IV. INCENSE & INCARCERATION
In varying sites of struggle, sacrifice, and stigma, legal rituals give flesh to past narratives and new life to the residues of old codes and penal sanctions.
This Article concludes by commenting on its import for scholarship and social justice. At its base, the Article contributes a slice of analysis on the interconnectivity between religion, law, and society. Use of “incense” in the title of this conclusion is a double entendre; it is ambiguous since incense describes both intense feelings of anger, as in the type that leads to harsh punishment, and it may also reference the scented offering made to one's deity. As applied to the United States, both connotations hold true simultaneously: ethnic minorities and other marginalized populations, like the poor, homeless, and the mentally ill, are scapegoats in a great gulag-ish sacrifice to the post-civil rights social order, the incense of incensed Americans.
There are two takeaway points that explain why trends of harsh punishment have taken their course. The first is the answer to the question “why punishment in the first place?”As this study has shown, there is a strong indication that Western conceptions of punishment take cue from religious blueprints. Although this may seem like a crude statement, it intends to suggest that punishment itself may be a purely religious form, a model of God-as-Judge issuing and exacting a sentence of punishment. That a criminal court consists of a judge flanked by twelve jurors is no accident when understood alongside Jesus and his twelve disciples on the Day of Judgment. Hence punishment reads as theological, which is perhaps evinced in Proverbs' well known “spare the rod, spoil the child” statements. Endorsement of punishment is not merely a corrective for crime control or peaceful coexistence, but also a deeper guide to self-realization: “Withhold not correction from the child: if thou smite him with the rod, he shall not die. Thou shalt smite him with the rod, and shalt deliver his soul from hell.”
The second point is that punishment is strategic. It is instrumental for responding to perceived threats, constructing solidarity, and displaying power. In the American context, the main threat has been to white superiority, which has produced social ruptures fueled by fear and the need to maintain order, albeit the old order. As “[p] urity is the enemy of change, of ambiguity and compromise,” harsh punishment is a way of keeping things the same, keeping some “down by law.”
Ritual analysis of punishment also suggests that any theory of criminal justice would be incomplete without treatment of religion. As scholars have lamented, there is a general lack of criminal justice theory as it stands. Systematic study of the ritual and religious elements is no exception, yet basic questions remain unanswered. For example, what sense might be made of the fact that the “palladium of justice,” the trial by jury, has all but vanished in American criminal law--displaced by the plea-bargain model--and that for almost all criminal defendants, there is no trial at all? How does this relate to lynching where victims were not seen as worthy of trial? Now that today's ethnic minorities are the dominant groups facing the threat of criminal prosecution, is this perhaps why the jury trial is all but dead? Might the fact that those labeled “African American,” on any given day, are much more likely to be jailed or imprisoned have anything to do with religion? Christianity provided American slaveholders, among other justifications, with the Curse of Ham, whose people were punished with slavery. Could today's prisons reflect a modern endorsement of the same story, where one-third of all ““black” males are somehow supervised by the criminal justice system? To be sure, “today mass incarceration defines the meaning of blackness in America: black people, especially black men are criminals. That is what it means to be black.”
Although many conceive of punishment as merely a corollary of crime, i.e., what happens to convicted offenders, this thesis proposes that more is at stake. This has been the case since early modern Europe, “[w] hen governments ... replace[d] private vengeance with public [punishment] , ... produc[ing] the most powerful symbols of state authority and quasi-liturgical drama.” The state kept peace through the ritual of inflicting harm on its citizens--in awesome ceremonies that “surrounded the killing ... with an elaborate ritual that justified the execution ... and produced a spectacular warning about the consequences of crime.”
The same process is in place today, without need for religion since, paradoxically, the rhetoric of separation of church and state has obscured how the state is inherently religious. The state's posture is popularly legitimized by the invocation of its “suprapolitical sovereignty” that sanctions punishment and gives reason to believe that punishment practices are rooted in religious ritual. As Girard has indicated:
The procedures that keep men's violence in bounds have one thing in common; they are no strangers to the ways of violence. There is reason to believe that they are all rooted in religion. As we have seen, the various forms of prevention go hand in hand with religious practices. The curative procedures are also imbued with religious concepts--both the rudimentary sacrificial rites and the more advanced judicial forms.
In the olden days, the spectacle was Bataille's prison, with its gothic, dungeon-like design that imposed itself on the observer. Today the spectacle is abstracted and takes place in front of a TV screen when yet another dark face is the featured criminal on the news or when shows like COPS make ethnic disparities routine, or practically, when vigils are held before executions. These images act as a curative to temper social impulses to vengeance since the focal point of the system shifts away from religion and is translated into judicial retribution. In lessening the tendency of individuals seeking vengeance on their own, the state's criminal justice system itself becomes the incarnation of vengeance. “Even when this theology disappears, as has happened in our culture, the transcendental quality of the system remains intact. Centuries can pass before men realize that there is no real difference between their principle of justice and the concept of revenge.” Behind punishment is the desire for revenge on someone: “We call it a wish to see justice done, i.e., to have him ‘punished.’ But in the last analysis, this turns out to be a thin cloak for vengeful feelings directed against a legitimized object.” Punishment's instrumental use for ulterior motives also presents a critical challenge to the notion that American society is “evolving” in its ““standards of decency,” a doctrine propounded by the Supreme Court in punishment jurisprudence. Instead, a ritual analysis of punishment proves the crux of punishment jurisprudence to be nothing more than wishful thinking trapped in a Darwinian frame; far from reflecting a permanent increase in human decency, as the Court would have it, punishment has come to represent all that is indecent, including the maintenance of a permanent underclass.
Lastly, it is worth noting that the underlying connection between ritual and legal punishment depends on constructions of “otherness” for the victim of punishment. In the earliest Christian criminal codes, the ultimate face of the other was seen in heresy, blasphemy, and apostasy. Similar attitudes held sway in the United States in colonial legislation, in the “witch” trials of the Puritan era and in the Communist “red scares.” Today's politicized discourse on crime likewise tends to portray crime as amoral behavior of dangerous people who typically belong to racial and cultural groups. The “criminal” is a baseline from which all sorts of provocative labels derive, including “monster,” “animal,” “predator,” and even “super-predator,” words which will likely sound tomorrow the way “witch” sounds today.
Assistant Professor, Saint Louis University School of Law.
