Principles of What Constitutes a Crime and Appropriate Punishment

Introduction

In D&C 134:2 we learn that the primary purpose of government laws should be to “secure to each individual the free exercise of conscience [liberty], the right and control of property, and the protection of life.”  However, even though most people may agree that our rights of liberty, property, and life should be protected, many disagree on how they are defined, and how protection of such should be implemented by government. Fortunately we have further prophetic teachings.

Crimes Defined by Prophets

The reign of the judges In the Book of Mormon was a government directly established by God’s servants. Alma 1:17–18 states: “Nevertheless, they durst not lie, if it were known, for fear of the law, for liars were punished… And they durst not steal, for fear of the law, for such were punished; neither durst they rob, nor murder, for he that murdered was punished unto death.”

These verses reveal what constituted a crime under the reign of the judges: lying, theft, robbery, and murder. Lying would include crimes such as fraud and breaking contracts. Note that there’s one essential thing that each of the crimes mentioned in these verses contain: a victim. The principle here seems to be that in order for something to be crime, there must be a victim whose life, liberty, or property has been violated.

Other parts of the Book of Mormon emphasize these same points of what constitutes a crime:

Under King Benjamin in Mosiah 2:13: “Neither have I suffered that you be confined to dungeons, nor that ye should make slaves one of another, nor that ye should murder, or plunder, or steal, or commit adultery; nor even have I suffered that you commit any manner of wickedness, and have taught you that ye should keep the commandments of the Lord, in all things which he hath commanded you.”

Under King Mosiah  in Mosiah 29:14: “And even I myself have labored with all the power and faculties which I have possessed, to teach you the commandments of God, and to establish peace throughout the land, that there should be no wars nor contentions, no stealing, nor plundering, nor murdering, nor any manner of iniquity.”

Under the reign of the judges (a verse later-on) in Alma 30:10–11: “But if he murdered he was punished unto death; and if he robbed he was also punished; and if he stole he was also punished; and if he committed adultery he was also punished; yea, for all this wickedness they were punished. For there was a law that men should be judged according to their crimes…”

Note that adultery is mentioned in a couple of these verses. Adultery consists of breaking a marriage contract, and therefore qualifies as lying. One might mistakenly argue that any sin can be considered a crime based on Mosiah 2:13 mentioning “any manner of wickedness” and Mosiah 29:14 mentioning “any manner of iniquity”. However, Alma 30:10 clarifies that the wickedness referred to, which was punishable by law, is murder, robbery, theft, and adultery. This is wickedness in which there is a victim.

In modern times, President Ezra Taft Benson has also given insight into helping define what a crime is: “By deriving its just powers from the governed, government becomes primarily a mechanism for defense against bodily harm, theft, and involuntary servitude. It cannot claim the power to redistribute money or property nor to force reluctant citizens to perform acts of charity against their will.” [The Constitution, A Heavenly Banner].

To summarize, the list of crimes given to us by the Book of Mormon and President Benson are: lying stealing, robbing, murdering, enslaving, adultery, physical abuse, and starting wars (note: robbing is a form of stealing and abuse, adultery is a form a lying, and war is a form of many of the others, so these three will simply be covered by the others from now on). Once again, this emphasizes that the government should only protect against actions which involve a victim, meaning that someone’s life, liberty, or property is violated.

One thing that should be clarified is that a crime has been committed, and therefore force can justifiably be used to protect, when an attempt is made to violate the life, liberty, or property of another. One must not wait for the actual violation to occur. For example, if someone points a gun to your head and threatens you, you don’t need to wait until they actually shoot and hit you before you can use force. As they point the gun, they are attempting to violate your life or liberty, and therefore force can be used. Similar situations would include attempted theft, attempted murder, attempted breach of contract, etc. This important distinction is supported by scripture. For example, in the war in heaven when Lucifer and his followers rebelled, we casted them out of God’s presence because he had attempted to take away our agency. However, he never actually took our agency away, yet force was used against him:

Moses 4:3: “Wherefore, because that Satan rebelled againsted me, and sought to destroy the agency of man, which I, the Lord God, had given him, and also, that I should give unto him mine own power; by the power of mine Only Begotten, I caused that he should be cast down.”

Another example is Captain Moroni leading the Nephites out to war against the Lamanites. They didn’t sit back and wait for the Lamanites to actually take their lives and land by force before counter-attacking, but they went out to face them in battle as it was clear the Lamanites were attempting to violate their rights [Alma 43:29–54].

Government Abuse: Punishing Acts Beyond what is Truly a Crime

Unfortunately government today has moved beyond the realm of punishing actual crimes, and has moved into punishing acts in which there is no attempt or direct threat to violate rights and no targeted victim. By creating laws which prohibit and punish acts which do not violate the rights of others, government has now become an unjustified aggressor, for it is violating the liberty of the innocent. Here are a couple examples.

Example 1: licensing. The government prohibits many types of jobs from being performed unless a license is obtained by the person performing the work. This has gotten so out of control that most states require a license to braid hair. In some states a license is required to install home entertainment systems.  Requiring such violates principle. For example, if I want to pay my friend to braid my hair, it would be illegal even though no lying, theft, abuse, slavery, or murder has occurred. Now, if the person is committing fraud because they told me that they received a certain amount of education or certification when they actually didn’t, that would be a violation of rights (lying), but if I am aware they are not licensed and still decide to enter a hair-braiding contract with them, no crime is committed. This principle is clear when applied to something as ridiculous as a hair-braiding and home entertainment installation, but really it applies in many other aspects as well: for example medical licensing. Such should not be required by law. Now, there is nothing wrong if an organization wants to certify people by requiring a medical professional to have a certain amount of education and pass certain tests to be certified by their group. And there is nothing wrong if you, as a patient, choose to only receive care from professionals that have received a private certification that you trust. However, if a patient decides to contract with someone who they are aware is not licensed by a specific group, and even agree to let the caregiver use a medical device that has not been safety approved by a specific organization, such is their right to do so. No attempt to lie, steal, abuse, enslave, or murder has occurred, and therefore no violation of life, liberty or property has occurred.

Example 2: affirmative action. The government requires employers to hire a certain percentage of minorities (such as race, gender, sexual orientation, etc.), or penalizes them through fines or higher taxes if they don’t comply. In addition, companies are often charged with lawsuits because they didn’t hire someone or decided to fire them for a certain reason. In reality, an employer-employee relationship is a contract, and just like an employee shouldn’t be forced to accept work contract (slavery), the employer shouldn’t be forced to offer a work contract (this would also be a form of slavery). Our right to liberty dictates that both sides should be free to accept or reject the proposed contract for any reason, and therefore if someone has a job, they should have the liberty to hire whoever they want for whatever reason they want. To illustrate this, and understand why enforcing affirmative action is a violation of rights, consider the process of finding a babysitter. Someone wants to hire for a job—to watch their kid. They may be inclined to hire a girl more than a guy because they feel generally girls are more nurturing and better suited for the task (gender discrimination). They may be inclined to hire someone between the ages of 12-18 because they feel that is an age where the person is mature enough for the job, yet still young enough for a good cost (age discrimination). They may be inclined to hire someone that they know has certain standards, such as they won’t swear, dress immodestly, and watch vulgar shows while on the job (religious discrimination). If available, they may hire a niece or sister because they are well acquainted with them (nepotism). So in the act of hiring a babysitter, they have discriminated based on gender, age, religion, and family relation. However, by denying someone that doesn’t fulfill these requirements they haven’t lied, stolen, abused, murdered, or enslaved anyone, so such isn’t a crime. These same principles apply for any employer to hire any employee. It is their job and their contract to make, so they have the right to discriminate on any basis they wish, whether it be gender, race, religion, age, grade point average, education, experience, or intelligence as long as they aren’t lying, stealing, abusing, murdering, or enslaving. Often we may disagree with how someone or some company discriminates for filling a job, and we can discourage this by refusing to work for them, buying a product from them, or using their services, but we cannot use government and force against them unless they are lying, stealing, enslaving, abusing, or murdering.

Of course an exhaustive list of government laws which infringe on our liberties because they prohibit non-criminal actions cannot be made, but the principle here is that a government which is compatible with gospel principles is one which only prohibits and punishes acts that involve lying, stealing, abusing, enslaving, and murdering.

Appropriate Punishment for Crime

Now that defining crime has been established, it is next natural to discuss the principles on appropriate punishment. I believe the underlying, most important principle can be summarized as this: punishment for crime should be based on restoring what has been lost or damaged as a result of the crime. Any punishment beyond restoration enters the realm of vengeance and revenge, and the punisher is then also becoming an aggressor by using excessive force unjustifiably.

If something was stolen, it should be returned. If something was broken, it should be fixed. In addition to restoration of physical possessions, other non-tangible losses should be considered. For example, if a stolen car resulted in the victim missing work, their lost time and opportunity should be compensated; if there was a breach of contract, any loss of investment that occurred should be compensated.

It should be noted that often what has been damaged cannot be restored by the criminal. For example, if a case of assault results in a broken arm, restoration requires that the arm be repaired immediately; this is impossible. Other forms of compensation should be required, such as paying the victim. Although this isn’t perfect, it’s the best system we have. In some cases, such as rape, no amount of money can truly compensate. However, our best judgment should be used in restoring damage as much as possible.

In addition to restoring losses and damages to the victim, other costs and damages should be considered. One example is that the criminal should pay to fund government. Think about it: if there was no crime, there would be no need for police, court, etc. Therefore, part of restoring damages of the crime is to pay for government services. In an ideal system, the cost of government would be funded completely by the criminals who necessitate its very existence. In addition to this being based in principle, there are some pragmatic benefits as well:

  1. It reduces taxes for the innocent, moving towards an ideal system of no taxes.
  2. It helps deter crime. If all that was required for theft is to return what was stolen, some thieves wouldn’t be deterred because, if they got caught, they would still come out even. However, by requiring a cost of government on top of what was stolen, now restoration costs more than what is potentially gained by the theft.
  3. It provides punishment and therefore a deterrent for attempted crime. For example, if someone is caught in attempting theft, the criminal has nothing to return to the victim, but can still be required to pay a government fine.

Another consideration for punishment is incarceration. There are several instances of the nephrites holding prisoners under the reign of the judges [Alma 52:8, Alma 54:11, Alma 55:25, Alma 62:30, 3 Nephi 5:4]. I believe the principle behind incarceration is found in 3 Nephi 5:4–5:

“And it came to pass that when they had taken all the robbers prisoners, insomuch that none did escape who were not slain, they did cast their prisoners into prison, and did cause the word of God to be preached unto them; and as many as would repent of their sins and enter into a covenant that they would murder no more were set at liberty. But as many as there were who did not enter into a covenant, and who did continue to have those secret murders in their hearts, yea, as many as were found breathing out threatenings against their brethren were condemned and punished according to the law.”

Those robbers who were no longer a threat to the rights of others because they were willing to enter a covenant were released from prison. Those who continued to be a threat to violate the rights of others remained in prison. The principle is to be incarcerated until, to our best judgment, the criminal is no longer a threat to commit further crime. This punishment is still founded on restoration for what was lost. When a horrible crime has been committed, the criminal has proven that they will use aggressive force to violate the rights of others, and have therefore damaged the security of the victim and other individuals within the society. Security is restored by incarcerating the criminal until they are no longer a threat to violate rights of others.

Some crimes are so horrendous that the offender can never restore security through imprisonment. In this case, the death penalty would be appropriate. The death penalty is supported by scripture, as it was implemented under the reign of the judges at least for murder [Alma 1:18, Alma 30:10]. Specifically in the case of murder, the death penalty also allows the offender to actually go and seek forgiveness from the victim, which otherwise may not be immediately possible.

Conclusion

Basing punishment for crime on the principle of restoring what was damaged and lost further validates the premise that in order for something to be a crime, another’s life liberty or property must be violated. If there is no victim, then there is nothing to restore. Therefore crime must consist of lying, stealing, abusing, enslaving, or murdering.

In closing, I’d like to note that the this article is my current understanding of crime and punishment as I’ve recently studied and pondered it, but I don’t consider it canonized doctrine. This is something I’m open to discussion about, especially if others have further teachings from prophets to clarify. I believe this topic is very important to consider to when implementing the proper role of government, so that agency and rights are maintained to allow God’s children the best opportunity to understand the Plan of Salvation.

Image: Emmanuel HuybrechtsCC BY 2.0

14 comments

  1. Thank you Johnny for your shared insights.

    The article reminds me of a favorite book by Cleon Skousen titled The Majesty of God’s Law. It’s heavy duty, and uses the book of Deuteronomy, the Old Testament and the Mosaic Law as a foundation on which to teach the principles God has established for governing ourselves. It was enlightening beyond description.

    Based on my current understanding, and from reading his book, incarceration is not found in the Mosaic Law. The principle of repaying a dept, or restitution as you’ve described IS. Restitution was agreed upon by both parties and under the direction of a judge in Israel. Debts and crimes could not be restored or repaid if a perpetrator was sitting in jail. Servitude to the victim to meet the demands of restitution replaced incarceration.

    Any that did not agree to, or violated the terms set between both parties and a judge would in essence declare themselves “outside the law” and would no longer be protected by the law. As “outlaws,” they waved their rights to the law’s protection from others who attempted to hurt them, kill them or enslave them. (A pretty good incentive to fulfill contracts I’d say?)

    Banishment was also an option replacing incarceration. If the crime was such that banishment was an option, or if criminals were unwilling to comply to the law, they were forced to leave, coming back as outlaws at their own peril.

    Great book. Been a while since I’ve read it, but it’s on my shelf and what I believe to be a solid resource on the eternal principles of godly government.

    1. Thanks for your comments Michael. When I was writing this article, I considered referring to the Mosaic law, but didn’t for one main reason: it allowed for slavery (see Exodus 21:2, 26–27).
      Therefore I’m not sure how applicable it is to us today, since slavery is clearly a violation of rights. Further, the Bible has more errors in translation, so it’s tough to know what the the original laws actually were.

      However, your comments make me wonder if maybe the slavery that the law of Moses referred to those who were criminals and therefore slaves for a time to the victim until restitution was met. That would make a lot of sense! Did Cleon address that?

      As far as incarceration goes the Book of Mormon clearly supports it (several scriptures cited in my article, especially 3 Ne 5:4). I agree that prisoners shouldn’t just sit and rot–preferably they would be working for restitution, so this form of incarceration is different than what many envision today.

  2. “One example is that the criminal should pay to fund government. Think about it: if there was no crime, there would be no need for police, court, etc. Therefore, part of restoring damages of the crime is to pay for government services. In an ideal system, the cost of government would be funded completely by the criminals who necessitate its very existence. ”

    Johnny, you had me agreeing with you 100% right until that statement.

    There’s a hidden moral hazard with your proposition–Government will enrich itself off off crime, and hence pass even more laws over victimless crimes to obtain more wealth. Since man is imperfect and weak, it becomes a cash cow for the state to profit by.

    If I get a speeding ticket in NY, not only do I pay a fine for speeding, but also have to pay an extra “administration fee” of about $75 to pay for the ticket being processed. Never mind my local taxes have already paid for the police, clerks, and court–I have to pay for them again to do their job to process my speeding ticket. More insidious is paying a fine to the state for a traffic accident. Several years ago I carelessly backed into another person’s car and damaged it. My insurance made restitution to the injured party. So why do I have to pay the State a fine and another administration fee for the accident? Shouldn’t that money go to the victim, instead of having the State profiting from the accident?

    It gets worse. The sin tax states place on alcohol and tobacco products is claimed to discourage buying them by making them expensive. Instead, it allows the state to exploit people’s addictions to enrich itself, and maintain the paychecks, medical benefits, vacations, and retirement packages of government employees. It also encourages organized crime to smuggle or product those items to sell tax free. Cigarette smuggling across the Canadian border to the US where I live in NY is a active and profitable business as a consequence of this sin tax. In effect, the government seeks to be a monopoly in addictive l substances, and uses law to keep the competition by criminal from cutting into its profit margin.

    Then you have the drug zero tolerance laws LE’s can confiscate money and property of drug dealer Sounds fair and just until some guy with a few ounces of drugs over the set limit is now considered a dealer instead of a casual user, and his wife and kids are sent to poverty as all their property and money is taken by the state.

    The Book of Mormon gives us two extreme examples of good and bad government–Mosiah who worked with is own hands so as not to burden his people with taxes, and Noah, who did the opposite and looked for the least excuse to pilfer this fellow citizens over the most specious of reasons under the color of law. I believe that when government is permitted to fine citizens as a rational to support itself, instead of requiring them to pay restitution to the victims, it would perpetuate a greater evil.

    1. Interesting point about government potentially enriching itself off of crime. I’m definitely a fan of minimizing the cost of government as much as possible, but realistically I don’t think the cost can completely be eliminated. Ideally, the cost would be completely paid by criminals, and not those who respect the rights of others. Even under Mosiah, the cost of government wasn’t completely eliminated; there was still a cost because judges were paid wages [Alma 11:1]. Nephite soldiers also received provisions.

      I think some key safeguards could be put in place to eliminate (or at least greatly reduce) the conflict of interest you speak about. First, as highlighted in my article, ensure that laws are limited to theft, slavery, abuse, lying, and murder. Second, make the legislature, those who write the laws (senators, house of reps, etc.) completely voluntary, non-paid positions. Also, make the President, Governor, Mayor, etc. also voluntary, non-paid positions. This is how I understand the Nephite government was structured, because as you pointed out, Mosiah wasn’t paid. These suggestions would eliminate the taxes you complain of.

      Third, if a violation of rights occurs, but both parties can resolve the issue without use of government, then there should be no added government fee. For example, when you backed into someone, if you agree to pay for damages right away, then there should be no government administration added. However, if you run so the police have to hunt you down, or if you claim you didn’t do anything wrong so the other has to take you to court, then the government fee would be added. This would be beneficial because if people turned themselves in for crimes and readily pleaded guilty, their government fee portion of the punishment would be greatly reduced, thus encouraging such action.

  3. I like what you’re saying. You have solid scripture and prophetic wisdom to back up your points. My concern is with the semantic games played by anti-liberty policy makers. Take affirmative action, for example. Many might say that laws of this kind prevent and punish stealing…of opportunity. Insofar as quotas and other formulas restore — so the thinking goes — that opportunity for work and advancement, they are conforming to prophetic teaching. How do we counter subjective interpretations like this?

    1. Great question John. I think a good approach would be to help them understand that a job, or employment opportunity, is really just an offer to pay someone for them to perform some type of service. Ask them if they think the government should mandate they hire equal representation every time they want a service. For example, each time they need a babysitter, do they think the government should force them to hire a different race to make sure all are equally represented? Each time they go out to eat, do they think the government can force them to go to a restaurant owned by a different race, not returning to visit a same one until they’ve visited a restaurant owned by each race based on proportion in their community? I think if you turn the question back on them, and ask them if they think the government should force them to limit their decision, they will quickly realize that protecting liberty means they should have the right to choose what service they want.

  4. This is a great article. I’m a licensed cosmetologist and I think it is ridiculous that it’s required to have a cosmetology license in order to cut hair or as johnny points out- to braid hair. Seems to be just another fee to pay every couple years to renew my license.

  5. Thanks for the article. I completely agree that there should be reparation to the victim by the offender. I just had a question. You suggested that the criminals should fund the government which seems like a good idea. However, would not that lead them to secretly induce crime so as to make more income? I am reminded of a scripture in Alma 11:20 which reads “Now, it was for the sole purpose to get gain, because they received their wages according to their employ, therefore they did stir up the people to riotings…” Of course this was talking about Zeezrom and his corrupt accomplices, but I think it would be the nature of government to lean that way. They already do create disturbances as an excuse to “fix” the problem which serves to only complicate the matter. No government worker wants to loose their job. It seems to me that even the would be victim in the case of an attempted crime should receive reparation. I would prefer that most government services be voluntary, like in the church. These are some of my thoughts, and I would appreciate comments or suggestions because I am trying to figure it out too. Thanks!

    For Liberty,
    David

    1. David said: “It seems to me that even the would be victim in the case of an attempted crime should receive reparation.”

      Hmmm…. maybe this is a semantics argument, but if the “would be victim” had some type of loss needing restitution, then they are an actual victim, not a “would be victim”. However, for most attempted crimes, there isn’t an actual loss (other than government cost, such as police or court). For example, if someone attempts to steal your car but doesn’t quite steal it, you still have your car so there is nothing to restore.

      I responded to your comment, about government encouraging crime to fund itself, above in response to Ron (who had the same comment). Basically, I think this can be eliminated (or greatly minimized) by making sure laws are only based on violating rights and making legislature voluntary positions. I agree that many government positions should be voluntary, such as president, governor, mayor, senators, and congressmen. However, I don’t think the cost of government can be completely eliminated. Highly specialized positions that take years of training, such as police, would probably still need to be paid, and there’s still the cost of jails, court-houses, and provisions for the army. Even though King Mosiah didn’t receive wages, there was still a cost of government because the judges received wages [Alma 11:1].

  6. Wonderful article! Thank you for sharing. One idea that I’ve heard in conjunction with the death penalty is a point system, where certain heinous crimes such as murder and rape are given a number of points, and if an offender accumulates a certain number of points then he will receive the death penalty. In this case certain criminals will have proven by their acts to be unrepentant, unwilling to change and that there is existence does more damage than good. With this method there is still an opportunity for those who have sunk to the lowest of the low to be able to repent and live, while still strictly cutting off those that would destroy society.

    1. I would say so–as long as you are not the aggressor and are simply doing so to protect your rights.

      If someone is threatening your rights, it’s OK to use force to protect your rights. For example, while it would not be OK to physically bind or pull a gun on an innocent person, it would be OK if they are the aggressor and are violating your rights first. So, lying would follow this same principle.

  7. Great article! As someone who has worked in criminal law, I have a few thoughts.

    First, I am wholly in favor of providing full economic restitution for victims of crime. And this is already the standard practice, at least in my state. Prosecutors will calculate restitution and judges award it at the sentencing hearing. It gets paid to the court, and the court forwards that money to the victim. In the civil context, of course restitution is the main focus of the matter, but they will also provide for exemplary damages for violent acts. So this is something our system I think already does quite well, at least in my state.

    Second, and this isn’t that important to the discussion, but some criminal statutes force the defendant to pay for the cost of his prosecution. DUI is one that does in my state. However, I can’t name any others off the top of my head.

    Third, I would argue that the case for adultery as a criminal act might even be stronger than mere dishonesty. I think one could make a case that a spouse has a strong interest in the fidelity of their spouse, akin to a property interest, even if their spouse freely commits the adulterous act. Thus, I think the victimization that occurs is to the non-adulterer spouse as one who has a right to expect people not to have sex with his/her spouse. I think someone can be an adulterer without being a liar.

    Finally, I really appreciate your thoughts on the prison system, and I agree with your conclusions. That is an important topic that deserves much discussion.

    Thanks for your great article.

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