Thursday, August 17, 2017

Hetter L’Issur - When a Jew Falls onto Hard Time


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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