Kingdom of Priests

Kingdom of Priests

Against Imprisonment

I’ve often thought the controversy around capital punishment, with life imprisonment as the proposed alternative, has things backward. It’s not the former that should be controversial but the latter.

The sickening Phillip Garrido/Jaycee Dugard story — of child kidnapping, imprisonment, rape — recalls an item of Torah wisdom about prison itself. Rav Hirsch reflects, “Punishments of imprisonment, with all the attendant despair and moral degeneration that dwell behind bars,…are unknown in Torah jurisprudence.” In Jewish law, there is virtually no role for incarceration at all.
The L.A. Times notes the similarities between hollow eyed Garrido’s abduction of Jaycee Lee Dugard in 1991 and his abduction and rape of a 25-year-old woman in 1976. In between,

he spent 10 1/2 years in federal prison for the kidnapping and about seven months in a Nevada prison. He was paroled to California in August 1988, three years before he allegedly kidnapped Dugard.


Kidnapping is a capital offense in Torah law. This — stealing people — is the basic meaning of the eighth commandment. Garrido ought to have been executed long ago, in which case he never would have laid a hand on anyone else ever again. 
Modern people tend to look askance at Torah jurisprudence, associating it with Shiite Iran or the Taliban. Yet consider the advantages. The punishments for various crimes include monetary fines, flogging, and death. They don’t include imprisonment, except while someone is being held for trial.
There is a humane recognition here that prison can be worse than death — from the depravity of prison life but also the sheer injustice, the torture, of anyone’s being confined for a long period of time. Freedom is an essential human right, as the federal justice system itself seemed to recognize when it freed Garrido after serving hardly more than a fifth of his original 50-year sentence. Better to die than be bound. In the case of Phillip Garrido, it would have saved a number of people years of agony, perhaps even including himself.
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posted September 4, 2009 at 9:01 am

“In Jewish law, there is virtually no role for incarceration at all.”
I can never remember whether “virtually” means “absolutely” or “just about,” so I looked up incarceration in Jewish law and found the following. I think you might like it:
Regards, Merg.

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posted September 4, 2009 at 1:40 pm

The problem with your argument is that the halachic requirements for the death penalty are so severe that it is virtually impossible to inflict the death penalty on someone.
Also, the Mishnah says a court executing someone more than once in 70 years is a “murderous court.”
So contrary to what you’re saying, execution should be the exception to the rule, not the rule.
It’s true that imprisonment as punishment is not a historical type of punishment in Judaism, but I’m not sure it’s halachically forbidden either. Given that the death penalty is almost impossible to carry out halachically, there must be some alternative punishment, and at least for the most serious offenses, imprisonment is the best we have (though there are those who want to abolish all prisons, so they must have some ideas for alternatives).
I do think imprisonment is used way too often, and we should focus more on other approaches, such as restorative justice, public shaming, and perhaps even non-fatal forms of corporal punishment such as lashes (which may seem inhumane to the modern eye but are probably overall less painful than years of imprisonment, and might be more effective in reducing recividism.)

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David Klinghoffer

posted September 4, 2009 at 1:51 pm

Yirmi — Right, but as I wrote in the immediately preceding post, the idea here is to learn from principles underlying Torah law not to apply that law in a literal way. Literally, in terms of the Oral Tradition anyway, you’re right, it’s hard to see how the death penalty could ever be effectively imposed. But the philosophical lesson is that rather than problematizing capital punishment, which exists at least in theory (and abundantly considered) in Jewish tradition, let’s instead see imprisonment as the problem, the institution in need of serious second thought. The idea of sentencing Bernie Madoff to 150 years, at 71 years of age, is ridiculous, obscene. Flogging him, or perhaps selling him as a debt slave to someone he victimized, would be more appropriate and humane.

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posted September 4, 2009 at 3:07 pm

Just a brief comment.
Yirmi is correct that the Talmud strongly limits the application of the death penalty by the courts. However, this is an oversimplification of Judaism’s approach to the death penalty.
First of all, the limitations the Talmud discusses are for Jewish courts. Jewish law demands a much harsher stand from a Gentile court that enforces the Noahide laws. (Although such a court, in practical terms, probably never existed.)
Secondly, even in a Jewish context, the restriction of the death penalty applied only to the courts. It did not apply to the king, who was free to apply the death penalty in a any situation were he judged it necessary. This topic is discussed at length in the Drashos HaRan 11. (A collection of essays by the great 14th century Talmudic commentator, Rabbeinu Nissim of Gerona.)
Rabbeinu Nissim points out that on of the reasons why the kings broader powers was necessary is that the restrictions on the courts application of the death penalty – while guaranteeing a higher standard of justice – basically nullified its deterrent power.
He also states that in the absence of a proper monarch, this power had to be assumed by the courts, and that they were empowered to impose the death penalty (and other penalties) when it was seen as social necessity.
BTW, whatever happened to the stocks?

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posted September 6, 2009 at 12:36 am

You can’t have it both ways. The Torah did not want the people to ask for a king and it was considered a huge error and failing on their part. Yet, you’re saying that the king’s power complimented the Bais Din’s lack of power.
I’ve thought about the subject over the years and it seems to me that I’d rather face, say, an American court of law if I was innocently accused (where circumstantial evidence is examined closely) than a Jewish one, where any two men can conspire to have me executed. And even when we know they’re lying, but if sentence was passed, we still go ahead and execute the person as per Shimon ben Shetach’s son.
where’s the justice in that?

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posted September 6, 2009 at 2:55 am

Actually, Joseph, the Torah explicitly instructs the Jewish people to establish a king over themselves (Deut. 17:15). The difficulty that arises is why then is the prophet Samuel so critical of the people’s request for a king. This issue is dealt with by numerous commentaries (including Rabbeinu Nissim in the essay mentioned above) and the answer seems always to boil down to the idea that, while the request itself was proper, the people’s motivation for the request was wrong.
As for the relative power of the courts and the king, it is correct that the king’s power complemented the courts. But this is not really about a difference in power so much as a difference in function.
The courts were designed for a society that was basically law-abiding (as are many societies). The courts judged disputes between individuals and tried criminal accusations – involving the ordinary citizen who messed up – in a very lenient manner. The existence of capital punishment, in this system, was mainly a moral statement emphasizing the severity of certain crimes; it was rare to have an actual conviction.
The king’s judicial power, by contrast, was intended to protect this basically law abiding society from human predators, both violent (murderers, robbers, etc.) and non-violent (swindlers, con-men, etc.), who would attempt to abuse the very liberal policies of the courts. Such individuals would eventually find themselves before the king, where justice was swift and harsh. The ordinary case never came before the king – he was only one man after all. The king’s justice was reserved for cases that were beyond the ability of the courts to deal with.
Any legal system can be perverted by sufficiently talented and determined false witnesses. If one had a powerful enough conspiracy (as was the case with the son of Shimon ben Shetach), it would be far easier to construct a circumstantial case that would hold up in an American court than it would be to find two witnesses capable of holding up false testimony when subjected to the kind of cross-examination demanded by Jewish law.
Incidentally, your portrayal of the story of Shimon ben Shetach’s son is not quite right. The court did not know the witnesses were lying. After the court sentenced him to death, the witnesses recanted their testimony. According to Torah law, a witness cannot recant testimony that has already been accepted by the court. So the sentence still had to be carried out. If other witnesses had come forward to exonerate the accused, they would have been accepted.
In any event, any student of the Talmud who has studied the tractates of Sanhedrin or Makkos will immediately recognize that Jewish law imposes a very strong bias for acquittal in criminal law, especially in capital cases. (When I have taught these subjects to adult groups, the “law-and-order” types always find this upsetting. That’s when I usually have to pull out the Drashos HaRan.) Ultimately, however, even this system could be defeated by a sufficiently determined group.

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