Prisons in the Old Testament Law

Prisons. If ever there was a powerful measure of liberty, it would be the number of people in prison, or the lack thereof. By this measure the United States is failing miserably. At the moment, the U.S. has one of the world’s highest prison populations, possibly the highest. Over 2 million Americans are in prison or jail! We need to either fix this or change our national anthem. “Land of the free” is false advertising.

Exodus 22:

1 "If a man steals an ox or a sheep and kills it or sells it, he must pay back five head of cattle for the ox, and four sheep for the one sheep.

2 "If a thief is caught breaking in and is struck so that he dies, there will be no blood guilt for him.

3 If the sun has risen on him, then there is blood guilt for him. A thief must surely make full restitution; if he has nothing, then he will be sold for his theft.

4 If the stolen item should in fact be found alive in his possession, whether it be an ox or a donkey or a sheep, he must pay back double.

5 "If a man grazes his livestock in a field or a vineyard, and he lets the livestock loose and they graze in the field of another man, he must make restitution from the best of his own field and the best of his own vineyard.

6 "If a fire breaks out and spreads to thorn bushes, so that stacked grain or standing grain or the whole field is consumed, the one who started the fire must surely make restitution.

7 "If a man gives his neighbor money or articles for safekeeping, and it is stolen from the man's house, if the thief is caught, he must repay double.

8 If the thief is not caught, then the owner of the house will be brought before the judges to see whether he has laid his hand on his neighbor's goods.

9 In all cases of illegal possessions, whether for an ox, a donkey, a sheep, a garment, or any kind of lost item, about which someone says 'This belongs to me,' the matter of the two of them will come before the judges, and the one whom the judges declare guilty must repay double to his neighbor.

(NET Bible®)

If we be a Christian nation we should not have this problem. Biblical Law calls for no jails at all! True, the Old Testament calls for the death penalty for many offenses, but that’s not the only reason the ancient Law needed no jails. For a great many crimes, Old Testament Law is far more lenient than U.S. law. Throw in the calls for forgiveness found in the New Testament, and a Christian nation should have a lower than average prison population.

Let us start with theft. The standard penalty for theft was restitution. The amount depended on what was stolen. It was 5-1 for cattle, 4-1 for sheep, if the animals in question were killed. [Ex 22:1-9] Otherwise paying back double was sufficient. That’s it!

Compare this with “30 days for shoplifting,” or the jail sentence recently served by Martha Stewart. In either case, paying back double would be sufficient under Biblical law. It is only in the case where the thief does not have the funds to make restitution is there further punishment. In this case the thief was to be sold.

Ah! You might say. Being sold is the same as imprisonment!

No, it was not. Inability to pay back restitution was just another debt. Let us turn to the rules for debt servitude. Servitude could be no longer than six years [Ex. 21:2, Deut. 15:12]. Other parts of the Law list every seven years as a year of release [Deut. 15:1, 31:10]. So much for “three strikes and you are out” leading to life imprisonment. Yes, six years is a long time, but this was not imprisonment. It was more like serfdom. A married servant brought his family with him [Ex. 21:3]. No crowded jail cells with rampant homosexual rape! No wives and children deprived of support.

Deuteronomy 15:

7 If a fellow Israelite from one of your villages in the land that the LORD your God is giving you should be poor, you must not harden your heart or be insensitive to his impoverished condition.

8 Instead, you must be sure to open your hand to him and generously lend him whatever he needs.

9 Be careful lest you entertain the wicked thought that the seventh year, the year of cancellation of debts, has almost arrived, and your attitude be wrong toward your impoverished fellow Israelite and you do not lend him anything; he will cry out to the LORD against you and you will be regarded as having sinned.

10 You must by all means lend to him and not be upset by doing it, for because of this the LORD your God will bless you in all your work and in everything you attempt.

11 There will never cease to be some poor people in the land; therefore, I am commanding you to make sure you open your hand to your fellow Israelites who are needy and poor in your land.

12 If your fellow Hebrew — whether male or female — is sold to you and serves you for six years, then in the seventh year you must let that servant go free.

13 If you set them free, you must not send them away empty-handed.

14 You must supply them generously from your flock, your threshing floor, and your winepress — as the LORD your God has blessed you, you must give to them.

Deuteronomy 23:

15 You must not return an escaped slave to his master when he has run away to you.

16 Indeed, he may live among you in any place he chooses, in whichever of your villages he prefers; you must not oppress him.

(NET Bible®)

Yes, servitude could be harsh. Masters did have the right to corporal punishment [Ex 21:21]. This punishment was limited, however. Excess, such as knocking out a tooth or eye resulted in freedom for the servant [Ex.21:26], and killing a servant was punishable [21:20]. That said, debt servants were not to be treated as outright slaves [Lev 25: 37-43], but as employees. Skeptics might dismiss this quote as a feel-good statement, easily ignored. They would be right but for this provision: it was illegal to return an escaped slave to his master [Deut. 23:15]!

One might ask why anyone would remain a servant if escape were legal. Remember, that such servitude was limited to those who could not pay. For someone with that degree of poverty, servitude might be preferable to homelessness [see Ruth chapter 2]. Furthermore, at the end of one’s term of service, the master was to supply wealth on the way out – capital for starting afresh [Deut 15:12-15]. Compare that to how we dump prisoners out on the street with little choice other than poverty or returning to a life of crime.

Modern Applications

Let us consider the relatively soft on crime policy of restitution instead of imprisonment for property crimes. Paying back double would be more than adequate if we caught every criminal and all property is valued in money. It breaks down for crimes where we only capture a few of the perpetrators, enforcement is expensive, or the property in question has great personal value. So we might need a higher multiplier for some crimes, just as the Law of Moses had a higher multiplier for certain farm animals. Rob a TV and it’s easy enough to figure out the cost of replacement. Rob a family heirloom and you rob memories along with the market value of the item in question. Then we have the problem of petty shoplifting, taking an extra newspaper out of the coin operated boxes, driving off from a self service station, or copying a DVD. For such cases an enforcement surcharge may be in order. (But still, make it far less than the penalty stated at the beginning of your DVD! For the big penalty, require evidence that many DVDs were copied!)

Some of the consequences:

  1. Small time criminals wouldn’t be mixed in and hardened by criminals of the nastier sort.
  2. We would have more prison space available for the nastier criminals. Life sentences might actually be for life.
  3. The penalty difference between purely property crime and violent crime would far greater than today. We could expect some decrease in violent crime.
  4. Repeat offenders would pay restitution repeatedly. A skilled thief might still run a profit.
  5. The rich could in theory dabble in crime for the thrill of it and simply pay restitution when caught.

Conservative readers might balk at number 4 and liberal readers at number 5, so let’s look at each more closely.

We have several possible responses for a repeat offender. First, with a public trial the offender is publicized as a thief. Get in the papers enough and people will watch, making the job more difficult. We might also reduce the presumption of innocence when trying repeat offenders (for a crime that have previously committed). While liberals might shudder at the notion, keep in mind that the alternative of higher penalties for repeat offenses effectively presumes guilt for crimes for which there is zero evidence. The shoplifter caught for the third time might simply be unlucky. Also, we already have such weakened presumptions for repeat offenders in place. Try making your case to the judge for your second speeding ticket sometime.

As for the rich getting away with theft under such a system, the rich evade the criminal justice system more readily today. Cases like Martha Stewart’s make the news because they are an aberration. The police and juries hesitate to throw the book at “good ole boys.” A penalty which truly matches the crime is more likely to be enforced. The rich fare poorly for tort cases. Juries are quite happy to make the rich pay money.

But what about the poor thief who cannot pay back double? A bit of forced labor may be required for compensation. This can range from wage garnishment to community service to being hired out at a work camp. Obviously, we need some safeguards for the last, but it isn’t that hard to be less in violation of human rights than our current prison system. Consider those who voluntarily subject themselves to Spartan living conditions today: migrant laborers, campers, monks, college students. Have similar conditions, and allow those who behave to have their family live with them. Set the pay similar to market conditions, but also charge market values for all luxuries. Perhaps we let the inmates decide how much to work, and how to divide the resulting wages between luxuries, savings and buying back their freedom. This exercise in choice between immediate and long range goals builds character more than passing time in a cell. We might actually rehabilitate some petty criminals before they graduate to greater crimes.

As for the greater criminals, we might have enough beds for them in our regular prisons (since we are loathe to enforce eye-for-eye we will still need prisons for violent criminals). If not, let us consider what the Bible has to say about another factor filling our jail cells: the Drug War.