Prisons – the Torah attitude

Archeologists in Teveriah recently dug up two jail cells dating back close to the Churban. Does this indicate that old time Eretz Yisroel had a jail bird population? For people living in the US where about every 140th person is sitting in jail, they might be tempted to respond – why not! Indeed, a perfunctorily glance at Tanach seems to indicate that jails were commonplace in those times.

First we have Yosef who is thrown into a dungeon together with Pharaoh’s chief butler and baker (Bereishis 39:20). As the Ramban writes, the prisons of those times were not luxury hotels but little more than a hole in the ground. “In my opinion,” he says, “it was a pit, a room built underground with a small entrance on top through which prisoners were put in and which provided light.” Soon afterwards we have a Jew making use of jail for the first time when Yosef locks up Shimon to guarantee that his remaining brothers will return with Binyomin.

After matan Torah, too, jails are utilized for various purposes. After the son of an Egyptian man “blessed” Hashem, “they put him in a guarded place, to explain to them according to the mouth of Hashem” (Vayikra 24:12). In the episode of the collector of sticks on Shabbos, “they put him in a guarded place, for it was not explained what to do with him” (Bamidbar 15:34). When Eldad and Meidad began prophesying in the camp that Moshe would not lead the people into Eretz Yisroel, Yehoshua cried out, “My master, Moshe, lock them up!” (Bamidbar 11:24-28).

However, closer scrutiny makes it clear that there is a world of difference between these jails and the jails of our times. Unlike modern jails whose primary purpose is to punish crime, old time prisons were rarely used to punish criminals and the jails mentioned by the Torah, too, generally seem intended for non-punitive measures.

The verses seem to indicate that the butler and baker were primarily incarcerated not as a punishment, but to keep them under lock and key pending the result of Pharaoh’s judgment, and the same logic can be applied to Yosef’s imprisonment of his brothers and to Moshe’s custody of the wood gatherer and son of the Egyptian man. When the Torah commands that beis din should lock up a murderer while it waits to see whether his victim will survive one or two days (Shemos 21:18,19), this is to ensure that the murderer does not flee in order to escape being tried. As the Mechilta remarks, “Yachol metayel bashuk? Would I think he be permitted to stroll the streets?” Similarly, the Yerushalmi (Sanhedrin 7:8) discusses locking up a murderer even before his witnesses have been interrogated in order to ensure that he does not escape.

The jails mentioned in Tanach are also generally used for non-punitive measures.

For instance, when King Tzidkiyahu throws Yirmiyahu into jail after he predicts that Yerushalayim will be conquered by Bavel (Yirmiyahu 32:2), and when a guard at the city gates jails Yirmiyahu after suspecting that he was fl eeing from Yerushalayim to join the enemy (37:14), this is in order to stop Yirmiyahu from “bothering” the people with ominous prophesies or to prevent him from fl eeing to the enemy.

What about the cases where the King of Bavel binds Tzidkiyahu in chains and imprisons him till the day of his death (Yirmiyahu 52:11)? And the instance where the Plishtim capture Shimshon and set him to work grinding corn in a prison (Shoftim 16:21)? These imprisonments were not punitive or corrective, but for purposes of prestige. It was a sign of importance to have powerful people holed up in your personal jail. Thus we find the Canaanite king, Adoni Bezek, confessing just before the people of Yehuda put him to death, “Seventy kings whose thumbs and big toes were cut off used to collect (scraps) under my table. As I have done so has been paid to me” (Shoftim 1:7).

It appears that jailing criminals as a punitive measure was rare in ancient times. Regarding the Torah stance, Rav Shimshon Raphael Hirsch (Shemos 21:6) is adamant that imprisonment for crimes is no option.

“The punishment of imprisonment with all the hopelessness and destruction of mussar that lie behind the walls of the dungeon, all the sadness and misery they bring on the prisoner’s wife and children, have no place in Hashem’s Torah,” he writes. “… In Torah law there is only [arrest for purposes of] custody and interrogation [but not as a punishment]. Furthermore, the arrest can only be for a short time according to all the laws of judicial procedure.”

The rarity of incarceration as a punitive measure was prevalent in society at large until about two centuries ago. After all, why would people go to the expense and trouble of erecting prison buildings and keeping guard over them, when capital punishment, lashings and fines are so much simpler and less expensive? With the rise of the enlightenment, however, people began to think that jail might be a more humane punishment and there was some truth in this, as many punishments prevalent at the time, such as branding, mutilation, and putting people on show in the stocks, were inhumane. The jail experiment was so successful that from small beginnings the jail population swelled into a present day world prison population large enough to stock a small country.

As prison conditions improved, humanists played with the idea of using the discipline of jails as a rehabilitation which would have people walking in as criminals and walking out model citizens. The problem was when people discovered there is no better place for an inexperienced criminal to learn the tricks of the trade than from his more seasoned companions in jail. Attempts to keep prisoners isolated from each other failed due to financial considerations and because it drove prisoners crazy. Also, prison populations were multiplying endlessly.

Nowadays, there is a growing tendency to regard jails not as a cure but as an incapacitation, and the attitude in the US is leaning more towards using jails as dumping grounds for the country’s worst elements. Toss ‘em in and throw away the key.

The impatience in the US is understandable as it has the highest rate of incarceration in the world. For example, in 5765/2005 the US had just over 700 prisoners per 100, 000 population, Russia over 500, South Africa (perhaps the most crime ridden country in the world) over 400, while the average jail rate in Europe was just over 100 prisoners per 100,000 population. In numbers, this added up to a population of 2,186,230 US jailbirds on June 30, 5765/2005.

However, until someone fi nds some other way to discipline miscreants, it seems that prisons will be on the landscape for a long time to come.

Do the various punishments of the Torah and Chazal cover all the bases, or does the Torah sometimes sanction locking people up as a penalty and punishment? Generally, whenever the Gemara mentions locking people up, it is a means to another end. For example when the Gemara discusses the case of “someone who received lashes and repeated [the sin], beis din put him in a cell etc.” (Sanhedrin 81b), this is only the first stage of a process that leads to the person’s death.

There is, however, one case where the Torah permits jailing people as a punitive measure. It is based on the verse in Ezra (7:26) where King Artachshasta instructs Ezra (7:26) that “whoever does not do the law of Hashem and the law of the king, judgment shall swiftly be done to him, or to die, or to uproot him, or to confi scate property, or essurin.” Both the Ralbag and Metzudas Dovid translate essurin as imprisonment, although Rashi translates it as as leyasro beyissurin, to affl ict him with sufferings. This verse is cited lehalacha in the Gemara Moed Katan (16b) in the list of measures beis din can use to force people to heed piskei din.

Based on this Gemara, the Rambam (Hilchos Rotzei’ach 2:4-5) rules as follows:

“All these murderers and suchlike who are not culpable of death by beis din… if the king did not kill them and there was no necessity of the hour for it [for beis din to kill them as a hora’as sha’ah – temporary ruling]… beis din is nevertheless obligated…to incarcerate them in stressful circumstances for many years… in order to frighten and threaten other transgressors.”

The Shulchan Aruch (Choshen Mishpat 2:1) omits the option of jailing people in such circumstances (see Sma).

In a similar vein, beis din can lock up people to force them to fulfill mitzvos. When the Gemara (Pesachim 91a) says that one can bring the Korban Pesach on behalf of someone locked up in a Jewish prison, Rashi explains, “For example, to force him to divorce a passul wife or to pay money.” As the Rivash (484) explains, since it is a mitzvah to pay one’s debts, beis din can lock up the recalcitrant debtor in order to force him to do his duty.

What happens if the debtor has no money? The Rambam (Loveh uMalveh 2:1) writes, “Torah law is that when a creditor demands payment from a borrower, if the borrower has property, we make arrangements for him (we leave him enough for his needs) and he gives the creditor the rest… If he has nothing… the debtor goes on his way. We do not imprison him, etc.”

Over the centuries some people became reluctant to lend money out of fear that nothing can be done against a debtor who has no funds, and at least one place developed a custom discussed by the Rivash (484). He writes:

“Actually, in our town the judges have the custom of arresting a debtor when he owes money (even if he has no funds) and this is due to takanas hakahal…I wanted to object to this takana because it is not according to our holy Torah, but they told me that this is a takana of the market-place and also so as not to not close the door to borrowers, and I left them with their custom.”

Besides these two exceptions, the Torah and Chazal are generally reluctant to put people behind bars. The reason for this may be similar to the Gemara’s explanation of why Hashem hates people becoming long-term slaves – “Ki li bnei yisroel avodim velo avodim l’avodim,” “they are My slaves and not slaves to slaves” (Kiddushin 22b). Hashem wants people out in the real world where they have free-choice to serve Him and fulfill His mitzvos, rather than rotting in jail where a person’s day is regimented by the decisions of someone else.

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