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The New Religious Prisons and Their
Retributivist Commitments
Marc O. DeGirolami ∗
I. INTRODUCTION
The rise of the religious, or “faith-based,” prison 1 at the
turn of the twenty-first century bears witness to the remarkable
resilience of religion in shaping the philosophy of punishment.
In the last decade, prisons that incorporate religion in various
ways have sprouted around the country—in Florida, Iowa,
Kansas, Minnesota, and Texas 2 —and there are some
indications, though preliminary, inconclusive, and hotly
contested, that inmates who participate in religious instruction
and “programming” 3 recidivate at significantly lower rates than
those who do not. 4 The early success of these programs (and,
∗
LL.M. Candidate Columbia University School of Law, J.D. Boston University
School of Law, A.M. Harvard University, A.B. Duke University. I am grateful to Gerard
Lynch, Kent Greenawalt, and Philip Hamburger for extremely helpful comments on earlier
drafts of this article.
1. Prisons have incorporated programs for prisoners with religious content in a
variety of ways. Throughout the text, this article uses the phrase “religious prisons” to
mean prisons that have instituted programs (for example, classes, other activities, and
particular concepts) with religious content systematically and affirmatively to advance
penological interests. In this way, the article distinguishes religious prisons from prisons
that merely accommodate inmates’ religious needs but which take no active interest in
religion as a way to promote government objectives.
2. Siobhan Morrissey, Good-Faith Efforts: Despite Their Promise, ‘Faith-Based’
Prisons in Florida Raise Constitutional Concerns, 3 A.B.A. J. E-REPORT 20 (2004).
3. The phrase “religious programming” is frequently used in newspaper accounts to
describe programs and activities in which prisoners take part that include religious content.
“Programming” carries with it pejorative connotations, conjuring images of brainwashing
that are unfortunately loaded in this context. Despite these associations, this admittedly
infelicitous phrase is used throughout for convenience and faute de mieux. It is intended to
mean the systematic inclusion of religious ideas in the programs (as described above) in
which prisoners participate.
4. See MICHAEL EISENBERG & BRITTANI TRUSTY, CRIMINAL JUSTICE POLICY
COUNCIL, INITIAL PROCESS AND OUTCOME EVALUATION OF THE INNERCHANGE
FREEDOM INITIATIVE: THE FAITH-BASED PRISON PROGRAM IN TDCJ 23 (2003), http://
www.nicic.org/Library/019013. This article touches on some of these results and the
ambiguities in the early data. See generally id.; see also Byron R. Johnson, Reviewing and

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some say, the preferential treatment accorded to participants in
them) has resulted in high demand and long waiting lists. 5
Florida has recently opened its second faith-based prison, this
one for women, 6 and more such programs are presently being
planned and implemented. 7
Religious prisons raise very serious questions of
constitutionality and effectiveness, and most of the critical
commentary to date has focused either on the various,
complicated Establishment Clause concerns or the programs’
inconclusive recidivism results. 8 This essay explores the
criminological commitments of religious prisons. Though
religious prisons serve rehabilitative aims, this essay emphasizes
the importance of their retributive goals—what Professor R.A.
Duff has termed the censure-communicating purpose of
punishment and the “Three ‘R’s of Punishment” (repentance,
reform, and reconciliation) 9 —in justifying the use of religious
programming in prisons. The focus of this article is narrow: it
offers an argument in response to skeptics who claim that
Clarifying the Role of Religion in Reducing Crime and Delinquency, FED. PROBATION,
Dec. 2001, at 49, 51 (“A number of studies have documented that faith-based programs are
effective, especially when compared to a non-faith-based intervention. Preliminary
evaluations of faith-based drug treatment and offender rehabilitation programs in prisons as
well as aftercare settings, based on overtly religious modalities, find them more effective in
reducing relapse and lowering recidivism.”) (footnotes omitted).
5. Morrissey, supra note 2.
6. Id.; see also Alan Cooperman, An Infusion of Religious Funds in Fla. Prisons;
Church Outreach Seeks to Rehabilitate Inmates, WASH. POST, Apr. 25, 2004, at A1,
available at http://www.washingtonpost.com/ac2/wp-dyn/A39834-2004Apr24?language=
printer.
7. See, e.g., Java Ahmed, Governor Champions Faith-Based Prison Initiative:
‘PLUS’ Program Hopes to Stop Repeat Offenders, Sept. 7, 2005, http://www.in.gov/
indcorrection/news/0705plusopenhouse.htm (Indiana); Carlos Campos, Faith Behind Bars;
Programs Aim to Uplift, But Foes Say State Oversteps Bounds, ATL. J-CONST., Aug. 22,
2004, at 4C, available at http://www.religionandsocialpolicy.org/news/article.cfm?id=1843
(Georgia); David Dishneau, Prisoners’ Rights of Passage, WASH. TIMES, Jan. 9, 2005,
available at http://www.washtimes.com/metro/20050108-113648-7084r.htm (Maryland).
8. See, e.g., Enrique Armijo, Belief Behind Bars: Religious Freedom in Prison,
RLUIPA, and the Establishment Clause, 31 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT
297 (2005); Lynn S. Branham, “Go and Sin No More”: The Constitutionality of
Governmentally Funded Faith-Based Prison Units, 37 U. MICH. J.L. REFORM 291 (2004);
Douglas Roy, Note, Doin’ Time in God’s House: Why Faith-Based Rehabilitation
Programs Violate the Establishment Clause, 78 S. CAL. L. REV. 795 (2005). For an
especially persuasive, recent critique emphasizing Establishment Clause concerns, see Ira
C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DEPAUL
L. REV. 1, 110-12 (2005).
9. R.A. DUFF, PUNISHMENT, COMMUNICATION, AND COMMUNITY 106-07 (2001).

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religious programming serves no criminological purpose absent
an unequivocal showing of rehabilitative effectiveness. It
claims that even if the evidence of reduced recidivism has been
inflated or manipulated, as many critics claim, religious
programming can be justified in theory by reference to its
potential for a special manifestation of retribution that might not
otherwise exist.
The article, in Part II, provides a brief history of the use of
religious programming in prisons in the United States in order to
trace the shifting influence of religion in American prisons. In
Part III, the article discusses two organizational models of
religious programming that have emerged in the last decade—
Florida’s religious prisons (the Lawtey and Hillsborough
Correctional Institutions) and the InnerChange Freedom
Initiative, a Christian non-profit organization operating in
several state prisons. Part IV explores the two conceptions of
punishment that best justify religious programming in prison:
rehabilitation and retribution. Rehabilitation is the most obvious
and has received the most attention, partly because of the
prisons’ emphasis on curtailing recidivism rates and the scrutiny
applied to allegedly positive results on that front. But the
prisons’ capacity to use religion to impose a particular kind of
penance 10 that is connected to the historical justifications for
introducing religion into prison life has not yet been studied in
any detail. After surveying the place of penance in several
world religions, this section examines whether penance can
serve retributivist aims, drawing substantially on Professor
Duff’s theory of secular penance in Punishment,
Communication, and Community, 11 as well as that of Professor
Stephen Garvey and others. In Part V, the essay next considers
how and whether various manifestations of religious penance—a
significant part of the programming offered by some of the new
religious prisons—are compatible with Duff’s theory of secular
penance. The article concludes by positing that there may be
potential value in religious penance as both a rehabilitative and
retributive instrument of criminal punishment.

10. For a discussion of the concept of “penance as punishment,” see infra notes 14758 and accompanying text.
11. DUFF, supra note 9.

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An important qualification is in order before proceeding:
none of this discussion is intended to minimize what are
undeniably significant Establishment Clause concerns generated
by religious prisons and state-sponsored religious penance.
Those concerns are legitimate and raise thorny and possibly
insoluble problems that this article neither addresses nor denies.
Rather, this article asks the reader to set these important doubts
aside for the moment and consider here the range of possible
secular justifications for reintroducing religious penance as
punishment into prison life. While this discussion does nothing
to allay what for many (including myself) may be considerable
doubts about the constitutionality of religious prisons, it does
seek to explore the extent to which religion can and cannot
support our secular, criminological commitments. One may ask
whether such an inquiry is useful if the constitutional questions
loom so large. The answer is that the new religious prisons raise
various kinds of questions; some of these relate to
constitutionality and others do not. It is important to consider
and address each category of question on its own terms: an
attempt to achieve greater clarity with respect to one class of
questions is worthwhile even if that analysis and discussion has
little impact on a different inquiry.
II. THE USE OF RELIGION IN UNITED STATES
PRISONS: A BRIEF HISTORY
In order to understand the new religious prisons, it is
helpful to explore briefly the history of religion in American
prisons beginning in the late eighteenth century. Early in their
treatise on the American penitentiary system, Gustave de
Beaumont and Alexis de Tocqueville observed that it was the
religious sensibilities of the Philadelphia Quakers against
“shedding of blood” that spurred some of the reforms of early
colonial penitentiaries. 12 Beaumont and Tocqueville remarked
on the reformative role of religious and “moral” education in
Philadelphia’s Walnut Street prison:

12. GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY
SYSTEM IN THE UNITED STATES AND ITS APPLICATION IN FRANCE 37 (Francis Lieber
trans., S. Ill. Univ. Press 1964) (1833).

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Moral and religious instruction forms, in this respect, the
whole basis of the system. In all penitentiary systems,
those who have not learned to read are instructed in it.
These schools are voluntary. Though no convict is obliged
to join them, they consider it as a favor to be admitted . . . .
The free choice left to the prisoners to join or not the
school, makes those who enter it thus voluntarily, much
more zealous and docile. . . . The minister who administers
this service, accompanies it almost always with a sermon,
in which he abstains from every dogmatical discussion, and
treats only of religious morals; so that the instruction of the
minister is as fit for the Catholic as for the Protestant, for
the Unitarian as for the Presbyterian. . . . Each prisoner has
a Bible, given by the state, in his cell, in which he may read
the whole time that he is not engaged in labor. . . .
In Philadelphia, the moral situation in which the convicts
are placed, is eminently calculated to facilitate their
regeneration. 13

Religion certainly played a crucial role in the American
Puritan era that preceded the late eighteenth century reformative
movement (the philosophy of punishment of the earlier era has
been called “a curious mix of religion, English barbarity, and
pragmatism”). 14 However, the conversion of Walnut Street
prison and others like it (e.g., Pennsylvania’s Eastern
Penitentiary at Cherry Hill) was spurred by a more overtly
humane religious vision: inmates were required to read the
Bible, contemplate God, and repent of their crimes with the
13. Id. at 82-83. The ecumenical Christian appeal of the prison sermons perceived by
Beaumont and Tocqueville should not be discounted as the quaint concern of a bygone era.
Interdenominational strife among Christian sects was arguably one of the chief problems
confronting the founding era. See Wallace v. Jaffree, 472 U.S. 38, 104 (1985) (Rehnquist,
J., dissenting) (citing Justice Joseph Story’s belief that “‘[t]he real object of the [First]
[A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism,
or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects
. . . .’” (quoting JOSEPH STORY, 2 COMMENTARIES ON THE CONSTITUTION OF THE UNITED
STATES § 1877, at 631-32 (Melville M. Bigelow ed., William S. Hein & Co., Inc. 5th ed.
1994) (1891))).
14. Matthew W. Meskell, Note, An American Resolution: The History of Prisons in
the United States from 1777 to 1877, 51 STAN. L. REV. 839, 841 (1999); see also Nancy L.
Cook, The Sky in a Box: Reflections on Prisons, Preachers, Storytelling and Salvation, 3
FLA. COASTAL L.J. 135, 139 (2002) (“Crime and sin were viewed by the Puritans as
essentially the same . . . and thus were treated equally. . . . People were sent to prison for
the purpose of instilling fear in other local inhabitants; the goal was to remind the entire
community of believers about the dangers of sin.”).

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soteriological goals of spiritual cleansing and improvement. 15
This more rehabilitative conception of religion introduced the
new reformative potential of imprisonment in the United
States. 16 Furthermore, as noted by Beaumont and Tocqueville,
religious instruction was often accompanied by reading lessons
and training in other basic skills. 17 Nevertheless, the use of
religion as an instrument of personal improvement retained an
austere character, one exuding the feel of a deserved punishment
as much as a benevolent interest in emancipating the prisoner
from his criminal ways. 18
The early prisons represented the fusion of two
philosophies of punishment: retribution and reformation. 19 Or,
as one commentator has observed, the early reformers “may
have moved the focus of punitive pain from the body to the soul,

15. See David J. Rothman, Perfecting the Prison: United States, 1789-1865, in THE
OXFORD HISTORY OF THE PRISON: THE PRACTICE OF PUNISHMENT IN WESTERN SOCIETY
111, 118 (Norval Morris & David J. Rothman eds., 1995). The philosophical contrast
between the Calvinism of the founding era and the emergent, more optimistic Protestant
faiths also played an important role in altering the conceptions of just punishment.
16. BLAKE MCKELVEY, AMERICAN PRISONS: A STUDY IN AMERICAN SOCIAL
HISTORY PRIOR TO 1915, at 6 (1936). As Professor Nigel Walker has observed, the belief
in the powers of religion to ennoble the spirit is not strictly a Benthamist utilitarianism.
Nigel Walker, Desert: Some Doubts, in PRINCIPLED SENTENCING: READINGS ON THEORY
& POLICY 156, 158 (Andrew Von Hirsch & Andrew Ashworth eds., 2d ed. 1998).
17. See W. DAVID LEWIS, FROM NEWGATE TO DANNEMORA: THE RISE OF THE
PENITENTIARY IN NEW YORK, 1796-1848, at 32-33 (1965) (detailing the educative efforts
of Thomas Eddy, the first warden of Newgate prison in New York).
18. The ways in which religious instruction and programming can serve retributive
aims are explored in Section V. See infra notes 159-85 and accompanying text.
19. Alex Ricciardulli, Getting to the Roots of Judges’ Opposition to Drug Treatment
Initiatives, 25 WHITTIER L. REV. 309, 319 (2003). That retribution was at least a
subconscious motivation for the kinds of punishment imposed is suggested by descriptions
of the “lockstep” in the Auburn penitentiary in New York:
The Auburn program introduced the lockstep to maintain silence in the
movement of large numbers of convicts from their cells to the workshops.
The convicts were out of step with society, and their movement around the
prison was designed to be performed as graceless [sic] as possible. They
were to move at a slow pace, the “right arm outstretched with the hand on the
right shoulder of the man in front of him.” They were “not permitted to hold
their heads up, as would befit free men.” The prisoners were compelled to
turn their heads to the right, and cast their eyes downward as they shuffled
forward, a constant reminder of their low estate.
Melvin Gutterman, “Failure to Communicate:” The Reel Prison Experience, 55 SMU L.
REV. 1515, 1518 (2002) (quoting NEW YORK STATE SPECIAL COMMISSION ON ATTICA,
ATTICA: THE OFFICIAL REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON
ATTICA 1, 10-11 (1972)) (footnotes omitted).

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as Foucault has remarked . . . .” 20 Thus, William Bradford
wrote in 1793:
When he looks into the narrow cells prepared for the more
atrocious offenders—When he realizes what it is to subsist
on coarse fare, to languish in the solitude of a prison, to
wear out his tedious days and long nights in feverish
anxiety; to be cut off from his family, from his friends,
from society, 21 from all that makes life dear to the heart;
when he realizes this he will no longer think the
punishment inadequate to the offence. 22

Reflection on the Bible and repentance for one’s misdeeds
were to be carried out in monastic solitude and silence; verbal
expression and social interaction with other inmates were
forbidden. 23 In addition, many of the penitentiaries designed a
rigorous work program for their inmates to complement the
religious instruction and reflection; all of this was meant to
foster a healthy blend of “spiritual redemption as well as painful
bodily punishment,” 24 with rehabilitative and retributive
objectives frequently overlapping. The success and profitability
of these early prisons 25 encouraged other states to take notice,
and by the mid-nineteenth century Georgia, Kentucky,
Maryland, Massachusetts, New Hampshire, New Jersey, Ohio,
Vermont, and Virginia all had their own prisons. 26

20. Markus Dirk Dubber, The Right to Be Punished: Autonomy and Its Demise in
Modern Penal Thought, 16 LAW & HIST. REV. 113, 124 (1998).
21. The prison in Philadelphia “isolated each prisoner for the entire period of his
confinement” and “placed maximum emphasis on preventing the prisoners from
communicating with anyone else . . . .” DAVID J. ROTHMAN, THE DISCOVERY OF THE
ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 82 (1971).
22. WILLIAM BRADFORD, AN ENQUIRY HOW FAR THE PUNISHMENT OF DEATH IS
NECESSARY IN PENNSYLVANIA 31 (1793).
23. Rothman, supra note 15, at 117-18, 121 (noting that at Walnut Street, prisoners
remained in their cells for long periods of the day and new inmates were required to wear
hoods as they walked past other inmates’ cells). The Auburn penitentiary did not require
this degree of silence and isolation. See id. at 117.
24. DAVID GARLAND, PUNISHMENT AND MODERN SOCIETY: A STUDY IN SOCIAL
THEORY 204 (1990).
25. ORLANDO F. LEWIS, THE DEVELOPMENT OF AMERICAN PRISONS AND PRISON
CUSTOMS, 1776-1845, at 29 (Patterson Smith 1967) (1922) (noting that crime rates in
Philadelphia dropped after the renovation of Walnut Street).
26. U.S. DEP’T OF JUSTICE, 5 ATTORNEY GENERAL’S SURVEY OF RELEASE
PROCEDURES: PRISONS 4 (1940).

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By 1870, the reformative ideals of the earlier generation
had fallen victim to newly emerging social pressures and
patterns. 27 Chief among these were the population explosion
and the consequent prison overcrowding, rendering impossible
the solitude and seclusion so valued by the early prisons for their
punitive and rehabilitative powers. 28 Moreover, the changing
face of the prison population, partially the result of the rapid
influx of Irish and other immigrants and the resulting loss of the
“local character” of the prisons and their inmates, did little to
foster the reformative ideal. “State legislators, with little
sympathy for the immigrant, saw even less reason to invest in
making the prisons anything but custodial.” 29 Fiscal concerns
now dominated the agendas of prison designers and
administrators as cell size was decreased to dangerous
dimensions and two or three inmates were packed into spaces
originally intended for one. 30
As these structural problems multiplied, the reforms
instituted by the earlier generation, including the religious
reforms, rapidly disappeared.
In their 1867 report
commissioned by the New York Prison Association on the state
of penal methods, Enoch Cobb Wines and Theodore Dwight
found that none of the state prisons was seeking or using
methods aimed at the reformation of its inmates as a primary
goal. 31 Instead, corporal physical punishment (whipping, in
particular) had reemerged as the principal method of inmate
management and discipline as guards and wardens became more

27. Rothman, supra note 15, at 125 (observing that prisons of the later nineteenth
century were increasingly characterized by “overcrowding, brutality, and disorder”).
28. See id.
29. Id. at 126.
30. Edgardo Rotman, The Failure of Reform: United States, 1865-1965, in THE
OXFORD HISTORY OF THE PRISON, supra note 15, at 169, 170-71. The prisons’ budgetary
problems resulted in most states’ preference for the system developed at Auburn, which
emphasized the importance of labor and created surpluses, as opposed to the greater
isolation and spiritual reflection required in the “Philadelphia model,” where prisons
continually lost money. See HARRY ELMER BARNES, THE EVOLUTION OF PENOLOGY IN
PENNSYLVANIA: A STUDY IN AMERICAN SOCIAL HISTORY 282-83 (1927).
31. Rotman, supra note 30, at 172; see also E.C. WINES & THEODORE W. DWIGHT,
REPORT ON THE PRISONS AND REFORMATORIES OF THE UNITED STATES AND CANADA 62
(1867) (“They are all . . . lacking in a supreme devotion to the right aim . . . and all lacking
in the employment of a wise and effective machinery to keep the whole in healthy and
vigorous action.”).

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cynical about the idea of reform. 32 During this period,
“[r]udimentary educational programs, prison libraries, and the
intercessions of official chaplains affected only an insignificant
portion of the prison population.” 33
The so-called “Progressive” era of criminal punishment,
spanning approximately the last two decades of the nineteenth
century and the first half of the twentieth century, reintroduced a
rehabilitative ethos.
Now, however, the approach to
rehabilitation was that of scientific healing—medical, biological,
and behavioral science found favor, motivated by the underlying
belief that criminals were sick and needed to be cured. 34 The
“treatment” or “psychotherapeutic” model of rehabilitation that
emerged, reflecting the seminal theories of such influential
thinkers as Cesare Lombroso 35 and Herbert Spencer
(emphasizing biological factors), and Franz von Liszt of
Germany and Adolphe Prinz of Belgium (emphasizing the role
of family and social forces in “creating” the criminal),36
minimized or devalued traditional religious perspectives as
instruments of criminal reform.

32. See Rothman, supra note 15, at 126. One exception to this trend were the
“reformatories” of the late nineteenth century, such as the one at Elmira, New York, which
included classes in “general subjects, sports, religion, and military drill.” Rotman, supra
note 30, at 174. But the reformatory movement also failed to live up to its promise because
of the prison population explosion.
33. Rotman, supra note 30, at 175.
34. Erik Luna, Punishment Theory, Holism, and the Procedural Conception of
Restorative Justice, 2003 UTAH L. REV. 205, 252-53 (2003) (referring specifically to
juvenile justice theory).
35. Talk of Lombroso often elicits raised eyebrows because of his belief in
phrenology, but Lombroso’s positivism had a profound effect on theories of crime at the
turn of the twentieth century and thereafter. Specifically,
Lombroso affected law because criminal anthropology culminating in
modern criminology did not merely use scientific methods, but it also posited
that both natural and social sciences could share a single scientific
methodology. Furthermore, it separated morality from science as well as
from law. . . . Generally, the Lombrosian contribution to law lies in its
emphasis on rehabilitation rather than retribution.
Jeanne Gaakeer, “The Art to Find the Mind’s Construction in the Face,” Lombroso’s
Criminal Anthropology and Literature: The Example of Zola, Dostoevsky, and Tolstoy, 26
CARDOZO L. REV. 2345, 2349-50 (2005).
36. See Patricia O’Brien, The Prison on the Continent: Europe, 1865-1965, in THE
OXFORD HISTORY OF THE PRISON, supra note 15, at 199, 210.

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Émile Durkheim, writing slightly later and from an entirely
different tradition, shares these writers’ skepticism about the
continuing value of traditional religious belief in effecting
positive social change. Durkheim’s contributions to the theory
of religious belief as essentially social in nature are vast and too
complex to assess in any meaningful way in this essay. 37
Nevertheless, some of his writings provide a general sense of the
changing role of religion in twentieth-century punishment
theory. One commentator has summarized Durkheim’s beliefs,
specifically as they relate to understanding the altered role of
traditional religious thought for punishment, as follows:
As [Durkheim] conceives it, the task of modern education
is to develop a secular, rational morality and to find the best
means of socializing the child into this new conscience
collective. The role of punishment in this setting is thus
precisely the same as its role in the wider society—it is an
expression and an enforcement of social morality . . . . An
important aspect of Durkheim’s argument is that modern
secular moralities—which are open to rational discussion
and do not depend upon the mysticism and blind faith
characteristic of religions—are none the less perceived to
be in some way ‘sacred’ and ‘transcendental’ . . . . In the
light of these considerations, Durkheim argues, we ought to
give up thinking of punishment as a utilitarian instrument
and instead consider it in its true role, as an expressive form
of moral action. The proper task of punishment is to
uphold moral sensibilities by censuring all offenses against
them. In essence punishment is a means of conveying a

37. See, e.g., ÉMILE DURKHEIM, LES FORMES ÉLÉMENTAIRES DE LA VIE
RELIGIEUSE: LE SYSTÈME TOTÉMIQUE EN AUSTRALIE 65 (Presses Univ. de France 1960)
(1915) (emphasis omitted). Durkheim offered the following definition of religion:
A religion is a unified system of beliefs and practices relative to sacred
things, that is to say, things set apart and forbidden—beliefs and practices
which unite into one single moral community called a Church, all those who
adhere to them. The second element which thus finds a place in our
definition is no less essential than the first; for by showing that the idea of
religion is inseparable from that of the Church, it makes clear that religion
should be an eminently collective thing.
Id. (quoting English translation in ÉMILE DURKHEIM, THE ELEMENTARY FORMS OF THE
RELIGIOUS LIFE 47 (Joseph Ward Swain trans., George Allen & Unwin Ltd. 2d ed. 1976)
(1915) (emphasis omitted)).

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moral message, and of indicating the strength of feeling
that lies behind it. 38

Progressive penal reformers of the early twentieth century
often invoked the “hospital” metaphor, but also drew from
Durkheimian sociological theory to justify their punishment
programs; their designs for everyday prison life were modeled
on the social operation of the community. 39 For example,
Howard Gill, an economist in charge of the construction in 1927
of the Norfolk Prison Colony in Massachusetts, classified its
prisoners into small groups of under fifty; each group was
housed and fed separately, and the aim was to provide greater
individualized attention for the problems of each group’s
members. 40 Every man received “individualized physical,
mental, social, vocational, and avocational [training].” 41
Furthermore, the groups were organized into a political body
called the Norfolk Council, “which operated on the principle of
joint officer-inmate responsibility for the governance of the
institution.” 42 In the same years, psychotherapeutic treatments
became fashionable, and by 1926, sixty-seven prisons employed
psychiatrists and forty-five had psychologists. 43 The influence
of religion as either a rehabilitative or punitive force did not
figure as a prominent, or even a relevant, feature of these
programs.
Indeed, through the waves of prison reform that followed—
from the drab monotony and depersonalization of the “Big
House” 44 to the increasing and often highly intrusive use of

38. GARLAND, supra note 24, at 42-44.
39. Rotman, supra note 30, at 179.
40. Id. at 181.
41. Id.
42. Id.
43. Id. at 178.
44. See JOHN IRWIN, PRISONS IN TURMOIL 3-4 (1980). Irwin describes the Big
House as
a walled prison with large cell blocks that contained stacks of three or more
tiers of one- or two-man cells. On the average, it held 2,500 men.
Sometimes a single cell block housed over 1,000 prisoners in six tiers of
cells. . . . [C]ell blocks were harsh worlds of steel and concrete, of unbearable
heat and stench in the summer and chilling cold in the winter, of cramped
quarters, and of constant droning, shouting, and clanking noise.
Id.

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psychotherapy in “correctional institutions” 45 of the 1950s and
1960s, with their abiding faith in the assessments of experts 46 —
religious programming was rarely part of the prescribed
regimen. The profound disillusionment with rehabilitation that
exploded in the 1980s, coupled with skepticism about the longstanding system of indeterminate sentencing, 47 led to a rejection
of the old theories of punishment and an embrace of what has
been caustically described as the “warehouse” conception of
prison. 48 In the warehouse prison (our present model), offenders
are “largely idle and live in a divided inmate subculture
weakened by internecine conflict”; they are provided with food,
shelter from the elements, clothing, medical treatment,
opportunities for exercise, and little else. 49 A bleak, resigned
theory of incapacitation, coupled with a coarse belief in harsh
punishment, best explains the philosophical underpinnings of the
warehouse prison—one that “operates without the pretense that
it does anything other than store and recycle offenders.” 50
Into this state of penal affairs—with rehabilitation under
attack as an unrealistic pipedream, the prison population and
prison violence steadily growing, 51 the length of prison terms
increasing, and the political rhetoric of “law and order”
punishment at a heated pitch—religion has, after so long an
absence, once again shown itself. This article next discusses
some of the emerging models of religious programming in state
prisons.

45. Existing prisons were renamed “correctional institutions” in a bow to the
prevailing philosophy of punishment of the day. See Jonathan Simon, Sanctioning
Government: Explaining America’s Severity Revolution, 56 U. MIAMI L. REV. 217, 218
(2001).
46. Id. at 237.
47. For the notable catalyst of anti-indeterminacy, see MARVIN FRANKEL, CRIMINAL
SENTENCES: LAW WITHOUT ORDER (1973).
48. James E. Robertson, Houses of the Dead: Warehouse Prisons, Paradigm Change,
and the Supreme Court, 34 HOUS. L. REV. 1003, 1022-26 (1997).
49. Id. at 1023 (footnote omitted).
50. Id. at 1015.
51. See Number of Women in Prisons Is on Rise, N.Y. TIMES, Oct. 24, 2005, at A18
(reporting that since 1995 the country’s state and federal prison population—excluding
state and federal prisoners held in local jails—has grown an average of 3.4% per year,
though for 2004 the rate of increase dropped to 2.6%) [hereinafter Number of Women].

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III. RELIGIOUS PRISONS IN THE
TWENTY-FIRST CENTURY
The American socio-political climate of the last two or so
decades has been surprisingly congenial to the reinvigoration of
religion as a powerful legal and political instrument. Congress
championed religious freedom and government accommodation
of religious interests 52 with little dissent in the sweeping
Religious Freedom Restoration Act of 1993 (“RFRA”), 53 which
requires that government demonstrate a compelling interest in
legislation that poses a substantial burden to religious interests.54
After the Supreme Court partially invalidated RFRA as to states
and localities, 55 Congress passed the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”). 56 RLUIPA
specifically governs the accommodation of prisoners’ religious
interests, reimposing the compelling interest standard on
government to justify substantial burdens on free exercise. 57
The Supreme Court recently held that this section of RLUIPA
does not violate the Establishment Clause. 58
The last decade has also witnessed the determined and
systematic reintroduction of religion as an instrument for
ostensibly promoting secular, governmental ends. One of
President George W. Bush’s first and most controversial
executive orders established the “White House Office of FaithBased and Community Initiatives,” whose policy aims sprang
from the belief that:

52. See generally Marci A. Hamilton, Religion and the Law in the Clinton Era: An
Anti-Madisonian Legacy, 63 LAW & CONTEMP. PROBS. 359, 388-89 (2000).
53. 42 U.S.C. §§ 2000bb to 2000bb-4 (2000).
54. RFRA aimed to nullify the holding of Employment Division v. Smith, 494 U.S.
872 (1990), that neutral laws of general application need not be justified by a compelling
government interest. 42 U.S.C. § 2000bb.
55. City of Boerne v. Flores, 521 U.S. 507 (1997). The Supreme Court recently
considered the application of RFRA with respect to the federal government’s interest in
enforcing the Controlled Substances Act against the religious use of a hallucinogenic tea,
finding against the government at the preliminary injunction stage. Gonzales v. O Centro
Espirita Beneficente Uniao Do Vegetal, 126 S. Ct. 1211 (2006).
56. 42 U.S.C. §§ 2000cc to 2000cc-5 (2000).
57. 42 U.S.C. § 2000cc-1(a).
58. See Cutter v. Wilkinson, 125 S. Ct. 2113 (2005). Cutter did not involve the land
use provisions of RLUIPA. See generally id.

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Faith-based and other community organizations are
indispensable in meeting the needs of poor Americans and
distressed neighborhoods. Government cannot be replaced
by such organizations, but it can and should welcome them
as partners. The paramount goal is compassionate results,
and private and charitable community groups, including
religious ones, should have the fullest opportunity
permitted by law to compete on a level playing field, so
long as they achieve valid public purposes, such as curbing
crime, conquering addiction, strengthening families and
neighborhoods, and overcoming poverty. 59

Encouraged by the generally auspicious political mood, prison
administrators around the country have begun to offer religious
programming for inmates. This article focuses on two models
for the use of religion in prisons, Florida’s Lawtey and
Hillsborough prisons, and the InnerChange Freedom Initiative,
which has been incorporated in several state prisons. 60
A. Lawtey and Hillsborough
Located in Raiford, Florida, Lawtey Correctional
Institution “was established in 1973 as a community vocational
center housing work release inmates.” 61 In 1977, it became a
male prison. 62 In 2004, Lawtey was converted by Governor Jeb
Bush into a “male Faith and Character Institution.” 63 Lawtey
houses 788 inmates and oversees its prisoners in “medium,”
“minimum,” and “community” levels of security. 64
59. Exec. Order No. 13,199, 66 Fed. Reg. 8499 (Jan. 29, 2001).
60. Both models, especially Lawtey and Hillsborough, are relatively new and have
not been studied extensively. In later portions of this article, these models are called the
“new religious prisons” to distinguish them from American penitentiaries that historically
used religion for penological purposes.
61. Florida Department of Corrections, Lawtey Correctional Institution, http://www.
dc.state.fl.us/facilities/region2/255.html.
62. Id.
63. Id.
64. Id. Florida defines “medium” security as “inmates eligible for placement at a
work camp with a secure perimeter, but who are not eligible for placement in an outside
work assignment without armed supervision.” Florida Department of Corrections,
Frequently Asked Questions Regarding Custody, http://www.dc.state.fl.us/oth/inmates/
custody.html. “Minimum” security “[r]efers to inmates eligible for outside work
assignments, but not for placement at a community residential facility.” Id. “Community”
security, the least restrictive, “[r]efers to inmates eligible for placement at a community
residential facility.” Id.

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All Florida prisoners were informed in 2003 that Lawtey
was converting to a religious format. Inmates at Lawtey who
preferred to transfer elsewhere were permitted to do so (over
100 transferred). 65
Additionally, prisoners from other
institutions who were relatively problem-free while incarcerated
(that is, without any discipline problems for at least a year prior
to the requested transfer) and approaching their release date
were permitted to apply for transfer to Lawtey. 66
Lawtey employs volunteers to run its religious
programming, all of which is funded by private religious
groups. 67 Though committed in theory to offering programming
for multiple faiths, Christianity predominates as the preferred
faith of the majority of the inmates and the volunteers. 68 The
religious programming is explicit for those who desire it. It
includes Bible reading, morning prayers, reflection on and
discussion about Jesus and the good Christian life, religious
counseling on issues such as anger management, musical and
community events, choir practice, and the Friday evening
“Evangelism Explosion,” a thirteen-week course in converting
others to embrace Christ in their lives. 69 Religion is also an
undercurrent in the job and basic life skills training (e.g., writing
a résumé), addiction treatment, and parenting skills offerings
(e.g., discussions with volunteers about how to be a better
father). 70 Churches that sponsor specific dormitories are
required to spend a minimum of $10,000 for new equipment,
and some churches have donated as much as $30,000, not
including their volunteers’ time, for such amenities as ceiling
fans, textbooks, Bibles, and computers. 71 This largesse stands in
stark contrast to Florida’s recent reduction of daily expenses
from $40 to $35 per prisoner. 72
65. Brendan Farrington, Gov. Bush Dedicates 1st Faith-Based Prison, MIAMI
HERALD, Dec. 25, 2003, at 7B; see also Cooperman, supra note 6.
66. Farrington, supra note 65. Prisoners who have discipline problems after their
transfer to Lawtey are immediately transferred out. See id. As of May 21, 2004, Lawtey
had a waiting list of as many as 1200 inmates. Morrissey, supra note 2.
67. See Cooperman, supra note 6.
68. Id. This has been a major constitutional criticism of Lawtey as well as programs
that are expressly Christian, such as IFI.
69. See id.
70. Id.
71. Id.
72. See Cooperman, supra note 6.

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In April 2004, Governor Bush announced that Hillsborough
Prison in Riverview, Florida, would be converted to a female,
faith-based format, modeled on Lawtey (though with less than
half the inmate population). 73 At Hillsborough, women receive
“instruction on topics such as anger management, job skills,
résumé preparation, vocational classes, substance abuse,
parenting, and strengthening marriages.” 74
Religious
programming with the goal of “change” and “self betterment” is
offered and possibly encouraged, but participation in the
religious programs is not officially required. 75
The basic thrust of the religious instruction at Lawtey and
Hillsborough is rehabilitative in nature: 76 inmates are urged to
use the considerable resources at their disposal—volunteer
mentorship, physical amenities, ample opportunities for
instruction, textbooks, computers, and one another—to reform
their characters so that once they leave they will not return. A
significant part of the religious programming, however, also
focuses on the “sinfulness” of inmates’ past ways, “selfreflection” with the aim of cultivating a kind of deep-seated guilt
for misdeeds, and recognition that punishment is deserved. 77
Whether the philosophy undergirding this aspect of the
programming is rehabilitative or instead a form of hybrid
retributivism is explored below.

73. See Florida Department of Corrections, DOC Opens Female Faith-Based Prison,
CORRECTIONAL COMPASS (May/June 2004), available at http://www.dc.state.fl.us/pub/
compass/0405/10.html [hereinafter Female Faith-Based Prison]. Though women account
for a fraction of the national prison population (about 7%), the rate of their incarceration is
substantially outpacing the male rate. Number of Women, supra note 51 (“The number of
women incarcerated in state and federal prisons in 2004 was up 4 percent compared with
2003, more than double the 1.8 percent increase among men, the Bureau of Justice
Statistics reported.”).
74. Female Faith-Based Prison, supra note 73.
75. Id. The Florida Department of Corrections announcement is unclear about
precisely what this means, but it appears that a prisoner can elect to participate in, for
example, the reading classes without being forced to participate in the religious
programming that often accompanies the secular instruction. Again, how this is
accomplished as a practical matter is not explained.
76. See Joyce Howard Price, Where Punishment Must Fit the Faith; Florida
Jailhouse Is First in U.S., WASH. TIMES, Dec. 30, 2003, at A1 (reporting the statement of
Governor Jeb Bush that the best way to rehabilitate prisoners is to “lead them to God”).
77. See Female Faith-Based Prison, supra note 73 (reporting the comments of Alia
Faraj, Spokesperson for Governor Bush).

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B. InnerChange Freedom Initiative
The InnerChange Freedom Initivative (“IFI”) is a branch of
Prison Fellowship Ministries (“PFM”), a Christian nonprofit
organization “dedicated to ministering to and providing religious
services for prisoners.” 78 PFM was founded in 1976 by Charles
Colson, former aide to President Richard Nixon, who became an
evangelical Christian during his prison term for his role in the
Watergate scandal. 79 IFI, which was first introduced to a Texas
prison in 1997, currently also operates in prisons in Iowa,
Kansas, and Minnesota. 80
Unlike Lawtey and Hillsborough, IFI explicitly promotes a
Christian message (though it formally accepts inmates of all
denominations, as well as atheists). It aims at prisoners’
“spiritual and moral transformation,” taking the following
passage from Romans 6:18 as its motto: “You have been set
free from sin and become the slaves of righteousness.” 81 If a
state department of corrections chooses to incorporate it at a
particular prison, IFI occupies an entire wing of the prison and
requires state funds for security (e.g., the prison guards’ salaries)
and the provision of food, clothing, and other necessities for
IFI designs and implements the religious
prisoners. 82
programming, using private donations and volunteers. 83 The
curriculum integrates Bible study into all aspects of its
instructional regimen, which includes courses in earning a GED,
vocational training, and computer skills training. 84 Though
greater resources are available to IFI’s inmates than to others,
they are subject to stricter disciplinary requirements. “The men
can stay up longer. They see more visitors. But they also have a
more disciplined regimen; no TV except for the news, up for
prayer and worship at 6 AM, Bible study several hours a day, as

78. Roy, supra note 8, at 801.
79. Daniel Brook, When God Goes to Prison, LEGAL AFF., May-June 2003, at 24.
80. The InnerChange Freedom Initiative, http://www.ifiprison.org/channelroot/home/
states.htm.
81. Id., http://www.ifiprison.org/channelroot/home/aboutprogram.htm.
82. Roy, supra note 8, at 801.
83. Id.
84. Id. at 802.

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well as vocational training, workshops, mentoring programs, all
by Christians.” 85
IFI’s programming strongly emphasizes “repentance and
reconciliation” as crucial components: “‘Repentance is . . . an
indispensable part of the conversion process that takes place
under the . . . power of the Holy Spirit. But repentance is also a
continuing state of mind. . . . [B]elievers prove their repentance
by their deeds. Without a continuing repentant attitude . . .
Christian growth is impossible.’” 86 Likewise, IFI aims to instill
the values of “responsibility and restoration” by compelling
inmates (those that have agreed to its programming) to reflect on
and feel guilt about the sinfulness of their past and to reform
their relationships with God, their families, and their
communities. 87 Crimes are deemed rooted in sin and therefore
an alienation from God. 88 Some of the classes foster repentance
directly by introducing inmates to the (willing) victims of crimes
and their families, attempting to evoke remorse from the inmates
and allowing the inmates to offer a “symbolic act of
restitution.” 89 IFI therefore strives for more than merely the
reduction of recidivism and it eschews what it believes is the
currently fashionable psychotherapeutic and somewhat
narcissistic approach to rehabilitation. IFI wants to “transform”
inmates’ lives by an intense and continuing experience with the
Divine, a relationship that often begins with profound feelings of
guilt and culminates in a desire for penance and redemption
through God. 90

85. Barbara Bradley, “Morning Edition” Visits Bible-Based Prison Program (NPR
broadcast Sept. 7, 2001), available at http://www.pfm.org/AM/Template.cfm?Section=
About_Prison_Fellowship1&template=/CM/HTMLDisplay.cfm&ContentID=2674.
86. The InnerChange Freedom Initiative, http://www.ifiprison.org/channelroot/home/
aboutprogram.htm (quoting CHARLES COLSON, LOVING GOD 109-10 (Zondervan 1997)
(1983)) (footnote omitted).
87. Id.
88. Id.
89. Brook, supra note 79, at 25.
90. See generally id.

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IV. THEORIES OF PUNISHMENT IN THE NEW
RELIGIOUS PRISONS: REHABILITATION AND
RETRIBUTION COMMINGLED
It is clear from the preceding discussion that the new
religious prisons, like the American prisons of the late
eighteenth and early nineteenth centuries, prize religious
programming for its alleged potential to rehabilitate character.
Moreover, some of the techniques and approaches developed by
the religious programming mirror those of the most recent
rehabilitative theories. For example, Professor Sue Rex has
written of the effectiveness of “strengthening community ties,”
such as marriage and employment, as well as the importance
that a “moral dimension” be added to the development of
cognitive skills and that the person in power speak credibly from
a position of moral authority. 91
The primary motivating rationale for introducing religion to
Lawtey and Hillsborough and through IFI is quintessentially
consequentialist:
proponents argue that the religious
programming greatly reduces violence in prison as well as the
rate of recidivism. 92 Does any empirical evidence support this
claim? It is still too early to pronounce final judgment, but there
is some preliminary evidence of positive results in the IFI
programs. 93 No one questions that inmate violence within IFIoperated wings is significantly lower than in the state-run
system, though many have argued persuasively that this is
attributable to the significantly greater resources (financial and
otherwise) and freedom enjoyed by IFI inmates. 94 A 2003 study
states that the rate of recidivism among “graduates” of IFI’s
program in Texas is roughly half that of non-graduates, 95 but
91. Sue Rex, A New Form of Rehabilitation?, in PRINCIPLED SENTENCING:
READINGS ON THEORY & POLICY, supra note 16, at 36-37.
92. See DUFF, supra note 9, at 4 (stating that “reducing the incidence of [crime]” is
the primary consequentialist objective).
93. Few if any studies of the effectiveness of the programming at Lawtey (or
Hillsborough) are yet available.
94. Brook, supra note 79, at 28-29.
95. See Alexandra Alter, Study Touts Faith-Based Rehabilitation Program, THE PEW
F. ON RELIGION & PUB. LIFE, June 19, 2003, available at http://pewforum.org/news/
display.php?NewsID=2333 (reporting on a study by the University of Pennsylvania’s
Center for Research on Religion and Urban Civil Society); see also MARCI A. HAMILTON,
GOD VS. THE GAVEL: RELIGION AND THE RULE OF LAW 165 (2005) (“There appears to be

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some have rightly pointed out that only 75 of the 177
participants in IFI since 1997 “graduated” from the program,
which IFI defines as having completed at least sixteen months of
programming and six months of “aftercare,” as well as finding
employment, being an active member of a church for at least
three months, and maintaining a relationship with an IFI
mentor. 96 When all 177 IFI participants were compared with
other relevant prison populations, the recidivism rates for IFI
participants were slightly higher. 97
IFI and Lawtey have also been roundly criticized for
carefully controlling the criteria for admission to their programs.
Whatever positive results have been achieved, it is claimed,
mask the reality that the more serious violent offenders, as well
as anyone not already “predisposed” to succeed, were not
counted. 98 Furthermore, critics contend that no one has
established that it is specifically the religious component of the
programming that makes a significant contribution to the
success of the prisons in reducing recidivism. Religious or not,
critics claim, any program that puts a premium on job training
and life skills, is administered by eager and committed
volunteers, possesses sufficient funds and resources to meet its
aims, provides a relatively safe environment, and offers its
inmates special perks and somewhat greater liberties than those
enjoyed by their fellows in other wings, would produce similar
results. 99
The controversy over the effectiveness of the new religious
prisons in reducing the recidivism rate will doubtless continue
for some time, with new empirical studies and challenges to the
results both on their own terms and in relation to the wisdom of
using religion for rehabilitative purposes generally. In the
remaining portion, this article sets these empirical questions
aside and considers another possible justification for religious
programming. Borrowing heavily from the work of R.A. Duff,
it argues that, whether or not its rehabilitative value is ultimately
an increasing amount of evidence that suggests that some religious programming in the
prisons can reduce the recidivism rate.”) [hereinafter HAMILTON, GOD VS. THE GAVEL].
96. See Roy, supra note 8, at 803 n.80.
97. Id. at 803 & n.80.
98. HAMILTON, GOD VS. THE GAVEL, supra note 95, at 169.
99. See, e.g., id.; Roy, supra note 8, at 804.

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vindicated, religious programming may be worthwhile because
it is an effective method of communicating the censure of a
significant portion of the offender’s community. Religious
programming like that carried out at Lawtey and by IFI is
specially equipped to do this by imposing a specifically religious
penance, demanding that prisoners: (1) repent of their crimes,
which itself requires cultivating and confronting a profound
guilt, (2) reform themselves, with commitments not only to the
fact of reform in response to a particular misdeed, but also to the
manner in which the reform should be effected, and (3) become
reconciled to their victims and their communities. In making
these claims, it is vital to recognize the objection both that the
concept of penance carries with it overtly Christian—most
particularly Roman Catholic—overtones and that the new
religious prisons, to date, have been almost exclusively Christian
in orientation. One should rightly ask, “What of Muslim or
Hindu prisoners? What can a theory of penance as punishment
offer them?” Before addressing these important points in the
context of Professor Duff’s theory and its application to the new
religious prisons, a brief discussion of the importance of the
concept of penance for several of the most influential world
religions is necessary.
A. Penance and Religion: An Overview
It is far beyond the scope of this article to explore the
complicated and multifaceted concept of penance in religion
generally or even its relevance for the “major” world religions in
any kind of systematic fashion. Moreover, I am not a theologian
or historian of religion and am not qualified to undertake such a
thoroughgoing exposition.
Nevertheless, certain limited
observations about the centrality of penance in various religious
systems may provide some insight into penance’s general
conceptual relevance for punishment theory.
Penance, or atonement, 100 is central to many Christian faith
systems, though it takes on different meanings given the great

100. Penance and atonement are not necessarily synonymous and can have very
different religious connotations, but they are used synonymously here. See, e.g., RICHARD
SWINBURNE, RESPONSIBILITY AND ATONEMENT 81 (1989) (listing penance as one of the
four elements of atonement).

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theological variety within Christianity.
Christian perspectives

[Vol. 59:1
However, most

hold in common that the end of atonement is the
reconciliation of God and man. Properly understood,
atonement establishes the ground of justice for
reconciliation between an offended party and the offender.
Similarly, civil justice [to include, here, criminal justice]
should establish the ground of justice for reconciliation of
victim and offender and the restoration of both. 101

St. Anselm’s seminal work, Why God Became Man, 102 begins
with the premise that atonement is required when man robs God
of His due, the paradigmatic example of which is original sin.
Since God’s punishment would destroy man, God demands, as it
were, to be “made whole.” 103 Anselmian atonement, with its
emphasis on the idea of satisfaction, has traditionally dominated
both Catholic and Protestant theologies, 104 though the concept of
penance institutionalized as the Sacrament of Reconciliation105
is distinctly Catholic. 106
In early American history, the concept of penance played
an important role in the efforts of Protestant prison reformers to
do away with public shaming punishments. 107 Though it is no
101. Jeffrey C. Tuomala, Christ’s Atonement as the Model for Civil Justice, 38 AM. J.
JURIS. 221, 222 (1993).
102. CUR DEUS HOMO, in ST. ANSELM: BASIC WRITINGS 191, 215-21 (S.N. Deane
trans., 2d ed. 1962); see also Stephen P. Garvey, Punishment as Atonement, 46 UCLA L.
REV. 1801, 1809 (1999).
103. See John Lyden, From Sacrifice to Sacrament: Repentance in a Christian
Context, in REPENTANCE: A COMPARATIVE PERSPECTIVE 43, 47 (Amitai Etzioni & David
E. Carney eds., 1997) [hereinafter REPENTANCE].
104. See generally J. DENNY WEAVER, THE NONVIOLENT ATONEMENT (2001).
105. “Private confession to a priest at least once a year was . . . obligatory in the
thirteenth century. Luther dispensed with closed confession for Protestants; the Catholics
continued it . . . .” KARL MENNINGER, WHATEVER BECAME OF SIN? 26 (1973).
106. Harold J. Berman & Charles J. Reid, Jr., Roman Law in Europe and the Jus
Commune: A Historical Overview with Emphasis on the New Legal Science of the
Sixteenth Century, 20 SYRACUSE J. INT’L L. & COM. 1, 15 (1994).
107. James Q. Whitman, What Is Wrong with Inflicting Shame Sanctions?, 107 YALE
L.J. 1055, 1080-81 (1998). Whitman writes:
Not surprisingly, this long Christian tradition of favoring private penance
over public humiliation has played a role in the decline of western shame
sanctions. . . . The penitentiary movement [in early Philadelphia] conceived
of and presented itself as an enlightened, Christian alternative to the older
system of shame sanctions, one that would replace the primitive order of
public display and shame with a modern order of isolation and guilt.
Id.

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doubt true that penance occupies a far less prominent place as a
crucial theological tradition in the mainline Protestant faiths than
in Roman Catholicism, the general concepts of repentance,
remorse, and forgiveness are universally important for Christian
faith systems: 108
The Christian concept of repentance presupposes belief in a
personal God and an awareness of sin and what it does to
human relationships with God. For Christianity, repentance
involves more than an internalized awareness of failure or
fault, which we might designate as aversion, as turning
away from that of which one is ashamed. It also involves
adversion, turning to God, to the personal God whose
active gift of grace first makes self-understanding and
repentance possible, and whose redemptive love then
responds to repentance with forgiveness and restoration. 109

Atonement also is central to the Jewish tradition, as
manifested in the teshuva: 110
The principle of teshuva is fundamental to Jewish law and
philosophy. Jewish law views it as apparent that human
beings are, by their very nature, fallible and incapable of
avoiding all sin, and thus through the possibility—indeed
the obligation—of teshuva, God provides humans a means
of achieving atonement for wrongdoings. 111

The Jewish festival of Yom Kippur is devoted to repentance:
“various rituals are performed to obtain forgiveness of sins and
pardon for misdemeanours against neighbours.” 112 Like the
Christian penance, the Jewish teshuva imposes obligations on
both the offender and the victim—repentance, apology,
108. See generally Harvey Cox, Repentance and Forgiveness: A Christian
Perspective, in REPENTANCE, supra note 103, at 21, 24.
109. Harold O.J. Brown, Godly Sorrow, Sorrow of the World: Some Christian
Thoughts on Repentance, in REPENTANCE, supra note 103, at 31, 31-32.
110. “The Hebrew word . . . teshuvah [derives] from the root for return, and the
concept is generally understood to mean returning to God from a situation of
estrangement.” Jacob Neusner, Repentance in Judaism, in REPENTANCE, supra note 103,
at 60, 61.
111. Samuel J. Levine, Teshuva: A Look at Repentance, Forgiveness and Atonement
in Jewish Law and Philosophy and American Legal Thought, 27 FORDHAM URB. L.J. 1677,
1678-79 (2000) (footnotes omitted).
112. Mike Hepworth & Brian S. Turner, On the Universality of Confession:
Compulsion, Constraint, and Conscience, in CONFESSION: STUDIES IN DEVIANCE AND
RELIGION 66, 69 (1982).

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reparation, and reconciliation—all of which mirror the Christian
penitential elements. 113 Moreover, in certain ways, the Jewish
tradition is more similar than the Christian penitential doctrine
to the secular justification for penance as a punishment in
response to specific wrongful acts against other human beings
(crimes, for example):
God forgives sinners who atone and repent, and asks of
humanity that same act of grace—but no greater. For
forgiveness without a prior act of repentance not only
violates the rule of justice but also humiliates the law of
mercy, cheapening and trivializing the superhuman act of
forgiveness by treating as compulsive what is an act of
human, and divine, grace. 114

Despite these differences in emphasis, the basic components of
the penitential process are very similar, as is the overall
importance of repentance in the two traditions. 115
Islamic salvation, 116 achieved both by faith and works,117
depends upon repentance as “an essential element of the
Qur’anic world view.” 118 Repentance figures prominently, both
as a concept central to Qur’anic law and piety, and as amplified
in the hadith, the moral and spiritual injunctions of
Mohammed. 119 The principal Qur’anic term for repentance is
tawbah, whose meaning—“frequently returning to” or “turning
113. Levine, supra note 111, at 1678-79; see generally CHAIM NUSSBAUM, THE
ESSENCE OF TESHUVAH: A PATH TO REPENTANCE (1993); see also Elliot N. Dorff, The
Elements of Forgiveness: A Jewish Approach, in DIMENSIONS OF FORGIVENESS:
PSYCHOLOGICAL RESEARCH & THEOLOGICAL PERSPECTIVES 38-39, 42, 44 (Everett L.
Worthington, Jr. ed., 1998) (discussing Moses Maimonides’s theory of atonement).
114. Neusner, supra note 110, at 61.
115. Id. at 61-62 (“For Judaism the conception of repentance—regretting sin,
determining not to repeat it, seeking forgiveness for it—defines the key to the moral life.
No single component of the human condition takes higher priority in establishing the right
relationship with God, and none bears more profound implications for this-worldly
attitudes and actions.”).
116. It is of course true that “Islam,” like “Christianity,” is not constituted of a single,
monolithic set of beliefs. In offering a few generalities about Islamic notions of
repentance, this article does not claim any kind of universal acceptance among the many
Islamic sects (or across different eras) of these ideas.
117. Daveed Gartenstein-Ross, No Other Gods Before Me: Spheres of Influence in
the Relationship Between Christianity and Islam, 33 DENV. J. INT’L L. & POL’Y 223, 240
(2005).
118. Mahmoud Ayoub, Repentance in the Islamic Tradition, in REPENTANCE, supra
note 103, at 96, 96.
119. Id.

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toward someone, or some place”—is reminiscent of the meaning
of Jewish teshuva. 120 The elements of Islamic repentance are
also familiar and highly practical: “awe in the presence of the
Holy, awareness of sin and genuine remorse for it, regret over
lost opportunities, sincere contrition and the resolve to mend
one’s ways.” 121 Unlike some Christian and Jewish traditions,
however, Islam has no official doctrine of redemption; in part,
this is because divine grace, rather than any particular human
act, is always required to achieve a true tawbah. 122
Nevertheless, and again as a practical matter, “[e]xpiation may
. . . be attained by means of certain acts of penance and
restitution.” 123 The reassurance of God’s mercy is used, both in
the Qur’an and the hadith, to encourage sinners to repent and
turn to God for forgiveness. 124
The hadith offer several evocative allegories of repentance,
only two of which are reproduced here:
The Prophet is said to have asserted that God stretches out
His hand during the night for those who had sinned by day
to repent, and He stretches it during the day for the sinners
of the night to do likewise. This He will do until the sun
shall rise from the west, that is, until the day of
Resurrection. According to yet another tradition, there is a
door of divine mercy in the place of the setting of the sun
whose width is the distance of a seventy-year journey. This
door will remain open until the sun shall rise from its
direction. Then, “the faith of any person will avail him
nothing, unless he had believed beforehand and through his
faith had earned some good.” 125

Islamic penitential doctrine also distinguishes between sins
against God and sins against other human beings, and the
manifestations of repentance that each requires:
a person should repent in secret, between himself and God
for sins against God, such as evil thoughts or neglect of
obligatory acts of worship. As for the sins against others,
they include wrongdoing, slander, willful deception,
120.
121.
122.
123.
124.
125.

Id. at 97-98 (suggesting a possibly Semitic root to the word).
Id. at 98.
Id. at 99-100.
Ayoub, supra note 118, at 99-100.
Id. at 101.
Id. at 101-02 (quoting Qur’an 6:158) (footnotes omitted).

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treachery, and any physical or moral injury. Repentance in
such cases should be accompanied by restitution and a
humble request for forgiveness from the victim. . . .
The best expiation for a public offense is to confess it
publicly and accept its consequences. 126

The public quality of repentance for sins against other human
beings and its relationship with “secular” (if that is the right
word) or legal punishment reflects the close association of the
state and religion in many Islamic countries.
Hinduism and Buddhism also enjoy developed and
complex penitential traditions.
“Evidence for humble
repentance in Hinduism, including even imperfect contrition, is
found to be much earlier than both the Israelite and Christian
records, going as far back as the Vedic period (6000-2000
127
B.C.E.) in India.”
The Vedic conception of sin—that of a
break in the balance of order that must be repaired—
correspondingly resulted “not only [in] disorder (anrita), but
[also in] a debt [(rina)] that had to be repaid in full . . . .” 128
Later (ca. 500 B.C.E-200 C.E.), the Manu-Samhitā, a sacred
Hindu text discussing various sins and their atonements,
enumerated scores of penances that “formed the core of the
ancient Indian criminal code” and represented another early
“congruence of canon and civil law.” 129 Of the major world
religions surveyed here, Buddhism is arguably least concerned
with penance, primarily because of its rejection of theistic
underpinnings. Nevertheless, though “Buddhists may make
little room for God, . . . they are deeply concerned about
practices of self-examination, feelings of remorse, the
renunciation of unwholesome patterns of life, and the possibility
of radical moral change.” 130 Foundational Buddhist stories,131
“along with the rituals of monastic confession, depict a drama of
126. Id. at 102-03.
127. Guy L. Beck, Fire in the Ātman: Repentance in Hinduism, in REPENTANCE,
supra note 103, at 76, 77.
128. Id. at 78.
129. Id. at 81.
130. Malcolm David Eckel, A Buddhist Approach to Repentance, in REPENTANCE,
supra note 103, at 122, 122.
131. For example, that of Asoka, the “cruel king, bent on conquest and domination,”
who, overcome by sorrow and remorse after an especially bloody campaign, “decided to
adopt the Buddha’s teaching as a program for action in his kingdom.” Id. at 125.

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guilt, remorse, confession, and transformation,” 132 one that
largely resembles the patterns of penance in the other religious
traditions.
This cursory review has been unavoidably brief in its
treatment of the role of penance in each of these major religious
traditions and has neglected altogether the penitential doctrines
and practices of many other religions. Nevertheless, enough has
been said to demonstrate that penance in each of the traditions
discussed contains universal elements and manifests itself in
remarkably similar social practices, notwithstanding the
variation among and within the traditions. The relevance of this
commonality for the incorporation of religious penance into
secular punishment will be discussed later in the article.
B. Penance as Retributive
It may strike the reader as highly unusual to talk of
penance, which appears to focus on the characteristics and
actions of the offender rather than the offense and ultimately
may aim at some future, personal redemption, as in any
recognizable sense “retributivist.” Traditionally, retributivism
has justified punishment “not prospectively in punishment’s
consequences . . . but retrospectively in punishment’s relation to
a past offense.” 133 The moral desert or blameworthiness of the
offense, rather than the possible utility of punishment to the
offender, is the only relevant touchstone. 134
More recently, however, the justification for retributivism
has been amplified to embrace and reflect a more civic and
communicative spirit. For example, Professor Stephen Garvey
writes that punishment “is in the first instance the means by
which the state condemns or censures the offender’s
wrongdoing.
Punishment expresses the resentment and

132. Id. at 137.
133. Russell L. Christopher, Time and Punishment, 66 OHIO ST. L.J. 269, 283 n.46
(2005).
134. See Joel Feinberg, Punishment, in PHILOSOPHY OF LAW 514, 515 (Joel Feinberg
& Hyman Gross eds., 2d ed. 1980) (“Punishment is justified only on the ground that
wrongdoing merits punishment. It is morally fitting that a person who does wrong should
suffer in proportion to his wrongdoing. That a criminal should be punished follows from
his guilt, and the severity of the appropriate punishment depends on the depravity of the
act.”).

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indignation to which, among members of a community, crime
naturally and properly gives rise.” 135
In what way is such a theory of punishment at least
partially retributive? 136 Here, it is necessary to return to
Professor Duff.
In what has alternately been called
punishment’s “expressive” 137 or “communicative” 138 purpose,
because punishment serves to condemn or censure the particular
criminal conduct and is directed at the offender himself, 139 it is,
in the first instance, “backward-looking.” 140
More
substantively, it is committed to reinforcing criminal norms
against those who have broken them for the sake of the victims
of crime (because such censuring reinforcement is “owed” to
them), society writ large (to demonstrate and reaffirm that the
norms are valued), and the offender himself,
since an honest response to another’s wrongdoing, a
response that respects him as a responsible moral agent, is
criticism or censure of that wrongdoing. To take crimes
seriously (as the law purports to take them seriously in
declaring them to be wrong) as the wrongdoings of
responsible agents is to be committed to censuring those
who commit them . . . . 141

Of course, the communicative censure that inheres in “hard
treatment” (which includes the traditional modes of criminal
punishment—“imprisonment, fines, and compulsory community
service”) 142 could be advanced on consequentialist grounds: for
example, its deterrent potential, its usefulness in defusing private
vengeance and maintaining compliance with the law among the
135. Stephen P. Garvey, Lifting the Veil on Punishment, 7 BUFF. CRIM. L. REV. 443,
461 (2004) [hereinafter Garvey, Lifting the Veil].
136. It is extremely difficult to maintain the conceptual purity of these philosophies
of punishment. The aim here is simply to discuss those aspects of penance that are at least
partially retributive in nature, without denying that there are also important
consequentialist justifications for penance (indeed, some of these are noted in what
follows).
137. See generally Jean Hampton, An Expressive Theory of Retribution, in
RETRIBUTIVISM AND ITS CRITICS 1 (Wesley Cragg ed., 1992).
138. DUFF, supra note 9, at 79. Duff favors this formulation. See id.
139. Id. at 27; see also ANDREW VON HIRSCH, CENSURE AND SANCTIONS 9-14
(1993).
140. DUFF, supra note 9, at 27.
141. Id. at 28-29 (citing VON HIRSCH, supra note 139, at 6-19).
142. Id. at 29.

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law-abiding, or its enhancement of social solidarity by having
the law-abiding conduct rituals of condemnation, thereby
cleansing the community. 143
But Professor Duff distances himself from these
consequentialist arguments:
I offer an alternative account of why we should use penal
hard treatment to communicate the censure that offenders
deserve by portraying punishment as a species of secular
penance.
That account is retributivist:
it justifies
punishment as the communication of deserved censure.
Unlike other forms of retributivism, however, it also gives
punishment the forward-looking purpose of persuading
offenders to repent their crimes (communicative actions in
general typically have a forward-looking purpose). This is
not to say, however, that my account is a partly
consequentialist one—that it seeks to marry a retributivist
concern for desert with a consequentialist concern for
future benefits: for the relation between punishment and its
aim is not, as it is for consequentialists, contingent and
instrumental but internal. 144

Duff’s theory is therefore highly “inclusive;” it claims to
address the offender as a morally accountable agent and member
of the community, and to impose a punishment that is owed to
him, i.e., the moral censure of the community. 145 Moreover,
contra consequentialism in this respect, the potential for
successful communication through the penitential process does
not determine whether the effort should be made. Rather, the
attempt is always worth making “since in making it we show
that we do take crime seriously as a public wrong and address
the offender as someone who is not beyond redemption . . . .” 146

143. See generally ÉMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 60-64
(W.D. Halls trans., 1984) (1933) (arguing that punishment “serves to sustain the common
consciousness itself”).
144. DUFF, supra note 9, at 30 (citation omitted). One need not accept Duff’s
rejection of consequentialist arguments to agree that he has identified here at least a
partially retributivist argument for the use of penance as punishment.
145. See id. at 115. An “exclusive” theory is one which, like incapacitation, treats
offenders “not as members of the community but as dangerous enemies against whom
‘we’, the law-abiding, must protect ourselves . . . .” Id. at 78.
146. Id. at 115.

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C. Penance as Punishment
Professor Duff identifies three stages of penance as
punishment:
repentance, reform, and reconciliation. 147
Repentance is the offender’s recognition and acceptance both
that what he did was wrongful and that he should suffer for that
wrongdoing. 148 Conceptually, repentance greatly resembles
guilt. Referring to Duff’s argument, Professor Garvey explains:
“Ideally, a wrongdoer will experience guilt when he realizes
what he’s done. Far from fearing punishment, he will welcome
it as a form of secular penance through which he can expiate his
guilt.” 149 Or, as Professor Michael Moore has put it, “to feel
guilty is to judge that we must suffer,” 150 because guilt
intrinsically and psychologically demands expiation.
Professor Duff believes that the processes of criminal
mediation (in which the offender and the victim confront one
another, with the victim explaining her suffering and the
offender being prohibited from offering justifications or
explanations for his actions) 151 and probation can induce
repentance. Hard treatment is necessary because the feelings of
guilt should “go deep with the wrongdoer and must therefore
occupy his attention, his thoughts, his emotions, for some
considerable time.” 152 True repentance, particularly for serious
wrongdoing, requires a sustained effort; for that reason, a
simple, one-time expression of remorse is generally insufficient.
Of the three elements in Duff’s theory of penance, the element
of repentance is the most persuasively “backward-looking.”
The natural implication of the offender’s deep recognition
of wrongdoing is to disown that wrongdoing, both as past event
and future possibility. This is the element of “reform,” and Duff
struggles mightily, though less than entirely convincingly, to
distinguish reform’s inherently consequentialist overtones:
reform is worthwhile “not to re-form the wrongdoer as an object
that we must mold to our wishes, but to persuade her of the need
147. Id. at 106-12.
148. DUFF, supra note 9, at 107.
149. Garvey, Lifting the Veil, supra note 135, at 462.
150. MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL
LAW 148 (1997).
151. DUFF, supra note 9, at 93.
152. Id. at 108.

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to reform herself.” 153 The proper penance will make clear that
reform is necessary, but it will also address the question of how
an offender can reform himself. 154 Reform involves the process
of thinking “carefully and remorsefully about the nature and
implications of [one’s] crime,” with an eye toward avoiding
similar future crimes. 155
Finally, criminal wrongdoing generally necessitates a
“forceful and weighty kind of apology,” one that the offender
chooses to make freely. 156 The apology may be verbal, but it
will often take other forms, such as reparation, or burdensome
work undertaken by the offender for the benefit of the victim or
the community at large. 157 The “communicative” aspect of this
element of punishment manifests itself in the imposition of a
formalized ritual of public apology. In this way, the offender
becomes “reconciled” to the victim and society, having “‘paid
her debt’ of apology and reparation.” 158
These are only the bare essentials of Duff’s theory, and he
undertakes their thorough defense in the remainder of his book.
The next section explores to what extent a theory of religious
penance, as practiced in the new religious prisons, is compatible
with Duff’s formulation.
V. DUFFIAN PENANCE IN THE NEW RELIGIOUS
PRISONS: POSSIBILITIES AND OBJECTIONS
Can traditional religious penance play any role in Professor
Duff’s secular penance theory? As discussed earlier, the
concepts of penance, repentance, reform, and reconciliation are
generally associated with and important for the Christian,
Jewish, Islamic, Hindu, and to some extent the Buddhist
religions, and possibly many others; and, on the surface,
religious penance appears to fit comfortably within Duff’s
theory of punishment. 159 Moreover, the possibility of moral
153. Id.
154. Id.
155. Id. at 109.
156. DUFF, supra note 9, at 109.
157. Id. at 109-10.
158. Id.
159. This is not surprising, since the language and practices of religious penance
served as the early model for prison reform. Brown, supra note 109, at 38 (“The
introduction of the word ‘penitentiary’ instead of ‘prison’ in the [nineteenth] century

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communication, so important to Duff and others, presupposes a
shared moral language that could convey an appropriately
censorious message to the offender. Duff looks to the moral
language of secular rationality for this purpose, 160 but the
language of religious conviction, for those receptive to it, may
perhaps be an equally powerful mode of communicating the
message of censure. One reason is that the moral bonds of
religious conviction, for someone who is devoted to them or
wishes to accept them (as in the case of perhaps at least some of
the participating and wait-listed inmates at Lawtey and the IFIoperated prisons), will often be deeply felt and will pervade an
offender’s day-to-day consciousness (which is critical in
satisfying the aims of repentance in Duff’s scheme) more
acutely in a pluralistic society such as the United States than the
type of community-wide moral bonds described by Duff and
Garvey. 161 Robert Wuthnow has commented that “[r]epentance
has traditionally held meaning because it was understood within
particular cultural (often religious) traditions . . . . It cannot
easily be put into purely legal contexts without losing much of
its traditional meaning.” 162 Wuthnow goes on to argue that the
idea of “community” is itself “reemerging as a sacred
concept,” 163 but even if this point is accepted, the religious
traditions still retain considerable power for believers in
rendering the concept of penance alive and meaningful.

reflected the hope that prisoners would become penitents, that is to say, would repent and
would be able to return to society as . . . people on whose decency and constancy their
fellow citizens can subsequently rely. There was and often still is a religious component to
this secular penitential hope.”).
160. See DUFF, supra note 9, at 113.
161. For Professor Garvey’s formulation, see Stephen P. Garvey, Punishment as
Atonement, 46 UCLA L. REV. 1801, 1810 (1999) (“My suggestion is this: Theological
accounts of atonement depend critically on treating God as the object of the sinner’s
identification. Consequently, we can mutatis mutandis derive a secular account of
atonement if we take the object of identification not to be God, but one’s community and
its members.”).
162. Robert Wuthnow, Repentance in Criminal Procedure: The Ritual Affirmation of
Community, in REPENTANCE, supra note 103, at 171, 183.
163. Id.

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It should be emphasized that this article claims neither (1)
that religiously derived moral norms inherently and always elicit
greater devotion than secular norms (this is surely not true—
atheists can be more devoted to particular moral norms than
religious believers), or (2) that religiously derived moral norms
are always deeply felt by those receptive to them (there are
many tepid religious feelings). The point is a narrow one: for
prisoners who are inclined to accept the moral norms of a
particular religious faith, those norms may exert a more
profound and pervasive effect on prisoners’ behavior than might
norms of an underspecified “community.” The primary reason
is that, under the circumstances described, the prisoner is
himself desirous of accepting and living by the religious norms;
religion has engaged him in a way that secular morality, if
presented to him as such, may not be able to duplicate.
A second and related benefit of religious penance from the
standpoint of communicative efficacy derives from its highly
developed structure, traditions, and procedural formality.
Religion can serve as an instrument for rendering Duffian
penance more accessible and concrete. Inmates can draw from
specific traditions of spiritual insight and moral teaching about
penance—that is, insight as to how to “do penance”
successfully—to understand better what is required of them. 164
One important objection to this claim is that these types of
concrete examples of penitential ritual and symbolism are highly
specific to Christian religions 165 (and perhaps only to certain
Christian religions), and that other religions may not have such
penitential traditions from which inmates might draw. Though,
as noted earlier, I am not qualified to produce a comprehensive
account of the place of penance in the great array of world
religions, there are at least two responses to this objection. First,
as things presently stand in American prisons, it must be noted
that Christianity is one of the religions in greatest demand from
the prison population, and so the Christian penitential traditions

164. Some may object that prisoners are not likely to receive especially rich versions
of such traditions, but this is not necessarily true and, in any event, they can at least receive
some exposure to these traditions.
165. See Beck, supra note 127, at 76 (“At first glance, the notion of repentance . . . is
easily identified with Christianity.”).

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should represent at least one focus of the discussion. 166
However, it is probable that Christianity predominates because it
is simply the only religion on offer (as is certainly true for IFIoperated wings); this situation should be corrected by
introducing other religious traditions as possibilities for those
receptive to them.
Second, and more importantly, as this article has briefly
demonstrated, 167 there are rich penitential traditions in the
Jewish, Islamic, Hindu, and Buddhist faiths (and probably many
others), replete with religious stories and rituals, from which
prisoners could draw, were the resources and infrastructure for
religious programming in those faiths adequately developed. Of
course, it is no doubt true that states choose to incorporate
programs like IFI in large part because of their ability to pay for
themselves, 168 and this considerable financial obstacle presents a
substantial problem for those interested in developing programs
with other religious orientations that have fewer resources at
their disposal. Nevertheless, in the case of Islam in particular,
there are important institutional, political, and social reasons for
the state’s involvement in the development of religious
programming. Prisons are “fertile grounds for radical Muslim
chaplains to recruit” adherents, as inmates are already
disaffected with American government. 169 The shortage of
Muslim clerics for the prison population has resulted not only in
the prevalence of more extremist versions of Islam in prisons,
but also in greater numbers of inmates leading their own Islamic
religious services, distorting Islam, and themselves espousing
beliefs that are hostile to democratic political governance.170
166. See Frank O. Bowman, III, Murder, Meth, Mammon, and Moral Values: The
Political Landscape of American Sentencing Reform, 44 WASHBURN L.J. 495, 514 (2005)
(noting that approximately four in ten American prisoners are white, “many of them the
sons and daughters, fathers and mothers, brothers and sisters of the congregants of white
evangelical churches across America”); see also MARTIN E. MARTY, EDUCATION,
RELIGION, AND THE COMMON GOOD: ADVANCING A DISTINCTLY AMERICAN
CONVERSATION ABOUT RELIGION’S ROLE IN OUR SHARED LIFE 56 (2000) (“Most
Americans respond to the Judeo-Christian tradition, which means that they derive morality
from the same sources.”).
167. See supra notes 100-32 and accompanying text.
168. Roy, supra note 8, at 817.
169. HAMILTON, GOD VS. THE GAVEL, supra note 95, at 145.
170. Id. at 147 (citing Jerry Seper, Prisons Breeding Ground for Terror?: Moderate
Muslim Chaplains in Short Supply, Justice Report Warns, WASH. TIMES, May 6, 2004, at
A11).

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Prison administrators should be concerned to ameliorate this
problem; but they must not do so either by suppressing Islamic
faith in the prisons or blithely ignoring it as a dangerous but
unalterable reality of prison life. Instead, administrators should
involve themselves, to whatever constitutionally acceptable
degree (if any such involvement is constitutional), in arranging
for access to and instruction in Islamic doctrine for inmates who
desire it, emphasizing those religious views and practices that
dovetail with and advance secular punitive objectives.
Yet another possible objection is that the theory of religiosecular penance discussed here somewhat outruns the reality of
the types of religious programming implemented at Lawtey and
by IFI. A related objection is that Evangelical Protestantism,
whose traditions appear to influence much of the programming,
doctrinally has little use for penance. It is true that much of the
religious programming in these prisons does not emphasize
penance and is instead reminiscent of the intensely
rehabilitationist “correctional institutions” of the 1950s, though
having incorporated a motivational, revivalist religious element
(e.g., Lawtey’s “Evangelism Explosion”).
But there are
decidedly penitential components as well: the classes at IFI that
foster guilt and repentance in the inmates and encourage them to
atone for their crimes with their victims, as well as some of the
religious doctrine supporting those classes, 171 fit comfortably
within the framework of penance as punishment discussed here.
Thus, the ancient theological contest between Protestantism and
Roman Catholicism over the nature of faith—i.e., the Lutheran
belief in “justification by faith alone” (the “Pauline” doctrine) 172
and the Roman Catholic teaching that “faith without works is
dead” 173 —interesting as it may be historically, need not detain
us here.
IFI, notwithstanding its Protestant Evangelical
orientation, has clearly opted for theological heterodoxy on this
particular score. Moreover, religious programming in prison,
particularly the programming at Lawtey and Hillsborough, is
still in an embryonic stage. Though instruction and activities
171. See supra notes 81-90 and accompanying text.
172. See W.D. DAVIES, JEWISH AND PAULINE STUDIES 94 (1984).
173. See, e.g., Daniel John Hettich & Erica Lee Dinger, They Answer to a Higher
Standard: The Ethical Obligations of Church Attorneys in Sexual Abuse Cases, 16 GEO. J.
LEGAL ETHICS 635, 638 (2003).

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that emphasize religious penance do not appear to be major
components of the programming currently available at the
religious prisons in Florida, the discussion here explores
possible justifications for the incorporation of religious penance
as part of that programming.
There is at least one important way in which the concept of
religious penance does not sit easily with Professor Duff’s
theory. An important part of what grounds Duff’s justification
for penance as punishment is its vindication of certain
community-wide norms—that is to say, the norms of the
criminal law. It is the “public,” universal character of those
norms, and the interests of the offender, victim, and society in
reaffirming them, that matter. Religious interests and beliefs are
usually conceived as private interests par excellence; not
everyone shares the moral commitments that ground them.
Thus, it could be argued that the imposition of a religious
penance, or a secular penance that makes use of religious
influences, is improper because it does not render to the
community (including the victim and the offender) what is
“owed” to it—i.e., the affirmation of public morality.
This objection is powerful but it could be at least partially
deflected in two ways. 174 First, and as Duff says, “The ‘private’
is not a metaphysical given . . . . What counts as ‘public’ or as
‘private’ depends on the nature of the community in which the
distinction is drawn.” 175 As a purely conceptual matter,
therefore, there could well be societies in which prevailing
community norms are entirely religious in nature; what would
be “owed,” in that case, is precisely a vindication of those
religious norms. This might be the case in theocratic societies.
But the political structure of the United States and many other
modern Western societies operates to a far greater degree on the
premise that religious beliefs are often inaccessible to those who
do not share them and therefore should not be used—even
indirectly—to support the justification for coercive judgments

174. For purposes of this discussion, this article puts aside any constitutional
difficulties arising from the imposition of a religious penance; by doing this, it in no way
means to suggest that there are no such difficulties (indeed, the Establishment Clause
problems may be significant).
175. DUFF, supra note 9, at 127.

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(e.g., the imposition of criminal punishment). 176 This argument
can be rejoined to a degree by claiming that though the policy
maker (legislator, judge, sentencing commissioner, etc.) cannot
justify the imposition of penance as punishment by reference to
religious reasons, she could nevertheless countenance religious
reasons as ancillary or instrumental support for the secular
justification. The ultimate justification for the imposition of
penance, therefore, would remain secular, but the offender
would be free to make the most of her secular penance, if she
wished, by reference to religious convictions and ritual. The
state’s facilitation of the cultivation of religious conviction in
this context could be explained on grounds analogous to those
that commend secular penance. Religious belief is and
continues to be of crucial importance to a large number of
Americans. 177 In considering the justification for imposing a
secular penance (that is, in deciding what is “owed” to the
community), the vindication of certain kinds of religious beliefs
(e.g., the belief in the equal worth of all human beings, or the
belief that all human beings deserve respect) might be a relevant
factor. 178
Second, and relatedly, the policy maker need not deem
secular and religious penances as necessarily mutually
exclusive. In fact, as a practical matter, they might often overlap
and strengthen one another. Religion may provide an additional
176. See generally KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC
REASONS 39-40, 85-95 (1995). Greenawalt writes,
What I mean by “not generally accessible” [is that] the believer lacks bases
to show others the truth of what he believes. . . . This does not mean that
reason plays no part in the development of religious convictions. Possible
religious understandings may be measured against various tests of
reasonableness. But something more is involved: a choice or judgment
based on personal experience that goes beyond what reason can establish.
Id. at 39-40. A belief based on revelation would in most circumstances not be accessible,
unless the believer can point to a historical, evidentiary record to support it. Id. at 41.
This is not to say that members of the political community who do not share the
religious conviction could not understand the basis for a religious penance. The religious
penance could be intelligible to them, though still not accessible.
177. See STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: HOW AMERICAN LAW
AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION 4 (1993).
178. However, other religious beliefs that do not overlap with secular aims (e.g., the
religious norm against blasphemy or the norm demanding weekly church attendance)
would not meet this test. There may also be significant Establishment Clause difficulties
with this justification.

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reason or justification for undertaking a serious penance which
could complement Duff’s secular reasons. In setting forth
arguments for religious institutional autonomy from government
regulation (admittedly a different context), Professor Mark
Tushnet offers a helpful view:
We want institutions to socialize people well, meaning that
they should induce people to avoid inflicting secular harms.
To accomplish that socialization, institutions must teach
their members or subjects that certain behavior is
undesirable or unacceptable.
But, the argument is,
sometimes an institution that is autonomous of external
supervision is a more effective teacher than one that is
subject to such supervision . . . .
For religions that define harm similarly to legislatures, the
net effect of recognizing institutional autonomy is the
reduction of secular harms. 179

If, through religious penance, the new religious prisons can
more effectively communicate the secular values of Duffian
penance (and this article has explored some reasons why this
might be so), then community norms may be well served by
imposing penances that incorporate religious elements.
Professor Duff himself addresses the potential overlap of
secular and religious reasons motivating repentance when he
supposes an offender who has, before her conviction and
punishment, already repented of her crime: “She has faced up to
the fact and character of her wrongdoing. She feels the pangs of
remorse. She is determined to reform her future conduct.” 180
One imagines that the motivation for such a “premature”
penance might well be religious. Should such a person, if her
religious penance is sufficiently profound and thorough,
nevertheless be punished? Duff believes that she should:
What she has done or undergone might suffice to reconcile
herself with God or with her conscience, even with her
individual victim if she made some private reparative
apology to him. But she has not done what is required to
179. Mark Tushnet, Defending a Rule of Institutional Autonomy on “No-Harm”
Grounds, 2004 BYU L. REV. 1375, 1377, 1379 (2004). Of course, Professor Tushnet is
making an argument for norm reinforcement based on religious autonomy from the state,
while this article considers the state’s use of religion to effect norm reinforcement.
180. DUFF, supra note 9, at 118.

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reconcile herself with the political community whose laws
and values she has infringed. 181

If we suppose that religious and secular criminal norms will
overlap to some extent (as many of them do), then we can at
least partially justify penance by reference to religious norms.
An offender who has already undertaken a thoroughgoing
religious penance may, depending on the belief system framing
the penance, have traveled a significant distance in expiating for
her offense on secular moral grounds as well. Her secular
punishment might account for this possibility. 182 Indeed, for
Duff to admit that a “private” penance (such as a religious
penance) could reconcile the offender to herself, as well as to
her particular victim, concedes the possibility that the offender
may have, to some degree, begun the process of Duffian
penance before its formal imposition. Nevertheless, even in the
rare case of true premature penance, Professor Duff is
undoubtedly correct that there will always be an important
secular penitential residuum for the state to impose. Part of the
reason (one that implicates the value of deterrence, though Duff
would perhaps dispute this) is that the official act of stateimposed penance might communicate more clearly, or more
“publicly,” to the community the censure for the offense than a
private penance could.
Another more straightforwardly
retributivist reason is that a private, religious penance, no matter
how thorough, can never completely fulfill its obligations to the
political community. 183
181. Id. at 119 (emphasis added).
182. How it should do so (e.g., judges deciding whether a defendant’s religious
system of penance overlaps with a secular penance, and if so in what degree and with what
consequence) is an enormously difficult practical question and one that implicates the
Establishment Clause. Nevertheless, as a theoretical matter, if the justification for secular
and religious penance overlaps, then the imposition of penance as punishment should not
work a “double-punishment.”
183. In the main, and as Duff argues, any mitigation calculations on the basis of a
premature penance should be avoided. Rewarding or encouraging penance (particularly
repentance) with the promise of a shorter sentence can foster dishonest practices and other
morally problematic scenarios, such as pressure on the innocent to plead guilty in order to
avoid a longer sentence if they are wrongfully convicted. DUFF, supra note 9, at 120.
The question of the relationship between religious repentance and the state’s
imposition of punishment strikingly parallels the debate among Islamic scholars about the
power of repentance to obviate the need for punishment:
Most Hanbalite jurists have argued on the basis of the Qur’an and hadith
tradition that repentance annuls all punishment both legally and in fact. This

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Religious penance therefore could play an important role in
communicating the secular censure that is central to Professor
Duff’s theory. As discussed earlier, the new religious prisons
frequently employ the language and rituals of religious penance,
and these could, if deployed carefully and in a nondiscriminatory way, prove to be a powerful instrument in
effective communication. Nor does such a use of religious
penance convert it from a retributive to a purely consequentialist
theory. The religiously inclined offender is not being persuaded
to repent (or reform or reconcile) for the sake of some greater
social good that we have in mind for him but which he does not
see. Instead, he is encouraged to repent, to sense the
wrongfulness of his actions for himself, from both religious and
secular viewpoints, because the censure of the community is
“owed” to him.
As has been repeatedly observed, none of this speaks to the
constitutional problems raised by what seems, as this article has
explored it, to trench on the Establishment Clause. Indeed, the
problem of discrimination against religions, particularly lesserknown religions or religions unfairly perceived to be inherently
dangerous to the community (Islam, for example), looms
especially large. 184 While the new religious prisons have shown
some early (and as yet unsubstantiated) promise as rehabilitative
instruments, the Establishment Clause problems that they raise
are significant. 185 This article, however, has considered the
criminological commitments of religious penance in prisons,
exploring the possibility of justifying religious penance partially
retributively and by reference to secular ideals. By exploring
the theory of penance as punishment within its original religious
context, the new religious prisons may, in some cases,

means that no punishment should be inflicted after repentance. Others held
the opposite view, namely that repentance has no effect on the punishment of
a person who violates the rights of individual human beings. Still others . . .
held that both repentance and punishment are expiatory acts that cleanse the
offender from the consequences of sin. While either would be sufficient in
obtaining divine forgiveness, it is of greater merit to endure punishment
along with the harsh discipline of repentance.
Ayoub, supra note 118, at 107.
184. On this question, see the discussion in Lupu & Tuttle, supra note 8, at 110-12.
185. For some treatments of the various Establishment Clause problems, see supra
note 8.

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effectively communicate the secular censure that animates
Professor Duff’s conception of punishment.

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