A biblical perspective: abandoning retribution as a doctrine for legal punishment
I. Introduction
The Old Testament is filled with different mandates regarding punishment for certain acts and crimes, a great deal of which includes the penalty of death. Conversely, the New Testament somewhat disregards the Old Testament idea of punishment, in that it became secondary to Jesus' message of love and redemption. In this respect, both reward and punishment are seen as taking place in eternity, rather than in this life. How do we reconcile these differing views? What are the reasons for the sharp shifts in these fundamental concepts? Moreover, to what extent should our system of criminal law incorporate these biblical models of justice?
II. Criminal Law
Two broad theories of punishment exist which guide our current criminal justice system: utilitarianism and retribution. These theories guide lawmakers in developing general principles of criminal responsibility.
Utilitarianism
From a utilitarian perspective, punishment exists to ensure the continuance of society and to deter people from committing crimes. The primary utilitarianism objective is to augment the total happiness of the community by excluding everything that subtracts from that happiness. There are three distinct forms of utilitarianism: A.
Deterrence
The theory of deterrence suggests that the pain inflicted upon a person who has committed a crime will dissuade the offender (and others) from repeating the crime. Deterrence hinges around the idea that punishment has to be appropriate, prompt, and inevitable. Deterrence protects the social order by sending a message to the public at large. An English judge once defined the standard long ago when he remarked, "Men are not hanged for stealing horses, but that horses may not be stolen." The general theory of deterrence is further divided into two categories. General deterrence describes the effect that punishment has when it serves as a public example that deters people other than the initial offender from committing similar crimes. General deterrence illustrates punishment delivered in order to send a message to everyone that crime doesn't pay. Specific deterrence describes the punishment of an individual designed to prevent that individual person from committing future crimes. This idea generates from the concept that it is impossible for an individual to commit another crime while they're in prison. Both forms of deterrence as punishment methods are meant to discourage individuals from recidivating.
B. Incapacitathon
Specific deterrence is very similar to and often takes the form of the notion of incapacitation. Incapacitating a known criminal makes it impossible for this individual to commit another crime. If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes which will harm society. The only total, irrevocable punishment is the death penalty. Other punishments, such as imprisonment, produce only partial and temporary incapacitation. Incapacitation, however, does not decrease offenses of convicts who would have not committed additional offenses anyway. Examples of this would include generally law-abiding citizens who committed a "crime of passion" in a specific, non-recurring situation.
C. Rehabilitation
Advocates of the rehabilitative form of utilitarianism believe that punishment will prevent future crimes by reforming prisoners by providing them with skills and assets that could help them lead a productive life after their release. Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society. Rehabilitation seeks, by means of education or therapy, to "bring a criminal into a more normal state of mind and into an attitude which would be helpful to society." Rehabilitation is based on the notion that punishment is to be inflicted on an offender to reform them as to make their re-integration into society easier. This theory is firmly grounded in the belief that one cannot inflict a severe term of imprisonment and expect the offender to be reformed and to able to adjust into society upon his release without some form of help.
Retribution
The theory of retribution is grounded in the belief that punishment of a wrongdoer is justified as a deserved response to a wrongdoing. Unlike utilitarianism, which punishes in order to prevent future harm, retributivists punish because of the wrongdoing. Thus, the criminal gets his "just deserts" regardless of whether the punishment serves to prevent any future crime. An assessment of desert will take into account "both the harm done and the offender's culpability." The focus on culpability is based on the "presupposition that people are morally responsible for their actions, and requires the court to take into account mitigating factors or excuses such as diminished capacity, duress, and provocation." Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it and for no other purpose. There is no exterior motive such as deterring others from crime or protecting society - the goal is simply to make the defendant suffer in order to pay for his wrongdoing. Some scholars believe that it is entirely natural for an individual to seek revenge and retribution when injured or harmed by another. Thus, one of the primary reasons for the existence of retribution as a doctrine recognizes the reality that people often need to be relieved of their need to retaliate against those who have wronged them. In fact, it can be argued that it is potentially harmful to the state if it does not satisfy these needs and urges. If the people are not satisfied, as history has shown, then people will sometimes take the law into their own hands in the form of mobs and vigilantes.
III. Biblical Concepts of Punishment
The Old Testament is replete with references and examples of God punishing the Israelites for their transgressions. In Genesis God defines that punishment is based upon a belief in the sanctity of life. God instructs the Israelites in several places within the Pentateuch that with respect to certain crimes, the penalty shall be an "eye for eye, tooth for tooth, hand for hand, foot for foot." A closer look at this historical tradition, however, seems to teach that this penalty was not to be interpreted literally. Instead, what the Biblical instruction really intended was for the victim of an assault or another crime to receive from the criminal the equivalent value of whatever was taken. Regardless, the "eye for an eye, tooth for a tooth" axiom has become synonymous with harsh retribution and supporters of this theory sometimes justify their viewpoint based on this rationale. As well, how do we properly reconcile the prevailing view under the Mosaic Law with the teaching of Jesus? The scriptures tell us that Jesus asked God to forgive his executioners and promised the repentant thief beside him that they would be together in paradise when being crucified. Jesus also told his followers that they were to forgive their enemies, turn the other cheek when assaulted, refrain from judging others, minister to crime victims, visit prisoners, proclaim release to captives and liberty to the oppressed. All of these concepts seem to be in direct contradiction to the punishment concepts laid out under the Mosaic Law, so analyzing the teaching of Jesus to develop our own theory of punishment would prove worthwhile.
Mosaic Law
According to Hebrew teachings, Moses led the Jews out of slavery in Egypt around 1250 B.C. and received the 10 Commandments from God. The Hebrews then put the commandments and other principles into written form as a code of religious and moral laws known as the Mosaic Law. The laws given were in the context of a treaty with the Israelites so they could live according to God's plan and engage in a meaningful relationship with Him. The Hebrew word law when translated always has a positive meaning and is commonly identified as the term "instruction." The law, therefore, was "like an outstretched finger pointing the direction a person should take in life." The Mosaic Law was explicit in its teaching regarding punishment. The sixth commandment was, "thou shall not commit murder." Accordingly, the punishment for murder was, "he who strikes a man so that he dies shall surely be put to death." There are 36 eight capital offenses under the Mosaic system detailed in the Pentateuch which prescribed the death penalty. The Mosaic Law even prescribed the death penalty for violating the Sabbath. It would seem on first glance that the Mosaic era centered its system of punishment around principles of retribution. The phrase "an eye for an eye, tooth for a tooth" expressed a principle of justice also known as lex talionis, which in Latin translates to the "law of retaliation." The literal meaning of this passage would undoubtedly lead one to presume that this calls for punishment very similar to retribution. Prosecutors have even used the phrase in closing arguments in trials to persuade jurors to return particularly harsh punishments, including the death penalty. Accordingly, "an eye for an eye, tooth for a tooth" is widely understood to equate to harsh retribution pursuant to a mentality commonly referred to as "Old Testament justice." However, what the lex talionis actually called for was simply proportionate punishment commensurate with the crime.
If punishment was to be administered, the guilty man was to receive "the number of lashes his crime deserves." Another passage that disregards the literal interpretation of "an eye for an eye, tooth for a tooth" is illustrated by the decree in Exodus how a "person who injured their servant was to let them go free as compensation." In other words, a free mandate for mutilation was not given. Instead, "the aim was proportionate and not imitative retribution, often by way of compensation or restitution." From this, it appears that punishment should be imposed on an offender - normally and certainly no more than - in proportion to what their offense deserves. New Testament The Old Testament's "eye for an eye" is often contrasted with the "turn the other cheek" compassion of the New Testament. Jesus' teaching in the New Testament never directly concentrates on the subject of what method is best to punish criminals. In fact, it should be noted that Jesus' main teaching point focuses on the unseen, remarking, "My kingdom is not of this world." One of the main scriptural references that is readily apparent, which accurately demonstrates this concept is the thief on the cross: Then one of the criminals who were hanged blasphemed Him, saying, "If You are the Christ, save Yourself and us." But the other, answering, rebuked him, saying, "Do you not even fear God, seeing you are under the same condemnation? And we indeed justly, for we receive the due reward of our deeds; but this Man has done nothing wrong." Then he said to Jesus, "Lord, remember me when You come into Your kingdom." And Jesus said to him, "Assuredly, I say to you, today you will be with Me in Paradise." It is pertinent to recognize that Jesus' assurance of salvation only came into effect after the thief died. It should be noted that Jesus did not restore the thief to his status on this earth, which would have thereby recognized his rehabilitation and repentance for his earthly sins. As shown previously, the concepts of justice and proportionality were recognized under the Mosaic Law, while in the New Testament "the virtues of redemption and forgiveness are frequently extolled." Therefore, what the Old Testament says has to be tempered by the examples of mercy shown by Jesus. Christian interpretation of the biblical passage regarding the "eye for an eye, tooth for a tooth" passage has been heavily influenced by Jesus' Sermon on the Mount. Jesus urges his followers to turn the other cheek when confronted by violence: "You have heard that it was said, 'An eye for an eye and a tooth for a tooth.' But I say to you, offer no resistance to one who is evil.
When someone strikes you on your right cheek, turn the other one to him as well. If anyone wants to go to law with you over your tunic, hand him your cloak as well. Should anyone press you into service for one mile, go with him two miles. Give to the one who asks of you, and do not turn your back on one who wants to borrow." Analyzing this passage would assuredly lead one to conclude that Jesus' teaching does not promote a system of justice analogous to the retributive principles discussed previously. Another New Testament passage that is relevant when analyzing how punishment should be considered is the story of the man and woman caught in adultery: At dawn He appeared in the temple courts, where all the people gathered around Him, and he sat down to teach them. The teachers of the law and the Pharisees then brought in a woman caught in adultery. They made her stand before the group and said to Jesus, "Teacher, this woman was caught in the act of adultery. The Law of Moses commanded that such women be stoned. But what do you say?" This they said, testing Him, that they might have something of which to accuse Him. Jesus bent down and started to write on the ground with his finger, as though he did not hear. When they kept questioning Him, He straightened up and said to them, "If any one of you is without sin, let him be the first to throw a stone at her." Again He stooped down and wrote on the ground. At this, those who heard began to go away one at a time, the older ones first even until the last. And Jesus was left alone with the woman standing in His midst. Jesus straightened up and asked her, "Woman, where are they? Has no one condemned you?" She said, "No one, sir." Then Jesus said to her, "Then neither do I condemn you; go now and sin no more." This passage typifies Jesus' message of forgiveness and redemption. It is hard to justify condemning a person for any offense in light of Jesus' teaching here.
This passage conveys that Jesus personified the message of hope and compassion to those who are perhaps undeserving. I personally believe that Jesus' teaching here was a message to the people that they had perhaps taken the Mosaic Law out of context over the years. Assuming this proposition to be true, it would be hard to rely on the Mosaic Law as a justification for any of the punishment methods in our current society. An additional passage that could be interpreted with regards to those incarcerated is Jesus' teaching describing how He will separate the "sheep from the goats" based on how people treat others: Then the King will say to those on his right, "Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me." Then the righteous will answer him, "Lord, when did we see You hungry and feed You, or thirsty and give You something to drink? When did we see You a stranger and invite You in, or needing clothes and clothe You? When did we see You sick or in prison and go to visit You?" The King will reply, "I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for Me." Jesus' teaching in this passage is in direct opposition to anything resembling an "out of sight, out of mind" approach to leaving prisoners detained for incapacitation or specific deterrent reasons. Instead, Jesus directly mentions the virtue of visiting prisoners while they are incarcerated and maintains that the righteous are those who remember to consider the individuals who society has forgotten. Taken as a whole, it seems at the very least Jesus warns against not having compassion for those in prison. Jesus' entire message focused on love and forgiveness. When Christ was executed, he gave a model response to his enemies in His dying words: "Father, please forgive them." Before God, all of us are accused and found guilty. This alone stands for the assertion that all of us fall short of God's grace in many ways, yet Jesus through his divine love still finds the compassion to plead for our forgiveness. Given this, I believe it should be hard for any man to stand in judgment against another. Jesus imparted this knowledge in the Sermon on the Mount: "Judge not, or you will be judged. Condemn not, and you shall not be condemned. Forgive, and you will be forgiven." Based on this, it should be hard for Christians to justify punishment based on traditional retributive principles of letting those harmed seek retaliation in response to a wrongdoing.
Ancient Israel
When interpreting the Mosaic Law it is important to consider that their society was far different from our own. Most religious scholars believe that God revealed to Moses the Torah around the thirteenth century B.C. It was not until the fifth century B.C. that the Hebrews actually put the commandments and other legal principles into written form. According to Jewish tradition, the written Torah was never meant to be read entirely by itself. Rather, it was the starting point for learning the Oral Law, which supplemented the written text in many ways. Considering this, scholars believe that most of the seemingly harsh criminal laws were never applied literally. As such, an "eye for an eye" was never meant to include an actual maiming of an offender. Rather, it called for the monetary compensation for the value of the victim's lost eye. Likewise, there were many significant evidentiary and procedural safeguards for criminal defendants that caused a court to rarely carry out the death penalty, believing God was better suited to "settle accounts." Restitution, rehabilitation, and atonement were paramount considerations regarding criminal punishment - not retribution - contrary to what would likely be assumed given the explicit meaning of "an eye for an eye." Moreover, prison as a method of punishment was virtually non-existent. The use of prisons was limited primarily because the retributive aspect which is so prevalent in our system was not subscribed to as a reason for punishment. That being said, the idea of a violent criminal being able to roam free in the city while trying to make restitution is an absurd idea. It is for this reason why "cities of refuge" were implemented where manslayers were exiled.
IV. Imprisonment as a Form of Punishment in the United States
What is the true aim of our prison system? Some would argue that it is to punish those who have committed wrongs asserting the theory of retribution as justification. However, the more important goal of prisons, arguably, should be in rehabilitating and reintegrating criminals to function in society. John Braithwaite is a renowned scholar and proponent of the restorative justice movement. Braithwaite's hypothesizes in his book Crime, Shame, and Reintegration that fear of shame and having pride in being law-abiding should be the major social forces for preventing crime, but modern criminal justice has become "severely disconnected from those emotions." Instead, the criminal justice system often creates "anger and indignation at the state for offending citizens' dignity in response to the inhumane conditions of prison life." To further support his theory, he invokes the New Testament theory of "hating the sin but loving the sinner." In large part, this rationale is maintained by our increasing reliance on confining individuals within a penitentiary for wrongdoing while having virtually no alternate forms of punishment.
Theory of Incarceration
The overarching remedy in the United States is to punish people when they commit crimes through incarceration. Restitution is sometimes included, although most often it is afforded as a civil remedy and is not considered in the criminal context. As Americans we pride ourselves in our freedom and our ability to freely engage in the "pursuit of happiness." Perhaps the reason we rely so heavily on threatening offenders with incarceration is because by doing this society is effectively taking away a fundamental privilege enjoyed by every American citizen. However, it would unquestionably be wise if legislators and policymakers would evaluate if incarceration is indeed the only way to achieve the objective of discouraging crime. A prevailing view among the law enforcement community reflects the attitude "if you commit the crime, you do the time." Once a person willingly engages in an activity that is prohibited by law we feel that person has subjected itself to the absolute certainty of imprisonment if apprehended. Once incarcerated the prisoner will spend their sentence in the hostile environment of a penitentiary awaiting either parole or release, often subjected to violent crimes from other inmates which are sometimes ignored by prison officials. Our prisoners often face degrading living conditions, filled with overcrowding and a general atmosphere of brutality of physical and sexual violence. These conditions undoubtedly create stress, fear, and anger which promote dysfunctional behavior that is damaging and dangerous to society once the prisoner is released. According to Michael Foucault, given the isolation, boredom, and violence prisoner's face, "the prison cannot fail to produce delinquents." As noted previously prison was almost completely ignored in Ancient Israel as a method of punishment. The Israelites did not see any objective to locking someone up in a cell without using this time to make them more productive members of society. One flaw of our system that was recognized with the Ancient Israelites centuries ago was the benefit of segregating criminals within the cities of refuge based on the degree of offense. Only negligent killers were allowed asylum in the cities of refuge, while intentional and reckless killers were not afforded this privilege. In our current system violent criminals often are interspersed with other offenders who are confined for far less serious offenses. Empirical studies have shown that recidivism rates are far lower if low-risk offenders are segregated from more serious offenders.
A Debt Owed to Society
It is often said that a criminal who has served a term of imprisonment has "paid his debt to society." In almost every case, however, the crime usually involves the criminal offender and some victim. Notwithstanding, society as a third party intervenes and our concept of justice revolves around payment to, it as opposed to the victim. Victim participation, from arrest to sentencing, needs careful examination as to what extent the government should actually play in these roles. The idea that the criminal pays a debt to society when punished assumes that "all members of society have made a tacit promise to obey its laws that they have broken." They then pays this debt when the "compensates society for their broken promises." This assumption presumes a membership that is not "voluntary which cannot be avoided and implies a promise made without assent." So, if the criminal did not "technically promise to do anything, the lawbreaker had no promise to keep, and therefore no debt to pay." For this reason few offenders accept punishment and even fewer repent of their offenses. Our system has lost sight in many respects the role of the victim in most crimes. For instance, with most thefts monetary restitution is usually neglected in our present legal practices. Punishment is not concerned with the actual loss or damage caused by the prohibited act, but only with the integrity of preserving the legal order. The punishment threatened by society proclaims the wrongness of the act and seeks to deter potential offenders, rather than actually compensate individual victims. If society is to be compensated for anything it should be for the breach of its peace. Our criminal justice system knows no other remedy except imprisonment in order to punish for crimes which possibly could be satisfied by alternate means.
Restorative Justice
Restorative justice is a growing movement that involves an approach which strives to maximize forgiveness, hope, and a positive outcome for all parties. The Dalai Lama is a strong proponent of restorative justice, and has taught that "the more evil the crime, the greater opportunity for grace." In the words of the Dalai Lama: "Learning to forgive is much more useful than merely picking up a stone and throwing it at the object of one's anger, the more so when provocation is extreme. For it is under the greatest adversity that there exists the greatest potential for doing good, both for oneself and for others." Advocates of restorative justice see "crime as an opportunity to prevent greater evils, to confront crime with a grace that transforms human lives to paths of love and giving." Current restorative justice philosophy centers around "bringing together all stakeholders to engage in neutral dialogue regarding the consequences of the injustice which has been done." These stakeholders meet in a circle to discuss how they have been affected by the harm and come to some agreement as to what should be done to right any wrongs affected. The key component to restorative justice is that it is wholly distinguishable from punitive state justice. Restorative justice is about healing rather than hurting. Responding to the hurt of crime with the hurt of punishment is rejected because the idea is that the "value of healing is the crucial dynamic." The restorative justice movement has been growing in strength, although there are different and conflicting conceptions of what exactly the concept entails. The central theme is a process of reparation or restoration between offender, victim and other interested parties.
Rehabilitation
As a society we must help alienated people by reviving their dignity and giving them the skills and knowledge to help themselves. Through education and job training, criminals can have the power to take control of their own life and contribute to the community when they are released. Once able to contribute to the community, a person will feel a sense of ownership to the community. They will therefore want to protect the community, and uphold its laws. In short, a criminal with the right rehabilitation can be turned from a menace to society into a very valuable asset. The primary goal optimally should be the reintegration of the suspended individual back into the main stream of life, preferably at level greater than before. Many individuals after their stint in prison try to make it on the outside, but sometimes have to resort to committing more crime in order to survive. Most convicts have no money, education, or training and have a "stigma of being an ex-convict" which makes finding employment all the more difficult. Most of those who are caught and convicted are released either free or on probation at some point. However, they rarely receive the benefit of treatment. A prisoner who is not given the chance to get an education, receive job training, and have healthy interactions with others is likely to walk out of prison in worse shape than when he went in. Conversely, after undergoing effective reform programs and treatment, he could hopefully have a positive impact on the community when he re-enters. The true aim of our prison system, therefore, should be to reform and rehabilitate criminals, not simply to punish them.
VI. Conclusion
Policy towards offenders has grown more punitive, and thus more retributive, over the last few decades. Most states and the federal government have instituted mandatory sentencing guidelines, the lengths of sentencing has grown tougher, and harsher penalties have been imposed reflecting this retributive shift. As a result, the prison population has exploded out of control and the rate of incarceration has increased exponentially. Considering the amount of individuals who have spent time in some form of a correctional facility within the United States, we must collectively assess what we realistically expect of these people after they are released. This article is not advocating that we incorporate implicitly the techniques used by the Ancient Israelites such as the cities of refuge or involuntary servitude because these methods are likely outdated. Rather, it is suggesting that anyone using a conception of punishment based on strict principles of harsh retribution using "Old Testament justice" as justification are relying on a misguided view. Although popular perception might be that the Ancient Israelites used harsh retribution as the cornerstone for meting punishment, a closer examination indicates that rehabilitation and restitution were their primary goals. As such, while specifically incorporating their ideas such as the cities of refuge might be impracticable in our current society, their underlying ideas for their use may not be. Surrounding criminals with positive influences, preserving a humane environment for prisoners, protecting their physical safety, allowing for opportunities for education, and an increased reliance on intermediate forms of confinement are all factors that might serve to collectively improve the U.S. penal system. These are all utilitarian objectives aimed at improving society, so abandoning the notion of retribution as punishment might be required under a Biblical conception. Moreover, while the teaching of Jesus focused on the eternal concepts of life, it is undeniable that His message included the virtues of exhibiting grace and mercy to those undeserving. Therefore, locking prisoners in an inhumane environment with absolutely no consideration for their well-being is in direct contradiction to the teachings of Jesus. Jesus taught that his grace and love is available for anyone who will receive Him. The scripture never indicates that there is anyone who is beyond the infinite love of the Savior of our world. Accordingly, anything akin to an "out of sight, out of mind" approach to warehousing criminals in a cruel and callous environment assuredly cannot be justified pursuant to the teachings of Jesus.
About this Author
Carl David Ceder is passionate about reading about ancient times and comparing it to many modern day problems, please visit his website at http://www.CarlCederLaw.com or http://www.TheDFWDefender.com.
