Theologians, law professors, and scholars are responding to Milner Ball's work. I, however, am only a country lawyer and preacher, a practitioner who strays each spring into the academy to teach and to learn.
Professor Ball graciously leaves a place for my kind, though. He observes that you cannot work out the law you conceive in an ethical vacuum any more than you can conceive it in an ethical vacuum. You must practice it. I comment as one who practices law.
I frequently represent persons accused of crimes. These accused citizens usually have given six or more statements to the authorities, each statement more incriminating than the preceding one. In these cases, the issue is not guilt, but sentencing. In short, the question is: What will the State of Tennessee do with the offender?
In many jurisdictions, including those where I most practice, the prosecutors and judges demand that offenders be placed behind the bulwark's bars for considerable periods of time. They typically understand criminal law as “the bulwark of freedom”:
1. Paulo Freire emphasizes the importance of teachers and students learning from one another. In Freire, P., Pedagogy of the Oppressed 67 (1970)Google Scholar he observes: “Through dialogue, the teacher-of-the-students and the students-of-the-teacher cease to exist and a new term emerges: teacher-student with students-teachers.”
2. Ball, , Law Natural: Its Family of Metaphors and Its Theology, 3 J. of Law & Relig. 162 (1985)CrossRefGoogle Scholar.
3. I exaggerate slightly, of course, but perhaps only slightly.
4. See Shaffer, T., On Being a Christian and a Lawyer (1981), especially pp. 45–104Google Scholar on representing the guilty. Shaffer begins his chapter on this topic by observing: “Serving the guilty is probably the oldest and most persistent of moral questions for lawyers.” Id. at 45. His work here is most helpful. I would state that even if I were not indebted to him for letting me participate in this colloquium.
5. Supra note 2, at —.
6. Id.
7. T. Shaffer, supra note 4, at 111. See id. ch. 10, at 111-20, on “The Practice of Reconciliation.”
8. “Therefore, if any one is in Christ, he [or she] is a new creation; the old has passed away, behold the new has come. All this is from God who through Christ reconciled us to himself and gave us the ministry of reconciliation; that is, in Christ God was reconciling the world to himself, not counting their trespasses against them, and entrusting to us the message of reconciliation.” II Corinthians 5:17-19.
9. I am indebted to the insights of L. Harold DeWolf, particularly in Crime and Justice in America (1975). In chapter 16 of that work, pp. 133-56, he sets forth what he sees as “an emerging ethical consensus.” He first describes ideals and principles that modern American Judaism, drawing on deeper Halakic traditions, offers and that are important for criminal justice. Id. at 136-41. Next he sets forth “Christian principles” which he believes acknowledge “A superior claim of the teachings of Jesus over the more ancient Books of Law” and which move beyond the “old retributive notions which, from Puritan days, have played such a dominant role in popular views of criminal law.” Id. at 141-49, here quoting p. 143. DeWolf also summarizes “American Secular Ethics,” id. at 149-54 and then sets forth norms he thinks supported by all three traditions. Id. at 154-56.
10. Id. at 140. DeWolf points out that restitution to victims of crimes was commonplace in ancient times. For example, in Exodus 22 restitution ranging from full value to five times that amount is specified for stealing cattle or sheep, for grazing another's fields, for arson, or for destructive carelessness with fire. A combination of restitution with added penalty payable to the victim, plus a guilt offering to the temple, is mandated in Leviticus 6:1-7.
11. All the names of citizens accused and places where crimes occurred have been changed both here and throughout this article in order to protect the innocent—and the guilty.
12. Supra note 2, at 144.
13. 684 F.2d 582 (8th Cir. 1982), aff'd 463 U.S. 277 (1983).
14. We also argued that the punishment violated Article I, Section 16 of the Tennessee Constitution, a provision similar to the eighth amendment and also prohibiting cruel and unusual punishment.
15. Thirty years at $15,000 per year equals $450,000. During the 1982 gubernatorial election in Tennessee, the incumbent governor maintained that the yearly cost of incarcerating someone in Tennessee was a mere $10,000, while the opposing candidate, a former Federal Bureau of Investigation agent, maintained the cost was $15,000 per prisoner per year. According to the National Moratorium on Prison Construction, building a new prison in the United States costs $60,000 to $80,000 per cell plus maintenance costs equalling over $25,000 per year per prison. Rosenblatt, , Religious Groups and Prison Reform, Editorial Research Reports, 02 26, 1982Google Scholar. Of course, these are figures in today's dollars; inflation could make these figures increase enormously.
16. Supra note 2, at 143.
17. See Harrelson, W., The Ten Commandments and Human Rights (1980)Google Scholar.
18. Id.
19. Heschel, A., The Prophets 215 (1962)Google Scholar. See the entire chapter 11, at 195-220, “Justice,” for a powerful and most helpful discussion of the Hebrew understanding of justice, particularly that understanding found in the prophets.
20. Id.
21. Amos 5:24.
22. Tara Seeley is a teaching assistant with whom I have worked at Vanderbilt University. Her insight was first expressed to me in a course called Justice Ministry and Advocacy at that institution in Spring, 1982.
23. Supra note 2, at 143.