Incarceration as a Modality of Punishment
Incarceration as a Modality of Punishment
by Charles J. Harary, Esq.
Mr. Harary is associated with the law firm of Davis, Polk & Wardwell
Incarceration is a form punishment that is used contrastingly in Jewish and American law. While American law embraces incarceration and uses it as its most common form of punishment, Jewish law rejects it and almost never uses imprisonment as a form of punishment. This paper will first analyze the Jewish law approach to incarceration; when and how the courts used it. It will then analyze the American law approach to incarceration, the reasons for its predominance, and associated problems. By focusing on the reasons and the problems of incarceration in America, a hypothesis is made for the Jewish law rejection of incarceration as a mode of punishment.
I. THE APPROACH OF JEWISH LAW
Incarceration as a modality of punishment is generally not found in Jewish jurisprudence. Prisons are seldom found in the Torah, and when they are, it is not as the sole punishment. Prisons were primarily used (i) to detain offenders before trial and sentencing, and (ii) as a means of enforcement.
A. Prison as a holding cell before trial and sentencing
1. Prison before trial
Incarceration was used to detain alleged offenders before a capital trial. Where a capital crime was committed but a case against the offender had not been established yet, the offender could be imprisoned until the prosecution could determine if a case can be made.1 The Gemara in Sanhedrin2 discusses the source of this law. The Gemara cites a case in the Torah3 where an assailant struck a victim, but it was uncertain if the victim would live or die. The Torah states that if the victim dies, the assailant gets capital punishment. If however, the victim lives, the assailant is only liable for monetary damages. The verse states, "If the victim gets up and goes outside under his own power, the assailant is absolved" and not executed. 4 Rabbi Nechemia states that the last clause "and the assailant is absolved" is superfluous because if the victim would live, then obviously the assailant would be absolved and not executed.5 The Tanna Kama answers that the Torah uses the verse "and the assailant is absolved" to teach that the court imprisons the attacker until it is determined whether he is liable for execution.6 If he is not liable for execution, then he is absolved and released from prison. The Rambam learns from this that if there is doubt whether the victim will live or not, the court places the assailant in jail so he won't flee as they determine his sentence.
2. In anticipation of a sentence
There are two cases found in the Torah where an offender is placed in prison to await a sentence. One takes place in Parshas Shlach.7 The incident involves a man who was Mekoshes Aitzim, gathering wood in violation of Shabbos. The man was apprehended and placed in a "mishmar" until the court determined his sentence.8 The Ibin Ezra explains that the place referred to was a prison. The Sifri in Shlach states that anytime a person commits a capital offense, the halacha is that he gets put in jail until Beis Din determines his fate.
The second case takes place in Parshas Emor.9 The incident involves a man who was Mekalel, blasphemed, the Name of God. As with the Mekoshes, the Mekalel was apprehended and imprisoned until sentencing.10 From these two cases we see a source for imprisonment in anticipation of sentencing. This would apply either when the court is uncertain whether an offender is liable for capital punishment, like the Mekalel, or is merely uncertain of the type of capital punishment, like the Mekoshes.11
3. Arresting an alleged offender
The Yerushalmi in Meseches Sanhedrin12 discusses when a court can arrest and imprison an alleged offender. The Gemara rules that if witnesses come forth and accuse a man of a capital crime, the court can imprison the accused on the basis of those statements after only minimal interrogation of the witnesses. The court then fully interrogates the witnesses to determine his guilt or innocence. The reason for the ruling is that the accused is considered a flight risk.
Bail, although popular in American jurisprudence, is not found in Jewish law. The Tziz Eliezer13 suggests that the reason behind the Torah’s position to imprison an alleged offender before trial is not merely because he is a risk of flight, but because the Torah does not consider such a person worthy to be free before trial. He quotes the Mechilta in Mishpatim that states that if the reason to imprison alleged offenders is due to a risk of flight, then a bond or a security deposit could be a sufficient deterrent. However, the Torah specifically states "im yakum" to teach that an alleged offender should be imprisoned before trial. The Mechilta asks rhetorically, "yachol metayel beshuk," an alleged offender should be allowed to walk the streets? If one transgresses and there are witnesses that accuse him, he is imprisoned until trial.
B. Imprisonment as a means of enforcement
Incarceration was also used as a means of forcing someone to act in accordance with the court. The Gemara in Meseches Pesachim14 discusses whether a person can sacrifice a korban pesach on behalf of a person who is in jail. The Gemara rules that one can sacrifice a korban pesach on behalf of an incarcerated person only if that person is in a Jewish prison. Rashi comments that such a person was in prison because the court was either trying to force him to divorce a woman to whom it was impermissible to marry or the court was trying to force him to pay a debt.
Commentators address both of Rashi’s stated possibilities for imprisonment. The Tziz Eliezer comments on the power of the court to imprison someone to force him to divorce a woman. He states that court’s power to use incarceration to force a person to adhere to a court decree is a derivative of the well known halacha "makin oto ad shetezey nafsho," the court is allowed to hit a man that refuses to properly divorce his wife, until he agrees to do it on his own. The court is able to use various methods, including incarceration, to get someone to act in accordance with a court ruling.
Imprisoning someone to pay off a debt is a point of controversy between the Rashba and the Rosh.15 The Rashba claims that only a man’s property can be used to pay off debt, not his person. A case involving a debtor who had defaulted on a loan was presented to the Rashba in which he ruled that the debtor cannot be placed in jail, nor sold as a servant. The only time one can attack a debtor’s person is for theft; normal debtors are only obligated with their property. The Rosh disagrees and allows the use of incarceration of debtors in limiting situations. The Rosh states if debtor owes money and there is reason to believe that he has sufficient capital to pay the debt, the court may imprison him to force him to compensate his creditors. However, if he does not have the funds to compensate his creditors then he cannot be imprisoned. The Rosh’s view is that you may use prison only if it will serve a purpose, like provide an incentive for a debtor to admit possessing sufficient funds to compensate his creditors.16 Using prison as a punishment for a debtor is not permissible.
There is a similar machlokes between the Mechaber and the Rama in Shulchan Aruch Choshen Mishpat.17 The Mechaber, like the Rashba, rules that if a debtor defaults, his creditors have no right to sell him or insist that he be imprisoned. The Rama, like the Rosh, rules that incarceration may be utilized if it can help the creditors get paid, like in the case where the debtor fraudulently claims insolvency to avoid payment.
During the times of the Ribash, his city created a takanas hakahal, a community ordinance that permits incarceration of a debtor that fails to pay his creditors. This ordinance applies whether the debtor was legitimately insolvent or not. The reason for the takana was to make people more amenable to lending money to others. The community reasoned that if a person can merely claim insolvency and default on a loan without consequence, people will be too hesitant to lend money to others. The Ribash18 stated that although he believed incarceration should not be imposed on debtors, since the community created this takana he will support it to further the goal of creating an incentive for lending money. The Maharash dam19 agreed but limited the takana to debtors that did not have good credit beforehand. He claimed that an honest businessman with good credit that fell on hard times and defaulted on a loan should not be imprisoned.
We see from the above analysis that prison can be used (i) to hold an alleged offender before trial; (ii) when a person commits a capital crime and the sentence has not been determined; and (iii) as a means of forcing someone to act in accordance with a court decision, either in marital or monetary cases. Incarceration as a type of capital punishment or as a form of punishment was rarely used.
1.Incarceration as type of capital punishment
The Gemara in Sanhedrin20 discusses a case where incarceration was used as a type of capital punishment. This type of capital punishment was referred to as "machnisin oto lekippa." The punishment relates to the following hypothetical. If person commits a crime for which he is liable kares,21 his punishment is felt to be that of a spiritual nature. However, the court has the power to give such a person lashes.22 The gemara in Sanhedrin deals with a case where a person was flogged twice for having committed on two separate occasions a transgression whose penalty is kares, and later transgressed a third time.23 The halacha24 states that as punishment for the third transgression,25 instead of lashes, the court administers the capital punishment of "machnisin oto lekippa." The court places the offender in a cramped cell that has no room for him to either to stretch or lie down.26 They then feed him minimal amounts of bread and water until his stomach shrinks. Afterwards he is fed barley and water until his stomach bursts and he dies. Incarceration, although used by the courts, was used as a form of capital punishment; it was not used as a punishment in itself.
2.Incarceration as a modality of punishment
In a very limited circumstance, incarceration was used as the punishment. The Gemara in Sanhedrin27 discusses a case where a person knowledgeable in criminal law was committing capital crimes in a way that resulted in him going unpunished. For example, in order to be liable for capital punishment the crime must be committed in the presence of two witnesses who fully see he event and adequately warn the offender beforehand. Such a person who is sophisticated in criminal laws can easily avoid capital punishment by committing the crime outside the presence of two witnesses or refusing to accept the warning from the witnesses during the commission of the crime. Although such a person is culpable for the crime, the court cannot give him a capital punishment. In such a circumstance, the court can give the offender life imprisonment. This is the only situation where incarceration is used as a modality of punishment.
A common misconception is that the Airey Miklat, the Cities of Refuge, were a form of incarceration. The Airey Miklat were cities of refuge where persons guilty of unpremeditated murder escaped to, to avoid revenge from the victim’s family. Moshe established three of these cities before the Jews entered Israel and Joshua established three afterward.28 Although these cities restricted the liberty of those that entered, they are very different than present day incarceration. For one, the offender had the choice to enter the city, and he was permitted to bring his family with him. In addition, the Rambam maintains that he was able to bring his Rabbi and teacher with him as well. The Rambam learns from the verse "and he should run to one of these cities and live,"29 that a person exiled to one of these cities takes his teacher with him so he should live.30 Also, the city was designed to provide a proper habitat for its inhabitants. The Rambam states that the Airey Miklat were built near towns with water and fresh food.31 The offender had the choice to enter such a city. As a result, the city’s function served more as a protective environment to facilitate atonement as opposed to isolation for punishment.32 Such cities further the idea that the Torah doesn’t have prisons as a form of sentencing because that goes against the policy of the Torah to facilitate rehabilitation rather than isolation from the community.
II. THE APPROACH OF U.S. LAW
This section will show the predominance of incarceration as a form of punishment in the United States, the reason for such predominance and the problems with incarceration. The paper will then explain why the Jewish law approach to incarceration differs from the American one.
A. Incarceration in America
Incarceration is the cornerstone of the American criminal justice system. It is the most common punishment for serious offenses.33 The U.S. has over two million adult citizens incarcerated,34 twenty-five percent of the world’s prison population.35 The U.S. also has the highest per capita incarceration rate in the world,36 a rate five times higher than the next highest Western nation.37 In addition, the past decade was a decade that has incarcerated more people than in any other decade. The amount of people added to prisons in the 1990s was 25% higher than in the 80s, and is nearly 16 times as many as the average number added during the five decades before 1970 in which the incarcerated population increased.38
B. The reasons for incarceration
There are four major goals of punishment in the American criminal justice system: retribution, deterrence, incapacitation and rehabilitation.39
Although there is agreement as to these broad objectives, controversy exists as to the emphasis placed on each objective when punishment is invoked. For the greater part of this century, rehabilitation was the dominant strain in penological thought.40 In the past two to three decades though, the philosophy behind punishment has shifted from rehabilitating the offender to prevention of future crimes through control and detention of dangerous persons.41 As a result, incarceration has become the most dominant form of punishment. Three examples show how prevention through incarceration is the dominant objective. The first example is the "three strike" laws that authorize life sentences for repeat offenders.42 The rationale behind these laws is clear from the legislative history of the federal three strikes statute. After citing the problem of a significant percentage of crimes committed by people who previously have committed crimes and concluding that the response to both violent crime and recidivism has been inadequate, the Report of the House of Representatives states that the purpose of the legislation is "to take the Nation's most dangerous recidivist criminals off the streets and imprison them for life."43 Former Senate Majority Leader Trent Lott explained the need for the federal legislation by noting that "there is no doubt that a small hardened group of criminals commit most of the violent crimes in this country" and that "many of the people involved in these crimes are released again and again because of the "revolving door’ of the prison system."44 The goal is clear, to incapacitate, not to rehabilitate but to protect society from "the Nation’s most dangerous recidivist criminals."45
The second example of the objective of punishment in society is the decreasing of the age of juvenile offenders to be tried and sentenced as adults.46 Like the three strike laws, the legislative history can clarify the rationale behind these reforms. The Congressional Research Service summarizes the rationale for such state legislation: "locking up dangerous kids so that they will not commit further crimes."47
The last example is the new sentencing guidelines that increase the sentences of past offenders.48 The rationale behind increasing the sentence of an offender with a criminal history is to protect society from the possibility of such an offender committing another crime. As the Guidelines Manual of the United States Sentencing Commission explains, "the specific factors included are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior."49
C.Incarceration is a poor form of punishment
By focusing on the flaws of incarceration we can begin to appreciate why Jewish law does not entertain incarceration as a modality of punishment. First, not only is incarceration not a deterrent, it may actually cause offenders to commit additional crimes.50 A Department of Justice study revealed that an overwhelming percent of prisoners were again arrested for felonies or serious misdemeanors within three years of their release.51 Another Department of Justice study discovered that imprisonment actually increases the rate of recidivism among felons.52 Felons sentenced to imprisonment were matched with felons sentenced to probation, according to characteristics of crime and criminal thought to correlate with recidivism.53 Seventy-two percent of the prison group was rearrested during the two years following release, compared to only sixty-three percent of the probation group.54 Another researcher obtained corroborating results: Each experience of incarceration rendered the next more likely.55 The authors of the studies suggest that either the experience of imprisonment increased criminality or being labeled as an ex-prisoner reduced chances of finding legitimate employment after release.56 This argument is sound since a person sent to jail is most probably outcasted from his friends, family and community. When he is released from prison it is very difficult to find a job and become a productive member of society. As a result, there is a increased chance that he becomes part of the criminal element where he is accepted.
Another flaw in incarceration as a mode of punishment is that it fails to rehabilitate the offender. Michael Foucault in his study on incarceration concludes that "the prison cannot fail to produce delinquents" with the isolation, useless work, violent constraints and arbitrary power that it imposes.57 The few rehabilitative successes realized in American criminal justice stem not from the prison experience per se, but from unrelated training and treatment programs administered while offenders happen to be in custody or after they are released.58
III. PRISON CONTRARY TO JUDAISM
Incarceration as a mode of punishment violates the basic tenets of the Jewish faith. First, Judaism believes in the intrinsic value of every individual. Everyone is seen to be created in the image of God and is equally given the task of making the world a "dwelling place" for God.59 Man is given the task to use his life to accomplish this by serving God.60 Incarceration prevents a person from fulfilling his purpose in the world by limiting his ability to function in society.61 Secondly, Judaism believes in the ability of man to repent and atone for his sins. For the criminal, the consequential punishment of crime brings penance, atonement, rehabilitation and ultimate purging.62 After being punished, one starts with a fresh slate; Jewish law dictates that the community must accept the wrongdoer as before and he regains a place in the World to Come.63 Incarceration frustrates this as well. It does not serve to rehabilitate the offender. It leaves the offender embarrassed, ostracized and less likely to atone and start anew. Prison inhibits and limits man’s potential, destroys families and breeds bitterness, anger, insensitivity and eventual recidivism.64 The goal behind incarceration in America is prevention of future crimes, not rehabilitation. This lack of faith in people is contrary to Jewish thought. Judaism believes in the value of the person, Judaism believes that punishment could rehabilitate the offender. Incarceration does not. Incarceration as a form of punishment lacks the ideals that Judaism prides itself on.
IV. DINA DEMALCHUTA DINA
It is important to end with a note that the above analysis is a theoretical one. Although there are many prominent Jewish communities with competent halachik authorities, the law remains as long as the Jews are in exile, many of the Jewish laws are inapplicable and are supplemented by the law of the land in which the Jews reside. This principle is known as "dina demalchuta dina," the law of the land is the law.65 In today’s time the Torah requires American Jews to follow the law of the land; since incarceration is the law in America, then it applies to the Jews that live in America at this time regardless of the approach taken by the Torah.
_______________Posted on 4/4/03