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
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).
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.).
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.
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
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)
APPLICATION OF JEWISH LAWS OF IMPRISONMENT IN CASE LAW OF THE ISRAELI SUPREME COURT
A detailed discussion of the essence, nature and use of the penalty of imprisonment in Jewish Law can be found in judicial decisions of the Israel Supreme Court, a number of which will be dealt with in this article.
General – Preservation of the Prisoner's Dignity
In the case of Segal (Cr. A 344/81 State of Israel v. Segal, PD 35(4) 313), the Supreme Court was asked to rule on the appropriate severity of the prison sentence to be imposed on an offender convicted of drug offenses. The Court (Justice Menahem Elon) began its opinion by relating to the difficulty inherent in a determination of the severity of the punishment: "The legislator entrusted him [the judge] with penal sentencing – especially in respect of the penalty of imprisonment – with an upper limit, but no lower limit" (p. 321 of the decision). Further on in the judgment, the Court relates to the duty under Jewish Law to preserve the dignity and rights of the prisoner, and points out: "Originally, Jewish Law did not recognize imprisonment as a means of punishment. Even after it became reconciled to the idea, under the influence of surrounding judicial systems and inexorable necessity, the halakhic authorities protested against it and warned that human dignity must be safeguarded, even in circumstances of incarceration. This matter is treated in an illuminating fashion in a responsum by R. Hayyim Palaggi (*Palache), in Ismir, Turkey, during the first half of the 19th century, who spoke against incarcerating people in 'dirty and desolate cells,' as was the practice in his city of Ismir" (Resp. Hikekei Lev, II, ḤM 5). The Court added that: "This assimilation of the law practiced in the surrounding society did not involve adopting the accompanying phenomenon of brutal treatment of prisoners, inhuman conditions regarding food and accommodation and the like, that persisted even into the 19th century in different countries. In the words of the historian Salo Baron: 'Jewish prisons, one of which may still be observed in the Altneuschule in Prague, resembled modern penitentiaries rather than medieval towers and dungeons.' It was forbidden to subject people awaiting trial to the same conditions of imprisonment as those already sentenced. Prisoners sentenced for non-capital offenses were not to be housed in filthy places, for although they had sinned, they were still sons of Israel and were to be imprisoned with dignity" (ibid, p. 327).
Prisoner's Right to Medical Treatment and to a Choice of Physician
In the Tamir case (APP 4/82 State of Israel v. Tamir, PD 37(3) 205), the Court heard a request by a prisoner to receive different medical consultation and treatment than those suggested by the prison authorities. The Court (Justice Menahem Elon) ruled that:
The Court noted that this right has its origins in Jewish legal sources (see *Medicine and Law), and that:
In its decision, the Court ruled that "the statutory provisions imposing the duty of examination and treatment on the prison authorities […] do not deprive the prisoner of his right to the medical advice and treatment of his own choice, provided that he is prepared to bear the costs involved therein" (p. 209 of judgment)
Creditor's Duty to Attend to Debt-Prisoner's Needs
In the Tamir case, the Court proceeded to discuss the rights of prisoners under Jewish Law:
In the spirit of these provisions of Jewish Law, the Court ruled that the prison authorities have a duty to enable juveniles imprisoned therein to realize their right to study; that various books must be allowed into the prison, so long as there is no danger of immoral activity or incitement against the state; that prisoners be given beds to sleep on, so long as there is no tangible danger that the prisoners will use them for violent purposes against the jailers or against other prisoners; and that a prisoner has a right to take part and to vote in elections conducted in the state, for "the non-violation of any rights enjoyed by a prisoner, which were enjoyed by him before restrictions were placed on his freedom of movement, is to the prisoner's benefit, in order to preserve, insofar as possible, the connection between him and the free society from which he came and from which he is now temporarily separated by the prison walls; and it is also in the interests of society, so as to promote, insofar as possible, the prisoner's rehabilitation, and by so doing to facilitate his return and reintegration into society of which, even in his cell, he continues to be a part" (ad loc. pp. 210–13).
Prisoner's Right to Marital Relations: The Cities of Refuge Model
In the Weil case (HC 114/86 Weil v. State of Israel, PD 41(3) 477), the Supreme Court was asked to rule on a prisoner's right to have time alone with and to conduct marital relations with his spouse. The Court (Justice Menachem Elon) ruled that:
The Court noted that, in the United States, case law has tended towards recognizing this right of the prisoner and facilitating its realization, and that in Spain there are explicit provisions in the Prison Ordinance facilitating such visits. In one judicial ruling in the U.S, this right was even recognized in respect of a Muslim prisoner by virtue of his freedom of religion, for his religion required him to engage in conjugal relations with his spouse.
The Court found an example of the appropriate attitude towards a criminal serving a prison sentence in Jewish Law, in the law relating to cities of refuge:
The Torah's provisions regarding the conditions of the manslayer's confinement within the city of refuge are especially instructive, and the Court proceeded to examine them:
The Court concludes its deliberation on the cities of refuge as a model for the appropriate mode of punishment, by stating: "The law relating to the blood avenger and the cities of refuge does not apply today but, in discussing contemporary methods of punishment, we ought to carefully consider the concept underlying the method of punishment reflected in the cities of refuge. Exile to a city of refuge and its applicable rules is an example of deprivation of freedom – the exiled prisoner's freedom of movement is restricted, being forbidden to leave the confines of the city of refuge – that nevertheless preserves the human dignity of the offender, his position in his family, and his place in the society from which he came… The laws and principles reflected in the punishment whereby the prisoner is deprived of his freedom in the city of refuge to which he is exiled constitute an example of the ideal model of imprisonment, worthy of aspiration, even if the chances of its realization does not seem likely in the current reality of the society in which we live" (ibid., p. 497).
On the basis of the above principles, the Court determined that a prisoner's right to marital relations with his spouse overrides the difficulties inherent in realizing this right – related to the performance of the prison sentence – and it therefore ruled that the prison authorities and the legislator have a duty to facilitate the realization of this right, by the granting of leave and by structuring cells in such a manner as to allow for marital visits in prisons.
This judgment was given prior to the enactment of the Basic Laws in the State of Israel. Today, following the enactment of the Basic Law: Human Dignity and Freedom, which requires that the interpretation and application of laws be conducted in a manner that synthesizes the values of the State of Israel as a Jewish state with its values as a democratic state, it is certainly obligatory on the courts in Israel to rule on these issues pertaining to human rights and dignity, according to the principles set down in Jewish Law over the generations.
Forced Imprisonment in the State of Israel
The Rabbinical Courts (Enforcement of Divorce Judgments) Law, 5755 – 1995, empowers Israeli rabbinical courts to use imprisonment as a sanction against a recalcitrant husband who refuses to issue a get to his wife, after a court has ordered him to do so (see *agunah), as well as against those who refuse to undergo the ḥaliẓah ceremony (see *Levirate Marriage). The manner in which the imprisonment is performed is similar to the way it is conducted in the event of a contempt of court. Section 3A of the Law determines that if the recalcitrant husband is a prisoner, an order may be given for his seclusion in a special cell for a period of up to five days each time. See *Divorce, for an extensive treatment of this procedure.
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-Modernit – Dugmah 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.
[Menahem Elon (2nd ed.)]
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