Crime and Punishment, Part II

Justice is A Matter of Restitution, Not Punishment or Correction

We have argued that the modern Athenian system of justice is anything but systematic. It is riddled with inconsistencies, non sequiturs, blind alleys, irrationality, and--well, to be blunt--stupidity. One fundamental cause of this is that society remains confused over what the purpose is of the prison system. Modern western societies, including New Zealand, cannot decide whether prisons are for punishment, rehabilitation, correction, penitence, or for protection of the community. The best that our hopelessly confused systems of justice can come up with is "all of the above" which results in a completely confused mess of programmes and policies in the courts and in the prison "system" (one hesitates to employ a term which implies order and structure.)

We have also argued that prisons are our modern form of institutionalised slavery. Whilst none dare call it that--the word is unmentionable in polite society--nevertheless the entire prison system is nothing more than a form of slavery, where right of ownership of an individual is asserted by the State. But there is one profound difference between our modern form of slavery and that found in every other culture and time: our slaves do not work! They are kept as slaves, but forbidden to work. This makes it abundantly clear that the modern prison system had to have been invented by the Irish.

For Jerusalem, that Christian City, when it comes to crime and punishment there is one predominant objective which should override all others, and to which all other objectives should be subordinate: victims of crime should be restituted by the criminal. That is the fundamental debt criminals owe. Everything else should be bent toward achieving this end. If there are to be prisons, they should exist to offer those imprisoned a structured opportunity to restitute those whom they have harmed. On this principle, the prison is an institution enabling disciplined, structured restitution of victims (not punishment, correction, penitence, rehabilitation of criminals, or whatever else might be the flavour of the month.)

Ironically, (and not surprisingly, given the perverted nature of Unbelief) restitution of victims is the one objective overlooked completely in the sentencing of criminals in our pagan justice system. Yes, we know that from time to time the State has bursts of enthusiasm about the idea, but it remains little more than an optional extra to the modern criminology. Yet, if it were properly instituted into our system of punishment it would make a whole lot more sense. Moreover, it would make the whole modern system of crime and punishment more overtly and intrinsically a system of justice. It would do this because it would institutionalise the principle of the criminal being required to put right those whom he has wronged.

In order for this to work properly, however, and result in a thorough reform and rehabilitation of the prison system there are some crucial aspects which must be part of the package—without which, the whole construct would collapse into yet another incarceration failure. We cannot emphasize this enough. There is little to be gained (and much to be lost) if restitution were to be added as one more objective of prison administration. This would only add one more confusion to bedlam.

Any reform, in order to be reform, must only be undertaken if it reorganises the entire prison and justice system around this one dominant objective: restitution of victims. This means society must relinquish its desire for vengeance, or its pretensions about redemption, correction, or rehabilitation. These are nothing more than humanistic idolatries where man is vainly asserting the prerogatives of the Living God.

Let us trace out how this might work, in the courts and in the prisons.

First and most important is the principle that the debt a criminal owes is not to society at large, but to his victims—to those he has harmed and hurt by his actions. (The idea that the debt is to society at large is just another manifestation of socialism asserting the communal, that is state ownership of everything.) According to the Christian view of justice in this world, if a criminal adequately restitutes his victims the State has no further claims upon him, and continuing enslavement in a prison is unjust.

To highlight this principle, consider the following case. A thief steals a car and writes it off. In the process he smashes into another car and hospitalises an innocent. At court, the judge orders restitution to be made to the owners of the two cars. The criminal must provide funds to purchase replacement vehicles, plus additional compensation for hurt, inconvenience, and the imposition of having to go without a car. In addition, the judge orders that an appropriate lump sum be paid over to the hospitalised victim to cover all medical expenses, plus additional funds to compensate for loss of earnings, hurt to the family, ongoing medical costs, any temporary or permanent impairment, etc. (The calculation of monetary compensation for hurt suffered has a long and honoured tradition in western jurisprudence. It also is a fundamental construct in biblical justice.)

Let us estimate that the total restitution ordered by the court would amount to $350,000. In addition, the criminal would be charged from time and attendance by the police, together with court costs. It turns out, however, that the thief has a wealthy uncle who agrees to pay over the restitution money. The thief agrees to accept the payment of his obligation, and the funds are duly paid over to the victims. At that point, the State has no further interest in or claim upon the criminal (apart from the police and court costs, which would be part of the restitution debt). The debt has been paid. Justice has been done.

But, we hear you say, the criminal has paid no price. He has not been punished. Possibly. But the victims have been restituted and that is the predominant, if not the only, interest which the State has in the matter. Further retribution to the thief belongs to God, not to human courts.

Now, we should not imagine that the thief is off scot free. In the ordinary patterns of human social interaction, we would expect that in most cases the family, led by the generous uncle, will demand a great deal of the thief in return.

This leads us to the second vital principle: where a relative or person of interest offers to restitute victims on behalf of a criminal, the criminal must be formally indicted as being in debt to his benefactor or kinsman-redeemer. The State must recognize that the kinsman-redeemer has a property right in his relative or the one he has redeemed, until the debt is paid off or back. This debt would be able to be cancelled at any time at the discretion of the kinsman-redeemer up to a period of so many years, nominated by the benefactor. After that time, the debt would be automatically canceled. These terms and conditions would be negotiated and agreed to by both the kinsman-redeemer and the redeemed—and would subsequently be recorded and ratified by the Court. Prior to that time, the kinsman redeemer, at any time, could demand payment of the debt. If the criminal were unable to pay the amount outstanding, the State would pay the remainder to the kinsman-redeemer, and the thief would be sent, or recalled, to prison until the balance outstanding were paid to the State.

This model of penology would result in large numbers of people being kept out of the prison system in the first place. This in itself would have a significant benefit. Everybody knows that the current prison system apparently succeeds in just one thing: it is one of the most sophisticated and powerful schools of crime and criminality ever devised by man. People who do stupid and thoughtless acts in their youth are often transformed into career criminals though their first experiences in the modern pagan prison system. Our approach would provide the opportunity to avoid prison altogether.

The third principle is that if a criminal were unable to pay restitution, and no-one was prepared to act as kinsman-redeemer, the State would pay over the restitution to the victims and consign the criminal to prison until he has worked off his restitution debt. Only then would the criminal be viewed as having a debt to society at large, since his restitution money would have been paid by society at large. There would be no fixed term or judicial term to the prison sentence. The criminal would stay in prison as long as it took to pay back the debt. If he failed to pay back the debt, he would never get out of prison--thus, effectively being consigned to prison for the term of his natural life.

Fourthly, it follows that prisons must be places of work where prisoners can earn income to pay off their restitution debts. This would remove the folly of having slaves who are not allowed to work. As we have said there would be no fixed term of sentence. The term would be set by however long it takes to pay back the restitution debt. (Generally, the more serious the crime, the longer it would take to pay it back because the amount of restitution would be greater. Therefore the period of incarceration for serious crimes would likely be longer. White collar criminals, with large numbers of victims, might never emerge from prison.) Kinsman-redeemers, or private benefactors, would be able to pay all or part of the amount outstanding at any time, to assist with the shortening or ending of the term of slavery (that is, working while in prison.) This would have the collateral benefit of enabling a wider family to contribute to the welfare of the prisoner in the most practical of ways and at the same time giving the family a significant incentive to do all they can to ensure that the prisoner would not re-offend.

Fifthly, there would be no compulsion within the prison system to work. Forcing people to work against their will only results in work that is unproductive and of a low standard. It also necessitates extensive and constant supervision. Rather, a fixed charge should be added to the restitution debt roughly equivalent to the costs incurred in keeping a criminal in prison. We are told that it costs roughly $70,000 per annum to keep a person incarcerated. This amount should be added to the restitution debt annually for a prisoner who refuses to work. Moreover, non-working prisoners would lose privileges, being kept in close confinement. The only way to regain the ordinary prison privileges would be to volunteer to work, make application for an available job, and be accepted. Once employed, they would immediately come out of close confinement. Some would continue to refuse and would thereby consign themselves to a life time of incarceration. So be it.

Sixthly, if a prisoner elected to work, we suggest that up to half his earnings would be deducted from his income to pay for his “board and expenses”, up to a certain maximum amount which would be the annual cost of keeping a prisoner incarcerated. The remainder would be applied to his outstanding restitution account. Thus, if a prisoner were earning more than $140,000 per annum in prison, he would never be charged more than $70,000 per annum for “board and expenses.” As an incentive, for the time a prisoner elected to work, and therefore for the time payments were being made out of his earnings to his “board and expenses” account, nothing more would be charged to him for his incarceration costs, even though fifty percent of his income might be far less than the actual cost of his keep.

We would expect that the prisoner would pay income tax on his earnings. This would be an indirect method of compensating the State for inflation eroding the value of the original restitution bond. It would also remove any distortions between a criminal working to pay of his restitution debt privately, as opposed to prison facilitated payment. It would also avoid the fundamental trap of giving prison enterprises an advantage over their competitors.

Seventh—and this is vital—the work done in prisons must be at real enterprises, doing real jobs, producing commercial goods and services, by businesses operating at and for profit in the open market place—and the prisoners must be paid at commercial market employment rates. The present system operating in prisons is self-defeating and stupid. Privileged prisoners can go on work schemes (often in the community): they are paid “pocket money” wages and have little or no financial incentive. Meanwhile private businesses find that their enterprises and firms are undercut and outcompeted by those firms employing cheap prison labour. It is a completely unsustainable and self-defeating model. It reflects the screwed up thinking of modern penology.

The overwhelming objective of current work schemes in prisons is rehabilitation (teaching work skills, meaningful activity, to enable prisoners to function into society). Because the focus is not on paying restitution debt, the incentive of working to earn so as to get ahead is removed, thereby removing most of the benefit of work in the first place.

Why else ought prisons exist? Every other purported objective set forth for prisons to accomplish they have miserably failed at--and the Western world has around three hundred years of experience at this now. We are such slow learners. Or maybe ignorance is invincible when it is blinded by humanist ideology.

But what about the argument that prisons at least protect the rest of the community by locking malefactors up and away? It turns out that this principle is also fundamentally unjust and cannot be used as a principle of just punishment. We will take this up in our next piece.