I’ll start this one with a joke (a cartoon I once saw):
One prison inmate remarks to his cellmate, “I got tired of doing the same nine to five. Now I’m doing six to twelve.”
End of jokes.
The concept of prison as a punishment doesn’t seem to
faze anybody in our era. Hey, we all play Monopoly. You break the law – you go
to jail. And, if you go to jail, you must have broken the law (unless you just
happened to pick the wrong Chance card).
It’s as American as apple pie!
It’s not just American. In today’s age, imprisonment as
a judicial penalty is a part of every culture that exists. And it goes back a
long way. We know there was prison in ancient Egypt – Yosef went there. And
there was prison in ancient Bavel – Tzidkia and Yechanya went there.
But we Jews are a bit different than everyone else. We
have our own rules. What kind of rules do we have for prison?
The short answer is: none at all. It is not a part of
our culture.
However, upon closer examination, we do see some forms
of incarceration. There are two well-known examples.
Firstly, the gemara in Sanhedrin 78a/b tells us that we
indeed carry out “police custody” and judicial detention pending outcome of a trial
or while we see if the stricken victim recovers or succumbs. This is taken from
the basic case of assault and battery (Shmos 21:19) as well as the cases of the
mekoshesh (Bamidbar 15:34), the mekalel (Vayikra 24:12). In
addition, the gemara in Sanhedrin (112a), regarding a deviant city, suggests
that each inhabitant is judged and then held in detention until it is
determined if there are enough guilty inhabitants to designate the entire city
as a deviant city and to apply the special laws.
So we know that our culture supports incarceration for
short-term detention.
Secondly, we have the Arei Miklat – cities of refuge. This
applies to one who is guilty of what can best be termed reckless homicide. This
is a gray area between premeditated murder (death penalty) and totally
involuntary manslaughter (no penalty). In a case like this, the perp is not
guilty enough to get the chair but not innocent enough to walk. The Torah is
very forgiving if a close relative of the victim wants to take him out; but
since the perp doesn’t really deserve this, the Torah provides for him a
sanctuary where he is off limits to the avenging “angel”.
In this special city, the perp lives a normal life in a
real house with his wife and kids, goes to shul and work or kollel (locally)
and does not live any sort of prison life. He can go to sleep and wake up
whenever he wants. He can go out to parks and restaurants, to the local zoo,
and can take out full membership in the JCC. He is merely confined to the
borders of that city until the acting Kohein Gadol passes on.
On the one hand, the gemara in Makkos looks at this as
a punishment and atonement for his act – a chiyuv galus-
but, on the other hand, its name – ir miklat – does not indicate
a place of punishment but rather a place that is aimed at protecting him. Thus,
it is very hard to call this a “prison”.
In any case, this is something that is unique to our
culture although it may have been emulated in autonomous penal colonies that
were popular in the French and British colonial era.
But let’s now talk about the real McCoy – Alcatraz,
Sing Sing, Shawshank, Ohio State, Penn State (did I mean State Pen?), Phnom
Penh, Leavenworth or, most dreaded of
all…Maasiyahu. The places where people do “hard time”. Do we Jews have a Halachic
concept of doing “hard time”?
Before I go on, let’s try to understand what a prison
is and what its purpose in today’s world is. Like everything else, the concept
of prison has pros and cons. (Most prisons are full of cons although some of
the cons are real pros. And, of course, there are also ex-cons like Ehud Olmert
and ex-pros like O. J. Simpson.)
Here are some of the pros:
1.
It keeps dangerous
people off of the streets thus making the world a much safer place.
2.
It gives these
people lots of time to reflect on their misdeeds and to improve themselves.
This is why these wonderful places are called “Penitentiaries” – for here they do
penance – and “Correctional Facilities” – for here they are corrected and
straightened out – or the Ohio State Reformatory.
3.
It provides
dysfunctional people with a home where they can get food, shelter, clothing,
and medical benefits at no cost (to themselves) and even play basketball for an
hour a day.
4.
It protects people
who come from bad neighborhoods from gunfire and only leaves them exposed to makeshift
knifes and shoelaces.
5.
It deters other
potential criminals from carrying out nefarious deeds, thus reducing crime
rates.
6.
It administers
justice for the benefit of victims of crimes.
7.
In days of yore, it
generated cheap forced labor.
8.
It provides
numerous jobs to prison wardens, guards and attendants, perpetual income to
defense attorneys on retainer, and overwhelming profits to the private
companies that win lucrative state contracts to run the joints.
All told, it is great for society and the economy.
Everyone wins…almost.
How about some of the cons:
1.
People cannot live
the lives of normal human beings in there (family life) and are forced to do unnatural
things and to become “non-human” (if they aren’t already).
2.
It confines them to
the company of people who are just as, or even more, dangerous and degenerate
than they are. Not much to expect in the way of positive influences.
3.
It adversely
affects people’s emotional, psychological and physical health.
4.
It brands inmates officially
as “criminals” (jailbirds) which stays with them and gives them no incentives
to improve themselves.
5.
It prevents able
bodied people from being economically productive for a central portion of their
lives. In line with this, it forces the prime portions of peoples’ lives to go
to waste which, in turn causes them to waste the rest of their lives.
6.
In line with the
previous, if they have dependents, the dependents lose their support base and
resort to the resources of the government or community or charities or other relatives for support, thus
depleting these resources. In some cases, the dependents resort to criminal
means themselves.
7.
X (player to be
named later)
A quick look at the Pros list and we notice that only nos. 2-4
benefit the people on the inside. The rest benefit those on the outside. Now,
check the Cons list. Nos. 1-3 and 5 affect those on the inside; nos. 6 and 7 affect those on the outside. #4 is detrimental
to both sides.
So if you are a criminal or planning to be one, and you
want to do a cost/benefit analysis you must compare Pros 2-4 vs. Cons 1-4. As
far as I can calculate, if one is a pereh adam from a bad neighborhood, a drug
dealer, pimp, M-13er or such, Pros 2-4 vastly outweigh Cons 1-4 and doesn’t
make prison look like too bad a deal. So he has no overwhelming urge to try to stay out
which bumps out Pro #5 for the rest of us. If he currently is a human being and
wants to stay one, he may think twice.
But for those of us on the outside, we need to compare
Pros 1 and 5-8 vs. Cons 4, 6, and 7 and make a cost/benefit analysis. Does it
really make our world a safer place? Does it really benefit the victims? It
seems we are not getting forced labor or chain-gangs any more. And what about
Con #7?
It would sure help if we reveal the identity of Con #7.
So here it is:
·
It costs an
outrageous amount of money!
And the looming question is: who is really paying for
all this?
And the looming answer is: You are. And I am. And all the "good guys"
in society, including all of those who were victimized by these crimes.
Chicago, Illinois currently has the highest municipal
sales tax rate in the US. And do you know where a good chunk of that money
goes? Just have a quick peek into Cook County Jail and see your tax dollars at
work!
Incidentally, when all those prosecutors work overtime
on cases with very weak evidence to clinch a conviction for someone who may not
be the right criminal so he can sit in prison at our expense (while the real
one stays free and does business as usual), who do you think is paying them to do that?
What comes out is that we – the “good guys” – are (Con
#7) footing the bill and (Con #6) sustaining collateral social and economic
damage and what are we getting in exchange?
Does it make the streets safer? Are crime-ridden areas
any less crime ridden? For all the money we pay, are we now able to walk in Bedford-Stuyvesant?
South Bronx? South Chicago? Crown Heights???? And if you live in a low crime area,
is the penal system to thank for that?
Does it deter crime?
We take for granted that most people in prison want to
get out. This is not always the case. Some folks get very comfortable and cozy
there. They’ve got food, clothing, and shelter… on your dime. No worries,
mate. And, believe it or not, there are
numerous people on the outside who want to get in. For the same reasons. So
they are not really deterred from committing crimes. They may be actually more
committed to committing crimes.
Do the other “Pros” benefit us?? Check the list and
judge for yourself.
My cost/benefit analysis tells me that prisons are not
a good deal. If it was possible, I would move to dispense with them altogether.
But there are people who need to be taken off the streets and even a minimal
deterrence is better than no deterrence. So we do need them for people who
absolutely must be isolated from society.
But to use it as a punitive institution for white
collar criminals, petty delinquents, and to serve justice for people who are
long retired from criminal activity just doesn’t add up. Hey, I am all for
justice, but I am having enough trouble paying for my electric and water. I
just can’t afford to pay even more for “justice” that takes and doesn’t give. And, I am a bit
resentful at those who demand it on my cheshbon!
The upshot of all this is that incarceration may be a
necessary evil but it hurts more than it helps. And, as all “necessary evils”,
it should only be employed as a last resort, not the avenue of choice.
So after all this, we see four purposes for modern day
imprisonment:
·
To isolate a
harmful person from society
·
To try to “straighten
him out”
·
To punish somebody
for being a “bad boy”
·
To deter others from committing crimes
We can now return to our original discussion. Is there a
Halachic concept of prison in our judicial system?
Depends who you ask.
As I wrote, aside from pre-trial detention and Ir
Miklat, there really isn’t. The Torah has more faith in the humanistic
character of a Jew and presents faster and more effective methods of getting
our people to toe the line. In all of our Halachic literature, you will not find
such a concept anywhere except…
…in the Rambam. Two places.
In Hilchos Rotzeach 2:5 the Rambam is discussing a confirmed
wanton murderer who does not meet the requirements for judicial
execution. He writes:
If the king chose not to execute…Beis Din is nevertheless obligated to beat them severely and to incarcerate them under harsh conditions for many years…in order to frighten (i.e., deter) other evildoers…
So here we see a unique Halacha that applies
exclusively to murderers who deserve the death penalty but don’t meet all the
Halachic requirements for implementation. Perhaps Rambam will apply this
Halacha to capital cases of giluy arayos as well (masculine r^pe of a married
woman or another man) since the Torah likens this to murder. Still, from this
Halacha, all we know is long term incarceration can be used as a substitute for
the death penalty where a death penalty is called for.
The second mention is in Sanhedrin 24:9. Here, the
Rambam expounds on the rule that Beis Din is empowered to take extrajudicial steps
in unusual circumstances when there is a general communitywide breech of proper
behavior. He writes:
And likewise the court may shackle one’s hands and feet and incarcerate him in prison and drag him…
In this Halacha we are evidently not limited to a case
of capital offense but it is limited to exceptional circumstances when there is
a special need. From the source gemara of this Halacha (Moed Kattan 16a) and
the way this is presented in the Tur (the only codifier who quotes this Rambam
in his work; the Shulchan Aruch conspicuously refrains from doing so) it seems
that this procedure was intended specifically to enforce compliance from one
who defies the rule of Beis Din and is meant to be enforced only until the
miscreant relents and complies.
Interestingly, the source gemara in Moed Kattan only
uses the term כפתינן
ואסרינן which means to “shackle” and "restrain”. The gemara does not
mention that it means to restrain in prison. The Rambam is
interpreting this on his own. The Tur concurs but Rashi argues. Rashi in Moed
Kattan refuses to define the term “restrain” to mean to imprison. He says it means
to tie one to a whipping post to be flogged. Likewise nowhere does Rashi mention
anything about incarcerating a murderer for “many years” or at all. This is
likewise a chiddush of the Rambam.
Thus, according to Rashi, we have no Halachic grounds for
punitive incarceration whatsoever. Perhaps Rashi made a similar cost/benefit
analysis.
So, is prison good for the Jews or bad for the Jews? Is
it okay for a Jew to fall upon Hard Time?
To sum up, only the Rambam advocates long term prison
limited to confirmed but not implementable capital offenses. Both Rambam and
Tur seem to advocate some form of prison as an extrajudicial measure but we do
not know if it is meant for anything other than a short-term measure to "correct" audacious defiance and to enforce the authority of Beis Din (as
opposed to a long-term punishment). Moreover, I think we can safely assume that these extra-judicial measures are only to be employed after the more standard measures - Makkos d'Rabanan - have been undertaken and have not gotten the desired results.
From Rashi, it appears there is no such thing as
incarceration under any circumstances.
The non-Jewish secular society is each-man-for-himself.
All law-abiding citizens see themselves as the elite “us” and see the
criminals, thugs, social misfits and miscreants as the underworld “them”. They
erect a glass wall and disassociate themselves from the criminal class and let
the authorities deal with them. They don’t really give a d**n what happens to them
and there is no reason for them to. They are “other folks”. They casually pay their state and city taxes
and assume it is being put to good use. If there is any trouble, the first
thing they do is call the cops.
We Jews tend to mimic this relationship with regard to
the non-Jews and it tends to carry over into cases involving fellow Jews. But, in truth, we have no authority to maintain this glass partition when it
comes to our fellow Jews. Our miscreants are part of us, not a separate nation. Like it or not, they are "family". And we are responsible for their well-being.
כל ישראל
ערבים זה לזה
One thing we know for sure is that a prison is not a
healthy place for a human being. For one who doesn’t qualify as a “human being”
it doesn’t much matter. But for one who does, and primarily for one who is
Jewish, and more so, one who officially observes Torah and Mitzvos, it is
deadly. Firstly, it is a very dangerous place where one is exposed to violent
and promiscuous people with no adequate means of defense. Secondly, it takes a
tremendous toll on one’s self esteem and emotional and psychological well-being.
Suicide, R"L, is not uncommon. Thirdly, and as a consequence of the previous, one is vulnerable to depression
and the associated lowering of immune defenses and to contracting all kinds of
deadly illnesses. So, for just about anybody, prison literally shortens one’s life.
And for an observant Jew in a non-Jewish prison, there
is no real chance of being able to keep Torah and mitzvohs, proper Kashrus,
Shabbos observance, Yom Tov, tefillin, and even saying brachos causes problems.
No way to maintain a family life, tznius or family purity (if somehow
applicable). And of course, there are countless other spiritual challenges to
boot.
All told, prison is no place for a Jew. Not for any
kind of Jew. Even the Rambam who advocates incarceration for an inexecutable
murderer is talking about a prison under the jurisdiction of a Jewish Beis Din.
He may not be overly concerned about the physical or emotional health of this
miscreant who should anyway be put to death; but, clearly, he cannot condone subjecting any Jew to committing more transgressions than he has already
committed. Hey, even if Beis Din is going to feed him barley until his stomach bursts (Sanhedrin 81a), they still have to make sure that the barley isn't tevel or chodosh!
Sof davar, barring a situation of pikuach nefesh to
other Jews, there is no justification for allowing, and certainly for
facilitating, the incarceration of a Jew into a non-Jewish prison. Prison life
literally physically shortens the life of an inmate and prevents them from
living as a Jew.
Anybody who causes a Jew to spend time in a non-Jewish
prison (again, where there is no pikuach nefesh to anybody else) will have to
answer for every lost minute of life, every lost mitzvah, and every forced
transgression. Rationalizations such as punishment for past crimes or the quest
for “justice for the victims” and "closure" will not do the trick.
It is not “Jewish” justice.
ברוך אתה ה'
... מתיר אסורים!
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