A Torah Perspective on Incarceration as a Modality of Punishment and Rehabilitation
by Rabbi Sholom D. Lipskar
Rabbi Sholom D. Lipskar is the Founder and Chairman of the Aleph Institute, a not-for-profit Jewish educational, advocacy and humanitarian organization that has grown to become the foremost agency serving the needs of Jews of all backgrounds in prison and their families. Rabbi Lipskar is also the spiritual leader of The Shul, a synagogue and educational complex serving the Jewish communities of Bal Harbour, Indian Creek Village, Bay Harbor Islands, Surfside and other parts of Dade and Broward counties in Florida.
The following discussion is based, in great part, on public discourses given by Rabbi Menachem Mendel Schneerson, The Lubavitcher Rebbe, of blessed memory, on Purim 5736 (Spring, 1976), Shabbos Nasso and Shabbos Korach 5745 (Summer, 1985).
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Every civilization throughout history has promulgated rules providing for the punishment of those who offend societys norms. The history of criminal justice is replete with societies that have included the practice of "incarceration" as one form of such punishment witharguablyvarious degrees of success as a deterrent to crime or as a form of retribution for it.
In 1996, under Americas criminal justice system, we have incarcerated over 1,100,000 of our fellow citizens in federal, state and county facilities. Prison building has been described as one of the "growth" industries for the 1990sand beyond.
American society is often said to be built on "Judeo-Christian" values. Yet, the concept of prison nowhere appears in the "Judeo" part of that equation. Indeed, while sentencing options as diverse as financial penalties,1 atonement offerings,2 corporeal punishment,3 capital punishment4 and even death directly by the hand of G-d are found in the Torah,5 the punishment of "incarceration" as we know it is nowhere to be found in traditional Torah-based Jewish law.
This article will first attemptin a highly-abbreviated formto explain the various references to imprisonment in the Pentateuch,6 Prophets,7 Talmud,8 Maimonides,9 Codes of Jewish Law,10 Halachic Responsa of generally-accepted Rabbinical sources11 and community edicts.12
Second, it will posit a Torah-based philosophical rationale as to why the Torah does not advocate prison.
Finally, recognizing that we now live in a society that increasingly appears to demand longer and "tougher" sentences, it will offer suggestions consistent with the Torah rationale to propose certain programs in prison that should reduce recidivism and improve chances for rehabilitation.
A careful reading of Torah sources reveals that where the Torah refers to prisons, they are not sanctioned modes of punitive incarceration. There are prisons established by non-Jewish societies, e.g., Joseph's imprisonment in the jails of Pharaoh's Egypt13 ; prisons created in contravention to Jewish Law, e.g., the jailing of the prophet Jeremiah14; prisons utilized as temporary holding cells until trial and sentencing15; and a prison environment used solely to execute a sentence of capital punishment.16
That is not to say that Jewish law did not condone restrictions on liberty. The Bible itself provides for servitude (involuntary, imposed by the court), as a reparative form of incarceration. Under certain circumstances, the court could order that a perpetrator of larceny or theft be "sold" for a period of time (not to exceed six years) in order to raise the funds necessary to make restitution.17 Yet such court-imposed servitude could not degenerate into cruel slave labor. The "bondsman" was entitled by law to good nutrition, proper clothing, productive work and food and shelter for his wife and children.18 Restitution, not punishment, was the goal.
Another form of restrictive libertyoften misunderstood as "prisons" by readers of the Biblewere the "Cities of Refuge," three of which were established by Moses just prior to the Jews entry into the Holy Land after wandering though the desert for forty years and three others established by Joshua after the Jews settled in the Land of Israel.19 Those cities were, in effect, the earliest known form of "protective custody."20 Persons found guilty of unpremeditated murder were given the option of moving into one of what eventually were six cities, thereby escaping the lawful revenge of the victims surviving relatives.
But the Cities of Refuge cannotunder any stretch of the imaginationbe deemed to have functioned in any way similar to todays prisons. For one thing, the offender was not isolated from contact with his loved ones and outside contacts. These environments were penal colonies that had all functions of a community, including productive work. Indeed, once the offender chose to flee to one of the cities, the court would order the inmates wife, children and teacher to accommodate him.21 The underlying purpose of the Cities of Refuge was atonement, not isolation.22
A clear indication that the Torah does not advocate the use of prisons is the fact that, while the Scriptures deal in minutest detail with all punishments, giving the precise method of their infliction, types of instruments used, amount of fines, etc., there is absolutely no guidance to be found with respect to punitive incarceration.23
The Jewish tradition teaches that everything in this universe was created by G-d with a positive purposeto be utilized completely without waste.24 Accordingly, in the criminal justice system punishments should effect direct results and benefits for all parties involved: the perpetrator, victim and society in general.25
For the criminal, the consequential punishment of crime26 brings penance, atonement, rehabilitation and ultimate purging.27 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.28 For the victim and society, punishment must serve goals such as restitution, deterrence, retribution and protection.
Imprisonment does not serve these functions. It certainly brings no benefit (short or long term) to the victim. It appears to offer only temporary benefit to society (taking into account the high percentage of recidivism and the increasing numbers of people being sent "away"). And it obviously does no good for the inmate. On the contrary, prison inhibits and limits mans potential, destroys families and breeds bitterness, anger, insensitivity and eventual recidivism.
Man is understood in the Jewish tradition to play the central role in fulfilling G-ds creation, charged with making this world into a "dwelling place for Al-mighty G-d"29 and using each of his moments to accomplish this purpose by serving his Maker.30 Accordingly, Man must use all resources available to fulfill this obligation. Imprisonment inherently limits a persons mobility and ability to function. Accordingly, it appears inconsistent for G-d to charge man with obligations and at the same time prevent him from fulfilling them.31
Although the Torah does not endorse the use of prisons as a viable punishment, Torah law imposes an obligation on Jews to obey the law of the land in which they reside, particularly when the government of that land respects human rights and believes in the betterment, freedom and growth of their inhabitants.32 Accordingly, following the axiom that everything in creation is for a purpose, we must find meaning and purpose in prison to the extent possible.33
Examining the extant forms of imprisonment in the Torah, one that most closely parallels the concept of punitive incarceration is the penal colonies established in the Cities of Refuge. We may find and develop some humane and beneficial aspects of imprisonment from the Torah's rules and regulations for this environment.
First, Torah law specifies that such penal colonies must be designed to provide a proper human habitat, required to be located near market towns and fresh water.34
Second, the sentencing court was obligated to send the inmates teacher and mentor into these penal colonies together with the offender.35 Addressing the most important needs of the inmate, the Torah insists that his Rabbi/teacher be placed in the prisoners environment, too. The detriment of limiting the teachers freedom is balanced against benefit of giving the incarcerated an opportunity for life through rehabilitation. A Torah-true lifeintroduced and administered by a competent teacher/Rabbican be the foremost force in this rehabilitative process.
In his compendium of the Laws of Rotzeach,36 Maimonides expounds on the Biblical verse: "and he should run to one of these cities (of refuge) and live,"37 by noting that "a student who is exiled to a penal colony has his teacher exiled together with him so that he should live." Having ones teacher present gives the inmate an opportunity for life, for those who seek wisdom without the study of Torah are considered as dead.38
When imprisonment affords the opportunity for rehabilitation and restructuring of the offenders values, priorities and lifestyle, then a valid purpose can be established and realized.
For serious and proper rehabilitationcalled "Teshuvah" ("return") in the Jewish traditionthere are two necessary prerequisites. First, one must gain a true understanding and acceptance of ones present state of being as undesirable. Second, one must develop a firm and disciplined resolve to change and improve.39 Both remorse for the past and resolutions for the future are required.40 In the prison environmentwhere one is separated from society and sheds much of the externalities of societal pressures and facadesone may begin a realistic and objective evaluation of self and structure a pattern for improvement.
The disciplining forces of Jewishnessthe commandments referred to as "Mitzvot"give a person: (1) the mechanism to create control devices for his actions, even to the extent of affecting habit; and (2) regulation in structuring balanced living patterns.41 These benefits not only prepares a person for a personal life of righteousness and decency, but can extend outward to be an example to others of how not to act and how one can change. The guidelines of Jewish living, through the study of Torah and performance of its Mitzvot, allow the prison environment to be utilized in this positive manner.
Indeed, as the Torah teaches, from the darkest moments and deepest loss can come the greatest light and ultimate gain.42 Consequently, it is of utmost importance to make it possible for inmates in these physical confinements to transform a period of suspended death to vibrant life, thus fulfilling their purpose in the universe.
The proven way for a Jew to attain this freedom is by involving himself in a life of Torah study and observance.43 Non-Jews can obtain this same type of spiritual development through the study of, and commitment to abide by, the Seven Noahide Laws.44
Our prison systems spend much time and money on vocational, academic and psychological programs. To really accomplish the rehabilitation that is possible in prison, we should also focus on emancipating and structuring the soul maximizing the human potential even while temporarily incarcerating the body.
19 Av 5756 / August 4, 1996
Source: Reprinted with permission from Jewish Law Articles