From Vern Poythress’ The Shadow of Christ in the Law of Moses (which is very worth reading, though I would disagree with and refine many points).
15 A Critique of Prisons
How do we evaluate the present systems of criminal justice in modern societies? Most modern societies use imprisonment as the primary form of punishment for crime. Some limited steps have been taken here and there to introduce alternative punishments, such as making thieves pay back for their theft. But such alternatives are the exception rather than the rule. For practical purposes we must focus attention on the value of imprisonment as a form of punishment.
First of all we should distinguish carefully between using prison for punishment and using it as a means of custody before trial. The use of some form of custody until the time of trial is attested in the Bible itself (Lev. 24:12; Acts 21:34; 23:35) and is widespread elsewhere. Sometimes no reasonable alternative is available. In such cases the temporary use of a prison is surely legitimate. To prevent this practice from becoming an unacknowledged or unintentional form of punishment, state authorities have an obligation to work for practices that promote speedy trial. In addition, the provision for bail works in favor of preventing unjust punishment in the form of confinement.
The deliberate use of prison for the purpose of punishing convicted offenders is quite another matter. In practice, it is a disaster. The statistics with regard to repeated offenders give a grim picture. Those who have been involved in prisons, either as state authorities or especially as prisoners, testify to their ineffectiveness, oppressiveness, and destructive tendencies.1
But I prefer to base my arguments on principle rather than on the actual results of the prison system. If I were to appeal only to actual results, I would leave open the possibility that prison reform could straighten out the system. I do not believe that any reform could be adequate, because the system is wrongheaded from the beginning.
To evaluate properly the principle of imprisonment, we must use biblical criteria. As we have seen, proper response to crime involves four aspects, namely restoration, punishment, deterrence, and rehabilitation. Restoration and punishment must be our primary concern. But deterrence and rehabilitation can be significant secondary indicators of whether a proposed solution makes contact with the reality of the human condition.
Does prison promote just restoration for crimes? Restoration means making things good to the victim of a crime. The victim’s situation must be restored as far as possible to its original condition before the crime. Or if such restoration is not possible, some other kind of restoration to normalcy is appropriate, as when the thief gives back a substitute for a destroyed object, or when the fornicator is forced to marry his partner.
Prison in itself obviously restores nothing. Moreover, in cases where restoration involves the use of money, prison works against restoration by destroying the offender’s capacity to work in order to obtain money to pay the victim.
Does prison promote just punishment? Just punishment, as we have argued, always fits the crime. It always matches the nature and the intensity of the crime according to the principle, “As you have done, it will be done to you.” The only crime for which imprisonment would be the fitting penalty would be the crime of imprisoning someone else! A kidnapper might of course imprison the victim, and so one might deduce the penalty of imprisonment in this special case. But as we have seen in chapter 11, kidnapping also constitutes a usurpation of the authority of the state and as such merits the death penalty. The punishment of imprisonment does not cope with the full guilt attaching to kidnapping.
On a very general level one might argue that all crimes are abuses of the offender’s social powers and his tacit agreements with society. Hence such abuses are met by depriving the offender of interaction with society. But such reasoning grossly misconstrues the nature of crime. It pretends that crime is an offense against the criminal’s social rights, that is, an offense against the criminal himself, and also an offense against society as a whole, that is, society in the abstract. Neither is true. Crime is an offense against the victim. It is a much more personal thing than this reasoning admits, and not seeing the personal character of crime is one of the criminal’s main problems.
Yet another difficulty arises with respect to imprisonment. No plausible means exists for determining a just quantity of punishment. If the punishment matches the crime, as in my proposals in chapters 10-12, its quantity is automatically determined at least in a rough way. A theft of a small amount is met by a penalty proportional to this amount. The theft of a large amount is met by a penalty of a corresponding amount. But what do we do if we must use only the penalty of imprisonment? How much time in prison corresponds to the amount of a theft? We cannot say, because time and money do not directly match. How much time corresponds to murder? How much time to bodily injury? How much time to rape? How much time to adultery? Amount of time does not quantify any crime in a reasonable way.
We might perhaps propose to quantify some things by converting between quantities of money and quantities of time. An amount of time in some circumstances can be reckoned as equivalent to the amount of money that a person could earn during the given amount of time (see Exod. 21:19). But can we use such a criterion to deal with imprisonment? If the time really is equivalent to the corresponding amount of money, we should be satisfied with a monetary payment and not imprisonment. But in fact we are not satisfied, which indicates that the two are not really equivalent. Moreover, the question arises as to whether people who can command a higher salary should therefore be confined for less time. Such a position would offend all our sense of justice. Clearly imprisonment is not merely loss of working time, but in its essence something else altogether. What is it? An extreme form of slavery in which the wardens of the prison have much more detailed control in comparison with most historical instances of slavery? A form of slavery chosen to deprive the criminal of the normal pleasures of slavery, such as meaningful work, access to larger society, some degree of privacy, and social intimacy with spouse and family? What is this monster that we have invented, and how can it ever be just punishment?
Does prison deter crime? As long as the criminal is in prison, he is prevented from preying on the larger society. If and when he is released from prison, there is no guarantee whatsoever that he will not repeat his crime. Because doing time does not effectively match the nature of the criminal’s crime, it does not effectively take away his motive for committing crime again.
An even more telling objection arises from the nature of the small subsociety or subculture within a prison. Prisoners are not totally prevented from preying on fellow prisoners. Murders, rapes, and thefts do take place within prisons. Such possibilities make a mockery of justice. The very thing that is supposed to be punishment becomes the scene of more crime. Prison does not thoroughly deter crime but simply transports crime to another location.
Moreover, the fact of crime within prisons suggests that the real desires of society may be less lofty than its altruistic rhetoric. The motives of a society as a whole are of course varied and confused. But a cynical analysis might suggest the following. The outside society is not really concerned with true deterrence but with its own comfort. By removing criminals from its midst it obtains the comfort of not having so much crime. Subsequently it cares very little for whether crime is deterred inside the prison, as long as this crime is concealed and does not cause guilt feelings. To confine the prisoners for a lifetime would of course produce the greatest freedom from crime for the outside society. But the larger society would feel guilty about such a severe penalty. So it releases criminals after a time for the sake of comforting its own guilt feelings. The amount of time spent in prison is not determined by justice but by the interplay between social desire for freedom from crime and social desire for absence of guilt feelings. In all this interplay society can act with perfect selfishness. At the same time it can pretend that prisons are intended to provide criminals with a rehabilitative environment, and hence it can congratulate itself for having motives of concern for the rehabilitation of criminals rather than their punishment. Such selfishness will naturally produce largely cynicism and not repentance on the part of criminals.
Does prison offer significant hope for rehabilitation? Criminals have the most hope for rehabilitation if they feel the justice of their punishment. As I have argued in the previous chapter, such results are far more likely under a system that takes care to think explicitly in terms of principles of reciprocity and justice. In addition, criminals have a greater chance to reform if they are in normal contact with normal society. They then have opportunity immediately to engage in just, socially profitable work and contributions to others. The abnormalities of prison life can never become a viable environment for training in righteousness. In fact, prison frequently produces results in the opposite direction because the morality of a subculture of criminals reverses the morality of normal society.
In addition to all these factors, prison presents dangerous temptations to injustice on the part of the wardens, guards, and supervisors of the prison. Let us grant that many who are charged with prison supervision act out of true good will and as a service to society. They often do so within circumstances that are personally very difficult for them and sometimes dangerous to their own safety. But there is another side that we seldom think about. Supervisors and guards are exposed to temptations that can easily bring out the worst in anyone. They supervise prisoners some of whom are unpleasant people, sometimes vindictive, spiteful, deceitful, or obnoxious. Petty offenses and back talk from prisoners tempt supervisors to return evil with evil. The substandard morality of many prisoners tempts them to treat all prisoners as subhuman and to prejudge prisoners even before the prisoners do something against them. The prisoners have little effective way of making an appeal against injustice, and unjust acts on the part of supervisors are concealed within the prison from the eyes of the larger society. Hence injustice can be practiced with impunity. Supervisors have virtually totalitarian control over prisoners, and such absolute power tends to corrupt the human beings who possess it.
In sum, I would argue that the cases of injustice and sometimes gross inhumanity on the part of supervisors or guards are no accident but a natural product of the unjust, unworkable character of the system. We should be surprised that the system does not turn out even worse than it is.
As a last resort, one might argue that at least prison represents a kind of shadow of hell. In this very vague sense it expresses a kind of justice shadowing the justice of God’s judgment in hell. In reply I agree that prison imitates hell in one way. Just as hell isolates the damned and prevents them from contaminating the holiness of God’s renewed world, so prison prevents its inmates from contaminating the larger society. So long as people are in prison they are deterred from preying upon the larger society. But this result is deterrence, not justice. In other respects the problems remain. (1) Whereas hell expresses the justice of God, prison does not. (2) In hell people may well be prevented from exercising their unrighteous desires against others, but in prison they are still capable of injuring fellow prisoners. (3) The troubles of supervisors and guards still show prison to be ineffective even as an image of hell. (4) If we think that prison is so bad as to be a shadow of hell, are we still willing to argue that it is less bad than my proposed alternatives?
Meanwhile, as long as the present prison system exists, Christians must do what they can on behalf of prisoners (Matt 25:36-40). Through Prison Fellowship and other Christian organizations many opportunities exist to bring to prisoners friendship, community support, and the gospel itself, which is the power of God for salvation. A convenient list of resources can be found in Van Ness, Crime and Its Victims, pp. 193-217.
Chapter 15 Footnotes
1 For an introductory discussion, see Charles Colson, “Towards an Understanding of Imprisonment and Rehabilitation,” in John Stott and Nicholas Miller, eds., Crime and the Responsible Community (Grand Rapids: Eerdmans, 1980), pp. 152-180.