Jail in Jewish Law


Jail in Jewish Law


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Jail House Blues

By Avi Lazerson

Although there are many different value differences that differentiate Judaism from the current western concepts, the concept of jail is one notion that does not exist in the Jewish world. According to the Torah, the imprisonment of a person guilty of a crime does not exist. There are no prisons.

This contrasts sharply with our Western concept of crime and punishment, whereas the perpetrator of crime must pay for his crime. The mode of payment implied is generally imprisonment. Imprisonment is seen as the great detterent to crime, yet we know that in many cases the opposite is true. Why does the Torah not prescribe as a punishment imprisonment, and why does imprisonment not work?

A Story:

Once in a kingdom, a thief was caught stealing and according to the law of the land he was sentenced to be hung. This was the punishment that the lawmakers had enacted to rid the kingdom of crime.

The thief was informed of the court's decision and told that he had one request that would be granted to him before he would be hung. The thief requested an audience with the king. After a short while the request was granted and the thief was brought in before the king.

The robber told the king that he was to be hung shortly and wanted to share a secret with the king. "In my family, we have a secret that has been passed down from generation to generation. Today, I am the last living member of my family. When I die, the secret that I know will be lost to mankind.

"This secret is a special seed that has been handed down from father to son. This special seed will grow a fruit tree in only several hours and blossom and give fruit. My family has lived its lives by the help of this secret tree. I deviated from the way of my parents and desired more than the delicious fruits of this tree and now I am to be hung. I wish to share the secret with the king and give this secret over to mankind."

The king was impressed. Needless to say, this could be used to feed many hungry mouths and provide an economic boost to his kingdom. So the king decided to assemble some of his more prominent advisors to better assess the value of this seed and its fruit.

The next day the prisoner was brought before the king and asked to demonstrate to all the assembled advisors the worthiness of the secret seed.

The prisoner explained that he would plant the seed in the soil but that he lacked one ingredient. "One of the conditions of successfully planting the seed is that the hand that puts the seed into the ground be a pure hand, not tainted by theft. I, unfortunately stole and can no longer successfully plant the seed in a manner that will bear fruit, for he that has taken dishonestly something from his neighbor, his hand will not be successful with this seed. Only a pure hand, one that has been honest and never acted deceitfully can plant this seed and see the fruits. All others will fail.

"Let the king appoint one of his cabinet ministers, who are undoubtedly honest, to plant the seed and then we shall quickly see the results."

The king agreed and called upon the minister of the treasury to come forth and plant the seed. But the minister of the treasury turned various colors and finally stammered that he was unable to, since that when he was a child he actually stole some money from a neighbor carefully adding that of course now that he has grown up he is scrupulously honest. The king then turned to the minister of justice and asked him to come forth and plant the seed. But alas, this minister also turned to a red color and had to admit that when he was a child he gave in to temptation and stole, adding that of course now he is also scrupulously honest.

And so after turning to several other ministers, the thief told the king, "it seems that only the king is capable of planting the seed. Who else in the kingdom is as honest and wise as the king, brought up in luxury and wealth, never having a need to steal. Let the king come forth and plant the seed."

The king also stammered a bit and explained that it was not always easy not to take other's possessions when you are the king. He too was not able to plant the seed.

The thief then told the king, "What is the difference between you and me. You all admitted to stealing, but I was caught and now I must be hung. Is that fair?"

The king agreed and released him.

The story illustrates an important point. Those who make the rules are often guilty of the very crimes that others may be punished by. The only difference is that they are cleverer than those poor souls that had to steal to gain the money and necessities that could not be gained by honest means. It is not that the lawmakers are more honest than the criminals, but since they are intelligent, they are generally able to conceal their dishonest actions.

The Torah, on the other hand, is not the work of man. The Torah was given to man by G-d, the creator of man, who understands the innermost workings of man's heart and soul. It is G-d that has formed the element of desire in each of us and it is also G-d who has put us in the situation that causes us to steal.

There are three basic types of punishments that are permitted by the Torah: death, lashes, and forced labor. Imprisonment in a jail cell is only permitted for holding a person until the time of his trial so that he may not escape.

If a Jew were to steal, the Torah proscribes that he must pay back that which he has stolen. What good is jailing a thief, if the bad that he does, the taking of money, is not returned to the owner?

A Jew that steals must repay what he has acquired illegally. If he has the money he must repay the owner for the object he has taken. If he does not possess the money to pay, then he is "sold" as an indemptured worker who must work to repay his victim for his crime. This is a two fold deterrent: one, it is humiliating to be a "slave" temporarily as it may be, and two, he will learn a trade to work to earn money and have a manner to support himself when he has paid off his debt.

As long as laws are made by men, men who by definition are imperfect and subject to their own personal desires, laws will never be effective deterrents to crime. Only the Torah, which is the will of G-d, which understands not only the heart of man, but also only what is for man's true betterment, can the criminal aspect in man be truly repaired.


from the June 2002 Edition of the Jewish Magazine




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