The Institutes of Biblical Law
15. Prison
A
concordance will quickly reveal that many references to prisons appear in the
Bible, but none in the law itself. Prisons were a part of Egyptian life and law
(Gen. 39:20-23; 40:3, 5; 42:16, 19), but not of Israel under the law. During
the wilderness journey, there are two references to confinement, "in
ward" (Lev. 24:12; Num. 15:34), pending a hearing, but there is no
reference to imprisonment as a punishment. According to Unger,
"imprisonment was not directed by the law," and "we hear of none
till the time of the kings, when the prison appears as an appendage to the
palace, or a special part of it (I Kings 22:27)." According to Kennedy and Barclay,
"Imprisonment, in the modern sense of strict confinement under guard, had
no recognized place as a punishment for criminals under the older Hebrew
legislation. The first mention of such, with apparently legal sanction, is in
the post-exilic passage [515] Ezra 7: 26."
The reference in Ezra 7:26 is part of a proclamation of Artaxerxes and thus has
reference to Persian rather than Biblical law.
The
prison appears in Biblical Jaw only as a place of custody, pending trial. There
is no direct reference to prisons. The methods of dealing with criminals was
basically threefold: First, capital
punishment was required for capital offenses, and for incorrigible criminals. Second, for all other offenses,
restitution was the law; where an order of law had been violated, restoration
was the basic function of the courts. Emphatically, in Biblical law the goal is
not punishment but restoration, not
the infliction of certain penalties on
criminals but the restoration of godly order. The center of attention is thus
not the criminal but the righteous man and the total godly order. Third, where criminals were unable to make
restitution, bond-service was mandatory in order to work out the required
restitution.
In
Leviticus 18:24-30, there is a strong summons to righteousness coupled with a
warning. Sin is a defilement of man and of the land: it destroys or upsets
God's order, and its consequences is God's judgment. Man must therefore
"keep" the law lest the land "spue" him out for his
"abominations" and "iniquities." Justice builds up and
exalts a land; it is a restoration and a construction, whereas iniquity
destroys a land and creates a moral vacuum that cries for judgment.
Western
civilization began as an unhappy compromise between the Biblical standard of restitution and a Greco-Roman and pagan
criminology which, while having elements of restitution, leaned heavily
towards punishment. The prison thus
had a place in Christendom, as an ugly, bastard compromise. It was not only a
place of custody, but also a place for torture and punishment, a place to hold
men for ransom or for elimination from a threatening position in the state. The
prison was an accepted and illegitimate part of the social order. Thus, it
could be stated that, into the 18th century,
It must be borne in mind
that all this time the prisons were primarily places of detention, not of
punishment. The bulk of those committed to their safe keeping were accused
persons awaiting trial in due process of law, or debtors; and of these again by
far the most numerous class were the impecunious and the unfortunate, whom a
mistaken system locked up and deprived of all means of paying their
liabilities. Now and again an offender was sentenced to be imprisoned in
default of payment of fine, or to pass the intervals between certain periods
of disgraceful exposure on the pillory. Imprisonment has as yet no regular
place in the code of penalties, and the jail was only the temporary lodging of
culprits duly tried [516]
and sentenced according to law. The punishment most in favour in these ruthless
times was death.
The
rise of humanism led to a number of radical changes. Humanism was an
intellectual movement among a self-appointed elite, and this elite was
notoriously contemptuous of the poorer members of society. As a result, an
already severe law-structure, dominated by an aristocracy, gave way to a more
severe one in which the answer to almost every offense was the death penalty.
Colonial
needs later led, in England, to another solution, deportation. Criminals were
deported in great numbers, especially to Australia, both as a means of
colonization and also as a punishment.
The
next alternative was the prison system, and a major movement resulted in a
demand for both more humane treatment in prisons, and the punishment of
imprisonment as the solution to the problem of crime. It came to be believed
that imprisonment could have a saving effect on man, that punishment in the
form of a loss of liberty would lead to reformation.
Punishment
next gave way, in the humanist ideology, to rehabilitation, and prisons began
to be converted into rehabilitation centers. Thus, in California, one class of
prisons is known as a "correctional facility." The "old doctrine
. . . that the purpose of the criminal law is to exact from the criminal a
retributive suffering proportionate to the heinousness of the offense" has
given way to "the effort . . . to combine deterrence and public protection
with restoration of the offender to a more self-sustaining role in the
community." This opinion
reveals certain basic errors. First, criminal
law is invested with a religious and messianic role, a duty to save criminals.
This is asking of the law more than law can deliver. Second, it misinterprets history. Retribution is seen as exacting
suffering; this was true of humanistic law, but not of Biblical law, wherein
retribution or vengeance is the prerogative of God and His instruments and
involves giving justice where justice is due (Luke 18:1-8). Third, this opinion is individualistic,
not social, and it concentrates on the person of the criminal not the victim.
Thus, Bennett notes, "The current trend in the disposition of offenders is
unmistakably toward individualized penal treatment administered within the
frame-[517] work
of a flexible criminal code."
Salvation is personal, and the law now concerns itself with saving the
person of the criminal.
This
personal frame of reference has led to the newer emphasis on mental health, on
psychiatric treatment as the answer to criminality.
Humanism
thus has come full circle. It began by replacing restitution with the prison
system. It concludes now by restoring restitution, by requiring that society
make restitution to the criminal for its supposed neglect. Because of its
environmentalism, humanism blames a lack in the environment for a man's crimes.
This means that society must atone for that lack by restitution. Both
criminology and welfarism rest on this humanistic doctrine of restitution.
Restitution must thus be made to all who are criminals, perverts, or lazy, to
all who will not work, or who are failures, to all who give birth to
illegitimate children, and to all who in any way are sub-standard. Restitution
has once again become the social standard, but it is a humanistic restitution
which works in total opposition to God's order.
Humanistic
restitution is anti-law in that it is fundamentally hostile to any concept of
absolute law. Absolute law is replaced with the absolute person. The result is
the end of any law-order, and its replacement with a lawyer-order. The
difference between the two is a great one.
The
Puritans of the Massachusetts Bay Colony were fearful of the tendencies of
English society towards a lawyer-order, and they began by banning a
professional, paid lawyer-class. Every man had an obligation to know the law
by means of the Bible. The jury system was developed in America to a
far-reaching power on the premise of a Biblical law order in which every
citizen knows the law. The requirement that jury members be believers was not
a church requirement but a state requirement: the law order required men
knowledgeable in Biblical law. The jury system was strong as long as the law was
the common law of Scripture, not an esoteric doctrine open only to a
professional class. There was room, after the distrust of the early years, for
lawyers in America. In fact, America saw the rise of several generations of
great lawyers who dominated national life and politics and gave powerful
expression to national aspirations. These lawyers were nurtured in the same
Biblical law-word as the people; however much both lawyers and people drifted
from that faith, they continued to share certain basic premises. The lawyers
thus could find a well-nigh universal response to their formulations of issues
because they evoked a common faith in a common law. When lawyers turned instead
to positive law (statist law) and statute law (in place of Biblical law), they cut
themselves off from the people and became steadily a by-word for deceit because
they were beyond the comprehension of the people [518] with their esoteric,
humanistic law. A lawyer-society had replaced a law-society.
A
comparison with Japan is instructive. Japan's immediate back-ground is a Shinto
law-order; Japan is in process of being transformed into a modern, humanistic
lawyer order. Much of Japanese society is still governed by ancient traditions,
loyalties, duties, and relationships which provide a wide cover of law without
lawyers. In Japan, "10,000 members of the Japanese Bar Association suffice
for a nation with half the population of the U.S. The U.S. has 340,000 lawyers."
In
a lawyer order, the social cement has eroded, and the commonly accepted ties
which bind men and facilitate communication are gone. An artificial body of
statutes, lacking in social roots and having been rationally conceived, replace
the old order, and the lawyer becomes the interpreter of these esoteric laws.
In a Christian law order, "ignorance of the law is no excuse,"
because the law is an open book to all, since it is Biblical in nature and
represents a common faith and order. In humanistic lawyer orders, ignorance of
the law is unavoidable, because thousands of statute laws, having no basis in
any ultimate moral ,order, are regularly passed. Not only is ignorance of these
laws unavoidable for the laymen, but also for the lawyer, who must become a
specialist in a particular area of law and then engage in continuing research
in order to keep up with its esoteric intricacies.
The
lawyer order, being alien to law, becomes a social order managed by social
scientists. Since environment rather than sin is blamed for crime, treatment of
the offenders and restitution to them becomes the order of the day. In 1966, a
presidential commission blamed poverty for criminality and urged treatment
instead of imprisonment for all except a hard core of incorrigibles.
The humanists, who gave us the prison system, are now condemning it and
are damning it as a "conservative" instrument.
The idleness of prisoners in county and city jails leads to a variety of
serious problems. Homosexuality and homosexual rape is a major problem. Of
homosexual rape in prisons, a report stated:
Philadelphia
-- Robert, a 20-year-old accused car thief and check forger, should be in a
county jail here. But even though Robert couldn't raise his $800 bail, Judge
Alexander F. Barbieri Jr. set him free to await trial.
Why?
"This boy simply wouldn't be safe in a Philadelphia prison," the
judge explained. "Even if he's guilty, it would be a greater crime to keep
him in prison, than to allow him to repeat his offenses." [519]
Judge
Barbieri so ruled because Robert, a slightly built youth, was the victim of
homosexual rape several times, perhaps as many as 10 times, while held in
pretrial custody here.
Triggered
by the disclosure of similar incidents-- one involving a 17-year-old victim
whose only "crime" was running away from home -- a recent two-month
investigation found that "sexual assaults are epidemic in the Philadelphia
prison system." Investigators conservatively estimate that in two years
there were about 2,000 sexual assaults in jails here.
These
assaults aren't unique to Philadelphia. They are common in many metropolitan jails,
authorities say. Homosexual rapes recently have been revealed in county and
city prisons in Washington, D.C., and its suburbs and in Chicago, among other
places. "It's a result of warehousing a hodgepodge of prisoners in antiquated
prisons where they have little or nothing to do," says E. Preston Sharp,
secretary of the American Correctional Association.
These
facts are not surprising. A prison holds in enforced community a large number
of incorrigible criminals who deserve death, and a number of offenders who
should be required to work out restitution. To keep such a collection of people
from evil would require more guards than most prisons can afford. Instead of
dealing with the root problem, the departure from the Biblical principle of
restitution, humanistic reformers compound the evil. As radical legal
positivists, they deny any absolute concept of justice and concern themselves
instead with the individual, the person of the criminal. Humanistic restitution
then functions to give every possible advantage to the criminal. Note, for
example, the case of one convicted slayer:
The
convicted slayer of a Long Beach police officer has been granted an
unprecedented $500 expense account, a valet and other extraordinary privileges
while he prepares to defend himself at his fifth penalty trial.
Superior
Judge John F. McCarthy did so, according to a formal court order of Oct.29,
because he feels that the funds and other privileges are needed by Doyle A.
Terry, 40, to adequately prepare his defense.
The
county will provide Terry with a licensed private investigator, two legal
runners (one of whom will serve as Terry's valet), an additional cell in which
to store his files, all the unsupervised personal telephone calls he wants to
make and use of the jail law library practically at will.
Terry, who has spent
nearly nine years on San Quentin's Death Row, was convicted in 1960 for the
slaying of officer Vernon J. Owings. [520]
Terry previously was
sentenced to death in 1960, 1962 and 1965. Another penalty trial in 1965 ended when the jury was unable
to agree unanimously on whether he should be sentenced to death or life in
prison.
Each of his death
penalty sentences was reversed by the State Supreme Court, which retroactively
applied decisions of the U.S. Supreme Court.
Terry won his second
trial because in the first the prosecution commented (as permitted at the time)
on the deterrent effects of the death penalty. He got his third trial because
in the second the prosecution (as it then was allowed to do) told the jury he
would be eligible for parole if given a life sentence.
His latest reversal came
because prospective jurors opposed to the death penalty automatically (as then
was permitted) were excluded.
All the privileges
granted by Judge McCarthy to Terry appear to exceed those allowed other
prisoners acting as their own lawyers after refusing the services of a public
defender. . . .
. . . Judge McCarthy
said . . . "The Supreme Court might just tell us, 'Here, you deprived this
man of a fair trial because you didn't let him have telephones.' And I don't
think they would pay too much attention to us if we told them the money hadn't
been budgeted."
Officer Owings, 31 at
the time, was shot in the head June 24, 1960, when he and his partner stopped
to aid what they thought were two men, one of them Terry, having car trouble on
Terminal Island.
Terry was captured by
pursuing officers a mile from the scene of the shooting.
At his first trial he
also was convicted of five counts of robbery and one of conspiracy to commit
robbery . . . .
It
must be stressed again that this is environmentalistic restitution. For
environmentalism, evil is in the environment, not in the sinner; there-fore,
the environment must be penalized and restitution made to the sinning
individual. For the environmentalist, proof of the innocence of a criminal is
to find evidence of some unhappy interaction with the environment. Thus,
because a murderess had been a fat girl who later became very attractive, it
was held that this transformation made her into a murderess. A probation report
on this murderess, Kristina Cromwell, quoted her mother as saying that
"When she lost weight and found that she was attractive to men, she
couldn't handle it."
The probation report "At the very least . . . implied that the
crime for which she was sentenced to life imprisonment Tuesday was rooted in
her physical [521] turnabout
and the personality change it provoked."
This kind of opinion is to be found very widely today among the clergy,
educators, and sociologists, among others.
The
result of such opinions is a growing inability of society to cope with crime.
The bail system, legitimate in a godly social order, has become a source of
major abuse in modern society, so that President Nixon in 1969 proposed denial
of bail to accused persons whose release is likely to menace the community.
In one California case, it was reported that "A Van Nuys man free on
$15,000 bail pending court action involving attacks on nine women and girls in
the Van Nuys area has been arrested on charges of attacking a 13-year-old
girl." This offense led to his arrest on April 10, 1969; in February of
1969, this man, Anthony J. Iannalflo, was arrested and "later arraigned on
12 counts, including four forced rapes, for child molestation, three kidnap and
one robbery. The charges allegedly were the results of attacks on women and girls
in the Van Nuys area since last June (1968)."
Without
God's moral absolutes, man becomes eventually unable to cope with evil. Instead
of fighting it, he seeks a compromise with it. According to one sociologist,
compromise is society's best hope.
Should state and federal authorities
attempt to negotiate with the Cosa Nostra, just as our State Department
negotiates with hostile foreign powers? Such diplomacy might well serve the
interest of noncriminals, suggests Dr. Donald R. Cressey, professor of
sociology at UC Santa Barbara.
"A little
cold-blooded appeasement is not necessarily a bad thing, especially when our
side is losing," he writes. He states that some form of negotiation (or
accommodation or communication) by state and federal officials-such as is
carried on by local officials, often in a haphazard and corrupt fashion-might
lessen the danger that organized criminals will achieve a monopoly on
democratic processes in the United States.
Such appeasement already existed illegally, even as the professor
wrote. Thus, according to reliable federal and other sources, it was held that
"La Cosa Nostra spends $2 billion annually to corrupt public officials all
the way up from the county sheriffs and courthouse right on into the Supreme
Court."
[522]
The
direction of any godless system of justice is only downward; it is, to use Van
Til's phrase, integration into the void.
According
to Leviticus 18:24-30, every departure from God's law is a defilement of men
and a defilement of the land: it is the basic pollution of all things. The
modern prison system is an important aspect of the defilement of our times.
[1] Unger's Bible Dictionary, "Prison," p.889.
[2] A. R. S.
Kennedy and R. A. Barclay, "Prison," in James Hastings, editor;
revised edition by Frederick C. Grant and H. H. Rowley: Dictionary of the Bible (New York: Charles Scribner’s Sons, 1963),
p.789.
[3] Major Arthur
Griffiths, "Prison Discipline," in The Encyclopaedia Britannica, Ninth Edition, The R. S. Peale
Reprint (Chicago: R. S. Peale, 1892), XIX, 747. For a history of the early
developments towards penal punishment, see Ralph B. Pugh, Imprisonment in Medieval England (Cambridge: University Press,
1968).
[4] James V.
Bennett, "The Sentence and Treatment of Offenders," in The Annals of
the American Academy of Political and Social Science, vol. 339 (January, 1962),
p.142. Crime and the American Penal System.
[5] Ibid.
[6]
"Bernie, Go Back!" in Forbes vol.104,
no.11 (December 1, 1969), p.21.
[7] Monroe W.
Karmen, "Combating Crime," in The
Wall Street Journal, Pacific Coast Edition, vol. LXXV, no. 12S (Wednesday,
December 28, 1966) p.1.
[8] "Prison
System Breaking Down? Search For a Better Way," in U.S. News & World Report (August 11, 1969), pp.60-63.
[9] Charles
Alverson, "The Jail Jungle," in The
Wall Street Journal, vol. LXXX, no.39, Pacific Coast Edition (Tuesday,
February 25, 1969), p.1. Note the
environmentalism of Sharp's statement.
[10] Ron
Einstoss, "Killer Gets Expense Account and Valet to Defend Self
Again," in the Los Angeles Times, Sunday,
Nov. 16, 1969, Section C, pp. 1, 4.
[11] "Life
For Kristina," in the Los Angeles Herald-Examiner,
Wednesday, April 2, 1969, p. A-3.
[12] Jerry
Cohen, "Diet That Made Women Slender May Have Made Her a Killer," Los
Angeles Times, Wednesday, April 2,
1969, Part I, p.32.
[13]
"Crimes While on Bail-The Hunt For a Remedy," in U.S. News & World Report, vol. LXVI, no.7 (Feb.17, 1969), p.42.
[14]
"Rapist Suspect, Out on Bail, Arrested in New Attack Case," in Van
Nuys, California, The Valley News and
Green Sheet, vol.58, no.156, (Friday,
April 11, 1969), p.1.
[15] "News
From The Academy," in the Kingsburg (Calif.) Recorder, Thursday, Dec. 18, 1969, p. 8.
[16] Victor
Riesel, "Web of Mafia Control," Los Angeles Herald-Examiner, Sunday, Dec.21, 1969, p. B-7.
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