A biblical perspective: abandoning retribution as a doctrine for legal punishment

I. Introduction

The Old Testament is filled with different mandates regarding punishment for certain acts and crimes, a great deal of which includes the penalty of death. Conversely, the New Testament somewhat disregards the Old Testament idea of punishment, in that it became secondary to Jesus’ message of love and redemption. In this respect, both reward and punishment are seen as taking place in eternity, rather than in this life. How do we reconcile these differing views? What are the reasons for the sharp shifts in these fundamental concepts? Moreover, to what extent should our system of criminal law incorporate these biblical models of justice?

II. Criminal Law

Two broad theories of punishment exist which guide our current criminal justice system: utilitarianism and retribution. These theories guide lawmakers in developing general principles of criminal responsibility.

Utilitarianism

From a utilitarian perspective, punishment exists to ensure the continuance of society and to deter people from committing crimes. The primary utilitarianism objective is to augment the total happiness of the community by excluding everything that subtracts from that happiness. There are three distinct forms of utilitarianism: A.

Deterrence

The theory of deterrence suggests that the pain inflicted upon a person who has committed a crime will dissuade the offender (and others) from repeating the crime. Deterrence hinges around the idea that punishment has to be appropriate, prompt, and inevitable. Deterrence protects the social order by sending a message to the public at large. An English judge once defined the standard long ago when he remarked, “Men are not hanged for stealing horses, but that horses may not be stolen.” The general theory of deterrence is further divided into two categories. General deterrence describes the effect that punishment has when it serves as a public example that deters people other than the initial offender from committing similar crimes. General deterrence illustrates punishment delivered in order to send a message to everyone that crime doesn’t pay. Specific deterrence describes the punishment of an individual designed to prevent that individual person from committing future crimes. This idea generates from the concept that it is impossible for an individual to commit another crime while they’re in prison. Both forms of deterrence as punishment methods are meant to discourage individuals from recidivating.

B. Incapacitation

Specific deterrence is very similar to and often takes the form of the notion of incapacitation. Incapacitating a known criminal makes it impossible for this individual to commit another crime. If a criminal is confined, executed, or otherwise incapacitated, such punishment will deny the criminal the ability or opportunity to commit further crimes which will harm society. The only total, irrevocable punishment is the death penalty. Other punishments, such as imprisonment, produce only partial and temporary incapacitation. Incapacitation, however, does not decrease offenses of convicts who would have not committed additional offenses anyway. Examples of this would include generally law-abiding citizens who committed a “crime of passion” in a specific, non-recurring situation.

C. Rehabilitation

Advocates of the rehabilitative form of utilitarianism believe that punishment will prevent future crimes by reforming prisoners by providing them with skills and assets that could help them lead a productive life after their release. Supporters of rehabilitation seek to prevent crime by providing offenders with the education and treatment necessary to eliminate criminal tendencies, as well as the skills to become productive members of society. Rehabilitation seeks, by means of education or therapy, to “bring a criminal into a more normal state of mind and into an attitude which would be helpful to society.” Rehabilitation is based on the notion that punishment is to be inflicted on an offender to reform them as to make their re-integration into society easier. This theory is firmly grounded in the belief that one cannot inflict a severe term of imprisonment and expect the offender to be reformed and to able to adjust into society upon his release without some form of help.

Retribution

The theory of retribution is grounded in the belief that punishment of a wrongdoer is justified as a deserved response to a wrongdoing. Unlike utilitarianism, which punishes in order to prevent future harm, retributivists punish because of the wrongdoing. Thus, the criminal gets his “just deserts” regardless of whether the punishment serves to prevent any future crime. An assessment of desert will take into account “both the harm done and the offender’s culpability.” The focus on culpability is based on the “presupposition that people are morally responsible for their actions, and requires the court to take into account mitigating factors or excuses such as diminished capacity, duress, and provocation.” Under a retributive theory of penal law, a convicted defendant is punished simply because he deserves it and for no other purpose. There is no exterior motive such as deterring others from crime or protecting society – the goal is simply to make the defendant suffer in order to pay for his wrongdoing. Some scholars believe that it is entirely natural for an individual to seek revenge and retribution when injured or harmed by another. Thus, one of the primary reasons for the existence of retribution as a doctrine recognizes the reality that people often need to be relieved of their need to retaliate against those who have wronged them. In fact, it can be argued that it is potentially harmful to the state if it does not satisfy these needs and urges. If the people are not satisfied, as history has shown, then people will sometimes take the law into their own hands in the form of mobs and vigilantes. Read the rest of this entry »