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Imprisonment

IMPRISONMENT, the act of depriving a person of his liberty by restricting his freedom of movement and confining him within a particular defined locality, where he is under the direct and constant supervision of the confining authority. This form of restraint on individual liberty is sometimes referred to as arrest or detention (maʿaẓar) and sometimes as imprisonment (maʾasar). The most frequent cases of imprisonment are:

(1) arrest of a person suspected of having committed a criminal offense in order to ensure his arraignment and presence at the trial or to prevent him from interfering with the course of inquiries;

(2) detention of a person convicted and sentenced to death or banishment, pending execution of the sentence;

(3) imprisonment without trial by virtue of an administrative order of the government, issued against a political background;

(4) imprisonment aimed at compelling compliance with the instruction of a judicial tribunal;

(5) imprisonment imposed as a punishment for the commission of an offense.

The first four categories of imprisonment were known in most ancient legal systems; punitive imprisonment, however, was apparently unknown in the legal systems of the ancient East or in Greek and Roman law, in keeping with the dictum of Ulpian: "carcer enim ad continendos homines, non ad puniendos habari debet" ("prison is intended for the confinement, and not punishment, of people"). Most European legal systems only came to give general recognition to imprisonment as a punitive measure from the commencement of the 14th century onward (see W. Mittermaier, Gefaengniskunde (1954), 2–3, 3–17; Von Hentig, Die Strafe, 2 (1955), 159–83; see also *Imprisonment for Debt).

IN THE BIBLE

Biblical references to imprisonment within the context of Jewish law (the imprisonment of Joseph in Egypt (Gen. 39:20; 40:3–4, 7; 42:16–19) and of Samson by the Philistines (Judg. 16:21) were not within that context) are made in the cases of detaining a transgressor until delivery and execution of the judgment (Lev. 24:12; Num. 15:34) and as an administrative measure (I Kings 22:27; II Chron. 16:10; Jer. 37:15–16; 38:4–14); at the close of the biblical period imprisonment is mentioned as one of the means entrusted to the court, presumably for the purpose of compelling compliance with its instructions (Ezra 7:25–26).

IN THE TALMUDIC PERIOD

In the Talmud there are halakhot relating to a person detained in prison (with reference to the laws of Sotah – Sot. 4:5), a person promised his release from imprisonment (with reference to the laws of the paschal lamb – Pes. 8:6), and a person released from prison (with reference to the laws of Festivals – MK 3:1). During this period there were Jewish and gentile prisons for imprisonment at the hands of Jews and gentiles respectively (Pes. 91a; TJ, Pes. 8:6, 36a, and MK 3:1, 81c). Mention is made of a building inhabited by the warder of the prison in Maḥoza, a Babylonian city, the majority of whose residents were Jewish (Yoma 11a; see also TJ, Kid. 4:12, 66d).

Detention of a suspect pending completion of the judicial proceedings against him continued to be the most common form of imprisonment in this period (Mekh., Nezikin, 6; Ket. 33b); his detention was forbidden, however, unless it was possible to point to evidence tending to prove commission of the offense (TJ, Sanh. 7:10, 25a). It was also customary to detain a person who had been convicted and sentenced to death pending execution of the sentence (Sif. Num., 114; Sanh. 11:4). The sages interpreted the passage from the Book of Ezra (7:25–26) as authority for the court to imprison a person refusing to comply with its instructions (MK 16a), and to this end severe conditions of detention were sometimes imposed (Oẓar ha-Geʾonim, ed. by B.M. Lewin, Mashkin, p. 68).

Imprisonment as *punishment for an offense is known for the first time during the talmudic period (referred to as hakhnasah la-kippah, i.e., confinement in a "cell" – Sanh. 9:5; Tosef., Sanh. 12:7–8). This punishment was imposed in two cases: after the offender had committed an offense for which the punishment was *karet (*Divine Punishment) three or more times; and for the offense of *murder whenever the court was unable – on account of procedural and formal defects – to convict the accused but was convinced that he had murdered the deceased. Conditions of imprisonment in the "cell" were particularly severe (Sanh. 81b). The sages found a hint for punitive imprisonment in a biblical passage; it was, however, apparently a rabbinical enactment (takkanah) made by virtue of the sages' authority to impose punishment for criminal offenses – even beyond the framework of the pentateuchal law – whenever rendered necessary by the existing exigencies (see *Takkanot and Yad, Roẓe'aḥ, 4:8–9).

IN THE POST-TALMUDIC PERIOD

In the post-talmudic times increasing recourse was had to imprisonment within the Jewish legal system and, along with pretrial detention and imprisonment to compel compliance with the instructions of the court, punitive imprisonment – imposed in respect of various types of offenses – became a common phenomenon in Jewish law, particularly from the early 14th century onward.

This phenomenon was linked to the problem of Jewish judicial autonomy in the various centers of Jewish life. This autonomy related primarily to the field of civil law, but in most Jewish centers it extended also to criminal law (see *Penal Law), although varying in scope from center to center (see *Autonomy, Judicial; *Mishpat Ivri). One of its manifestations in the field of criminal law was the existence of Jewish prisons in various centers, as is evident from numerous halakhic and historical sources; in particular, much material on this subject is available regarding the situation in Poland and neighboring territories, covering details such as the names of some of the prisons and their Jewish warders, their salaries, etc. (see Elon, in bibl., pp. 178–84). Imprisonment, within its various categories, was imposed by the bet din even in centers where there were no prisons under Jewish supervision, execution thereof being entrusted to the governmental authorities (Elon, ibid., 184f.).

Arrest and Detention

In the ninth century, the Babylonian Gaon *Paltoi decided that it was permissible to arrest an offender on the Sabbath if knowledge about him first came to light on this day (Halakhot Pesukot min ha-Ge'onim no. 135); later, a contrary decision was given by Sherira Gaon (Shibbolei ha-Leket no. 60) and the problem was discussed over a long period in the Codes (Rema, OH 339:4). In Spain various halakhot were fixed concerning the arrest of a person, particularly with reference to his release on guarantee or bail (Resp. Rosh, 13:3; Rashba, vol. 2, no. 242; Ribash, resp. 234–9, 508). Detention was also employed as a means of preventing someone from taking flight in circumstances calculated to cause great hardship to another, e.g., if the husband sought to place his wife in the position of an *agunah; in this event it was decided that arrest was permissible even on the Sabbath (Shevut Ya'akov, vol. 1, no. 14).

Imprisonment to Compel Compliance with the Court (Maʾasar Kefiyyah)

Imprisonment was used by the court as a means of compelling a husband to grant a bill of divorce (get) to a wife with whom marriage was prohibited (Rashi, Pes. 91a; Ribash, resp. 348), as well as in all other cases where it is permitted to compel the husband to grant a get (Rashba, vol. 2, resp. 276) and also as a means of compelling the levir to grant ḥaliẓah (Resp. Rosh 52:8; see *Levirate Marriage and *Divorce, and compare the legal position in the State of Israel in this respect).

Contempt of Court

Imprisonment was also used as a sanction for noncompliance with various instructions of the court (Rif. resp. 146; Ritba, resp. 159; Takkanot Medinat Mehrin (Moravia), no. 247; Pinkas ha-Medinah [Lita], no. 546). Imprisonment was mentioned by some of the posekim as a sanction available to the court (Maim. Yad, Sanhedrin 24:9; Tur, ḤM 2); other posekim made no mention thereof in this context (Sh. Ar. and Rema, ḤM 2), but in the later Codes this possibility was again acknowledged (Levush, Ir Shushan, Sema, Urim ve-Tummim, and Netivot ha-Mishpat, ḤM 2).

Punitive Imprisonment

SERIOUS CRIMES

The talmudic law of hakhnasah la-kippah (see above) became an analogy for the imposition of similar punitive imprisonment in certain cases of murder, when the possibility of carrying out the capital sentence was excluded according to the original law (Yad, Roẓe'aḥ 4:8–9). Punitive imprisonment was likewise prescribed in cases of homicide not carrying liability, according to the original law, for the death sentence (Yad, Roẓe'aḥ 2:2–5) in a case of murder involving doubt as to whether the death resulted directly from the murderer's act (Ribash, resp. no. 251), or if there was one witness only (i.e., if he proved to be reliable and delivered convincing testimony – Yam shel Shelomoh, BK 8:6). A sentence of death was imposed on a Jew who committed, for the third time, the offense of informing on and denouncing a fellow Jew to the gentiles, and other forms of punishment, including imprisonment, were imposed for a first or second offense of this nature (see Finkelstein, Jewish Self-Government, p. 362; and *Informers).

Commencing in the 14th century, imprisonment became accepted in Jewish law, under the influence of the surrounding legal systems (see above) as a regular mode of punishment in respect of numerous other offenses. It became one of the most common and effective sanctions to be adopted by the Jewish courts and in various takkanot, in answer to the circumstances and conditions of Jewish life in different periods.

OFFENSES AGAINST MORALITY AND THE FAMILY LAWS

The penalty of imprisonment was imposed upon commission of offenses such as having sexual relations with a non-Jew (Zikhron Yehudah no. 91), *adultery (i.e. in cases of sexual relations with a married woman – Ribash, resp. no. 351), sodomy (Mabit, vol. 1; resp. no. 22), and prostitution; and, in some localities, it was imposed "against certain youths who harass girls and women in the streets at nighttime" (see Elon, in bibl., p. 193). Imprisonment was also imposed as a punishment for marrying in a ceremony attended by less than a minyan – aimed at avoiding various kinds of secret marriages (Ribash, resp. no. 232; see also *Takkanot; *Marriage).

OFFENSES AGAINST PROPERTY

Imprisonment was an accepted sanction for theft (see *Theft and Robbery; Ritba, resp. no. 159; Divrei Rivot no. 232; see also Elon, p. 194) and was imposed even when commission of the offense could not be proved by the testimony of two witnesses, but the court was persuaded of the theft on the strength of the circumstantial evidence (Tashbeẓ 3:168). Not only the thief was imprisoned, but also any person knowingly undermining the inquiry into the theft (Elon, p. 194).

ASSAULT AND INSULT

Imprisonment was prescribed as the punishment for *assault, and in certain places a monetary fine was imposed – nonpayment whereof rendered the offender liable to imprisonment (Zikhron Yehudah no. 36; Elon, p. 195). *Defamation was also punished with imprisonment (ibid.).

GAMBLING

Playing games of chance, a common phenomenon in the Middle Ages, was combated by the Jewish communal leaders and courts by the adoption of various stringent measures (see *Gambling), including imprisonment imposed on both male and female participants and on the owner permitting gambling to take place on his premises. In terms of a takkanah enacted in the Cracow community in the middle of the 17th century, a woman sentenced to imprisonment was to be detained in nayen Dudik ("in the new 'Dudik'" – the name of a jail possibly intended for female prisoners only), for the period "from completion of the Shaḥarit service until completion of the Arvit service in the Synagogue" (see Elon, p. 196) – so that she was enabled to return home in the evening without spending the night in jail.

SUNDRY OFFENSES

Imprisonment was also imposed in respect of offenses of a religious nature, e.g., in the case of a person who threatened to become an apostate unless his request be met for the performance of a ceremony of marriage between himself and a woman prohibited to him by law (Ritba, resp. no. 179); it was also used against the followers of *Shabbetai Zevi, and even against the followers of Ḥasidism in its early controversial stages. It was likewise imposed for delivering false testimony, smuggling, and other offenses. In takkanot of the Cracow community, enacted at the end of the 16th century, the poor were prohibited, on pain of imprisonment, from begging for alms in the streets – the beadle of the synagogue being entrusted with the duty of collecting contributions and distributing them among the poor; this was justified on the ground that almsgiving in the streets was "tantamount to robbing the respectable poor," since such poor people were ashamed to beg for alms and turned solely to the communal charity box (Elon. pp. 196–7).

The Pillory and House Arrest

Putting offenders in the "Kuna," as the pillory was known in Poland and Lithuania, was a form of punishment meted out in these countries in the late Middle Ages, by Jews as well as gentiles. In some places the "Kuna" consisted of a chain attached to the wall of a synagogue, near the entrance, to which the offender was tied by his neck and hands for a number of hours and was aimed at submitting the offender to shame and ignominy. This form of punishment was commonly found in Catholic churches and on feudal estates and was sometimes imposed in the Jewish community as a punishment for defamation, informing, and like offenses (Elon, pp. 197–8). In the late 17th century, in the Hamburg congregation of Portuguese Jews, house arrest was a form of punishment imposed in respect of certain offenses (Elon, ibid.).

Treatment of Prisoners

It is apparent that punitive imprisonment was introduced into the Jewish legal system under the influence of legal systems surrounding the centers of Jewish life. This may be concluded from the use of the "Kuna" (see above) and from the fact that Jewish law, like other legal systems, only introduced imprisonment as a mode of punishment from the 14th century onward. In the process, Jewish law nevertheless stopped short of absorbing some of the accompanying features of imprisonment, such as the cruelty displayed toward prisoners and the inhuman conditions of their detention that prevailed in various countries until the 19th century. In various takkanot and responsa it was laid down, e.g., that prisoners awaiting trial were to be kept under different conditions of detention than those to which convicted prisoners were subject, and that the latter too were to be provided with food, clean quarters, and – separate therefrom – sanitary facilities (Elon, pp. 199–201)

BIBLIOGRAPHY:

S. Assaf, Ha-Onshin aḥarei Ḥatimat ha-Talmud (1922), passim; M. Shalpoverski, in: Ha-Torah ve-ha-Medinah, 5–6 (1952/54), 302–5; M. Elon, in: Sefer Yovel le-Pinḥas Rosen (1962), 171–201. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 11, 26, 113, 389, 648f., 653, 664–666, 705; 3:1353; Idem, Jewish Law (1994), 1: 9, 10, 28, 127, 471; 2:802f., 808, 821f., 870; 4:1615; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:332, 336; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 230; M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkhei Hoẓa'ah le-Po'al (2000); A. Sheinfeld, "Torts," in: N. Rakover (ed.), Ḥok le-Yisrael (1991), 138–42; I. Warhaftig and S. Rabinowitz, "Arei Miklat be-Ma'arekhet ha-Anisha ha-ModernitDugmah Yissumit mi-Torat ha-Anishah shel ha-Mishpat ha-Ivri," in: Sha'arei Mishpat, B(3) (2001), 353–81; E.Y. Waldenberg, "Ma'asar ke-Emẓa'i u-ke-Onesh – be-Ẓomet ha-Torah ve-ha-Medinah, A (Alon Shevut) 1991, 389.