Crime and Punishment – some preliminary considerations
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Dictionaries / Encyclopaedia of Ethics / Philosophy
G L Bahnsen – No Other Standard
Fagothey – Right and Reason - chapter 26
James Jordan – The Law of the Covenant
Hugo Bedau – Stanford Ency – “Punishment”
James Fiesler – Internet Ency Phil – “Capital Punishment”
Hugh LaFollette – Ethics in Practice – 463-510
Peter Hitchens – The Abolition of Liberty
C S Lewis - That Hideous Strength
http://www.families-first.org.uk/index.html
Charles Logan http://www.adamsmith.org/images/uploads/publications/Privatising_Prisons.pdf
“Emily Kingham's” Notes from a Prison for Social Affairs Unit – online
Gary North - http://www.lewrockwell.com/north/north407.html
Gary North – “Prison” in Tools of Dominion, pp.405-11
Norman van Cott article – with comments - http://www.mises.org/story/2065
Vern Poythress – The Shadow of Christ in the Law of Moses
Conservatives’ recent policy document: http://tiny.cc/XWmyk
1. Sins and Crimes
Distinct categories
If we are forgiven by God for sin, should we still be punished by humans for crime?
Does conversion to Christ commute criminal sentence?
Did Christ bear our civil penalties?
Do all civil penalties for Christians become, like all affliction, non-penal discipline which is
imposed to purify not to punish?
Though, acceptance of those civil penalties would be right
a) as a sign of repentance and
b) as a witness to others (Matt 17).
2. A definition of punishment (IVP Dict)
“the intentional infliction of pain by a legal authority on persons who, capable of choice, have
breached established standards of conduct”
3. Why punish?
1. Justice – backward-looking. Deontological. “Restoring the balance upset by crime … reestablishing the equal balance of justice which has been outraged.” Restoration of order.
2. Utility – forward-looking. Utilitarian.
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Plato – quoted in Fagothey 420: (Protagoras §324)
"No one punishes the evil-doer under the notion, or for the reason, that he has done
wrong; only the unreasonable fury of the beast acts in that manner. But he who desires
to inflict rational punishment does not retaliate for a past wrong which cannot be
undone; he has regard to the future, and is desirous that the man who is punished, and
he who sees him punished, may be deterred from doing wrong again. He punishes for
the sake of prevention."
Thus the assessment of proposed punishments may fall under two questions:
- is it just?
- does it work?
“Recent attempts to avoid this duality in favor of a completely different approach have yet to
meet with much success.” Hugo Adam Bedau
Purposes served by punishment:
a) Incapacitation
b) Deterrence
- the individual
- others
c) Reform / rehabilitation
d) Retribution
What learn about punishment from hell?
a) Incapacitation
b) Retribution
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Dt 21.22, 25.1-3 Lk 23.41 Rom 1.32 Heb 2.2
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merely revenge? “rationalization of vengeful feelings” (Rachels).
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Principle of desert. Revenge aims at the emotional pleasure one gets from
hurting an enemy, retributive punishment at securing justice simply.
(Fagothey, 421)
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“approves of increasing the amount of suffering in the world” – Bentham – “all
punishment is mischief: all punishment in itself is evil”
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what purpose does it serve?
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none needed – principle of desert
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restores the balance / the order of things
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reinforces values / constitutes society’s ‘denunciation’ of crime
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affirms responsibility of the criminal
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reasserts the authority of the law-giver
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satisfies victim’s / righteous desire for redress
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vindicates the rights of the offended
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manifestation of God’s wrath – testimony to his righteousness
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way of preventing outbreak of God’s wrath against the community
(unpunished crime offends him). Guards the order and security of society.
Land cries out etc
Who decides?
c) Reform / Correction / Penitentiary / Rehabilitation
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If primary purpose of / reason for punishment does this determine severity of sentence?
Might there be more effective ways of reforming?
Hebrews 12, Proverbs 22.15 (corp – 10.13, 13.24, 18.6, 19.18, 29, 26.3, 29.15, 17,
23.13-14), I Cor 5.5; 2 Cor 2.5-11
Who decides when it has worked?
d) Deterrence
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If primary purpose of / reason for punishment does this determine severity of sentence?
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Might there be more effective ways of deterring? (e.g. punish a family member)
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Proverbs 22.15. Deut 13.11
e) Assessment
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Retribution may not be uppermost in mind but it must be present: otherwise the infliction
of any punishment is morally wrong:
Capital punishment shows that correction not the essence of punishment.
"Punishment shd be proportioned to the crime. But if the corrective and deterrent
functions of punishment were the only ones, punishment should be proportioned to
those." (Fagothey)
"It is immoral to punish unless the accused is guilty, no matter how much good the
infliction of pain may do him or society." (Fagothey)
See attached extract from James Rachels, “Punishment and Desert” in LaFollette, pp.466-74
4. Limits of punishment (IVP Dict)
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Public Notice of Offenses
Authority to Punish
Guilt
Reasonable Certitude
Equitable Administration
Proportionality
Not “cruel and unusual”
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5. Forms of punishment
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on body – corporal and capital punishment (Dt 25.1-3; Prov 19.29)
on property - restitution, fines, property forfeiture and restrictions on employment/licensing
on free movement – prison – see below
on reputation - shaming
6. Prisons
Joseph, Jeremiah, JB, Christians, debtors
Artax tells Ezra to use prison - Ez 7.26
Prison as fact life - Ps 146.7-9, Is 61.1-2
Not legislated for in Mosaic code as a penalty – wilderness community?
Are they just?
Do they work?
Main biblical objection – they restrict ability to make restitution which itself is a basic principle
of the criminal justice system
UK - £25k p.a., 75-80,000 prisoners
7. Restitution / reparation / repayment
Part of retribution:
"For the injury done to the individual the offender is obliged to make restitution or
compensation for the loss inflicted. This is only part of what is demanded by justice, for it
merely restores things the way they were before the offense. It involves no payment for the
crime as a crime and therefore is not punishment." (Fagothey, 419)
Ex 21.18 – 22.7 Lev 24.17-21 Deut 19.21
NT – Zacchaeus; the cross?
No forgiveness apart from restitution?
Restoring relationships …
8. Victims’ Rights
God as the primary victim?
Earthly victims of crime his reps?
Victim
- may forgive – Jesus to executioners
- may cancel debt – Matt 18
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may choose not to prosecute – Joseph / Mary
‘love covers a multitude of sins’. God and Israel in Hosea?
are Christians allowed to prosecute? (on what grounds?)
1. don’t resist evil – because God will sort it out and has appointed the
state to deal with it
2. worried about retribution as such? don’t
3. do all things from love – would there ever be loving reasons to
prosecute?
Forgiveness
When, after a high profile crime such as the murder of Anthony Walker, there is a
public announcement by the victim or relatives of the victim that they "forgive" those
who committed the crime, there is considerable room for confusion.
There is "full restoration of proper relationship" between the two parties (offender and
offended). Call this "forgiveness 1" or F1.
There is "a demeanour of forgiving-ness, a readiness to forgive" on the part of the
offended. Call this "forgiveness 2" or F2.
There is "a willingness to forego due restitution, compensation and/or a willingness
not to prosecute the offender" on the part of the offended. Call this "forgiveness 3" or
F3.
And there is repentance (with apologies, endeavours to make restitution etc) on the
part of the offender.
It should be obvious that there cannot be F1 without repentance.
That being the case, when the offended stands to declare, "I forgive those who killed
my son" then they might mean F2 or F3 but they cannot - independently of the
attitudes and actions of the guilty party - mean F1.
F2 is always required of the Christian and is, indeed, the "Christian" response. And F2
carries with it true love, namely, a desire for and willingness to take action to achieve
the well-being of the other person.
It is possible that, in the absence of repentance from the guilty party, the love which
accompanies F2 would see that the well-being of the guilty party is best furthered by
taking steps which will bring them to repentance. It is possible that insisting on
prosecution or full restitution may be the most loving thing that the offended can do
(the thing most likely to achieve the well-being of the guilty party). Not out of a desire
for revenge but in order to secure the best for the guilty party. Similarly, the
expression of anger towards the guilty party for the crime he has committed may also
be a loving thing to do (just as God expresses his anger towards his people for their
sin - because he loves them and intends to wake them up to the harm it is doing to
them. Sometimes a parent will even "pretend" to be angry for the good of the child when the child has done something funny but naughty). And that expression of anger
will flow from and co-exist with F2.
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So "I forgive them" in the absence of repentance
- never means F1
- always means F2
- only means F3 where it is the most loving thing to do
- can co-exist with an expression of anger and an insistence on prosecution.
OT punishments as ‘maximum allowable’?
Eye for eye and economic exchange?
The "debt"
- to God
- to victims
- to society
- to the state
9. "Harshness" of OT punishments
By what standard?
What has changed – God’s character, human character,
social circumstances?
10. Capital Punishment
“The ACLU continues to oppose capital punishment on moral and practical, as well as on
constitutional, grounds:
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Capital punishment is cruel and unusual. It is a relic of the earliest days of penology, when
slavery, branding, and other corporal punishments were commonplace. Like those other
barbaric practices, executions have no place in a civilized society.
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Opposition to the death penalty does not arise from misplaced sympathy for convicted
murderers. On the contrary, murder demonstrates a lack of respect for human life. For this
very reason, murder is abhorrent, and any policy of state-authorized killings is immoral.
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Capital punishment denies due process of law. Its imposition is arbitrary and irrevocable.
It forever deprives an individual of benefits of new evidence or new law that might
warrant the reversal of a conviction or the setting aside of a death sentence.
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The death penalty violates the constitutional guarantee of the equal protection of the laws.
It is applied randomly at best and discriminatorily at worst. It is imposed
disproportionately upon those whose victims are white, on offenders who are people of
color, and on those who are themselves poor and uneducated.
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The defects in death-penalty laws, conceded by the Supreme Court in the early 1970s,
have not been appreciably altered by the shift from unfettered discretion to "guided
discretion." These changes in death sentencing have proved to be largely cosmetic. They
merely mask the impermissible arbitrariness of a process that results in an execution.
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Executions give society the unmistakable message that human life no longer deserves
respect when it is useful to take it and that homicide is legitimate when deemed justified
by pragmatic concerns.
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Reliance on the death penalty obscures the true causes of crime and distracts attention
from the social measures that effectively contribute to its control. Politicians who preach
the desirability of executions as a weapon of crime control deceive the public and mask
their own failure to support anti-crime measures that will really work.
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Capital punishment wastes resources. It squanders the time and energy of courts,
prosecuting attorneys, defense counsel, juries, and courtroom and correctional personnel. It
unduly burdens the system of criminal justice, and it is therefore counterproductive as an
instrument for society's control of violent crime. It epitomizes the tragic inefficacy and
brutality of the resort to violence rather than reason for the solution of difficult social
problems.
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A decent and humane society does not deliberately kill human beings. An execution is a
dramatic, public spectacle of official, violent homicide that teaches the permissibility of
killing people to solve social problems -- the worst possible example to s et for society. In
this century, governments have too often attempted to justify their lethal fury by the
benefits such killing would bring to the rest Or society. The bloodshed is real and deeply
destructive of the common decency of the community; the benefits are illusory.
Two conclusions buttress our entire case: Capital punishment does not deter crime, and the death
penalty is uncivilized in theory and unfair and inequitable in practice.”
No longer online in quite this form but similar material at
http://www.clarkprosecutor.org/html/links/dplinks.htm
Arguments against:
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innocent get executed
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irreversible
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undervalues / devalues life
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ultimate denial of human rights
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lowers tone of society in which practised – cruel and unusual
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ineffective as a deterrent
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compounds the evil - “Putting the criminal to death only compounds evil. If killing is an
evil, then the State actually doubles the evil by executing the murderer. The State violates
the criminal’s right to life. It carries out legalized murder. The death penalty cannot be
useful because of the example of barbarity it gives to men … it seems to me absurd that the
laws which punish homicide should themselves commit it.” (Eighteenth Century
abolitionist, Cesare di Beccaria - in Lafollette, p.495)
Arguments for:
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burden of proof
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retribution - “Murder is the most terrible crime there is. Anything less than the death
penalty is an insult to the victim and society. It says, in effect, that we don’t value the
victim’s life enough to punish the killer fully.” (LaFollette, 501)
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responses to arguments above
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11. Punishment in the NT
Matthew 5 – “eye for eye, but I say to you” - proves too much
Matthew 5 – turn the other cheek – see John 18.23
Matthew 5 - Jesus abrogated death penalty by his teaching on divorce? - no, he doesn’t say ‘adultery
no longer warrants the death penalty’ but rather ‘only porneia is a legitimate cause for divorce’.)
Matthew 15.4
John 8.1-11 – says nothing against the death penalty for adultery; would have fallen into their trap if
he had; protest against a) their motivation and b) the absence of due process – where’s the man?,
accusers must be innocent of the same crime (Dt 19.15a?); witnesses must begin the execution – Dt
17.17. What here constitutes a repeal of capital punishment of a duly convicted criminal? If held to
be such then, again, it proves too much.
Acts 25.11 – done anything worthy of death …
Romans 13.4 – does not bear the sword in vain
I Cor 5 – Paul doesn’t call for death penalty – but why should he? - the church are not going to
impose it! Calvin Commentary – "Chrysostom compares the strictness of the Law with the
clemency of the Gospel, because Paul was content that the crime be dealt with by excommunication,
whereas the Law demanded the death penalty for it; but there is no justification for that view. For
here, Paul is not speaking to judges armed with the sword, but to a company unarmed, allowed to use
only brotherly reproof.") Proves too much.
Hebrews 2.2 – every violation and disobedience received its just punishment
Hebrews 12
I Peter 2.14 - "to punish those who do evil"
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