Saturday, October 9, 2010

Charles Colson's Justice that Restores

Wise people don't take Charles Colson lightly. He became one of the most powerful people in the world during the Nixon years because he is intelligent, articulate, and sincere. While he is indeed a convicted criminal, he went to jail because of bad decisions sincerely made, and since his release he has shown that his repentance during his prison years was sincere; I would guess that he has spent at least as much time in prison as a free man as he did as a prisoner, and he has done so to spread the gospel. His Justice That Restores is a thin volume, but it's a small bowl of very hearty soup.

Colson and I share the belief that the criminal "justice" system is as fertile ground as there can be for sowing the seeds of the gospel. Crime hurts its victims, of course, and our system, in which victims have literally no chance for compensation, is simply barbaric. It also, at best, leaves perpetrators of crime in their twisted moral and spiritual state; in some cases it twists them even further. So far, so good. But this additional twisting is done by policies based on presuppositions that Colson and most evangelicals share with the system; I will suggest here that they are not biblical.

Colson's audience for this book seems to be nonbelievers: he doesn't quote the Bible until page 46, and he carefully avoids religious jargon. So effective was his packaging that early on I found myself rolling my eyes and expecting another "Christian" argument based on "natural law" rather than the Bible. But he was arguing deductively, describing first what doesn't work, then what is needed, and finally how the Bible prescribes a system that meets that need, first for individuals through the gospel and then for society through restorative justice, which he defines as

one that holds individuals responsible for their actions (that is, fallen individuals have a moral duty) under an objective rule of law (which we believe is rooted in revelation) but always in the context of community and always with the chance of transformation of the individual and the healing of fractured relationships and of the moral order. (p. 115)

The first part of the book is a litany of failed state-based solutions that offers at least prima facie evidence that the more the state is involved in the process, the worse the result is. He follows the evolution of criminal justice theory from the days of common law (not, unfortunately, biblical law), in which crime was considered offense against individuals, to today's unjust situation in which crime is almost exclusively thought of as transgression against the state. He also traces the erosion of belief in the authority of the Bible, then of belief in natural law (by which he specifically means the laws the apostle Paul says are "written on the heart" [Ro 1]), and finally of belief in the existence of absolute truth in any form. Today expediency alone limits political (and sometimes raw) power: both crime and the state's response are whatever those in power determine they should be. Again, so far, so good.

The problem comes with his proposed solutions:

The remedy for this crisis goes far beyond building more prisons. (p. 10)

A solution that goes beond something generally includes it. So his proposed solution involves building more prisons even though the US already incarcerates more people and a higher percentage of the poplulation than any other nation. If he is truly speaking for God here, US citizens, far from being the last great hope for the human race, are depraved at a greater rate than elsewhere. (And if he's right, instead of being sent overseas to bomb women and children in the name of spreading democracy, they should simply be put in cages. That would be good news for the Southwest Asians.) It also seems bizarre in light of the admissions he makes of the obvious:

Prisons ... merely incapacititate, not rehabilitate. (p. 53)
Prisons are filled with many people who are not dangerous to society. (p. 128)
[Victims feel like they are] simply used as the tool of the prosecutors for the state. (p. 138)
[The prison environment is] by its very nature oppressive and often debilitating. (p. 153)

His solution of building more prisons is, according to that last quote, an attempt to solve the problems caused by institutions that are oppressive by nature by building more institutions that are oppressive by nature. The Bible says we are not to do evil hoping that good will come of it (Ro 6:1). Surely we can do better than that.

I would suggest that Colson is crippled by his legitimization of the state.

As Walter Block and Hans-Hermann Hoppe have written at length, the idea of the stateless society is simply unthinkable for most people: they have never been taught to question the legitimacy of some people, "government," being able to do with impunity what would be criminal were their subjects to do it, and Colson is no exception. Yet by removing this single presupposition from his argument, he would open himself up to a truly biblical solution to the problem he nails so well. He himself gives examples of detention facilities that exemplify the restorative justice he is promoting, and one trait they share is that none of them are run by government (though they are associated to varying degrees with government-run institutions).

Let me give some examples of how his presuppositions hinder the broader point he's making.

He argues that victims of crime were deprived of justice as never before when crime came to be seen as an offense against the state rather than against the direct victims. How could this not have happened when government agents see themselves as superior to their subjects? What incentive do they have to consider themselves defenders of the individual victim rather than as the primary victim? For example, what incentive does a police officer have to see that a guy mugged for $500 receives restitution when the officer has to put his life in danger to catch the thief? What incentive does the judge or sheriff or county treasurer have have when the cost to catch, cage, and try the thief is greater than what he stole in the first place? What incentive is there for prison wardens and their superiors to decrease the prison population when they can argue for pay raises as the prison population rises?

Delegitimize the state and these problems disappear. To be sure, the problem of what to do with dangerous miscreants remains, but the incentive for building ever more cages to be presided over by ever more highly paid bureaucrats is replaced by incentives to see victims compensated and as few miscreants as possible incarcerated. The delivery of justice becomes like the delivery of potato chips: long-term prosperity goes to those who can deliver the most bang for the buck.

Is this solution biblical? Most evangelicals' knee-jerk reaction is to say no on the basis of Romans 13. Yet their proposed "biblical" solutions are rife with the perverse incentives I just named, and the outworking of those incentives is precisely the barbaric system we have today. So how about if we start somewhere besides Romans 13? How about beginning with the case laws of Exodus 21-23? or Deuteronomy 17:17-20? or Luke 22:25-26?

While it is true that the case laws were given in a context much different from ours, human nature hasn't changed since then, so we can at least hypothesize that if it worked then, it would work now. Certainly if it were moral then, it would be moral now. The objection is often raised that today's industrial society is much more complex than Moses' refugee camp and the agrarian period of the judges, but Jesus tells us that those who are faithful in small matters can be trusted in large matters (Mt 25:21). By that logic what works for three people will work for thirty, three hundred million, or three billion. The burden of proof is on those who claim that a system that was given by God would not work today. Certainly the system they have built is not working, though there are many beneficiaries who owe their positions of power to the new system and so would be reluctant to see it abolished.

Colson also gets in trouble when he praises the first policemen for starting soup kitchens (p. 117). While as a conservative he would be slow to praise the modern welfare state (and perhaps almost as slow to praise the totalitarian police state), here he praises its roots. Unless those soup kitchens started by the police departments were funded entirely by private donations—in which case why did the police need to start them at all?—the money for them was taken under threat of death from those who had earned it through serving their neighbors. How biblical is that?

He also praises the "broken window theory" (117-118), the idea that the fight against theft and murder begins with fighting vagrancy, neglect, and vandalism. This idea rests on two repugnant assumptions, first that the government should own parks, etc. ("public spaces"), and second that how private property owners maintain their property is the government's concern. As to the first, again, the government cannot own what it doesn't alienate from private owners, taking from those who produce and serve and giving to those who don't. The second conflates the idea of public and private; it's the basis of zoning laws, laws that prohibit restaurant owners from allowing their patrons to smoke and from serving food that their patrons would like to eat, and laws regulating how much water you can use in your shower.

In each of these cases, what determines the actual policy that obtains is not justice; rather, it is political expediency, what the politically powerful believe they can get away with. And when everything is the state's business, our lives are run by the politically powerful; in other words, we are slaves.

The private property solutions to the "broken window" is simple and biblical. Without "public spaces" there would be no place for vagrants to congregate; they would need permission from the owners of the space they wanted to occupy: no permission, no vagrants. And while broken windows on private property are indeed ugly, there are ways to deal with it apart from what amounts to confiscation by the government: such poor stewards can be bought out or tolerated.

If we really want restorative justice, our first step has to be the repudiation of the state. Until people regard each other as moral equals forbidden to violate others' bodies and property—that is, they repudiate the foundational principle of the state—and treat miscreants with an eye to restitution, reconciliation, and restoration, there is no incentive to change the barbaric system we live under, we will see the growth of both the criminal class and a self-righteous kleptocracy supposedly dedicated to protecting us from it, and, most importantly, the church will decline in numbers and influence. Repudiate the state and we will find ourselves shaking off our complacency and praying like our very survival depends on God and working like it depends on us.

The state won't go away unless we offer something better to replace it. But we have no incentive to build that something as long as we ascribe legitimacy to its most powerful enemy.


  1. Could it be that we have so many more prisoners than other countries because we process more criminals rather than let hem run loose ? As in we are more efficient in catching them and maybe we are more zealous in prosecution? Of course, we keep murderers forever rather than executing them and that doesn’t help.

    In the last paragraph you talk about replacing the state. Do you mean replace it altogether or replacing it as the agency that runs the judicial and penal systems ?

  2. If we are simply better at catching crooks and murderers, then there’s no problem with the size of the prison population. Unfortunately, as Colson says, most of our prisoners are nonviolent types, and I would add that most of them are people the Bible prescribes no criminal sanctions for, e.g., substance “criminals,” prostitutes and their customers, etc. And again, the larger point is that the Bible doesn’t prescribe prison for even the violent types. Restitution or execution seem to be the biblical alternatives.

    As for your second question, once you accept the idea that not even the king is “better than his brothers” (Dt 17), you have rejected the fundamental basis of the state. There will always be leaders and followers, some more and some less gifted, etc., but if the law applies to everyone, then there can be no state, at least as we know it. Abraham’s militia was not a state. I would add that the most statesmanlike thing Abraham ever did was to impregnate Hagar. He was no better than Ahashuerosh screwing all the pretty girls in his realm to decide who would be queen. She apparently had no say in the matter. And we know how that turned out.

    Thanks for reading and questioning!

  3. Is the debtors prison in the parables only an illustration from no historic precedent or did it reflect a real prison?

    I sure don’t see how you feel we can do without the state. It would be anarchy. How do you get around the clear need for the state in the OT and NT and all of recorded history ? I don’t get it. I assume you mean we need the state to be corrected, down-sized, re-oriented, etc. Please don’t tell me you are an anarchist.

  4. The mention of debtors' prison reflected reality. I don’t see it prescribed anywhere in the Torah, but by then I think they’d decided to send the Torah to Eastern Europe since they weren’t using it anymore. I’m not sure Jesus was endorsing the practice when he said people should settle with their enemies or they’d go to debtors’ prison (Mt 5:25). I think it was a metaphor for hell, or just a description of what would have happened under Roman law. (I also find it significant that he was recommending a non-state solution, just as Paul did in 1 Corinthians 6.) But I could be wrong.

    Yes, life without the state would be anarchy. I’m not convinced it would be chaos. Most people would say that if ten people were stranded on a desert island, they should have one guy in charge with life-and-death power over the rest of them. The first thing I’d do would be to put as much distance between myself and that group as I could. I’d much prefer to have us all armed equally and no one “more equal than everyone else.” Some people will become leaders, but I want their leadership to be by virtue of influence and example, not by “virtue” of overwhelming force. Given human self-interest, I want a system that rewards service and punishes violence and fraud. A state rewards ruthlessness.

    I distrust words ending in –ism and –ist because they're not always defined consistently. so I’m somewhat reluctant to call myself an anarchist. P.J. O'Rourke and James Dobson are both "conservatives," but I wouldn't put them in the same box. My atheist boss calls himself an anarchist, but I’d want to put distance between me and him on that island also.

    Gary North once said that the most important natural resource a society had was the moral character of its citizens. We now live in a society that as far as I can see has very little of that natural resource. A strong government provides incentives toward immorality; the entitlement state rewards sexual immorality, laziness, envy, and theft, and an empire rewards violence and rapacity toward conquered peoples and potential conquests. I think we have both in the US; worse, Christians are as much a part of it as non-Christians (e.g., the divorce rate); even worse, Christians think it’s the way God wants it. (They send their kids to public schools, they depend on Medicare and Social Security.) Simply getting rid of the state will bring this immorality to the fore. I’m would like to think that Christians, listening to the Holy Spirit as never before, will realize the errors of their ways before others and lead the way to a truly just, free, decentralized society. Then again, seeing their zeal for Uncle Sam, even under Obama, and how cavalierly they have regarded the killing of innocent people for 160 years, I’m not optimistic.

    I really think we’re in the days of Zedekiah here; our nation is doomed. Wise people are leaving the rot. I don’t have the money to. Jeremiah was left behind, and he was God’s man. My only hope is that I am too, though I don’t pretend to be anything close to Jeremiah in influence, godliness, or anything that counts. But if God’s grace is all I’ve got, it’s all I need.