Jewish American Heritage Month

Posted By admin on July 31, 2022

The modern penal system is under immense strain. Under-resourced, under-appreciated and overwhelmed, prisons not only fail to rehabilitate, but can perpetuate the underlying problems that lead to crime and propel those who have committed petty infractions into communities of criminals.

Of course, society needs to ensure that crime does not pay, and punishments such as compensation, fines, community service and custodial sentences are attempts to achieve this. Punishments are intended to serve as deterrents, to give a sense of justice to the aggrieved, to make a statement to society, to limit freedoms to remove someone who may be a potential threat, and to attempt to rehabilitate.

These priorities often conflict: the death penalty may give a sense of justice but obviates any sense of rehabilitation and seems to have little impact as a deterrent. The concept of open prisons or of non-custodial sentences, while better for rehabilitation, can leave victims or society feeling that justice has not been done.

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The Torahs system of justice, writes the Maharal, is predicated on God being the ultimate judge, and that punishments are not only limited to this world. Human justice plays a role, but it is partial, and judges and the courts must bear this in mind.

The Torah does advocate the death penalty, but the sages in the Mishnah maintain that it should be used only rarely. The High Court that kills once in every seven years is bloodthirsty. Rabbi Elazar Ben Azariah says (it should be) once in every 70. Rabbi Tarfon and Rabbi Akiva say, If we were in the High Court it would never have executed (anyone). Rabbi Shimon Ben Gamliel says, If so, this would increase blood spilt in Israel. (Makkot 1.10)

Incarceration, however, plays a much more limited role: there is no concept per se of prison in the Torah. Instead, in cases of negligent killing, and prior to an alleged murderer being tried, the perpetrators are to flee to cities of refuge, as stated in this weeks parsha Matot-Masei (Bemidbar 35.11). These cities six of which are set aside for this purpose, and 42 cities primarily for Levites were not prisons; the Talmud notes that the cities should be conducive to normal life.

The Chizkuni gives a fascinating explanation to one of the most curious details about this exile: that the refugee is to stay there until the death of the High Priest (35.28): All of the cities of refuge are under the auspices of the High Priest, and he enters his jurisdiction

Whilst limited in the number of cases, this model has much to teach us about the role of incarceration. Firstly, it should allow for normal life to be lived; while freedoms will be curtailed, ones should live among regular citizens, or, better, Levites those with a designated role for teaching Torah and assisting in the Temple. Secondly, one is not rejected from society, but cared for by the same person who has responsibility for the holiest matters.

Originally posted here:

Making sense of the sedra: Matot-Masei - Jewish News

Category: Talmud
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