Everyone has their own experience with the negative effects of drugs in Medicine Hat. Finding needles on the ground. Actually seeing someone shoot up. Public urination. People in visible mental health distress. People going through your backyard. People checking car doors at night. Increased garbage. Increased property crime. It’s been a challenge for every city across North America. The inability of police and community leaders to get a handle of it has made people increasingly frustrated.
I hear one answer over and over. People need to be held accountable. They need to be arrested and charged. We need stronger laws and stiffer penalties. As satisfying as this solution might appear, it won’t work. The reason why it won’t work is found surprisingly enough in the Bible and President Trump’s favourite verse.
Police and effective enforcement are important for any community, but solving social disorder cannot be solved by police and laws alone.
An eye for an eye
During the 2016 Republican primary, Donald Trump was asked to name his favorite Bible verse. He chose a good one. ‘An eye for an eye’—Exodus 21:24.
“Well, I think many. I mean, you know, when we get into the Bible, I think many. So many,” Trump responded. “And some people—look, an eye for an eye, you can almost say that. That’s not a particularly nice thing. But you know, if you look at what’s happening to our country, I mean, when you see what’s going on with our country, how people are taking advantage of us, and how they scoff at us and laugh at us.”
This section of the Old Testament lays out God’s instructions for appropriate punishments for various crimes. The full verse reads, “Eye for eye, tooth for tooth, hand for hand, foot for foot.” (King James Version). It’s a dark mirror of the Bible’s golden rule. “Do unto others as you would have them do unto you” (Matthew 7:12). We’ll do to you as you have done to us.
People associate this verse with a tough, John Wayne-type of frontier justice. However, far from being ‘not a particularly nice thing’, an ‘eye for an eye’ aims to control and minimize violence. This simple verse teaches us to punish in proportion to the crime—a radical new teaching for humanity.
The principle behind this verse forms the foundation for how Western democracies respond to crime and violence both at home and abroad. This verse changed how we view punishment because it asked essential questions for people trying to live together. What is justice? What is punishment? Can punishment be ethical?
The true nature of this famous verse becomes clear when we translate the verse differently. It’s more accurately translated as ‘only an eye for an eye’.
Brendan Smialowski/AFP
Proportionality
Humans generally dislike violence with one glaring exception—we like justified violence. That feeling of retributive violence can be very satisfying. And victims have the best claims for justified violence. After all, retributive justice is merely settling the score. Retributive justice is also self-perpetuating, since each act of revenge must be answered. Small injustices have a way of escalating when aggrieved parties are involved. The principle of ‘only an eye for an eye’ controls those impulses and prevents escalation.
Modern governments have a monopoly on violence. If there is a wrong to be righted our justice system corrects it—not private individuals or groups. This presents a balancing act for modern justice systems. Punishing crime harshly would satisfy our desire for revenge. But justice and revenge are not the same thing. We must punish offenders in such a way that our natural desire for revenge is defused and in a way that the wider community finds fair.
An eye for an eye communicates proportionality and fairness. It tailors the punishment to the crime with an easily understandable standard. We don’t want people to overreact to a crime. We definitely don’t want powerful governments to overreact.
Examples of proportional responses
Proportional force is the bedrock principle for police. In Canada police only engage in car chases under specific circumstances. Unless there is a clear and present danger to the public, the car chase itself creates a disproportionate public danger. In 2006 a stolen truck was spotted near Slave Lake. Police began pursuit that quickly reached speeds of 150 km/hour. A mere 17 seconds after the chase began the truck lost control and fish-tailed across the divided highway. The truck hit an oncoming vehicle killing an innocent mother and her two daughters. Is a stolen truck worth 3 lives? It fails the ‘eye for an eye’ test.
Likewise international skirmishes almost always follow the principle of proportionality.
In June 2019, Iran shot down an American military drone. In retaliation President Trump was offered a number of options, including a missile strike. However, when he learned that 150 people would be likely killed he called off the missile strike.
"I thought about it for a second and I said, you know what, they shot down an unmanned drone and here we are sitting with 150 dead people, that would have taken place probably within a half an hour after I said go ahead. And I didn't like it. I didn't think—I didn't think it was proportionate."
But President Trump is conflicted between the lessons of his favorite Bible verse and the limits of proportional punishment. In 2015, then candidate Trump remarked that he would not only kill terrorists, but also their families. Presumably to make the cost of attacking Americans so great that terrorists would think twice before carrying out an attack. Signaling a disproportionate response to deter attacks.
Proportionate responses are fine and good, but it takes self control in the face of provocation. When faced with constant provocation or a rise in crime rates we naturally turn our thoughts to crime prevention. How do we stop crime and attacks from occurring in the first place? But deterrence of crime is the Achilles heel of this Bible verse.
4 purposes of punishment
Societies aim to accomplish a number of things through punishment.
Incapacitation removes the offender from society—usually through jail time.
Retribution creates suffering for the offender, usually through the loss of personal freedom.
Rehabilitation prepares the criminal to re-enter society. With any sentence short of a life sentence the offender will re-enter society so we have an interest in rehabilitating the criminal to stop future crime (recidivism). Punishment is a critical part of rehabilitation—accountability for your actions.
Deterrence. Laws and penalties are publicly declared with the hope to prevent future crime.
Deterrence
Incapacitation, retribution and rehabilitation are consistent with the idea of proportional punishment. But I don’t see how proportional punishment is an effective deterrence to future crime.
Deterrence of crime is tricky for a number of reasons. Criminals aren’t always thinking rationally about the consequences of their actions. Crimes of passion happen when impulse overwhelms the rational part of the brain.
Drug addiction further complicates things. The Chief Justice of Canada’s Supreme Court, Beverley McLachlin stated that serious drug addiction is not a moral choice; it is an illness which essentially negates the notion of "choice" altogether. That’s a shocking thing for her to say. If addicts have no choice in the matter as Chief Justice McLachlin suggests, then they are not accountable for their actions. But our society is based on personal accountability. If addiction is the opposite of free will then we would need radically different tools to manage addicts.
Or perhaps criminals are thinking rationally. A car thief knows that the worst punishment he can get is that we take his car. If I assault someone I hate, I’m likely willing to suffer to see my victim suffer. And if I take my enemy’s eye, a modern court won’t actually take my eye. Even if we did, taking away from a criminal does not restore what was taken from the victim.
I also know that I could get away with my crime. After all, many crimes aren’t solved. So the worst outcome is that I get caught and receive a punishment equal to my crime. That’s seems a good deal for the criminal. Proportionate punishment is not an effective deterrence to crime.
England’s Bloody Code
Let’s contrast this Biblical principle of justice with an alternative view of punishment aimed at deterrence. An eye for an eye was written around 1,400 BC. Fast forward 3,000 years to England in the 17th and 18th centuries. During this time there were over 200 capital offences. Here is a selection of some crimes for which the penalty was death by hanging:
murder
arson
forgery
cutting down trees
stealing horses or sheep
stealing a rabbit
pick-pocketing goods worth a shilling (roughly $50 today)
stealing from a shipwreck
wrecking a fishpond
Most people today would be horrified at these harsh penalties. Death for stealing a rabbit? But why shouldn’t stealing a rabbit be a capital offense? England was trying something different. The Bloody Code aimed to deter crime by creating severe punishments. After all it would be irrational for anyone to break the law if the danger of death always loomed.
It is clear who held power in 17th century England. The landowners and aristocracy were a tiny portion of the population, but were in control of the laws. They used those laws to protect their privileged position. The target of the Bloody Code were poor people who might think about stealing from the rich.
Law and order does not depend solely on enforcement of laws, but also on the public’s faith in the fairness of the rules. The Bloody Code ultimately failed because the public, correctly, did not see this as a fair system.
Deterrence and democracy
The American and French revolutions were a radical response to this type of state coercion. The democratic experiment establishes a different social contract with its members. We understand that any community requires law and order. And we will willingly submit to laws and their enforcement—if we create them ourselves.
England’s Bloody Code may have been successful in creating law and order, but it was accomplished through fear and coercion. Deterrence relies on fear for compliance. But democratic power is based on persuasion, not coercion.
Disproportionately severe penalties are therefore contrary to this social contract.
Taking shortcuts
Increasing the severity of penalties is a tempting way to influence behaviour. That shortcut can work, but it requires significant resources to enforce those rules. America is good example of this strategy. America represents 4.4% of global population, but accounts for 22% of all prisoners.
We are living through an epidemic of drugs and addiction. Feeding that addiction drives increasing property crime rates and social disorder in all our communities. Increasing penalties and enforcement resources is one way of fight it, though it’s not working very well for America, the global leader of that strategy. There are other options we’ll explore.