Virtually no one thinks our criminal justice system works. Victims complain that defendants have guaranteed rights while they themselves have none. Prisoners complain that their conditions are intolerable, and the courts agree. Taxpayers chafe at increased spending to support growing law enforcement agencies that are, in turn, frustrated by public indifference.
And all of them are right. Crime has become a national epidemic, and our response to it is a national disgrace. Yet clear insights that can help the United States address these problems are as near as our Bibles.
Victims, Offenders, And Taxpayers
Ten years ago, I came home from work one night to discover that our front door had been kicked in, our home ransacked, and possessions stolen. Although I had taken criminal law courses in law school, represented criminal defendants in my inner-city law practice, and had watched “Perry Mason” for years, the experience of being a victim dramatically changed how I viewed crime.
Crime is an intensely personal violation. This is why we fear it and find it hard to talk about when we have been victimized. But our silence simply masks how pervasive a problem crime has become.
Most of us think we have never talked to a victim of crime, but it is likely we do every day. According to the Census Bureau, one out of four households is touched by crime every year.
The financial cost of these crimes is incredible—$10.9 billion in 1981, the most recent year for which information is available. And most of that loss is never recovered.
But there are other costs as well. One study found that 40 percent of us fear we will be victims of violent crime. The fear of crime has changed our lifestyles. We lock our doors, we teach our children not to talk to strangers, and one out of four of us is afraid to walk in our own neighborhood.
And victims of crime suffer the process—sometimes long and difficult—of resolving the emotional crisis crime creates. An offender deliberately injures a victim. Whether this happens face-to-face (as in a rape or robbery) or indirectly (as in burglary when no one is home), a person is harmed.
The criminal justice system never addresses that harm. If the offenders are arrested, they are charged with violating the law, not with hurting their victims. If the victims are needed as witnesses for the prosecution, they may be called and informed of the trial date. But if their testimony is not needed, or if the defendants plea bargain, victims in most states are usually not even informed of the case’s result.
Things are bad for offenders, too. Those sent to prison will join the more than half-million men and women who jam our nation’s correctional facilities beyond capacity (another 150,000 are in local jails). The prison population has doubled since 1976, and continues to grow at the astonishing rate of ten times that of the general population.
Prison construction has not kept pace with the exploding population, in spite of the $4 billion building program currently under way. In addition, states are spending $7.5 billion each year just to run existing prisons.
Although expensive, prisons are hardly luxurious. Many fail to meet even minimal health and safety standards. In 32 states, simply sending a person to certain prisons violates his constitutional protection against cruel and unusual punishment. In at least two states, men are spending up to 23 hours per day in cells that fail to pass local ordinances regulating kennels for dogs and cats.
Perhaps this is why so many prisoners get into trouble when they leave. The FBI reports that 74 percent of those released from prison are re-arrested within four years. Living in overcrowded facilities, in which nonviolent offenders are forced to survive alongside the violent and dangerous, is more likely to debilitate rather than rehabilitate.
And when ex-offenders do return to prison, taxpayers again shoulder the burden for their support. The average cost of maintaining one prisoner is more than $17,000 per year—more than it costs to send a student to Harvard or Yale (or Wheaton). Increasingly, the public is asking whether there isn’t some way to punish criminals without punishing ourselves.
Shalom
Part of the problem is in how we view crime itself, or more precisely, the absence of crime. Our notions of peace, and of how to obtain it, are fundamental to how we deal with criminals and their victims.
The Hebrew word for peace is shalom. This rich word connotes completeness, fulfillment, wholeness—whole relationships. It decribes the relationship God wanted with his people, and wanted them to have with one another.
The classical Greeks defined peace as the absence of conflict. But to the Old Testament Israelites, shalom meant much more. It included notions of harmony, contentment, and reconciliation. It described the ideal state of the community. It was not simply the absence of crime or war; it was also the security, prosperity, and blessing that result from corporate righteousness.
Crime breaks that peace. The biblical understanding of crime acknowledged that a relationship—albeit a destructive one—was created when an offender harmed a victim. The responsibility of the justice system, then, was to hold the offender responsible, make good the victim’s losses, and through reconciliation restore shalom to the community.
Restitution was integral to this process. In fact, the Hebrew word for restitution is shillum, from the same root as shalom. Restitution was a fundamental part of restoring the right relationship of offender to victim in the larger context of the community.
Two familiar stories, one from the Old Testament and the other from the New, show the importance of this feature of the law. After David had committed adultery with Bathsheba and murdered Uriah, the prophet Nathan told David of a wealthy landowner who had stolen the only lamb of a poor man in order to feed a guest. Although David was furious, saying that such a man deserved to die, he ruled that the rich man should pay the poor man four sheep (2 Sam. 12:1–14; cf. Exod. 22:1–2). He then learned that the “case” had actually been a parable, and that he himself was the guilty party.
The second story is about Zacchaeus, the dishonest tax collector. When he met Jesus, he repented and promised to repay fourfold anyone he had cheated. Thus he conformed to the requirement of the law that a thief must make restitution to his victims (Luke 19:1–10).
Restitution was a form of punishment that required the offender to restore the financial loss of the victim. The Hebrews believed punishment was appropriate as a deterrent (Deut. 13:6–11), as a way of separating those who posed a danger to the community (Deut. 13:1–5), and as a method of restoring not only the victim but also, if possible, the offender (Jer. 29:10–14). And, as C. S. Lewis demonstrated in his essay “The Humanitarian Theory of Punishment,” retributive punishment recognized the dignity of individuals as free moral agents and gave them a way to “pay their debt to society” and to their victims. Restitution, in particular, was appropriate because it recognized both the damage caused by crime and the need for the community to hold the offender accountable.
This emphasis on the offender’s responsibility to the victim was not unique to Israel. In fact, all early legal systems that form the foundation of contemporary Western law featured restitution. While the common welfare had been harmed, and the community therefore had a responsibility to address the wrong and punish the offender, the offense was considered a violation principally against the victim, not against the state.
King Henry Grabs Control
The Norman Conquest of Europe marked the end of this approach. After William the Conqueror became king of England, he and his descendants struggled with the local barons for control of the legal process. They also competed with the growing influence of the church over secular matters. The church had issued canon law, which regulated every dimension of life. The secular authorities responded by creating similar law codes.
In this struggle for control of the courts, the English kings used a mechanism called the “king’s peace.” In 1161, William’s son Henry I issued the Leges Henrici. These laws established 30 judicial districts and gave them jurisdiction over “certain offenses against the king’s peace, arson, robbery, murder, false coinage, and crimes of violence.”
Anything that jeopardized this peace came under the king’s jurisdiction, giving the king control over criminal cases as breaches of that peace. Criminal punishments were no longer viewed primarily as ways of restoring the victims, but instead as means of redressing the “injury” to the king.
Not only did the king gain power by this legal fiction, but his treasury was enriched as well. Over time, restitution gave way to fines, and the king kept the financial penalties imposed on the offender.
Thus, the purpose of punishment changed. Whereas for the Hebrews, punishment was primarily a part of the process of restoring shalom, now the emphasis had shifted to discouraging future crime. Rather than focusing on the victim, as the Old Testament did, criminal justice now focused on the offender: Why did he break the law, and how can he be punished so that he and others will not do it again?
Prisons In America
This new approach eventually led to the invention of the penitentiary in 1790. Although prisons had been used for centuries to hold people awaiting trial or punishment, some Philadelphia Quakers conceived a new philosophy of incarceration. Believing that an offender committed crimes because of bad influences, they postulated that removing him from his environment and placing him in a solitary cell with a Bible and regular visits from a minister would produce penitence and a reformed life.
They were wrong. Many of the prisoners went mad. The new penitentiary was soon overcrowded and, when riots erupted, it was closed down. According to a leading prison official at the beginning of this century, the Quakers “showed a touching faith in human nature, although precious little knowledge of it.”
Still, the Quaker notion of isolation and rehabilitation led to the widespread use of prisons. These have been justified by successive generations as places of penitence, of work and discipline, of general reformation, and of treatment for the criminal. None of these approaches has succeeded.
But this redirection of the purpose of criminal justice has had profound significance. Whereas offenders were once required to restore victims financially, now society undertook to restore offenders morally. Neither the offenders nor the state recognized their responsibility to the victims.
In the last 25 years, criminologists and criminal justice professionals have grown increasingly skeptical of rehabilitation as the guiding principle of punishment. It has not worked. In addition, the prisoner-rights movement of the 1960s raised serious ethical questions about the legitimacy of using state power to coerce changes in individual behavior. And the growing victims’-rights movement of the last decade has drawn attention to the unfairness of removing the victim from the criminal justice process.
What is beginning to emerge may be a new strategy against crime: Offenders must be held responsible for their criminal acts. Victims must have their losses restored. The community must be protected.
Responding To Crime
Communities have begun working to prevent crime in several ways.
Neighborhood Watch programs have been highly effective, in part, because criminals are deterred when the chances of getting caught are high. They also establish a neighborhood norm that dissuades young people from viewing criminal activity as simply a normal part of growing up.
Norms and values are a key to long-term crime reduction. Studies show a connection between higher church attendance and lower crime rates.
But what should we do when prevention efforts fail? How do we punish the guilty in a way that restores victims’ losses and protects the community? Spurred largely by prison overcrowding, several states have taken experimental approaches to criminal punishment, with encouraging results.
Restitution is returning to our courts. Increasingly judges are ordering offenders to repay their victims, and are insisting that probation officers enforce those payments. The Earn-It program in Quincy, Massachusetts, is a model program that is being successfully imitated across the country.
Community service is a form of restitution that is useful when no victim is identified. The defendant performs free work for the government or a local charity. This recognizes that the offender has harmed the community and provides a tangible way for him to pay his debt. Community service is also ordered when the defendant cannot pay restitution. The Probation Department for the District Court in Washington, D.C., has operated an excellent program since 1977, with more than 150 agencies participating.
Even reconciliation is being incorporated into our adversarial criminal justice system. It is especially popular with victims. Under these programs, the victim, the offender, and a trained mediator meet to discuss the crime, its effects on the victim, and a possible sentence agreement involving a restitution payment. These meetings take place either before formal charges are filed (as in the Cleveland Prosecutor Mediation Program), after the defendant is found guilty but before sentencing (as in the Elkhart Victim-Offender Reconcilation Program), or after the defendant is in prison serving his sentence (as in the Oklahoma Supervised Offender Accountability Program).
When these programs are coupled with appropriate supervision of the offender, the results are impressive. Florida, for example, established the Community Control Program in 1983, creating a state-wide network to enforce community service and restitution orders. It is, in effect, the nation’s largest house-arrest program. More than 14,000 offenders have been involved in the program, and four out of five of them were clearly prison bound had it not been for Community Control. State officials estimate the program has saved the state the equivalent of seven-and-a-half prisons. Fewer than 7 percent of the participants have committed new crimes.
Restoring Victims
Only 10 percent of all crimes result in an arrest. About half of those arrested are charged and convicted. Since the median loss in crimes is $160, restitution is a viable method of restoring those victims’ losses.
But what about the other 90 percent of the victims? How can they be paid back? The answer for victims of violent crimes in 44 states is through victim compensation funds. These state-operated programs reimburse victims for medical expenses, lost wages, mental-health counseling, and other specified costs. In 1984, the federal government enacted legislation to provide funds for qualifying state programs. The money comes from fines collected from federal offenders, forfeited bail money, and all income received by federal offenders from books or movies based on their crimes.
Victims often need more than financial compensation in the aftermath of a crime. In response to this need, victim-assistance programs have been established in every state. These range from rape crisis centers, to programs helping victims and witnesses deal with the complex criminal justice process, to shelters for battered women. Some of these are privately funded, but many receive state funds or are part of a state agency. The federal legislation that authorized funding of compensation programs aids qualifying victim-assistance programs. These have proven to be tremendously helpful to victims.
Real Life
The story of 18-year-old Stephen Williams illustrates how beneficial these experimental programs can be.
Steve and some of his school friends broke into houses, stealing an estimated $150,000 worth of goods. When the police finally caught one of the burglars, who implicated the others, they discovered that the teenagers committed the crimes because they wanted to buy cars and maintain a high standard of living. They could make more money with less work by breaking into people’s houses than by getting jobs.
There was considerable community pressure on the judge to give Steve and his friends substantial prison sentences. People were angry and wanted a forceful message sent to other students.
The experienced judge, however, noted that this was Steve’s first arrest. “But you did break the law,” he said, “and you must be punished. My sentence has three parts.”
First, Steve was required to perform community service every Saturday. Second, he was ordered to pay restitution to his victims. And third, he was to sit down with the victims who wanted to talk with him about the crime. Steve said later that this was the toughest part of the sentence. He would rather have done anything than meet with the people he had robbed. But he did it.
The victims were angry. One couple had been collectors of antique oriental furniture, and what Steve had taken was very valuable. But they had lost more than expensive furniture and art. The antiques were also souvenirs of trips that the couple had taken. One of the stolen items was a Ming vase they had purchased ten years earlier at the end of a month-long trip to Europe.
“Do you understand what you took from us?” they asked. “It was more than a beautiful vase. It was a reminder of our trip. Guests at our home would see the vase and admire it. We could tell them how we got the vase in a small shop in London, and then talk about our trip to Europe.”
The young man was genuinely remorseful. He wanted to make it up to them somehow. The victims came up with a fascinating idea: As a down payment on his restitution, he should go to an antique store and find something he thought they would like. If they agreed, he would buy it for them.
So Steve went to several stores and finally found an oriental coffee table painted with black lacquer and a delicate flower design. He had found something that suited them and had showed them he was a sensitive young man, not simply a criminal.
The three of them have become friends. Steve mows their lawn. They talk to each other on the street. The young man has a sentence that will take him several years to complete, but it is one that has meaning to him. The victims have been able to work through their fear and anger, and they are gradually having their losses restored. And although they lost one memento, they have gained another. Now when visitors come to their house and admire their coffee table, one of them says, “There is an interesting story about this coffee table.…”
An offender held responsible for his action; victims restored financially and emotionally; the community restored through the reconciliation of the offender and victims—this is a glimpse of shalom, a vision of what our communities can be.
Daniel W. Van Ness is president of Justice Fellowship, a national criminal justice reform advocacy organization with members in 45 states. The organization is affiliated with Prison Fellowship. Van Ness is author of Crime and Its Victims: What We Can Do (InterVarsity Press, 1986), which details the theses in this article. Before joining Justice Fellowship, Van Ness practiced law at the Cabrini-Green Legal Aid Clinic, Chicago, Illinois.
