Jurisprudence, penology, and assumptions

Recently Kurt made some comments on penology that I thought were worth following up on. Below are those comments, edited for purposes of the discussion:

I would take further comments seriously if you directly addressed my main assertions and provided clear supporting arguments against the following points:

1. The religious community’s responsibility to do no harm, especially in the attempt to prevent harm elsewhere.
2. The religious community’s responsibility to those faced with a–for lack of better phrase–an unwanted pregnancy.
3. The historical reality of the rampant rise in organized crime during the United States’ prohibition on alcohol.
4. The current reality of harm reduction crime control models that are in place in other Western nations that have culled undesirable behavior, and have provided assistance for those trapped in cycles of self-destruction to be rehabilitated and cared for.
5. And finally, the outsourcing of the church’s power and responsibility to the powers and principalities of the world.

… Additionally, decriminalizing is not the same as legalizing, in case you weren’t aware. Legalizing connotes that there is no prohibition to a behavior at all, whereas decriminalizing means a reduction of current prohibitive laws.

Another thing to make clear is that a law’s purpose is not only to describe a prohibited behavior, but also to proscribe certain behaviors. But that is only the first half of a law. The second part of a law describes the range of penalties that can be carried out against the criminal by the state on behalf of the people. I did not address this point in my previous comment as Fr. Ernesto did not include information about penalties for seeking or providing an abortion in Mexico. However, the Christian community should be deeply concerned about penalties that will bring more harm to society than good. As this discussion has also not breeched the myriad of reasons women seek abortion, I will tell you this, no amount of laws will dissuade desperation. In a world where the church claims to be the presence of the Kingdom of God, if a pregnant woman feels the sense of desperation, the Church should be ashamed. More shame upon the Church if it then celebrates the punishment of those who act out of desperation.

Well, that should give us a good chunk to discuss! So, let’s get started. Let  me discuss first point 3 because that will be the quickest way to start.

Prohibition in the United States is cited all too often anytime any person or group wants to stop a particular law. But, they cite it in a way that does lead to the rejoinder that the way in which it is cited could be used to justify the undoing of almost any law. Thus why ban smoking, why ban drinking and driving, why . . . . The movement for the legalization of drugs, whether just marijuana or any drug, makes that precise argument, as do various other organizations. So, the rejoinder that the Prohibition argument, in the way in which it is commonly used, can be used to undo almost any law is not a particular talking point of one side or the other. For instance, the right complains that business is sadled with unenforceable laws and the left responds that the right is simply wanting to give business the right to do whatever they wish without considering people.

But, perhaps there is a better way in which to understand what happened back then and that is by considering the twin prohibitions–against alcohol in the 1920’s and against gay marriage today. In both cases, the laws were/are based on moral objections. But, the constitutional amendment in the 1920’s was passed at a time when Christians of a particular theology had the upper hand. What the amendment did not  have was the widespread support of the people, as was shown once it was approved. Only in the Deep South–the birthplace of fundamentalist theology–was it successful. In the rest of the country, the amendment did not have the support of either the Church or the people. Even in the Deep South, the tradition of “moonshine” was so strong that observance of the law was winked at.

Without that support, the amendment withered within a short time. That is, laws have a cultural component that can either make them successful or set them up for failure. Where the cultural support is lacking, disobedience of the law often follows. A case in point were the taxes passed by the British Parliament which led to the Boston Tea Party (yes, I know there were other factors). Where cultural support is strong, the law is likely to remain strongly observed. For instance, Utah was not allowed to become a state until the Church of Jesus Christ of Latter Day Saints rejected polygamy. Attempts since then to reinstate polygamy have utterly failed, in large part due to the lack of cultural support for that practice. Interestingly enough, the move to fully legalize gay marriage has strengthened as cultural permission for it has grown.

Thus, to use Prohibition as an argument against a law is not appropriate unless it can be shown that there is a cultural component which will make that law almost impossible to enforce. Mothers Against Drunk Driving (MADD) has had the success it does precisely because the support for the banning of driving with alcohol above a certain level is incredibly strong. As the support has continued to grow, the laws against DUI have been strengthened. Does this mean that no one drives drunk? Of course it does not. But, it does mean that the incidence of drunk driving is decreasing. Does the fact that people still drive drunk mean that DUI laws should be scrapped? Not at all, society is determined to try to stamp out DUI.

But this brings up Ingemar’s point. Are there laws which must be on the books regardless of cultural support? I would argue that this is so. To use another controversial issue, I think that laws forcing the vaccination of school children for certain diseases must be on the books. In fact, the use by all too many uninformed non-medical “Christian” parents of the religious exemption in order to stop their children from being vaccinated has only led to precisely what was expected, a rise in preventable childhood diseases. And, of course, I would be one of those people who would say that an anti-abortion law–carefully written and thought through, not just a simple prohibition–is one of those moral necessities whether or not there is full cultural support for it.

Having said that, Kurt brings up several good points with regards to an anti-abortion law, that also need to be addressed and which have to do with society’s responsibility towards the unborn child, notice I did not say towards the mother, but towards the unborn child. The responsibility to the mother may vary in a way in which it should not vary toward the child. But, I will explain myself more fully during this series.

===MORE TO COME===