"An Eye for an Eye"
Get-Tough Laws Under Biblical Scrutiny
by Paul M. Bischke
"An eye for an eye, and a tooth for a tooth." Sounds very hard-nose doesn't it? It seems like an ancient recipe for harshness that modern society has long ago outgrown. Not so. Few passages in the Bible are as badly misunderstood as this one. The "eye for an eye" maxim is not about harshness; it's about proportional retribution. And our society has certainly not outgrown it. In fact, over the past 20 years, America has enacted a vast body of harsh laws to "get tough on crime" and they have enjoyed widespread political support.
Do these sentiments flow from Christian teachings or are they merely artifacts of America's popular culture? The neglected Biblical principle of "an eye for an eye, and a tooth for a tooth" answers this question with an unexpected challenge.
In ancient Palestine, offenses against one's honor were met with an escalating response. If someone stole one of your sheep, the manly thing to do was to go and kill five of his cows. If some careless bozo trampled a row of your corn with his ox-cart, you might go and set fire to his field. In other words, "teach 'em a lesson."
The eye-for-an-eye ethic put a lid on this escalating violence, insisting that punishment or restitution be proportional to the actual, demonstrable harm done, and that it not be determined by the rage of the party offended. For example, Leviticus 24:18 says, "And he that killeth a beast shall make it good; beast for beast." The eye-for-an-eye principle placed rational limits on retribution and punishment -- a true step of moral progress.
Now suppose a government enacts a law: "stealing a silver spoon shall be punished by 10 years in prison." You may recall from your grade-school history lessons that, in colonial America, this crime was punishable by death. The Judaeo-Christian tradition condemns such laws: its severity exceeds the "eye-for-an-eye" guideline. A silver spoon is simply not worth 10 years of any person's life. To enact such a law is to break a higher law that demands fairness and respect for human life.
But what about deterrence? Does the Judaeo-Christian tradition allow governments to threaten harshness in order to prevent crime? In a limited sense, yes. Deuteronomy 19, another of the "eye for an eye" passages in Scripture, says, "And those which remain shall hear, and fear, and shall henceforth commit no more any such evil among you." Governments may inspire fear by verbal threats of harshness; however, the actual punishment delivered to any individual must still abide by the "eye for an eye" limit.
The "eye for an eye" principle forbids us from visiting excessive severity upon an individual in order to `send a message' to the larger society. Primitive societies administered such symbolic punishments freely. The Romans "made examples" of criminals to deter crime -- hence their use of public crucifixion. The Judaeo-Christian tradition, however, takes the flesh-and-blood individual very, very seriously. Whenever a society treats a living person as an abstract symbol or as the embodiment of some larger generalized evil, Christianity cries foul.
What about the notion that `crime should not pay?' If a thief is caught stealing $100, shouldn't he do more than simply pay it back? Thievery presents no risk if there are no further consequences. The Scriptures affirm that crime should not pay and that recompense for malicious harm must not merely be on a one-for-one basis. (There's no contradiction here: the precise one-for-one payback of the "eye-for-en-eye" principle applies to personal duels and to non-malicious property damage.) Indeed, when Zaccheus came to Jesus in repentance, he promised to pay back those he had cheated by a ratio of 4-to-1; and Jesus clearly approved (Luke 19:8, 9).
Beyond this, Christianity's "preferential option for the poor" seems to indicate that, in their misdeeds, the rich and powerful might be held to a higher standard than the poor and downtrodden: if the wealthy must pay back fourfold for their extortions, perhaps a hungry thief should pay back only twofold, since his motive is survival rather than greed.
Within certain limits, a government may justly proclaim a disproportionate punishment provided that it doesn't actually inflict that punishment upon living persons. `Get-tough' messages sometimes have a deterrent value that protects human well-being. However, if the proclaimed punishment is too extreme (e.g., 10 years in prison for jaywalking), the `message' sent is perverted from "crime doesn't pay" to "human life is cheap." This immoral social message contradicts the only justification for `get-tough' rhetoric. Christianity forbids using arbitrary coercion to achieve social compliance.
AMERICA THE PUNITIVE
How do America's `get-tough' laws stack up by these Judaeo-Christian standards?
Contemporary American lawmakers, both state and federal, have produced a flood of harsh laws, laws meant to "teach `em a lesson" and `sendout a message' that Americans will not tolerate crime. And we don't. With an incarceration rate second only to Russia and six times as high as our Western allies, America is not a nation of slack laws.
Stringent "three-strikes-you're-out" laws have resulted in life terms for many; and sometimes such trivial crimes as pizza thievery have been the last straw to slam prison doors on two-time losers for life. "Zero tolerance" isn't just a buzzword. In a 1994 Idaho case, a 14-year-old boy faced life in prison for selling $40 worth of marijuana to a schoolmate. The list of such laws is long indeed.
Mandatory-minimum sentencing laws are another part of this trend. Under ordinary sentencing laws, convicts are subject to a range of punishment. The judge decides whether the circumstances of the crime merit punishment at the high end of the range, at the low end, or somewhere in the middle. Mandatory sentencing laws, on the other hand, are inflexible from start to finish: the convict must serve each and every day of the prescribed sentence. The judge cannot consider the criminal's intentions or life circumstances. The parole board cannot reduce the sentence for good behavior. Mandatory sentencing allows no room for the case-by-case discretion implied by the term "juris-prudence." By taking the judging function out of the judge's hands, mandatory sentencing reduces the judge to a mere clerk and opens the door to systematic injustice.
The federal government has pushed the states to approach mandatory sentencing for all convicts through "truth-in-sentencing" legislation. These laws withhold federal highway construction funds from states unless they make prisoners serve at least 85% of their sentences.
Now, the Judaeo-Christian tradition forbids punishments that exceed the eye-for-eye limit. Mandatory sentencing, then, is morally acceptable only if the mandatory punishment is at the lowest extreme of the continuum of reasonable penalties for the offense.
However, in nearly all cases, mandatory minimum sentences are symbolically severe as well as being inflexible. For example, many young people are serving mandatory prison terms of five and ten years for possessing or ingesting LSD, an act which visits no harm upon any other person and only rarely harms the drug-taker himself. This example covers many cases -- about a fifth of all federal prisoners are serving mandatory terms for low-level drug offenses. In most cases, the tangible harm of these offenses is certainly less than the harm done to society by the actions of tobacco sellers and alcohol sellers; often the tangible harm is zero.
Inflexible punishments may be prescribed only if they represent the minimum punishment deserved under the most excusing of circumstances. Symbolically severe punishments may be proclaimed, for purposes of deterrence, as long as they are not actually carried out. However, punishments designed to be both symbolically severe and applied without compromise are intrinsically immoral; they violate the "eye for an eye" principle all of the time.
The lawmaker who devises laws of excessive severity commits a sin of tremendous gravity: as Isaiah 10:1 declares, "Woe to those who enact evil statutes, and to those who constantly record unjust decisions." Abused power breeds bitterness. Vengeance begets vengeance. But no good-willed person needs to fear or despise the law if the simple expedient of "an eye for an eye" is followed.
Just laws preserve public order while affirming the value of human life and liberty. If a society can achieve these goals with slack laws, that is best; unnecessary threats are never desirable. (St. Paul preached freedom from undue legal constraints long before Jefferson.). However, if public order erodes under slack laws, both human lives and human rights may be in danger. With an unruly population, slack laws may fail to affirm human life and basic rights. A virtuous government finds the "right mean" so that the values of life and liberty are held high despite the misdeeds of the unruly few.
Now Americans are not a particularly unruly people by world standards. But even with a very unruly population, the government that propagates exaggerated symbolic `messages'and executes disproportional punishments is immoral according to Christian ethics.
LOFTY CHALLENGES, WORKABLE STANDARDS
The Bible's final reference to "an eye for an eye" is in the gospels: "You have heard it said, "An eye for an eye and a tooth for a tooth." But I say unto you, do not resist him who is evil" (Matt. 5:38, 39). Jesus' standard fulfills and transcends " an eye for an eye." Governments are not merely forbidden to exercise arbitrary powers of coercion; Jesus forbids violence as a response to violence. This teaching is radical beyond belief and Christians have struggled with it ever since. Jesus saw what French philosopher Rene Girard calls "the inherent complicity between culture and violence"; Jesus saw the way humans have always employed scapegoating and severe, symbolic punishments to affirm their values and boost their egos. Indeed, He died at the hands of those who deemed Him a threat to the HONOR of Caesar.
The Hebrew Scriptures declare that the authority to govern is built upon justice, not merely on powers of coercion. Jesus says that, among weak and flawed human beings, justice without mercy isn't really justice at all. When the get-tough-niks of His own day brought before Jesus the woman taken in adultery (John 8), they held their stones with a firm conviction of their own righteousness. Jesus told them to look at their own hearts before satisfying their righteous rage. After the downcast mob dropped their stones, Jesus could say "go and sin no more" with unparalleled moral authority. Not the authority of swords, nor even authority by the letter of the law. He taught us that sinful human beings can't afford to be too hard on each another -- or we'll destroy ourselves. Forgive my brother seven times? "No, seventy times seven."
If Jesus' teachings seem too lofty for everyday public affairs, we should at least hold our government to the limit of "an eye for an eye." America's `get-tough' laws violate this modest standard, reversing moral progress and paving the way to modern barbarism. Injustice toward the unruly hurts us all. But a little dose of compassion never hurt anybody.
Paul Bischke is a professional writer and co-director of the Drug Policy Reform Group of St. Paul, Minnesota. As a practicing Catholic and social work student at the University of St. Thomas, he has explored and written about the ethics of drug policy and criminal justice from the perspective of Judaeo-Christian social justice.