Chapter 14
Deterrence and Rehabilitation

I have now surveyed the major types of crime and have examined why the Mosaic law specifies particular penalties in each case. On the way I have also suggested what penalties might be appropriate in modern contexts on the basis of general principles of justice. My arguments have many times relied on detailed attention to the Old Testament texts. It is wise that we should immerse ourselves in the Bible in order to understand in greater depth the principles of justice relevant to any society. But it should also be noticed that I have never advocated blindly carrying over Old Testament laws into our own time. We must endeavor to understand the meaning and function of those laws in their own context and to understand the way in which they point forward to Christ in his perfect justice. The correct application of principles to our own times can only be achieved when we really understand the Bible. Such understanding is an on-going challenge. I make my proposals tentatively because I realize that there is yet more to be understood.

The use of the general principle of equivalence

Though I rely on the Old Testament as a basis for arguing about the appropriateness of various modern penalties, the same conclusions might conceivably be reached by other routes. For example, I can conceive of someone starting not with the Old Testament directly but with the general principle of equivalence: "as you have done, it shall be done to you." Merely by using this general principle, and without direct reference to the Old Testament at all, someone might conceivably arrive at modern civil penalties something like my own. We should not be surprised by the existence of such an alternative route. All human beings unavoidably have a general sense of justice, according to Rom. 1:32. To be sure, they suppress, distort, and obscure what they know (Rom. 1:18, 21). But they nevertheless do not escape the responsibility to act on the basis of their knowledge. Thus human beings do have some sense, however obscured, of the fitness of just punishment. They dimly sense the truth of the principle, "as you have done, it shall be done to you." And theoretically it is possible for them to see the implications of this general principle for particular crimes like murder and theft.

In some sense, therefore, it is valid to appeal to a universal sense of justice in the human heart. But such an appeal is beset with many serious pitfalls. Apart from Christ, our hearts and minds are darkened and rebellious (Eph. 4:17-24). We suppress the truth that we know. Even when we are united to Christ, renewal comes gradually, in conjunction with the operation of the whole body of Christ and not just individuals (Eph. 4:23-24, 11-16). We must beware of overestimating our abilities and underestimating the subtlety and insidiousness of sin. Moreover, God's justice, not the human sense of justice, is our ultimate standard. An appeal to a general human sense of justice easily gets corrupted into an idea of justice apart from God and his word. It tempts people back into love of self, lust for autonomy, and lust for defining justice to suit themselves and their narrow interests instead of God.

Hence, in actual fact, we need the presence of God, the instruction of his word, the ministry of the church and its sacraments, and perseverance in prayer to grow into a proper sense of justice. In spite of the clarity of God's general revelation, it will get distorted and suppressed unless we have the special aids that God's redemption provides. Even the general principle of equivalence, "as you have done, it shall be done to you," remains abstract and capable of manipulation and distortion unless it is fleshed out by the richness of examples given to us in the Bible, and unless it is related to the personal God of the Bible, who is its source.

What do we conclude? We ought to listen carefully to the arguments of others, including non-Christians, who would appeal to general principles of justice. Fragments of truth remain even in the midst of distortion, and we may sometimes use such fragments to correct ourselves. We in turn might sometimes present to others arguments on the basis of general principles, without direct appeal to the Bible. But we ought not to expect much from either side of these exchanges. The most profound changes in our outlook and convictions concerning justice come from the cleansing and renewing power of God, who meets us through Christ as he is set forth in the Bible.

There is, therefore, a serious danger in trying to bypass the Bible's concrete expressions of God's justice. However, there is also a danger in the opposite direction. We could try to ignore questions of principle entirely and without reflection apply the Mosaic law in a slavish, wooden way. Such a route would in fact be a contradiction of God's own intention. He wants us to meet him, and to digest his law into our own hearts. A robust response to Mosaic law leads us to embrace Christ with our whole being. Understanding and application of the particulars cannot be properly grounded simply on intellectual argument.

Even if there remain some disagreements about modern applications, the main points concerning the justice of God's judgments in the Old Testament and the way in which the Old Testament points forward to Christ remain untouched. As we read the Old Testament for its testimony to Christ, we encounter the ultimate source of purifying power, and so there is hope not only for us but for the larger society in which we live.

The role of deterrence and rehabilitation

In chapter 11 I spoke of the dangers arising from fixing penalties on the basis of deterrence and rehabilitation alone. Only when we appeal to principles of justice and fit retribution can we avoid undue severity and undue leniency. Only so do we treat criminals as responsible human beings rather than as mere objects to be manipulated for the benefit of the larger society.

Prevention of crime (deterrence) and rehabilitation of criminals are nevertheless still significant concerns. In fact at a deep level they are part of the structure of God's justice. Lev. 1-5 present us with four main types of sacrifice, namely burnt offering, grain offering, fellowship offering, and sin offering. In terms of emphasis these four types focus respectively on destruction of sinfulness, restoration to God of what is owed, fellowship with God and conformity to his image, and punishment for sin. They embody the intertwined principles of destruction, restoration, replication, and punishment. Up until now we have concentrated on restoration and punishment as fundamental principles involved in God's justice and in the determination of the proper penalty for crimes. But in the total picture of God's work, destruction of sin itself is also involved. Utter destruction is God's form of deterrence. Deterrence is thus also one aspect of legitimate punishment. Rehabilitation can also be an aspect, since replication of the image of God in renewed human beings is God's form of rehabilitation.

The ultimate form of deterrence is to be found in the destruction of sin through the crucifixion of Christ. As Paul says, "We died to sin; how can we live in it any longer? Or don't you know that all of us who were baptized into Christ Jesus were baptized into his death?" (Rom. 6:2-3). "Those who belong to Christ Jesus have crucified the sinful nature with its passions and desires" (Gal. 5:24). The sinful nature with its tendencies to sin is mastered in a definitive sense at the time of Christians' conversions, as they are united to Christ. It is also mastered progressively through the process of sanctification. The power of Christ completely frees us from sin at the time of his Second Coming.

The ultimate form of rehabilitation is to be found in new life in Christ. "And we, who with unveiled faces all reflect the Lord's glory, are being transformed into his likeness with ever-increasing glory, which comes from the Lord, who is the Spirit" (2 Cor. 3:18). "Therefore, if anyone is in Christ, he is a new creation; the old has gone, the new has come!" (2 Cor. 5:17). We "put on the new self, created to be like God in true righteousness and holiness" (Eph. 4:24), "being renewed in knowledge in the image of [our] Creator" (Col. 3:10). People renewed by the Spirit of Christ are once again the image of God and replicate his holiness. Their innermost desires are now controlled by the Spirit, not the flesh (Rom. 8:5-11).

The state can obviously offer neither deterrence or rehabilitation in this glorious form. But as we have seen, the state is in its own way an agent of God under the rule of Christ (Rom. 13:1-7; Eph. 1:20-22). The state is responsible to reflect principles of God's justice on the shadowy, earthly level on which it operates. Hence we rightly expect that the state will at least sometimes deter criminals in an outward sense, even though it does not change their hearts. We may also expect that sometimes state punishments will be an instrument of outward rehabilitation, in that they cause a former criminal to become a moral person. The outward acts of the state also bear witness to the more ultimate justice and judgment of God at the Second Coming. God may use these outward witnesses as prods for spiritual reflection. They can thus sometimes be an occasion for awakening criminals to the seriousness of their condition and opening their minds to hear the gospel.

But we must not expect too much of the state. Its powers are not worthy of being compared with the spiritual powers of the gospel and the spiritual armor of the Christian (Eph. 6:10-20). People who do not trust in Christ and have no better hopes are nevertheless tempted to look to the state for some kind of salvation. The state is then expected to do what it can never do, and the results are disastrous. The dehumanizing effects when we forget justice and define the state's duty solely in terms of deterrence and rehabilitation are one example. Secular humanistic ideas of deterrence and rehabilitation can never provide good criteria for how to deal with criminals.

The deterrent value of my proposed punishments

Even though deterrence cannot safely provide the primary criterion for just punishment, it has some confirmatory value. The punishments that I have advocated in the previous chapters do arguably have a considerable deterrent effect. Their value as a deterrent becomes even clearer if we make one significant alteration in the normal criterion for deterrence. Ideally, people want the threat of a penalty infallibly to deter a possible offender from ever committing a crime. Unfortunately, criminals as a group tend to have poor ability to calculate the long range consequences of their actions. If they did calculate the consequences, they would reckon with the final judgment of God and they would be deterred even without any threat of earthly penalties for their actions.

Hence I think that it is appropriate to ask not only whether a prospective criminal will be deterred from a first violation, but even more important whether he will be deterred from a subsequent violation once he has felt the penalty from the first. The execution of a penalty brings home the consequences in a way that mere talk about a future penalty often does not. In the same way a son who is sorely tempted to do something forbidden by his father will often stay out of temptation only after he has tested the father's will once by succumbing to temptation.

We must also not expect that a penalty will deter criminals if criminals are very seldom caught. We can discriminate between effective and ineffective penalties only if we suppose that in the community in which penalties operate criminals get caught and punished with a reasonably high frequency, say at least 50 percent of the time.

Using the above criteria, I believe that the penalties that I have suggested do have reasonable deterrent effect. In fact, these penalties are usually the least severe penalties that would have reasonable deterrent value. Hence we have here some argument that just penalties ought not to be much more lenient than what I have suggested. Let us now go through the major areas of crime one by one to verify this claim.

First, the area of theft. If thieves are caught and forced to pay a penalty, they are losing wealth rather than making it and they lose all motivation for their crime. However, vandals might still not be deterred, because vandals are motivated primarily by hatred rather than by greed. But an owner who was repeatedly vandalized and who repeatedly received back fourfold compensation would become almost happy at the prospect of more vandalism. The vandal would then not be able to cause emotional unhappiness to the object of his vandalism, and so he would lose motivation.

Accidents that destroy property or cause human bodily injury or loss of life can of course not be wholly prevented. The use of a penalty is nevertheless a motive for everyone to use precautions.

Next, the area of murder. The threat of the death penalty has perhaps some value in deterring a first offense. But even this severe penalty cannot overcome the exceedingly strong impulses that are set in motion by hatred. What is more arguable is that the death penalty infallibly deters a second offense. No other penalty is likely to do so, since the impulses arising from hatred and wantonness are so uncontrollable by outward means.¹

Next, the area of verbal crimes. No penalty except the death penalty can utterly deter unpremeditated slanderous outbursts, since these usually flow from hatred. But in the usual case of verbal crimes we are dealing with premeditated action. If the offender is caught and penalized, he does not of course achieve his goal against the other person, and he has no motivation for crime when the goal is not achieved. The principle of "as you have done, it will be done to you" means that a failure rate of something like 50% makes verbal crimes unprofitable.

Next, the area of crimes against the holy community. I argue that there should be no penalty in these cases. If there is no penalty, then of course these crimes will not be deterred. But this situation is appropriate if outside of Israel they are not crimes at all, that is, they are not offenses over which the state has responsibility. The most significant sins, like false worship and seduction to false worship, concern matters relating to the ultimate allegiances of human beings. Ultimate allegiances bind people in ways that they cannot easily be forced to give up. The first offense is not likely to be deterred effectively even by the death penalty. Attempting to impose lesser penalties is just fooling around without coming to grips with the depth of the problem.

Next, the area of crimes against authority. Incorrigibility or repeated wanton violations of positive commands of the state can in the nature of the case be deterred only by the death penalty. Lesser violations of authority, if they take the form of folly, cannot be utterly deterred because fools by definition do not reckon with the consequences. For fools a punishment in the form of beating is likely to succeed better than a monetary payment or fine. Pain is immediate and cannot be ignored, whereas a fine affects only future purchasing power and hence does not come home to the fool, who does not calculate the future.

Next, the area of sexual crimes. Fornication is somewhat deterred if the fornicator is forced to marry and is thereby provided with a regular, legitimate channel for satisfaction of sexual desire. The monetary penalties attached when the fornicator does not marry are also some inducement to assume habits of life that will eventually equip the offender to discharge the monetary responsibilities associated with marriage. When marriage is available, when weighty monetary penalties attach to fornication with chaste women, and when prostitutes are legally available (though not free from moral disapproval), even a relatively foolish and promiscuous young man might conclude that it was more sensible to find his sexual satisfaction elsewhere than in seducing young virgins.

Adultery is somewhat deterred by the financial penalties involved. If the way is legally open for divorce, as I believe if should be, the person plotting adultery may be willing to obtain the divorce first. Even if the first offense of adultery is not deterred, the second will be if the injured spouse obtains a divorce.

But, adultery and divorce are also disruptive of the social order. Conceivably more severe penalties might be warranted in order not merely to try to prevent the individual act of adultery but to lower the statistical prevalence of adultery and divorce. Divorce, however, was only regulated in a minimal way within Old Testament Israel (Deut. 24:1-4). State regulation and penalties with respect to these matters clearly do not deal with the fundamental root of the matter in the sinfulness of human hearts. As long as there are sinners, there will be disintegration of marriage relationships.

Rapists are not likely to be deterred by anything short of castration, since many of them are motivated primarily by desire for power and sexual mastery. Monetary payments or beatings will almost surely be ineffective.

The rehabilitative value of my proposed punishments

We can next ask questions about rehabilitation. Do my proposed punishments tend to rehabilitate criminals? Only through the gospel and the power of the Holy Spirit can criminals receive a new heart. Short of this change, no really thorough-going rehabilitation is possible. But we can still speak of a kind of earthly rehabilitation: sometimes a criminal ceases to commit crimes not merely because of fear of punishment but because of some sort of change in desires. Can such changes be created by appropriate punishments?

No set of punishments could guarantee change, because of the perverseness of human nature since the fall. Nevertheless, there are still some arguments in favor of punishments that match the crime. We have repeatedly appealed to the principle of reciprocity, "As you have done, it will be done to you." This principle expresses justice. Perhaps it is also most likely humanly speaking to lead to rehabilitation, for at least three reasons.

(1) Just penalties are more likely to cause remorse. If criminals feel that their punishment is just, they are more likely to undergo some kind of remorse or repentance. Sometimes criminals' consciences are hardened (cf. 1 Tim. 4:2) so that they have a perverted sense of justice. But no one ever totally destroys a sense of God's justice within (Rom. 1:18-20, 32). Criminals are certainly more likely to feel that a punishment is just if it is in fact just.

(2) A special value attaches to the situation where the penalty imposed on the criminal is fundamentally the same as the one that the criminal imposed on the victim. The criminal is made to experience in his own life and his own person the effects that he brought on the victim. In the process the criminal is made to experience in at least some outward way the viewpoint of the victim. He is forced in some sense to think about the principle of not doing to others as he would not like to have it done to him, the negative side of the golden rule. All criminal actions arise from wickedness of heart. But more proximately, we may say that they arise from a deficiency in love for one's neighbor and inability to put oneself sympathetically in the other person's situation. The very nature of reciprocal punishment is to force the criminal into practicing what he does not practice of his own accord. There is some hope that through this experience the criminal will come to a genuine insight into feelings of others and thereby be changed so that he is less likely to commit the same crime again.

In addition, if the punishment focuses on helping the victim, offenders are helped to appreciate the true consequences of their crimes. Such punishment reinforces the idea that crime is an offense against a victim, an injured party, not against society in the abstract. In the present prison system, it is too easy for criminals to make excuses for themselves or to blame society for their misery, because they are not made existentially aware of the damage to the victim. In our modern context, properly arranged and supervised meetings between victim and offender to discuss the injury and how to make proper restitution have proved quite effective in dealing both with the victim's anger and with the criminal's sense of responsibility. The percentage of repeat offenses is vastly reduced. ²

(3) Other things being equal, immediate punishments rather than punishments inflicted over a long period of time are more effective. Criminals often fail to calculate distant consequences of their acts, and in fact the more distant future frequently has little existential relevance to them. Because of their deficiencies in reckoning with long range connections in time, immediate punishments are on the average more likely to bring home to them the true nature of consequences for criminal behavior. The punishments that I suggest tend to be punishments of an immediate kind, because they reciprocate crimes that themselves are immediate rather than spread over a long period of time.

The death penalty, however, is an exception to these reasonings. The death penalty destroys people rather than rehabilitating them. For this reason along with other reasons modern humanists shrink from inflicting the death penalty. It is nevertheless undeniable that God's justice does require the death penalty for murder (Gen. 9:6) and perhaps a few other crimes (incorrigibility and unrestrained rebellion against the state).

In the case of an authorized death penalty we should adjust our criteria of rehabilitation. We should ask whether any penalty is likely to rehabilitate criminals during their lifetime. Since the fall of Adam, all human life has limited duration. God never waits forever for sinners to rehabilitate. When the state is authorized by God to take human life in a particular case, that authorization is itself the signal that God wills the termination of the criminal's lifetime. Hence the criminal's time for rehabilitation is the time between his crime and the execution of punishment. There is indeed still some possibility of rehabilitation within this time. It is not even clear that extending the time beyond a few days increases the probability of rehabilitation. Rehabilitation is not a matter of having lots of time but having a change of heart. It is arguable that the immediate prospect of dying is just as likely to focus a criminal's energies on repentance as is an extended period of not knowing when he will die.

With respect to this limited time period, the arguments above concerning the merits of my proposed punishments still apply. We trivialize the value of human life and the meaning of state authority if we do not take with utter seriousness the destruction of human life and the wholesale usurpation and destruction of state authority. We are toying with the criminal rather than expressing to him the true seriousness of his crime if we are not willing to inflict a penalty of reciprocal seriousness.

As in all cases of criminal punishments, so also especially in the case of the death penalty, Christians have a responsibility to communicate the gospel to those who are to receive penalties. Only through the power of Christ can either those who continue to live or those who must die know newness of life. To those who trust in Christ, whether dying thieves (Luke 23:40-43) or living disciples, is promised eternal life in the presence of the Father.