This one is a bit off the beaten path for me, but since the topic of biblical justice is important to me, I have been thinking for a while about jail. Perhaps it was brought to mind as a friend from a past life was paroled after spending nearly a decade of his life in prison.
Prison is supposed to be humane in comparison to older forms of punishment. The idea of a “penitentiary” is that a penitent could learn the errors of his (or her) ways and perhaps get some skills that would help them rebuild a life in the future. The logic of putting a bunch of criminals in an environment where they are mainly surrounded by other criminals in order to rehabilitate them is pretty much on par with the idea that we could put a bunch of teenagers into a giant building filled mostly with other teenagers and they would emerge as mature adults. But that’s a discussion for a different time.
As I was saying, I was thinking about how prisons are supposed to be humane, but if I had done something stupid, like getting drunk at a bar and picking a fight and busting the place up, and was given a choice between an indeterminate prison sentence or a weekend in a pillory at the public square where I could be pelted by kids wielding rotten vegetables, not only would I choose the weekend in the pillory, but I would probably be more cautious about my alcohol consumption in the future. In other words, while prison is supposedly humane, my suspicion is that an awful lot of law-breakers would prefer a punishment like caning than a prolonged incarceration. And that really got me wondering if prisons are useful at all.
There are over 1.2 million people incarcerated in the United States, according to the geniuses at Google. At the state level, each inmate costs between $60,000 up to $280,000 per year in food, shelter, guards, building, utilities, and health care. Federal prisoners come in at a lower average of $36,000-$44,000 per year. This is a significant chunk of change and actually increases the burden society bears as a result of law-breaking. It seems foolish to me to allow law-breakers to further their negative impact on society by choosing a form of punishment that punishes law abiding tax payers more than it punishes the law breaker.
The question before us is “What is the purpose of a sentence passed on a law-breaker?” In the West, two concepts guide our thinking: 1) the punishment must fit the crime, and 2) no cruel or unusual punishment. My theory is that mass incarceration has come about as a means of avoiding cruel and unusual punishment. While I could agree with both of these principles, neither one directs us to the more compelling question, which is “What is the goal of a sentence passed on a law breaker?” The two-fold answer to that question should be (in my opinion) that the guilty party make restitution, and that the guilty party experience a punitive consequence beyond restitution.
So for a few minutes, I’d like to imagine a world with very few prisons. What would happen to law breakers?
Prisons in the New World
Prisons would still have to exist, but they would exist primarily to hold those who had been arrested but not yet brought to trial. Some people would be released on bail (the way we currently do) and some people would be such flight risks or menaces to society that they would need to remain imprisoned until trial. So prisons would exist, but they would be temporary holding places, not prolonged residences. This would also mean that trials would need to take place more expeditiously than the current situation.
Restitution
The first goal behind every punishment should be that the guilty party make restitution. Most crimes have a victim, and the victim should be compensated by the guilty party.
Crimes that involved theft or damage to property would require the guilty party to pay full restitution plus whatever damages were assigned by the judge. Because it is possible to steal significantly more than a thief could potentially pay back, there are a few scenarios that need to be explored. One scenario is where wages could be garnished such that the guilty party could still support himself and his family at a minimum level, while anything over that amount would go towards restitution and damages. We already do something similar with wage garnishment for child support, so this is theoretically possible.
But what about a sum that is so significant, the likelihood of making restitution within a lifetime would be pretty minimal. In the Old Testament, an inability to make restitution could result in the guilty party selling himself as a slave, and while that sounds terrible to our modern ears, I’m not sure it’s as bad as being locked up away from your family for 15-20. At least the slave had access to family and society. A modernized version of this could be something like a work-release program. We have lots of people going around saying that there are jobs that only illegal immigrants would do….why not illegal citizens?
Crimes involving bodily harm could be assigned monetary values in the same way that civil courts assign damages. Loss of income due to recovery time would be relatively easy to calculate. Harder to calculate, but still possible, would be permanent disabilities and incapacities as a result of violence. I just have to believe that the victim of a violent attack would be better off receiving monetary compensation from the guilty party. And I also have to believe that hotheads might suddenly find their self-control if they discover that the consequences of their anger is that they have to pay the very person with whom they are angry.
One unfortunate reality of our modern world that the old world didn’t have to contend with is the epidemic of narcotics. (I don’t think alcohol is a fair comparison as a matter of relative damage). Since restitution lies at the heart of what I am proposing, this isn’t as clear cut to me, but since this is a communal corruption perhaps the restitution should also be a communal endeavor, such as required community service. Drug trafficking that results in death or injury should be treated as murder/assault.
Punishment
The second goal in assigning a consequence for a crime would be punitive. Law breakers should feel the pain of their actions. One way this can be accomplished is simply by increasing the restitution paid to victims, such that a thief would have to make full restitution plus twenty-five percent. This principle could apply to a variety of crimes in appropriate ways, and the additional payment could go towards victims, court fees, local municipalities, etc…
Crimes involving violence require more than a monetary restitution. A lot can fall under the heading of violence – anything from a rumble on the lawn to much more serious and heinous acts. This is, of course, where good judges would come into play. Murder, rape (including child molestation), and kidnapping should all receive the death penalty. This would obviously expand the range of capital punishment, but it would solve a lot of problems.
Other acts of violence, such as the youth rioting we see in major cities, requires a punishment significant enough to deter future bad behavior. Maybe these kids should have to wear pink T-shirts that say “I will learn to control my temper” while cleaning up the streets on weekends for the next three months. I think we should be able to get creative.
The expansion of capital punishment would also include repeat violent offenders who simply could not be trusted to live in society without endangering others. If an individual is so dangerous that the only remedy is to lock him away for the rest of his life, then his life is already forfeit in every meaningful way.
Conclusion
There is nothing more inhumane that the tender mercies of the foolish, and our current prison system is evidence of that. Keeping men and women in captivity for prolonged periods of time neither brings about restitution nor changed behavior. Instead, it traps individuals into a way of life from which escape is difficult. Society’s response to criminal activity should involve restitution to the victim and reasonable punishment that deters future law breaking.
Nathan Writes 