Maybe it’s the images of Abu Ghraib that remain in my mind’s eye, or the current failures of our prison system, but this year in reading the seventy plus laws of Parashat Ki Teitzei what struck me was the section on corporal punishment, Deuteronomy Chapter 25:1–3.
“When there is a dispute between persons and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong, if the guilty one is to be flogged, the magistrate shall have the person lie down and supervise the giving of the lashes, by count, as warranted by the offense. The guilty one may be given up to forty lashes, but not more, lest being flogged further, to excess, your peer be degraded before your eyes.”
In ancient Israel there was no long-term imprisonment. People were held until their case could be heard (Leviticus 24:12; Numbers 15:34), but the choices for punishment were fines and lashes or, in the most extreme cases, the death penalty. In the Bible, it is the primarily the great empires, the Egyptians (Genesis 39:20, 42:16–19, Exodus 12:29), Assyrians (II Kings 17:4), and Persians (Ezra 7:26) who imprison their fellow human beings, though some of the Kings of Judah and Israel follow suit on occasion, not to their credit (see I Kings 22:27, Isaiah 24:22, Jeremiah 37:4, 15–16, 18, 21; 38:6, 7, 9–13, 28).
Throughout Jewish history, redeeming someone held captive, including someone held in prison, has been a major mitzvah. Redeeming captives is so important that we can take money designated for schools or to help the poor to do so. For Maimonides, “Redeeming captives comes before sustaining the poor or clothing them, and there is no greater obligation than redeeming captive . . . and you don’t have a greater obligation than redeeming captives” Maimonides (Mishneh Torah, Matnot Aniyiim, “Laws of the Gifts of the Poor,” Chapter 8, Law 10).
It is one of only a small list of mitzvot mentioned in the list of God’s great deeds in the G’vurot prayer we recite at every service: matir asurim means, literally, “freeing the captive” (see for example, Mishkan T’filah, p. 78).
As Jewish law developed, there were two categories of cases—dinei nefashot (cases dealing with persons) and dinei mamonot (cases dealing with property). Crimes that involved only property could be punished only with fines. The focus was on restitution to the victim, restitution not only of the stolen object, but also restitution for loss of use, hardship, and so on. There was no perceived need to separate the criminal from society in this category of cases. The question of what kind of case is punished by lashes is raised in the commentaries. Based on the law that follows our text, regarding the muzzling of an ox, the commentaries conclude that it must be a “negative commandment, which cannot be rectified by a positive action” (Reuven Hammer, Sifre: A Tannaitic Commentary on the Book of Deuteronomy [New Haven: Yale University Press, 1986], p. 276).
Returning to our biblical text, we find tremendous concern for the criminal both in the text itself and in the Rabbinic commentaries and applications. We note first of all the limitations on the punishment of the guilty offender (Babylonian Talmud, Makot 22b). The punishment must be proportional to the crime and must be done in the presence of the judge. Later in Rabbinic practice, this becomes three judges.
Punishment is never to be more than forty lashes, and traditionally the count was thirty-nine, so as to avoid accidentally exceeding the law. Rashi offers this explanation: because of its vowels, the word b’mispar means “a count of” and not “the count of” in the phrase b’mispar arba-im, “a count of forty” (Rashi on Deuteronomy 25:2–3).
The physical condition of the guilty party was taken into consideration along with his ability to withstand punishment. Finally and perhaps most significantly, after being called the “wicked,” through the first two verses, in the third verse, the perpetrator is called “your brother,” reaffirming his commonality with you, the member of the community hearing these laws.1
The affirmation, that once the criminal has been punished (paid his debt to society), he is able to return and be a member of the community, is consistent with other aspects of the Jewish treatment of the criminal.
Over the years, concern was expressed in halachic discussions that the punishment imposed not prevent t’shuvah. The goal was the return of the wicked to the ways of righteousness. It was understood that in some cases the punishment itself could be a barrier to repentance. There was concern that overly harsh punishment would drive an individual out of the community and into a lifetime of bad behavior.
In both the Bible and Talmud, a person who has done t’shuvah is no longer considered a sinner. If he has repented, been sentenced, and made restitution, he is eligible to fully return to society. If a priest, he can resume his service in the Temple. Since the fall of the Temple, he may be called up for the honor of the Torah reading.
Our Reform Movement has passed various resolutions related to the criminal justice system, addressing juvenile justice as early as 1936, and race and the criminal justice system as recently as 1999.2
Still, I find that because there are so many issues competing for our attention, and because it is impossible to address them all, few in the Jewish community are active in efforts to reform our criminal justice system. Two years ago when I was visiting Sacramento with our confirmation students as part of Panim’s3 state capitols program, our State Assemblyman Jim Beall made an impassioned plea that we pay more attention to what is going on in our prison system.
He argued that directly and indirectly, the growth of California’s prison population is a major contributor to our state’s budget crisis. Funds needed for education, health, and other human services go instead to building and maintaining larger and larger prisons. Rehabilitation has lost support, to some extent based on the argument of sociologist Robert Martinson that there was no evidence that rehabilitation programs reduced recidivism, an argument Martinson later retracted. As programs such as the Pell grants for education in jail have been eliminated, there have been enormous increases in the rates of recidivism. California joined many other states in replacing parole with a three-strikes policy and in lowering the age that juveniles are tried as adults. In addition, one of every eleven prisoners is serving a life sentence, an 83% increase since 1992, leading to a large population of elderly jail inmates.4Throughout our nation, these same issues exist.
The foundational Jewish concepts of tzelem Elohim, the mitzvah of remembering that every human being was created in God’s image, and kavod hab’riyot, the honor due to every human being, offer an important message necessary to balance the overwhelming dehumanization of the prisoner. Tzelem Elohim in Jewish law has meant that it is necessary to maintain the dignity of every human being, even during punishment.
Our current criminal justice system includes much that is inhumane and ineffective. For moral and fiscal reasons, it is time for good people of all faiths to involve themselves in reform efforts.
1 Reuven Hammer, Sifre: A Tannaitic Commentary on the Book of Deuteronomy(New Haven: Yale University Press:, 1986) p. 277
ad loc., “Rabbi Hananiah ben Gamaliel says: All along Scripture calls him ‘wicked,’ as it is said, ‘Then it shall be, if the wicked man deserves to be beaten,’(25:2) but once he has been beaten, it calls him ‘your brother’ as it says, ‘Then thy brother should be dishonored.’ (25:3)”
2 See http://rac.org/
3 See www.panim.org
4 Solomon Moore, “Number of Life Terms Hits Record,” The New York Times, July 22, 2009