Biblical Law and the Scandal of Mass Imprisonment
How much imprisonment is too much? It’s a good question to ask at a time when the global prison population has surpassed 11 million prisoners. The United States accounts for over 2 million of this figure and, along with China, Brazil, and Russia, constitutes nearly half the world total. Imprisonment is the defining tool of many criminal justice systems.
Only in countries typically seen as less developed, including Nigeria and the Democratic Republic of Congo, do we find the lowest rates of imprisonment in the world. Here there is no appetite for depriving a large number of able-bodied young men of their liberty, particularly when the cost of doing so is prohibitive, is of little benefit to the victims of their crimes and when the offenders concerned could contribute to social and economic life.
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Such countries are the exception, however. We live in an age of mass imprisonment. But should we rely so heavily on this form of punishment to deliver justice? And does the Bible offer guidance on this question? Although biblical law is almost universally derided for its attitudes toward punishment, I want to argue, in this article, that biblical law has the power to transform our idea of just punishment. It might even revolutionize our penal system.1A subject I addressed in the early 1990s. See Jonathan Burnside, Nicola Baker eds., Relational Justice: Repairing the Breach (Winchester: Waterside Press, 1994).
How Much Punishment?
Behind the question “how much prison?” is the prior question “how much punishment?” This is an even more difficult question. How can we know how much punishment is enough? Ideas about which crimes should be prohibited, how they should be ranked in order of seriousness and how these, in turn, should be punished, vary widely around the world. They also vary considerably even within the same jurisdiction over time, as certain behaviors are criminalized, and others decriminalized. Such variations remind us that that we should not take whatever form of criminal justice we currently have for granted. There are prisons in Russia, for example, where conditions are so bad that to be sent there is to receive a death sentence. Less dramatically, it is not uncommon for prisoners in the United Kingdom to be held hundreds of miles away from their families. Those who work in correctional services do so under great pressure. At the same time, however, we must recognize how easy it is to become inured to day-to-day degradations, deprivations and inhumanities. The actual is only the possible. And since it all takes place on our behalf, and explicitly in our name, we share in the responsibility.
This is why we need transcendental values in our criminal justice system, and in our prisons. There must be limits to our pragmatism in how we punish. Classical theories of justice, and punishment, help us to set limits by answering the question of how much punishment is too much. Classic retributive theories insist that offenders should only be punished as much as their offenses deserve. But the question of what offenders deserve is tricky. How do we reliably create a ladder of offenses, in descending order of seriousness? Equally, how do we reliably create a ladder of penalties, in descending order of severity? And assuming we could do this, how do we reliably correlate the two? Moreover, is it morally right to punish a person, even with death, if there is no possibility of his repeating the offense and if there is no social benefit? Alternatively, classic deterrent theories justify punishment on the grounds that either specific offenders, or offenders in general, will choose to avoid committing crimes through fear of punishment. As with retribution, deterrence raises tricky questions about commensurability. How do we know how much punishment deters what sort of person under what sort of circumstances? It also raises equally prickly problems of moral psychology. Is it right to give an excessive punishment to one individual simply because of how it might deter another? Or a punishment that is too lenient?
Yet despite the presence of these, and other, justifications for punishment, we know that sentencing is often pragmatic. Studies have shown that judges are extremely inconsistent in their recommended sentences for the same fact scenario. The danger in all of this is that the practice of punishment risks becoming a bureaucratic activity in which the moral justification and goals of punishment are pushed yet further into the background. Moreover, without a clear sense of the purpose of punishment, and the moral brakes that must be placed on its exercise, judges risk becoming extremely dependent on external (and sometimes political) influences. All of this underlines the need for transcendent values in criminal justice practice and sentencing policy. This, in turn, brings us to biblical law.
Biblical Law and Biblical Justice
Biblical law is not usually seen as a promising source for a public conversation about punishment. The laws in the Older Testament—especially its sanctions—are routinely presented as the whipping boy for everything that is deemed bad about the Bible. It is, however, an awkward fact for such critics that biblical justice has been a driving force behind dominant Western conceptions of good order and good government.2See generally Oliver O’Donovan and Joan Lockwood O’Donovan (eds.) 1999. From Iranaeus to Grotius: A Sourcebook in Christian Political Thought. (Grand Rapids: Eerdmans). These positive conceptions even inform of our ideas of what constitutes just punishment. The Bible, and biblical law, has powerfully shaped our convictions about the need for proportionality in punishment. The lex talionis is concerned with setting limits to punishment: no more than “an eye for an eye, a tooth for a tooth” (Exodus 21:24). These are radical laws in a context where retaliation (now as then) can easily get out of hand. The same can be said regarding the importance of due process, the responsibility of witnesses, sanctions for false testimony; victim involvement; community responsibility for punishment and the need for judicial impartiality, to name but a few of the civilizing features the Bible bequeathed to penology.3E.g. Deuteronomy 17:4; Numbers 35:30; Deuteronomy 17:6 (= Deuteronomy 19:15); Deuteronomy 19:15–19; Deuteronomy 25:7; Deuteronomy 17:4–5; Deuteronomy 16:19
This is not surprising. Justice is at the heart of the biblical social vision. Moses declares to the people: “Justice, and only justice, you shall pursue, that you may live . . .” (Deuteronomy 16:20). Justice is not a luxury, or an optional extra. It is page one, line one of any vision for public life, because it is life itself. This, in turn, is because justice is not simply an abstract concept; it is a characteristic of the God of life. He is the source of all true justice (Deuteronomy 32:4). When the prophet Amos declared “let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos 5:24), he testified to the biblical understanding that justice is transformative. Biblical justice is not presented in static terms, unlike the popular Western image of the Roman goddess Justicia, who stands with the scales of justice in her hand. Instead, Amos sees justice as mighty and surging. Like the river Jordan in full flood, justice is an intervening power; it strikes, and it changes, it overflows and it restores. It brings life to a parched land. What, then, is the place of imprisonment within this biblical vision?
Imprisonment and the Biblical Social Vision
Imprisonment is entirely absent from the biblical social vision. At first glance, this is rather strange. The Israelites knew full well the ancient Near Eastern practice of imprisonment. Joseph was imprisoned in Egypt (and would have languished there for longer if Pharaoh’s dreams hadn’t jogged the memories of his former fellow-prisoner; Genesis 41:9–13). Likewise, Samson was imprisoned by the Philistines (Judges 16:21). Yet there is no reference to imprisonment as a form of punishment in biblical Israel. The omission is telling. Given the very broad range of penalties used in biblical Israel, we might have expected imprisonment to have been an option in at least some cases.
As to why not, we can only guess. I suggest it is because imprisonment, as a punishment, is at odds with the laws given to Israel at Mount Sinai which are designed to keep Israel in the freedom won for her in the Exodus. We know that, at a number of points, the biblical laws are careful to avoid recreating the life of Egypt in the Promised Land.4E.g. Jonathan Burnside, “What shall we do with the Sabbath-gatherer? A narrative approach to a “hard case” in biblical law (Numbers 15:32–36)” Vetus Testamentum 60, 45–62 (2010).See generallyFranz Volker Greifenhagen, Egypt on the Pentateuch’s Ideological Map, Journal for the Study of the Old Testament Supplement Series (London: Continuum, 2002). Prisons are environments of total control, in which one human being has complete power over the physical activities of another. Israel had been subject to totalitarian slavery in Egypt. This being so, it is understandable if its laws meant that no Israelite could exercise that degree of power over another’s liberty. (We note that neither the Israelite practice of debt-slavery nor the institution of the city of refuge come close to the controlled environment of a modern prison). Israel was expected to be generous towards slaves and asylum-seekers as a result of her experiences in Egypt.5See Jonathan Burnside. “Exodus and Asylum: Uncovering the Relationship between Biblical Law and Narrative,” Journal for the Study of the Old Testament 34, 243–266 (2010). It is consistent with this for biblical law to set limits regarding what punishments she could administer, as well. This may have included the practice of imprisonment. If so, it raises the question as to whether it is ever right for human beings to exercise, on a routine basis, this level of control over others. Although hardly conclusive, the absence of imprisonment in biblical Israel puts a question mark over the practice of imprisonment, certainly on its current, widespread, scale.
But although there was no imprisonment in biblical Israel there was a wide range of other penalties. These include capital punishment; corporal punishment; social exclusion; reparation and restitution, along with a wide variety of shaming ceremonies and sacrificial rituals.6Exodus 21:12; Deuteronomy 25:1-3; Numbers 12:14-15; Exodus 21:35; Deuteronomy 22:21 and Leviticus 4 Although today different people, in different countries, will baulk at different penalties found in the Bible, there is value in reflecting upon why biblical Israel had such a wide range of penalties in the first place. I suggest that this is because a wide range of registers enabled moral judgements regarding the seriousness of different offenses to be clearly expressed. The form of the punishment conveys powerful messages to the person on the receiving end of the punishment, as well as to the wider audience who either see or hear about it. A broad range of “serious” and “less serious” punishments means there is room to match the seriousness of the punishment to the seriousness of the offense, often with considerable finesse. (e.g. the shaming ceremony of Deuteronomy 25:5–10 in which a wronged widow seeks justice by means of a sophisticated act of symbolic punishment).7See Jonathan Burnside. The Signs of Sin: Seriousness of Offence in Biblical Law. Journal for the Study of the Old Testament Supplement Series 364 (London: Continuum International, 2003), 79–120. Examples can be multiplied across biblical law and its associated narratives. In biblical law, something specific is usually communicated by the choice of a particular penalty for a given offense.8See generally Burnside, The Signs of Sin.
Biblical Punishment as Communication
In this way, punishment in biblical law is characterized by the backward-looking (retributive) and forward-looking (deterrent) elements that are found in classical retributive and deterrent theories. In doing so, biblical law comes close to a communicational model of punishment favored by some modern criminologists.9E.g. Anthony Duff. Punishment, Communication and Community (Oxford: Oxford University Press, 2001). This model is retributive in the sense that the communication condemns or censures the crime. This means there must be proportionality between the severity of the punishment and the relative gravity of the crime. The forward-looking element is that the communication will be effective in changing the offender’s behavior (and potentially that of others, as well). Here, reform is sought through moral persuasion. On this model, as in biblical law, the form the punishment takes must be intrinsically appropriate to the aim of bringing offenders to recognize the wrongfulness of their crimes. For example, multiple restitution on the part of a thief means that the offender knows what it is like to stand in the victim’s shoes (as well as materially benefiting the victim; e.g. Exodus 22:1–4). The offender is a participant who is appealed to as a rational moral agent and who is capable of responding, regardless of whether the communication is effective or not. The justification of punishment, then, is that it is part of a morally communicative process that aims to persuade offenders to repent of their crimes, express apology, and reform their future conduct.
All of this raises further questions about the practice of mass incarceration. Our extreme dependence on imprisonment as a form of punishment means that it is not, and can never be, a nuanced register of seriousness. Of course, we use varying lengths of imprisonment to distinguish between the moral seriousness of, say, fine defaulting at one extreme and mass murder on the other. But much of the time, length of imprisonment is not a salient marker for most lay people, or even for many judges. Using the same form of punishment (and sometimes even the same length of sentence) to address a wide range of different types of offences is a bit like trying to play a round of golf with only one golf club. Or, to change the imagery, if the only tool in the toolkit is a hammer, every problem looks like a nail.
Finally, the practice of imprisonment falls a long way short of the biblical goal of transformative justice. There are pockets of transformation, of course, in prisons, and there are some transformative prison regimes. I encountered some of these first-hand when I carried out research on both sides of the Atlantic into faith-based units in prisons.10Jonathan Burnside, with Joanna R. Adler, Nancy Loucks and Gerry Rose. My Brother’s Keeper: Faith-based units in prisons. (London: Routledge, 2005). This revealed many stories of change and personal transformation. But as the research made equally clear, this success often meant going against the grain of the prison environment. This in turn meant that such units—to be effective—were in tension with the nature of the institution. Transformative justice is possible in prisons, both inside and outside a faith-based environment. Yet, all too often, prisons are places that inhibit prosocial change. This takes us back to the problem of mass incarceration. It is understandably hard to provide access to even basic education in conditions of staff shortages and prisoner overcrowding. At their worst, prisons are the opposite of transformative justice. Instead, they can be places of personal degradation, which can take many forms.
The Limit on Punishment
Strikingly, biblical law sets absolute limits to personal degradation in punishment. Deuteronomy 25:1–3, which concerns corporal punishment, makes degradation the absolute limit on how much punishment can be given to an offender: “Forty stripes may be given him, but not more, lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight” (Deuteronomy 25:3) Punishment may lower an offender in the eyes of others, but not to the extent they lose their dignity as human persons. This is when punishment crosses the line. This is when there is too much imprisonment.
We are inclined to see punishment in the Bible as the epitome of cruelty but, in fact, as we have seen, it is bounded by a deep respect for personhood. Just punishment confers dignity on offenders because it treats them as responsible and as rational moral agents. This is part of what it means to be made in the image of God. Precisely because the moral basis of punishment is related to the dignity of persons, care is taken to avoid degrading the offender in the Bible. People deserve to be punished in proportion to their offense, but no one deserves to be degraded. Once again, biblical law places a question mark against mass imprisonment whose very practice, it has been said, depends on our refusal to comprehend the human beings we so completely condemn. We should take care to think about how God views our responsibility for their situation.
1. A subject I addressed in the early 1990s. See Jonathan Burnside, Nicola Baker eds., Relational Justice: Repairing the Breach (Winchester: Waterside Press, 1994).
2. E.g. Deuteronomy 17:4; Numbers 35:30; Deuteronomy 17:6 (= Deuteronomy 19:15); Deuteronomy 19:15–19; Deuteronomy 25:7; Deuteronomy 17:4–5; Deuteronomy 16:19
3. See generally Oliver O’Donovan and Joan Lockwood O’Donovan (eds.) 1999. From Iranaeus to Grotius: A Sourcebook in Christian Political Thought. (Grand Rapids: Eerdmans).
4. E.g. Jonathan Burnside, “What shall we do with the Sabbath-gatherer? A narrative approach to a “hard case” in biblical law (Numbers 15:32–36)” Vetus Testamentum 60, 45–62 (2010).See generallyFranz Volker Greifenhagen, Egypt on the Pentateuch’s Ideological Map, Journal for the Study of the Old Testament Supplement Series (London: Continuum, 2002).
5. See Jonathan Burnside. “Exodus and Asylum: Uncovering the Relationship between Biblical Law and Narrative,” Journal for the Study of the Old Testament 34, 243–266 (2010).
6. Exodus 21:12; Deuteronomy 25:1-3; Numbers 12:14-15; Exodus 21:35; Deuteronomy 22:21 and Leviticus 4
7. See Jonathan Burnside. The Signs of Sin: Seriousness of Offence in Biblical Law. Journal for the Study of the Old Testament Supplement Series 364 (London: Continuum International, 2003), 79–120.
8. See generally Burnside, The Signs of Sin.
9. E.g. Anthony Duff. Punishment, Communication and Community (Oxford: Oxford University Press, 2001).
10. Jonathan Burnside, with Joanna R. Adler, Nancy Loucks and Gerry Rose. My Brother’s Keeper: Faith-based units in prisons. (London: Routledge, 2005).
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