I told them [the Texas legislature] that the only answer to the crime problem is to take nonviolent criminals out of our prisons and make them pay back their victims with restitution.
—Chuck Colson, Transforming Our World (1988)
But modern man believes that he is wiser than God. . . .
So he relies on prisons to do the work of restoration
—Gary North, Victim’s Rights (1990)
We are often told that the 13th Amendment abolished slavery in the United States. This isn’t completely true. What the Amendment actually says is this:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The 13th Amendment still allows for involuntary servitude, slavery, as a punishment for certain crimes. It doesn’t specify the nature of this service, but the courts have assumed it includes, at the very least, incarceration for certain felonies. After all, by 1865 penitentiaries were firmly entrenched in the American justice system.
The 19th century American penitentiary differed from all earlier prisons. It wasn’t designed to punish the inmate but to move him toward spiritual reflection, conviction and reformation. The key to this reformation was complete isolation. The inmate was to be left alone with a Bible and a bit of manual labor. Thus abandoned to his thoughts and the Word of God, the prisoner would surely face his guilt and respond with revulsion and regret. He would become a true penitent.
But if that should fail, the grim décor and terrible isolation of the penitentiary would surely instill in each inmate a total horror of the place … no one would ever want to come back to the unimaginable loneliness of the monastic prison.
This was prison reform . . . in 1829. From there, America’s prisons have only become study centers for evil.
Restitution and Restoration
Israel’s civil laws have often been called brutal and barbaric. But Israel had no prisons and she no jails. The Old Testament penal system didn’t use isolation or psychological torture to rewrite the character and personality of the convicted criminal. In fact, Israel’s civil laws show only an indirect concern for the reformation or rehabilitation of the lawbreaker. As far as Scripture is concerned, such matters are not the business of the State. Scripture leaves the cure of souls to the Gospel ministry.
The Mosaic laws had as their chief concern the welfare of the victim, not the criminal. The sanctions prescribed by the Mosaic law emphasized restitution to the victim and the restoration of the society to good and peaceful order.
Restitution and Penal Service
The Mosaic law designated multiple restitution as the proper punishment for theft (Ex. 22:1-4). If the thief was caught with the stolen goods, he had to make two-fold restitution. That is, he had to give back what he stole and an equivalent amount in goods or money. If he stole one sheep, he had to restore two. But if the thief had destroyed what he had taken, or put it beyond recovery, then the level of restitution went up … four sheep for a sheep and five oxen for an oxen.
If the thief could not make the payment, he would be sold into penal service, and the price of that service would go to the victim. The length of service would be proportional to the value of the thing the thief had stolen. His labors would pay off the debt he now owed his new employer.
The thief would serve in the employ of a private citizen and in the context of that man’s family and local community. He wouldn’t be shut off from his wife and family or from public worship. He would be exempt from any work on the Sabbath day. And when his debt was finally paid, he was free.
An Eye for an Eye
The maxim, “an eye for an eye,” appears three times in the Mosaic law. It was meant as a limit on the penal sanctions the magistrate could impose. “An eye for an eye” simply meant that the punishment had to fit the crime. The magistrate was to respond to a criminal act with proportionate sanctions. For example, he should not strike out an eye for a tooth, or take a life for a hand. And certainly he should not incarcerate when he ought to require restitution to the victim.
There is a larger issue here, one that C. S. Lewis addresses in his essay, “The Humanitarian Theory of Punishment.” The limitation of “an eye for an eye” forbids the State to engage in efforts of rehabilitation, remedial treatment, or regeneration. These are not punishments, let alone aids to restitution. They are a confusion of church and State. They are attempts, not simply to supplant the Gospel ministry, but actually to play God by attempting to give men new natures. When the State gets in the regeneration business, it necessarily fails. In fact, it becomes the worst kind of tyrant.
Punishment or Rehabilitation?
If crime is a legal matter, then the law-breaker is objectively guilty. He deserves to be punished. And he deserves to be punished according to the nature of his offense. He deserves no more punishment than his crime merits and no less.
But if we interpret crime as a psychological phenomenon, the law-breaker is merely sick or maladjusted. He doesn’t deserve punishment at all. He needs to be rehabilitated. Think about it … we can never have perfect knowledge, and no one can say how long something nebulous like that might take or exactly what steps it might require. So, for the ostensible good of society the system attempts a cure outside of God’s prescriptive mandate.
In That Hideous Strength, C. S. Lewis has one of his villains speak along these lines:
For desert was always finite: you could do so much to the criminal and no more. Remedial treatment, on the other hand, need have no fixed limit; it could go on till it had effected a cure, and those who were carrying it out would decide when that was (69).
In his essay, “The Humanitarian Theory of Punishment,” Lewis writes:
To be taken without consent from my home and friends; to lose my liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver; to be re-made after some pattern of ‘normality’ hatched in a Viennese laboratory to which I never professed allegiance; to know that this process will never end until either my captors have succeeded or I grow wise enough to cheat them with apparent success—who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared—shame, exile, bondage, and years eaten by the locust—is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard.
In all of this Lewis is not imagining that the psychotherapists and sociologists involved will be particularly evil men. They may regard themselves as very good men. They may be idealists. They may sincerely want to do us good.
Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
The Mosaic law allowed and regulated five different types of bond service: penal service to make restitution for theft was the first. It was truly humane because it was authorized by God Himself and treated both the thief and the victim as the image of God. It allowed the truly penitent thief to work off his debt in a godly environment and then return with better work habits and self-discipline to his role in society. The impenitent thief would also be released in due time with his heart unchanged. And the magistrates had to leave it at that. The State has no powers of regeneration.
The natural man, however, is unsatisfied. He hates God’s justice and God’s prescribed sanctions. Of course he’s always wiser, more merciful, and more effective than God. And so we have prisons that are in fact, if not in name, a most degrading, depraved, and useless sort of slavery. “The tender mercies of the wicked are cruel,” Proverbs tells us (12:10). The rejection of biblically defined penal service and the substitution of the modern, humanist prison is one more telling example of this.
For Further Reading:
Rousas J. Rushdoony, The Institutes of Biblical Law (N. p.: Craig Press, 1973).
C.S. Lewis, “The Humanitarian Theory of Punishment” in God in the Dock (Grand Rapids: William B. Eerdmans Publishing Company, 1970).
C.S. Lewis, That Hideous Strength (New York: Macmillan Publishing Company, 1946).