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Red Mass homily: Criminal justice system needs reform

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Sulpician Father Phillip J. Brown, the rector of the Theological College of the National Seminary of the Catholic University of America in Washington, D.C., was the homilist at the St. Thomas More Society’s Red Mass, Oct. 5, at St. Joseph on the Brandywine Church in Greenville.

The following is the prepared text of Father Brown’s homily.

If you made a product designed to last for 50 years that had a failure rate of 68 percent after three years, and 77 percent after five years, how would you rate your success? Would you worry about a class action suit, especially if personal injuries were involved? Let me come back to that later.

Sulpician Father Phillip J. Brown, the rector of the Theological College of the National Semiary of the Catholic University of America in Washington, D.C., was the homilist at the St. Thomas More Society’s Red Mass, Oct. 5, at St. Joseph on the Brandywine Church in Greenville.
Sulpician Father Phillip J. Brown, the rector of the Theological College of the National Semiary of the Catholic University of America in Washington, D.C., was the homilist at the St. Thomas More Society’s Red Mass, Oct. 5, at St. Joseph on the Brandywine Church in Greenville.

Long ago in a faraway land called North Dakota, long before I thought about becoming a priest, I was a lawyer. My first job was as a Special Assistant Attorney General for the North Dakota Pardon Board, which oversees the prison system, and the Parole and Probation Departments.

Later in private practice, among other things, I had a contract with the county Juvenile Court in Bismarck to serve as court-appointed counsel and as guardian ad litem for children under the court’s jurisdiction. I handled many cases of physical, sexual and other forms of abuse and neglect by parents and other caregivers, on both sides. I attended many workshops on child abuse and neglect, sexual abuse in particular, giving me quite an education on the subject. Little did I know how this would serve me years later when, as a priest and a canon lawyer, I became involved in cases regarding the sexual abuse of minors by priests. My prior experience gave me context for understanding the complexity of the problems and the issues involved, and also a keen sense of the necessity that these problems be addressed swiftly and appropriately, with the care and healing of victims and the best interests of children and other vulnerable persons as the first and highest priority. I was eventually appointed by the governor to the North Dakota Commission for the reform of the Juvenile Court Act. I had already decided to enter the seminary, however, so I had to turn down the appointment, something I wish I had been able to do.

Nevertheless, all these experiences sensitized me to the plight of victims of violence and exploitation, but they also taught me that those who victimize are human beings, too. Addressing harmful behavior in ways that are effective, humane and directed toward rebuilding lives, not just vindicating notions of justice, is a complicated business.

In 2002, I got very involved in cases addressing the sexual abuse of minors by Catholic priests. I’ve had a particularly close and enriching relationship with the Diocese of Wilmington in this regard, first under Bishop Salterelli and then under Bishop Malooly. It has been a long and difficult road canonically and in civil law, but I can tell you that the diocese has confronted the issues directly, with determination and fortitude, and with sensitivity and a willingness to learn what is necessary for things to be handled appropriately and effectively, and better than in the past. The diocese has made great strides and has some of the best protocols of any diocese in the United States around these issues. And they are being implemented faithfully and effectively. The Diocese of Wilmington is well-positioned to continue its progress and to renew the life of the church in Delaware and the Eastern Shore of Maryland.

We just heard that the Lord called upon Jonah to go to a great city, Nineveh, and preach against it; to tell them that their wickedness was well known to the Lord, and that they needed to change. Jonah responded the way most of us probably would: He ran away and tried to hide.

In the Gospel Jesus illustrates what it means to fulfill our most important duties to God: to love the Lord with all our heart, all our being, all our strength and all our mind, and to love our neighbor as ourselves. I often find it much easier to love the Lord this much, or at least think I do, than my neighbor. For his part, trying to get around this difficult challenge, and because he wanted to justify himself, the scholar of the law asked Jesus “And who is my neighbor?” Jesus responded with the famous parable of the Good Samaritan.

Three people pass by a man who had been stripped, beaten and left to die: A priest, a Levite and a Samaritan. The priest could not bring himself to help the innocent victim for fear he was ritually impure and would contaminate him, at least that was the usual excuse. So he crossed to the other side where he wouldn’t have to see the suffering man. The second was a Levite, who also passed to the other side, no doubt for the same reason.

For you see, the law of Israel created a class of human beings who didn’t count; who no one had to pay attention to, or render assistance to; human beings who could simply be ignored, who you could do whatever wanted to. That’s what legal systems do sometimes: they create classes of human beings who don’t count; who others can treat any way they want to. We have a sad history of that in our own country, of course, and in our own legal system.

The third to come by was a Samaritan; this one cared for the poor man, salved his wounds, bandaged them, and took him to a safe place where he could recover and heal, even paying for his stay there.

“Love your neighbor as yourself” is the second great command of the law. So Jesus asks the lawyer: “Which one of the three who passed by was neighbor to the suffering man?” The lawyer answers correctly: “The one who treated him with mercy.” Jesus says, “Go,” then, “and do likewise.”

On December 8, the Year of Mercy declared by Pope Francis begins. Jesus’ words to the lawyer should have special poignancy for us, therefore. By the way, wasn’t it a thrill to see Pope Francis’ visit to U.S.? Did you ever think you would see one of our Popes in the well of Congress speaking to a joint gathering of our senators and representatives, the vice president, and members of the U.S. Supreme Court?

In Misericordiae Vultus, announcing the Year of Mercy, Pope Francis declares “The time has come for the Church to take up the joyful call to mercy once more.” In this Holy Year,” he says, “we look forward to the experience of opening our hearts to those living on the outermost fringes of society. . .” “We cannot escape the Lord’s words to us . . . as the criteria upon which we will be judged: whether we have fed the hungry, given drink to the thirsty, welcomed the stranger, clothed the naked, or spent time with the sick and those in prison.”

Lawyers administer justice. Pope Francis points to the relationship between justice and mercy: “. . . not two contradictory realities,” he says, “but two dimensions of a single reality . . . Justice is a fundamental concept for civil society . . . meant to be governed by the rule of law. . .” but “. . . full observance of the Law. . . has not infrequently led to legalism . . . distorting the . . . meaning of justice and obscuring its profound value.” “. . . Jesus speaks . . . of the importance of faith over and above observance of the law. . . in this sense . . . we must understand his words when . . . he says. . . ‘Go and learn the meaning of “I desire mercy not sacrifice.’ ‘I have come not to call the righteous but sinners.’ (Matthew. 9:13) ‘Faced with a vision of justice . . . that judges people . . . by dividing them into two groups – the just and sinners – Jesus is bent on revealing the great gift of mercy that searches out sinners and offers them pardon and salvation.”

Likewise, if we divide victims and perpetrators into two groups, showing concern for the first but dismissing the second, relegating them to the status of human beings who don’t count, we fail to recognize the humanity of both, and that the underlying dignity of every human being survives even after the commission of heinous acts.

Pope Francis acknowledges the importance of the even-handed administration of justice in civil society. He says, “this does not mean that justice should be devalued or rendered superfluous. On the contrary: anyone who makes a mistake must pay the price. However, this is the beginning of conversion, not its end, because one begins to feel the tenderness and mercy of God. God does not deny justice. He rather envelopes it and surpasses it with an even greater event in which we experience love as the foundation of true justice.”

Mercy is not foreign to our legal system. The pardoning power involves acts of mercy. Lighter sentences are given as an act of mercy. Our legal system descends into mere legalism when we forget that it also involves the administration of mercy.

In Gospel terms, the fundamental question is “Who is our neighbor?” We know that the victims of crimes and other harmful behaviors are our neighbors. Are we as comfortable acknowledging that those who commit such acts are our neighbors too?

Why do we incarcerate people? There are several reasons, of course. First and foremost is to punish them for the wrongs they have done. It’s not inappropriate to punish people who have broken laws and harmed others. As Pope Francis says “anyone who makes a mistake must pay the price.” But punishment without more denies the human dignity that survives the commission of a crime, and can relegate offenders to the status of animals.

We want our legal system to be rational, not simply a lashing out when wrongs are done. Our Christian faith calls us beyond reason to compassion and mercy. So we have to ask: Will punishment accomplish any useful end if things are left at that? Is it rationally related to rational ends? When and how is it effective in achieving something more than mere vindictiveness? What should be the greater aim of the criminal justice system? We need not, and we should not, be naïve about hardened offenders and those who are incapable of rehabilitation. We don’t need to be chumps; but we should be wisely merciful. But our principle aim should be rehabilitation: rebuilding lives, not destroying them. Complete success is not possible, of course; but any failure to do what we can is self-defeating and makes things worse, not better.

Does our system respect human dignity sufficiently, especially in the institutions where we incarcerate people? Or have we sunk back into a cold legalism, strict justice, a “lock them up and throw away the key” mentality that neglects serious efforts at rehabilitation?

Effective responses to criminal behavior are counter-intuitive, as those who work in criminal justice and corrections know. Societies abandoned “an eye for an eye and a tooth for a tooth” justice because it doesn’t work: it only brutalizes everyone involved, perpetuating the vendetta. It takes deep insight and strength of will and character to turn away from strict justice toward methods that are more effective, that serve the best interests of everyone and promote the healing of individuals and society.

For the vast majority of offenses, rehabilitation holds out far more promise than naked punishment and forms of incarceration that render individuals fearful, resentful and deprived of hope. Study after study shows that while effective rehabilitation is expensive in the short term, it costs society far less over the long-term through reduced recidivism and reduction of the other costs of crime to individuals and society.

So let me come back to the question I asked at the beginning: If you manufactured something designed to last 50 years and 68 percent of the products failed within three years and 77 percent within five years, how would you rate your success?

According to the Bureau of Justice Statistics, those are the current rates of recidivism. Locking people up without meaningful efforts at rehabilitation doesn’t make society safer; it doesn’t work; it makes things worse. People in corrections know this. People who prosecute crime know it; everyone who works in the criminal justice system knows it; I know it, and you know it. Something needs to change.

I was proud of President Obama when he became the first President in history to visit a federal prison a few weeks ago. By doing so he highlighted the plight of those who are incarcerated, and the need to reform the criminal justice system. He has communicated this in other ways as well: through efforts at sentencing reform and toward restoring the civil rights of some who have been convicted of felonies; and through his partnership with the Koch brothers towards criminal justice reform. When people as different as President Obama and the Koch brothers unite to declare that the system is broken and needs fixing, you know something must be very wrong and that it needs fixing.

The way to turn attitudes around so we can turn the situation around will begin, I believe, by asking “And who is my neighbor.” It will begin by renewing our commitment to mercy.

In his address to Congress, Pope Francis, citing the Golden Rule, said “Let us help others grow, as we would like to be helped ourselves. In a word, if we want security, let us give security; if we want life, let us give life; if we want opportunities, let us provide opportunities. The yardstick we use for others will be the yardstick which time will use for us.” “I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. . . I . . . offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.”

So let us answer the question “And who is my neighbor” in ways that show we recognize that all human beings, at every stage of life, and even when they make serious mistakes, are our neighbor. Let us come to understand, deep down, that when we treat them with dignity, even when they don’t seem to deserve it, it says something not just about their dignity but about our own; about who we are; what kind of people we are. Treating them with dignity and mercy will show that we are merciful as our heavenly Father is merciful; that we are deserving of God’s favor. This is our best hope for creating a safer society, a more crime-free society, a society in which many inclined towards harmful behavior can change, so that those who do change will live productive, hope-filled lives, even if some must remain incarcerated.

Let us be neighbor to the victims of crimes, but let us also be neighbor to those who commit crimes; administering justice and treating them justly, but not making them victims themselves; our victims. Treating them justly, let us also treat them with mercy. Remembering the mercy of the Samaritan, let us hear the voice of Jesus saying to us “Go, then, and do likewise,” – and let us, then, go and do likewise.

The Red Mass, sponsored each year by the St. Thomas More Society, marks the beginning of the judicial year, the first Monday in October when the U.S. Supreme Court convenes a new session.

Bishop Malooly was the main celebrant of the Mass that invokes the inspiration of the Holy Spirit on the work of lawyers, judges and all who work in the judicial system.