While there is no modern theory of punishment that cannot, in some form or other, be traced back to biblical concepts, the original and foremost purpose of punishment in biblical law was the appeasement of God. God abhors the criminal ways of other nations (Lev. 20:23) whose practices the Israelites must not follow (ibid.) and from whose abominations they must not learn (Deut. 20:18); by violating His laws, His name is profaned (Lev. 22:31–32); and not only are criminals abhorrent to God (Deut. 18:12; 22:5; 25:16; 27:15), as well as crimes (Lev. 18:27–29), but God's own holiness obliges man to be holy like Him (Lev. 19:2). By taking "impassioned action" (Num. 25:13) to punish violators of His laws, expiation is made to God and God's "fierce anger" (Deut. 13:18) turned away from Israel (Num. 25:4). Closely related to the appeasement of God is another expiatory purpose of punishment: a crime, and more particularly the shedding of blood, pollutes the land – "and no expiation can be made for the land for the blood that is shed therein but by the blood of him that shed it" (Num. 35: 33). Excrement must be covered because the land being holy demands that "thy camp be holy,… "(Deut. 23:15), so that God would "see no unseemly thing" occurring there (ibid.).
Still another aspect is reflected in the talionic punishment of death for *homicide, as originally formulated: "Whoso sheddeth man's blood, by man shall his blood be shed; for in the image of God made He man" (Gen. 9:6). Man being created in the image of God, it is an affront to God to kill him and killing the killer is the only acceptable expiation to God. Similarly, purging Israel of the blood of the innocent (Deut. 19:13) by killing the killer appears to be necessary in order to avoid blood guilt attaching to the land and to the people forever (cf. Deut. 21:9; 19:10); and it is for this reason that a murderer must be taken even from God's very altar to be put to death (Ex. 21:14).
All talionic punishment as such reflects its underlying purpose, namely the apparent restitution of the status quo ante by inflicting on the offender the injury inflicted by him (Lev. 24:20) and by doing to him what he had done to another (Lev. 24:19). This sort of sanction (see *Talion), where the character and measure of punishment is precisely commensurate with those of the crime, is intended to represent exact justice. It was, indeed, by proving that this kind of "exact justice" necessarily involved unavoidable injustice, that some talmudical jurists justified the abolition of talionic punishment except for murder (BK 84a). And while they did not abolish it for murder, whether by reason of the many express biblical injunctions that murderers must be killed (especially Num. 35:31), or in order to retain the deterrent effect of the death penalty, many
The most common purpose of punishment, as found in the Bible, is "to put away the evil from the midst of thee" (Deut. 17:7, 12; 19:19; 21:21; 22:24; 24:7). While such "putting away" is applied in the Bible to capital punishment only (which indeed constitutes the only effective total elimination), the principle underlying the elimination of evil, as distinguished from that of the evildoer (cf. Ps. 104:35 and Ber. 10a), provides a theory of punishment of universal validity and applicable to all criminal sanctions. It means that the act of punishment is not so much directed against the individual offender – who is, however, unavoidably its victim – as it is a demonstration of resentment and disapproval of that particular mode of conduct. By branding that conduct as worthy of, and necessitating, judicial punishment, it is outlawed and ostracized. Similarly, punishment is inflicted on the offender not so much for his own sake as for the deterrence of others: that all people should hear and be afraid (Deut. 17:13 – rebellious elder; 19:20 – perjury; 21:21 – rebellious son). From the point of view of criminal law enforcement policies, the deterrent aspect of punishment in Jewish law is already the most important of all: people who hear and see a man heavily punished for his offense are supposed to be deterred from committing the offense and incurring the risk of such punishment (they "will do no more presumptuously" – Deut. 19:20). Hence the particular injunction to have the offender impaled on a stake after having been put to death (Deut. 21:22), so as to publicize the execution as widely and impressively as possible; but note that the corpse must be taken off the gibbet before nightfall, "for he that is hanged is a reproach to God" and defiles the land (Deut. 21:23) – and no concession made to policies of law enforcement can derogate from the affront to God involved in killing and impaling a human being.
It is not only the principle known in modern criminology as "general prevention," the deterrence of the general public, but also that of "special prevention," the prevention of the individual offender from committing further crimes, that is reflected in Jewish law. It has been said that the imposition of capital punishment on such offenders as the rebellious son (Deut. 21:18–21), the rebellious elder (Deut. 17:12), the abductor (Ex. 21:16), and the burglar (Ex. 22:1) is justified on the ground that these are all potential murderers (cf. Maim., Guide 3:41); and rather than let them take innocent human lives, they should themselves be eliminated. That the deterrent effect of punishment on the offender himself was a consideration which weighed heavily with the talmudical jurists is illustrated also by the rule that where punishment had proved to have had no beneficial deterrent effect on the offender and he has committed the same or some similar offenses over and over again, he would be liable to be imprisoned and "fed on barley until his belly bursts" (Sanh. 9:5).
The talmudical law reformers also achieved the substitution for the ever-threatening divine punishment by the judicial punishment of *flogging, making it clear that whoever underwent judicial punishment would not be visited with any further *divine punishment (Mak. 3:15). They went so far as to lay down that even though God had Himself expressly proclaimed that a criminal would not be "guiltless" and escape divine wrath (Ex. 20:7; Deut. 5:11), the judicial authorities in imposing the flogging were authorized by the Torah itself to clear him: if God would never clear him, a court of justice could (Shevu. 21a). The measure of punishment must always conform to the gravity of the offense on the one hand, and the blameworthiness of the individual offender on the other: "according to the measure of his wickedness" (Deut. 25:2). Even here the talmudical law reformers found cause for some mitigatory improvement: they interpreted "wickedness" as the yardstick for the measure of punishment, as including also the physical capacity of the offender to undergo and suffer punishment (cf. Maim., Comm. Mak. 3:10 and Yad, Sanhedrin 17:1). In several instances, the particular turpitude of the offense is expressly stressed as reason for heavy penalties (e.g., "because she hath wrought a wanton deed in Israel" – Deut. 22:21; "it is wickedness" – Lev. 20:14); and in post-talmudic times, the imposition of severe punishments (such as *capital punishment) was always justified by stressing the severity of the particular offense and the public danger of mischief thereby caused.
Maimonides laid down that the gravity and measure of punishment are to be determined, first, by the gravity of the offense: the greater the mischief caused, the heavier must be the penalty; second, by the frequency of the offense: the more widespread and epidemic the offense, the heavier must the penalty be; third, the temptation prompting the offense: the more easily a man is tempted to commit it, and the more difficult it is for him to resist the temptation, the heavier must the penalty be; and fourth, the secrecy of the offense: the more difficult it is to detect the offense and catch the offender, the more necessary is it to deter potential offenders by heavy penalties (Maim., Guide 3:41).
[Haim Hermann Cohn]
In the Framework of Jewish Autonomy
Within the framework of the Jewish *autonomy structure, a great variety of penalties could be imposed on wrongdoers, including *fines, *imprisonment, *ḥerem, and – extremely rarely – capital punishment, according to judgment passed by
The most severe social penalty was the ḥerem, with its associated "donkey's burial," interment by the fence of the cemetery, far from respectable graves. Another punishment was expulsion – most customary in Spain and Poland-Lithuania – from the town or even from the country for a stated period or permanently. Sometimes a man's entire family was banished with him. This penalty was imposed on suspected murderers who had only one witness to testify against them, for assault and battery resulting in death, for wife-beating, fornication, stealing, and forgery. The *Mahamad community council of the Sephardi Jews of Hamburg expelled moral or business offenders for several years to Amsterdam or elsewhere. For card-playing and similar offenses German Jewry was accustomed to banish the recalcitrant from the local synagogue. A bankrupt was sometimes ordered to sit for three years behind the almemar. For libeling a friend, a woman was ordered to change her seat periodically in the women's gallery of the synagogue. Various penalties involving loss of title or prestige were imposed. For insulting a fellow Jew the culprit would be denied the title of morenu or ḥaver in Ashkenazi Jewry. The right to be called to the reading of the Torah was withdrawn in certain cases. Often an announcement would be made in all synagogues that for a stated offense a person could not be trusted as a witness or to take an oath.
Institutionally imposed punishment ran parallel to punishment self-inflicted by people who wanted to do penance for their sins. The *Ḥasidei Ashkenaz, in particular Eleazar b. Judah of Worms, developed a detailed and exacting system of penance, the teshuvat ha-mishkal. Throughout the Middle Ages and early modern times such offenders as mothers who smothered their infants in sleep, people who killed unwittingly, or persons who committed undetected sexual transgressions would ask the rabbi to impose on them strict penances, which included public confession and self-vilification. Denial of participation in and benefit from communal and religious services was considered a severe penalty. The sinner could also be deprived of certain citizenship rights, such as membership in the plenary assembly and the right to vote. Most damaging socially and economically – especially in Eastern Europe – was expulsion from a ḥevrah by the kahal, since expulsion from a guild could also mean the loss of livelihood. The kahal was especially strict with its own employees or other communal functionaries. A *badḥan ("jester") would be forbidden to perform at weddings and musicians to solicit their customary holiday gifts. The kahal possessed much more serious weapons against persons who refused to cooperate: exorbitant taxes, frequent billeting of troops, and, in Russia during the *Cantonist troubles, drafting the son into military service. Fines and confiscation of property were very common.
With the weakening of Jewish autonomy in modern times these penalties became, in various stages in different countries, obsolete and inoperative.
See also *Banishment; *Reward and Punishment.
Forms of Punishment: Biblical Law; Extra-Legal Punishment; "The King's Law"
Jewish criminal law as crystallized in talmudic literature, includes, inter alia, the following characteristics:
1. Before commission of an offense, the prospective offender must have been admonished by two witnesses, who explain to the prospective offender the specific offense he is about to commit, and the offender must answer them, stating that he is aware of the offense and that he is nevertheless deliberately committing the offense (Yad, Sanhedrin 1–2);
2. Strict evidentiary law, which prevents the admissionof many forms of testimony and evidence (see *Witness; *Evidence). These two requirements made it very difficult to maintain a system of criminal judgment that could realistically deter criminal behavior. In order to cope with these difficulties, in both the societal and legal arenas, Jewish law recognizes two additional tracks of judgment and punishment. The first is that of "punishment not in accordance with Torah law" (anishah shelo min ha-din), which authorizes the court, in accordance with the exigencies of the times, to impose punishment, as well as to legislate enactments with regard to punishment, on a far broader scale than that prescribed by biblical law (for an extensive discussion regarding the implementation of this power by rabbinic courts throughout various periods of
These two tracks – punishment not prescribed by the Torah, and the King's Law – are characterized by the fact that they grant considerable discretionary authority to the courts both in prescribing punishment in specific instances, and in legislating general enactments in criminal law. One important distinction between these two systems and the Torah's penal system is that, when the law of the Torah prescribes a specific punishment for a particular transgression, the rabbinic court may not deviate from the prescribed punishment (Yad, Sanhedrin 14.1). In the extra-legal system of punishment and in the King's Law, on the other hand, the judges are not limited by any such restriction. It follows, therefore, that these two legal systems enable the courts to adjudicate and punish even in those situations not punishable under biblical law, as well as to impose more lenient sentences than those prescribed by the Torah, in accordance with the specific circumstances.
Instructions to Judges in Imposing Sentence
Once this broad authority has been bestowed on the courts, the judges are instructed, with regard to each and every case presented to them, to carefully consider the appropriate punishment, and the degree to which it should be imposed. Maimonides affirms that rabbinical judges are indeed vested with the authority to impose punishment which deviates from the strict law of the Torah, and proceeds to summarize a judge's obligations in exercising that authority:
Similarly, Rashba warned judges that the law should be adjusted and imposed in a manner appropriate to the situation of the public. A judge needs to take into account the public's ability to accept the punishments imposed on offenders, rather than be carried away by the passion for revenge: "moderation, consideration, and consent are required, and then the public will be led in the name of Heaven; the greater the act, and the more powerful its execution, the greater the need for consideration, observation and controlled anger; the judge must be on guard lest he be consumed by the heat of his zeal for the Holy God that may have caused him to abandon the appropriate path" (Resp. Rashba, 5: 238).
The Israeli Supreme Court was guided by Rashba's comments when considering the appropriate punishment for criminals (CA 212/79 Anon. v State of Israel, 34 (2) 421, 426–428; Cr. A. 156/80 Binyamin v. State of Israel, 35 (4) PD 744, Justice Menachem Elon.)
Avoiding Discrimination in Imposing Punishment
The discretionary authority enjoyed by the judges in imposing punishment does not release them from their responsibility to refrain from discrimination between offenders in doing so. This obligation appears repeatedly in the Torah and in rabbinic literature, in various contexts. Judges are warned not to discriminate for socioeconomic reasons – neither on behalf of the rich, in deference to their dignity, nor in favor of the poor, out of inappropriate compassion (Exod. 23:6; Lev. 19: 15; Deut. 24:17). The Torah certainly grants special consideration to the poor man, even when he has broken the law in order to deal with his predicament, as in the words of King Solomon, "Do not despise a thief if he steals to satisfy his appetite when he is hungry" (Prov. 6:30). This is, however, not a legal instruction, but a moral one: "It is written: 'justify the poor and the downtrodden' (Ps. 82:3). What is meant by 'justify'? If this were meant to justify him legally, is it not written, 'you shall not show preference to a poor person in his suit'?! Rather, exact justice [by giving him] from your own property and give it to him." That is, the judge must bestow his own property to the poor person, after the legal process has been completed, as an act of charity.
The Torah emphasizes that there must be no discrimination between man and woman with regard to punishment. The Torah states, "when a man or woman may do any in transgression" (Num. 5:6), which the Rabbis understood to mean that "Scripture considers women equal to men with regard to all of the punishments in the Torah" (Bava Kamma 15a; Yad, Genevah, 1:7; Tur, Sh. Ar., ḤM, 349:1). Similarly, discrimination between Jews and proselytes as it states: "you shall not pervert the judgment of a proselyte" (Deut. 24:17).
Talmudic halakhah determines that public figures are not immune from the law or from punishment. A high priest is not punished differently than a layman in any respect (Sanh. 18a), and a president (nasi) who sins may be flogged (JT Horayot 3:1). The same applies to a rabbinic scholar (talmid ḥakham). The one exception to this rule is the king who, according to the Mishnah, may not be judged (Sanh. 2.2). According to the Babylonian Talmud, this exception was introduced as a rabbinic enactment in wake of an episode in which King Yannai was summoned to court but the members of the Sanhedrin would not judge him because they were afraid of him (Sanh. 19a–b; Yad, Sanh. 2:5). This exceptional enactment applies
Sentencing in Accordance with the Offender's Circumstances
The obligation to avoid discrimination does not mean that the personal circumstances of an offender may not be taken into account when imposing punishment. While the same punishment might be meted out to different offenders, it may not have the same implications. Thus, when imposing flogging, for example, the rule is that the degree of the punishment should correspond to the physical capacity of the offender (see *Flogging). This rule was cited by the Israeli Supreme Court in when establishing a fundamental principle in sentencing policy (CA 419/81, Kalman Feibish v. State of Israel, PD 35(4)701; per Justice Shilo). In discussing the tension between the need to impose punishment appropriate to the offender, and the desire that punishment be perceived as being consistent and uniform – i.e., that all offenders receive the same punishment for the same offense – Justice Shilo pointed out that "the origin of the concept of setting the degree of punishment in accordance with the offender's circumstances" is indeed to be found in the principle discussed above, i.e., that an offender may not be flogged to a greater degree than he is able to tolerate (p. 708 and 709 of the judgment).
The rule in Jewish law is that the offender, and he alone, is liable for his actions, and that he alone may be punished for his behavior. Since the era of the Tannaim, this rule has been clear and unequivocal. In the Bible, however, we find seemingly contradictory statements in this respect. On the one hand, the Bible warns that "The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin." (Deut 24:16). During the era preceding the Destruction of the First Temple, the prophets confronted the complaint that the people were being punished by God for the sins of their fathers; the prophets rejected those accusations, and attempted to convince the people that, according to Divine law, only the sinner himself, and not his offspring, could be punished (Jer. 31:28–29; Ezek. 18:2–3). On the other hand, Scripture describes God as "visiting the iniquity of the fathers upon the children, and upon the children's children, unto the third and to the fourth generation." (Exod. 34:7), implying that He indeed punishes descendants for the sins of their fathers. The Rabbis, however, interpreted this as applying to descendents who "continue to perform the actions of their fathers" (Sanh. 27b).
An additional case in which the Torah ostensibly mandates collective punishment is the law of the "condemned city" (ir ha-nidaḥat; Deut. 13:13–19), a city in which, according to the Biblical description, all of the city's inhabitants are punished because certain individuals incited the other inhabitants to worship idols. But according to the rabbinic interpretation of these passages, this is not a case of collective punishment at all; the halakhic Midrash interprets the verses as requiring a standard legal process, in which each and every individual among the city's inhabitants receives his punishment by a court of law, and even then only after testimony and admonition by witnesses (Midrash Tannaim, ed. Hoffmann, 13.15; Sifre Devarim, 93) – that is to say, punishment identical to that of any other case of capital punishment (see *Capital Punishment). The dissenting opinion in this regard is that of Maimonides (Yad, Ovedei Kokhavim 4:6), who rules that it is sufficient that the majority of the city be idolatrous for all of its inhabitants be sentenced to death. Maimonides' ruling was the subject of heated debate among the leading scholars of the generation that followed him. It is also important to note that a view was expressed in the Talmud, that a condemned city ever actually existed, and that its laws were never intended for concrete application, but rather as a hypothetical concept for the sake of theoretical study and drawing moral lessons alone (Sanh. 71a).
The Appropriate Attitude Toward the Offender During and After His Punishment
The obligation to respect the dignity of every individual applies even when the individual in question is an offender who is serving a sentence, and this obligation applies even during the process of the sentence itself. The rabbis ordered that even the execution of a person sentenced to death must be carried out in such fashion that minimizes suffering and does not include humiliation. The well-known great principle of the Torah, "you shall love your fellow as yourself" (Lev. 19:18; Sifra, Kedoshim 2) was interpreted by the rabbis of the Talmud as obligatory even with regard to an offender awaiting punishment, even capital punishment. The rabbis ruled: "choose (i.e., rule in favor of) a pleasant death for him" (Ket. 37b). Even an individual sentenced to death is considered "your fellow." The rabbis also taught that the dignity of an individual who is sentenced to imprisonment must be preserved. In a responsum by Rabbi Hayyim Palaggi (19th century – Resp. Ḥikekei Lev, vol. 2 ḤM 5), we find a ruling that prisoners may not be incarcerated in "dirty and desolate cells," because "even though they have sinned, they are still Jews," and they must therefore be kept in a "dignified prison." This requirement of Jewish law formed the basis for the Israeli Supreme Court's judgment in the Tamir case, which dealt with conditions of imprisonment of prisoners in the Stateof Israel (CAA 4/82, State of Israel v. Tamir, PD 37(3)201; Justice
Jewish law seeks to prevent any offender being permanently stigmatized. Rather, after being punished the offender once again becomes a regular citizen for all intents and purposes. This reflects his position in relation to his Creator: the truly repentant offender is accepted by God as pure and unblemished: "Yesterday, this one [i.e., the offender] was hated by the Holy One blessed be He – and was considered a detestable outcast, rejected, and abhorred… but today, he is beloved, near to him, and a friend… Yesterday he was separated from the God of Israel…. he cries [prays] and is not answered…; today he is cleaved to the Shekhinah… he cries out and is answered immediately…" (Maimonides, Hilkhot Teshuvah 7:6–7), and this is similarly the case in human criminal law. Regarding punishment by flogging, the Torah states that an offender may not be flogged more than is necessary, so as not to create a situation in which "your brother shall be debased before your eyes" (Deut. 25:3). The rabbis expounded this verse as meaning that "once he has been flogged – he is to be considered as your brother" (M. Makkot 3.15). In another source, we read: "all day the Torah calls him as "a wicked person," as it is stated "If the wicked one is to be flogged" (Deut. 25:2). However once he has been flogged, the Torah refers to him as 'your brother' as it is stated 'Lest your brother be degraded'" (Sifre Devarim, 286).
This fundamental rule served as the basis for a set of laws and halakhot intended to rehabilitate offenders who have borne their punishment, a concept known as "the Enactment for the Encouragement of Penitents" (Takkanat ha-Shavim: Mishnah Gittin 5:5). The Mishnah cites the testimony of Rabbi Johanan ben Gudgada (end of 2nd century, C.E.) concerning a law stipulating that one who stole a wooden beam and built it into his house is not required to dismantle his house in order to return the actual beam to its rightful owner, but rather may restore its monetary value, "so as to enable the encouragement of penitents." The reasoning behind this enactment is that if the thief is required to destroy his house in order to return the specific beam to its owner, he might refrain from repentance altogether (Rashi, on Gittin 55a). This enactment was accepted as legally binding, in accordance with the opinion of the School of Hillel, and in opposition to the dissenting view of the School of Shammai, who maintained that the thief must in fact take down his home in order to return the original beam to its owner.
There are exceptions to this rule: where the offense is particularly grave, or involves a position demanding an especially high level of moral integrity and reposition of trust in the position holder, the offender may not continue to serve in that position even if he has served his sentence and repented. Maimonides (Yad, 17:7–9) rules that:
The same holds true for crime of involuntary manslaughter. An individual who killed another involuntarily must flee to a city of refuge. The Mishnah (Makkot 2:8) records a dispute between the Sages regarding the status of the prisoner exiled to the city of refuge: May an exile who has served his punishment and returned from the city of refuge, return to a position of authority he formerly held? The halakhic ruling cited by Maimonides (Yad, Roẓe'aḥ u-Shemirat ha-Nefesh 7:13–14) is that the individual may not return to his former position for the rest of his life "since it was through him that this great misfortune came about" (cf. Nov. Ritba to Makk. 13a; and see *City of Refuge).
In addition, it is forbidden to remind an individual who has served his sentence and/or repented of his former offenses; this is considered "oppression by means of words" (ona'at devarim; Mishnah, BM 4:10; Yad, Teshuvah 7:8; Mekhirah 14:13). Rabbenu Gershom Meor ha-Golah actually imposed a ban on any person who reminded a former offender of his bygone deeds. The reason invoked by Rabbenu Gershom for this prohibition is the desire to make it easier for offenders to reform their ways and to reintegrate into society as honest citizens (Teshuvot Rabbenu Gershom Meor ha-Golah, 4; see also under *Apostate).
The "Rehabilitation of Penitents" in the State of Israel
Jewish law's basic approach – that the past life of an offender who has been punished is to be forgotten – is the basis of the legislation of the Rehabilitation of Offenders and Crime Register Law, 5741 – 1981. This law imposes restrictions on divulging information from the Crime Register regarding crimes committed by an individual after the period of limitations has passed as well as ordering the deletion of such information from the Register after an additional period of time has passed. Nonetheless, the law regarding the aforementioned statute of limitations differentiates between various offenses, depending on their severity, and it also differentiates between various bodies to whom such information may be divulged. During the parliamentary debate that preceded the enactment of the law, the justice minister emphasized that "the proposed law is consistent with the principles of Jewish law as mentioned above, i.e., on the one hand, it forbids the use of information regarding an individual's past history when it is possible to conclude – without harming the public interest – that for certain purposes and under certain circumstances, the past history of an individual who has transgressed, but did not return to his former ways, is immaterial; on the other hand, it allows use of information concerning the individual's past history in those cases where preserving the public interest is of greater importance than rehabilitation of the offender. For this reason it allows for preserving the information, without erasure, even after the passage of time (Divrei ha-Knesset 75 (5736) 301).
In the Carmi case (ABA 18/84, Carmi v. Attorney General of the State of Israel, 44(1) PD 53); Justice Menahem Elon), the issue of the interpretation of the Crime Register and Rehabilitation of Offenders Law was raised before the Israeli Supreme Court in the wake of an appeal submitted by a lawyer who, long after he had been found guilty of criminal activity, was suspended by the disciplinary court of the Israel Bar Association. The court conducted an extensive study of the sources of the law, which are rooted in Jewish law and part of which have been cited above, with particular attention to the matter in general, as well as to cases in which exceptions were determined.
[Menachem Elon (2nd ed.)]
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Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.