In this week’s parashah we find the first (together with last week’s parashah), and almost only mention of the concept of imprisonment: “Pharaoh… placed me in the ward of the house of the Chamberlain of the Butchers”. We take the opportunity to investigate the Torah approach to imprisonment.
Is incarcerating criminals in prison a legitimate form of punishment according to Torah outlook, or does the Torah see imprisonment in a negative light? Can imprisonment be used as a means of law enforcement? In addition, is it permitted to imprison a person on Shabbos? We will seek to address these questions based on understanding the Torah’s approach to the concept of imprisonment.
Jailing to Prevent Escape
The concept of jailing is mentioned twice in the Torah. One mention is with regard to the mekoshesh, who was found chopping trees on Shabbos (Bamidbar 15:34), and was placed under guard until his judgment would be proclaimed. The other is the case of the “son of the Jewish mother” (Vayikra 24:12), who blasphemed the Name of Hashem, and was placed under guard until the punishment was decreed by Hashem.
In both cases, the Torah does not refer to the punishment of imprisonment, but rather to the concept of incarceration until judgment is given. In the case of the woodcutter, the death penalty was already known, yet the form of the death penalty remained to be decided; in the case of the blasphemer, the punishment was entirely unknown.
We thus learn that it is legitimate to place a person into temporary incarceration, or jail, while he awaits his sentence. Is the same true of someone whose sin has not yet been clarified, and awaits a tribunal?
The Gemara discusses the case of somebody who smites down his fellow, yet it remains unclear if the victim will die of his wounds, or not. Based on the verse, “the assaulter will be vindicated,” the Gemara (Sanhedrin 78b) derives that while we wait for the fate of the victim to be determined, the aggressor must be placed in keeping, presumably in order that he should not escape (see Rashi, loc. cit.). It is therefore clear that beis din has the right to incarcerate a person while his fate remains unclear, in order to prevent his escape.
Is the same true of somebody who may not have committed a crime at all? Yerushalmi (Sanhedrin 7:8) replies in the affirmative. Although witnesses have not yet testified concerning somebody’s crime, he can be placed in jail until testimony is given, and the accused is indicted, or cleared. Ran (Sanhedrin 56a), however, adds that one should not be hasty to jail somebody without due cause. Only when there is solid evidence connecting a person to a crime can he be jailed, pending his trial.
It should be noted that the above sources relate to somebody accused of crimes involving the death penalty. However, it would appear that even for lesser crimes, such as theft or assault, jailing would be a legitimate means of ensuring that the accused does not escape his due punishment.
Release on Bail
It is interesting to note the parallels between the halachos mentioned above and common state justice systems. In most modern justice systems, a person can only be jailed pending trial if the judge decides that the claim against his is sufficiently evidenced to warrant the jailing. The same, as we have seen, is true of Torah law.
However, an important aspect of typical secular law does not concur, it would seem, with the principles of Torah law. Under most circumstances, in particular with regard to white collar crime, a potential criminal is released on bail—providing he deposits the required sum, he is released until the time of his trial.
At least concerning somebody accused of crimes bearing the death penalty, Mechilta (loc. cit.) states that Torah law does ont concur: “Can he give a monetary deposit, and go free into the marketplace? Therefore the verse states, ‘If he [the victim] shall arise, and walk in the marketplace’—this teaches that he [the assaulter] is jailed until he recovers.” We therefore learn that the Torah does not endorse releasing a person on bail.
Yet, as we have mentioned, we find this clause only with regard to crimes involving the death penalty, and not for lesser crimes. In addition, it is possible that the above ruling pertains only to cases in which somebody smites his fellow, and it remains to be seen if the victim will survive or not, meaning that the assaulter certainly committed a crime, yet the type of crime is yet unclear. In cases where the fact of a crime itself is in doubt, and the incarceration only means to prevent escape, it is possible that where a judge is convinced that monetary bail is sufficient to achieve the end, the accused may be released on bail.
Imprisonment as Punishment
The laws we have mentioned thus far refer to jailing, rather than imprisonment. Today’s world, however, sees imprisonment not only as a means of preventing escape before sentencing, but also as the basic form of punishment for crime. Is there room for prison sentences as punishment in Torah law?
Rambam (Rotze’ach 2:5), writing of somebody who beis din are unable to give execute the appropriate death penalty, states that the king, or beis din, should seek to kill him by any means they can. If this, too, is not possible, Rambam writes that he should be imprisoned, and made to suffer various forms of suffering, so that others should not emulate his ways. We thus learn that although the Torah does not stipulate the punishment of imprisonment for any specific crime, incarceration and the suffering that accompanies it is a measure that beis din is authorized to use in cases of need.
A source for Rambam’s ruling is found in the words of the Gemara, which mentions, among other forms of punishment, the idea of incarceration as a means of suffering that beis din can cause the criminal. Elsewhere, Rambam repeats his ruling that a person can be incarcerated for his crimes (Sanhedrin 24:9).
Thus, in a modern state such as the State of Israel, the Torah see punishment by imprisonment as being a legitimate, though not an ideal form of punishment.
As Rabbi Samson Rafael Hirsch points out (Shemos 21:6), the fact that the Torah never stipulates imprisonment indicates that the Torah does not see prison as a positive means of punishment. Indeed, results show that prison does not generally serve to rehabilitate prisoners, and the Torah prefers such punishments as sale into slavery (where the thief will receive a family environment, together with the Torah’s broad protection of a slave’s rights), or exile into a city of refuge (together with the Levite elite of the people, who will serve the inadvertent murderer as an role model for righteous conduct), so that the criminal will be inspired to better his ways. In general, writes Rav Hirsch, the denial of freedom implied by prison sentences is something the Torah sees as fundamentally negative.
Today, however, we are unable to administer Torah punishments, due both to technical reasons and to our not have having semuchin (rabbis who are ordained from generation to generation, and are therefore authorized to administer Torah punishments), and in the absence of Torah punishment, imprisonment would thus be a legitimate form of punishment.
In addition, it should be noted that there are many crimes for which the Torah does not stipulate any punishment—for instance, a thief must only return the money he stole, and receives no further punishment, and an attempted murderer goes entirely free. If the condition of modern society requires that such offences are punished, prison, as we have seen, is certainly a legitimate option.
Prison as Law Enforcement
According to one interpretation, Chazal actually endorse imprisonment as a means of law enforcement. Commenting on the Gemara’s (Pesachim 91a) mention of a ‘Jewish prison,’ Rashi explains (in his first explanation) that the prison is used as a means of forcing somebody to divorce his wife (in cases where he is obligated to do so), or to pay his debts.
The concept of law enforcement by means of prison sentences is also mentioned in Rivash (484), and is ruled by Rema (Choshen Mishpat 97:15) with regard to somebody who refuses to pay his debts. Although Shulchan Aruch writes that a debtor cannot be forced into slavery, or forced to work for the creditor in order to pay back his debts, Rema adds that if he has the money to pay, beis din have the right to incarcerate him until he pays his dues. This ruling is also stated by Maharashdam (Choshen Mishpat 390) among other poskim.
Tumim (97:13) mentions that the custom was to incarcerate a debtor even when he lacked the means by which to repay his debts. This custom, as Tumim states, is entirely wrong, and there is no justification for jailing somebody who lacks the means to pay. However, when the person does have the means to pay, yet refuses to do so, the custom of imprisoning the debtor is certainly well-founded, at the custom is further corroborated by Shaar Efrain, who discusses the obligation of affixing mezuzos to Jewish cells.
Today, in places where beis din has jurisdiction (such as in the State of Israel), imprisonment is thus used as a means of forcing the person in question of following the precepts of the law. This is most common in cases of those who refuse to divorce their wives, even though the Torah obligates them to do so. Under such circumstances, the threat of, or actual use of imprisonment can be employed to coerce the husband to divorce his wife.
Imprisonment and Jailing on Shabbos
Is it permitted, in times of need, to imprison somebody on Shabbos?
Shevus Yaakov addresses this question, and quotes from Rav Shrira Gaon who writes that a person should not be incarcerated on Shabbos. This ruling is quoted in Beis Yosef (Orach Chaim 263, quoting from Shibolei Haleket), and ruled by Shulchan Aruch (339:4).
However, as Shevus Yaakov continues to note, this ruling seems to encounter a patent difficulty in the Torah episode of the woodchopper, who was placed in confinement—presumably on Shabbos itself—on account of his violation of the Shabbos. Surely this contradicts the ruling given by Rema?
Kaf Hachaim (Orach Chaim 339) responds by differentiating between jailing and imprisonment. Although it is forbidden to imprison a person on Shabbos (perhaps because this is considered an execution of judgment), it is permitted to jail a person, keeping him under guard so that he will be unable to escape. It is noteworthy that Teshuvos Hageonim (Shaarei Teshuva 182) actually mentions a dispute among Geonim as to whether a person may be incarcerated on Shabbos or not, so that at time of need, a person may certainly be jailed (but not imprisoned) to ensure he will not escape.
- The Torah does not endorse imprisonment as a punishment for specific crimes. However, where bein din are unable to administer the appropriate Torah punishment, or where the Torah does not stipulate any punishment, and there is a social need for punishing crime, prison is a legitimate means of doing so.
- A person can certainly be jailed to prevent his escape before facing trial, providing there is enough evidence to justify his incarceration.
- Prison sentences can be employed as a means of law enforcement, such as in forcing a person to pay his debts (where he has the means), or to divorce his wife (where the Torah obligates this).
- A person may not be imprisoned on Shabbos. However, where there is a need, a person may be placed in jail, to ensure he does not escape.
 However, this depends on the particular circumstances of the case, and much caution must be taken to ensure that the get should not be a get me’useh (forced get), which is invalid.