The Tender Mercies of the Wicked

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Introduction

Our criminal justice system is one that defiles both the jailers and the jailed. It affects the jailers negatively, and the society the jailers represent, because of its manifest injustice. It defiles the jailed because we have just sentenced them to three years in a graduate school for crime—and most of them were not in a good position to start with.

Now I should acknowledge at the outset that there are men in these prisons who have done heinous things, and consequently are serving a life sentence with no possibility of parole, and who are getting something that is far better than they deserve. As will become apparent, I am not urging prison reform through the mollycoddling of anybody. What I want to argue for is going to seem far more severe, but it is actually going to be more measured and just. Stick with me. If that is too much, try to stick with me.

Around 2 million people are currently incarcerated around the United States, locked up in dog kennels. Two million. That is the equivalent, taken together, of the populations of Wyoming, Vermont, and Alaska. But they are out of sight and out of mind. This means that we can kid ourselves, and assume that of course we are being benevolent, enlightened, humane, and very modern. But I don’t believe that this is how it comes out in practice.

A False Savior

Our dog kennel system certainly had noble purpose at the beginning. Consider what we call our prisons—they are penitentiaries. They are places for the recalcitrant to housed in order that they might become penitent. We first started calling them penitentiaries in the late eighteenth century as the result of some prison reform movements. This desire, fueled by a spirit of Uplift, ended up turning our criminal justice system into a false savior.

The goal became “fixing” the prisoner by means of hard work and solitude—so he could reflect on his misdeeds, and ascend to a higher version of himself. But false saviors always let you down, and this one was no exception. The prisons before all this happened were in need of reform, certainly. They were filthy and brutal, but what we have done is replace them with a gigantic system that is sterile . . . and brutal. We didn’t fix what we thought we were fixing.

So before proposing an alternative, we should really take a look at the criminal penalties found in Scripture.

The Range of Biblical Penalties

The first thing to do is to take a look at the range of penalties for criminal behavior in the Bible. When we do this, one of the things that jumps out at us is the fact that imprisonment as a form of punishment is not one of them. It is entirely absent.

There are jails in the New Testament, but we find out about those because it is the kind of place where apostles keep finding themselves. There are pagan jails, for example (Acts 16:23), and the jail run by the corrupt Herod (Acts 12:4), but even those don’t appear as places where the restraint is the punishment. Peter is put in jail until his trial. And Paul and Silas were not sentenced to a term in jail—it was a place to house them while decisions were being made—in their case, a decision to let them go.

And this would be in accordance with biblical law. To hold someone briefly while you figure out what to do is certainly acceptable.

This is entirely reasonable. If you need to hold a trial, and if the accused is a genuine flight risk, then keeping him “in ward” is a reasonable thing to do. But only if there is going to be a swift trial. That will result in a verdict, in a decision. And among the options we do not find the idea that the accused should be sent back to prison.

What do we find?

Capital Punishment

Most people are aware that “death” was one of the penalties that was lawful to apply in the time of the Old Testament. Indeed, I think a lot of people believe that stoning was the way they handled most things back then, which is wildly inaccurate. But by the same token, death certainly was one of the options for certain specified crimes.

Banishment or House Arrest

Because of Abiathar’s involvement in the revolt of Absalom, Solomon could have dealt with him very severely. He could have been executed by Solomon, justly, but Solomon shows mercy on him . . . by making him stick to his “own fields.”

He does the same thing with Shimei, who sinned grievously by cursing David as he fled from Absalom, going out from Jerusalem. David asks Solomon to deal with him as a bit of unfinished business, and Solomon does this by restricting Shimei to Jerusalem.

There is a variation on this in the institution of the cities of refuge. If a person were guilty of manslaughter (not premeditated murder), he could flee to one of the six cities of refuge, and he had to remain there until the death of the high priest (Num. 35:6). This was not punishment of the offender directly, but rather was a method that God was using to tap the brakes on the practice of the “blood avenger.”

And the expression “cut off from among the people” appears to be one that can cover a range of penalties, but banishment or exile would certainly be among them.

Flogging

Another penalty, significantly less severe, was flogging. While this is objectively less severe than most of the other options, it strikes the modern enlightened mind as being simply brutal. It is an old school approach to the problem.

Fines for the Sake of Restitution

When the crime was a crime involving property destruction or loss, the penalty was restitution plus interest. Depending on the nature of the object lost, the restitution amount could vary. If the thief busted himself, it could be the replacement cost plus twenty percent (Lev. 6:1-5). There were times when it was double (Ex. 22:4), or it could go up to a four or five-fold restitution (Ex. 22:1). So the person responsible for the loss was not only to make up the principal, but also for the loss of time, and all the opportunity costs. In this system, the “fines” applied went to the victim of the crime, and not to the state.

Enslavement for the Sake of Restitution

But there were other times when the thief had no resources for making the needed restitution. Since the only resource he had was time, he was enslaved for a time, until such time as the victim was fully restored. Keep this principle in mind as we will look at it again when we get to my proposal.

A Proposal

Let us begin with the death penalty. Because we refuse to execute the dangerous people who really should be executed, we wind up having to protect the general population by locking them up, and this has drifted into the practice of locking everybody up. This creates a huge apparatus of injustice.

The death penalty should be applied to violent criminals—murderers (Ex. 21:12), rapists and kidnappers (Ex. 21:16), abortionists (Ex. 21:22), and so on.

For all crimes of fraud, theft, or property damage, there should be no imprisonment simpliciter. Upon conviction, the criminal must pay restitution to the victim plus whatever extra amount is assigned by the court. If he has a rich uncle who pays for him, he goes free. If the theft was high-handed and impudent, he goes free after a flogging. Because public flogging strikes us as inhumane, run this thought experiment. Ask one thousand men serving time for a property crime of some sort which punishment they consider to be more inhumane—twenty strokes or three more years?

If the criminal does not have the wherewithal to make restitution, he goes to a prison that is factory of some sort. His tenure there is determined solely by how fast he can make restitution. He has the option of sending one third of what he makes to support his family outside. Another portion reimburses the state for his upkeep. The remainder goes to the victim. Working overtime is encouraged, and all the proceeds from this overtime work goes to the victim. When the victim receives the full amount of restitution, plus the additional amount assigned by the court, the prisoner goes free.