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Imprisonment

Imprisonment

PRISON SYSTEMS IN AMERICA AND ABROAD

EFFECTS ON ECONOMY AND COMMUNITY

BIBLIOGRAPHY

Imprisonment is a political act. Until early-nineteenth-century reforms, lockups most often confined people awaiting trial. Earlier political elites, kings and queens for example, locked away their opposition, critics, or competitors in dungeons or, in the case of enemies of the English Crown, the Tower of London. Common criminals were often executed, were banished, or received corporal punishment. The concept of the European and North American prison as a primary form of punishment was a reform advocated by individuals such as the Italian jurist Cesare Beccaria (17381794) and the American reformer Jeremy Bentham. Early American prisons in Pennsylvania and New York were thought to provide a more reasonable alternative than previous practices, which reformers believed were too often cruel and capricious.

Imprisoning offenders provides a rational means of punishment because the length of incarceration can be tied to the severity of the offense or offenses. Which crimes people will be imprisoned for and for how long are decisions that are made in political arenas. In the late twentieth century the Soviet Union, South Africa, and the United States were the nations with the largest portions of their populations in custody. With the collapse of the Soviet Union and the subsequent release of political prisoners, the demise of apartheid and the consequent liberation of democracy advocates and freedom fighters, the United States moved into the lead. Since then, the war on drugs and other get tough practices have led to a quadrupling of the number of American inmates. Officials of both major political parties have supported such practices because they want to run for reelection on get tough on crime platforms, and they fear being painted as soft on crime by the opposition. Thus, the consequences for criminal acts, including length of incarceration, are essentially outcomes of the political process, involving politicians, public interest groups, and advocates.

Decisions have been made against a backdrop of two competing visions of the role of prisons. Is their primary purpose punishment or rehabilitation? Estimates of recidivism rates frequently have surpassed two-thirds when corrections officials were concerned about rehabilitation and when punishment was stressed. With such limited success with either philosophy, legislatures often reform and alter sentencing and imprisonment policies based on what will garner votes, rather than a rational penology.

PRISON SYSTEMS IN AMERICA AND ABROAD

Evidence of the political and economic underpinnings of imprisonment in the United States can be seen in the history of race and American incarceration. Prior to the Civil War very few blacks were ever confined in prison. Most African Americans lived in southern states and most were slaves. Freedmen found guilty of crimes were frequently re-enslaved. Bondsmen who were thought to violate the law were more likely to be punished by their owners and not imprisoned (even though white offenders might be locked up), because to do so deprived southern elites of workers. After the demise of Reconstruction in the late 1870s the prisoner lease system was instituted in the South. This system of renting convicts (which included more blacks, now that they were not enslaved) to work on plantations, in mines, on railroads, and in other laborious or dangerous industries provided cheap labor, but it also buttressed the Jim Crow racial caste structure that emerged. Although Jim Crow laws no longer exist in the United States, an argument among researchers remains: What role does race play in the rates of imprisonment, and what percentage of minority imprisonment can be justly accounted for by minorities higher levels of involvement in crime?

In societies with heterogeneous populations race and ethnicity are important determinants of imprisonment. Michael Tonrys Ethnicity, Crime, and Immigration (1997) presents studies of race, immigration, crime, and criminal justice practices in Europe, Australia, Canada, and the United States. The countries included, with the exception of Australia, do not have the oppressive domestic racial history of the United States or its level of racial disparity in imprisonment. In Australia the treatment of Aboriginal people has been racist. Nevertheless, studies included by Tonry document important shifts in criminal justice practices as the number of people defined as outsiders grows. Within the United States, the debate continues to be not about whether racial unfairness results in disproportionate confinement of African Americans and Latinos, but how much of observed racial disparities in imprisonment are due to unwarranted, discriminating treatment. As European nations develop more diverse populations it is likely that they too will have growing disparity in imprisonment and debates that parallel those in the United States. Europeans will have to consider what portion of racial and ethnic imprisonment disparities result from higher criminal involvement among othersprobably in part a result of their political, economic, and social disadvantages within the societyand what portion are consequences of the politics of imprisonment.

Nations still use prisons to stifle political dissent: Amnesty International regularly publishes lists of nations that use prisons to violate human rights. Litigation resulting from U.S. policies that lock up criminal combatants in the war on terror, with neither constitutionally guaranteed due process nor supposed Geneva Convention protections, is likely to continue for decades in either American or international courts.

EFFECTS ON ECONOMY AND COMMUNITY

There are two additional important aspects of imprisonment: its differential economic effects and its effects on communities. In 2004 Bruce Western and his colleagues showed that racial and class inequalities have been maintained, in part, by U.S. imprisonment patterns. For example, their research shows that the reduced number of unemployed African Americans is a consequence of the increased number of blacks who are held in confinement rather than as a result of any improving economic fortune; they have simply been removed from both the labor market and the unemployment roles. When eventually released, they will then have considerably poorer employment prospects than before their incarceration.

The massive increase in U.S. imprisonment has also been detrimental to communities. In 1998 Dina Rose and Todd Clear demonstrated that when large numbers of people are forcibly removed from communities by incarceration, the social structure is destabilized, opening the door for social problems, including increased crime. Also, released inmates tend to return to the same neighborhoods they lived in prior to imprisonment. They bring back their increased social and economic disadvantage and social stigma. When the released are concentrated in already disadvantaged neighborhoods, they further destabilize those communities.

Few argue that imprisonment is not a better form of punishment than the arbitrary and frequently cruel practices that it replaced, and even fewer will suggest that incarceration is not a necessary practice in complex societies. Too often, however, there is little recognition of the political nature of imprisonment and the social and economic consequences of incarceration.

SEE ALSO Deterrence; Prisons

BIBLIOGRAPHY

Pettit, Becky, and Bruce Western. 2004. Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration. American Sociological Review 69 (2): 151169.

Rose, Dina R., and Todd R. Clear. 1998. Incarceration, Social Capital, and Crime: Implications for Social Disorganization Theory. Criminology 36 (3): 441479.

Tonry, Michael. 1997. Ethnicity, Crime, and Immigration. Chicago: University of Chicago Press.

Western, Bruce, Meredith Kleykamp, and Jake Rosenfeld. 2004. Crime, Punishment, and American Inequality. In Social Inequality, ed. Kathryn M. Neckerman. New York: Russell Sage.

Robert D. Crutchfield

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Imprisonment

358. Imprisonment (See also Isolation.)

  1. Alcatraz Island former federal maximum security penitentiary, near San Francisco; escapeproof. [Am. Hist.: Flexner, 218]
  2. Altmark, the German prison ship in World War II. [Br. Hist.: Brewer Dictionary, 27]
  3. Andersonville in southwest Georgia; imprisoned Union soldiers died under wretched conditions. [Am. Hist.: NCE, 99]
  4. Attica well-known prison in Attica, New York; remembered for its riot (1971). [Am. Hist.: NCE, 182]
  5. Bajazeth Turkish emperor confined to a cage by Tamburlaine. [Br. Drama: Tamburlaine the Great in Magill I, 950]
  6. ball and chain originally penological, now generalized symbol. [Western Folklore: Jobes, 176]
  7. Bastille Paris prison stormed on July 14, 1789. [Fr. Hist.: Worth, 21]
  8. Birdman of Alcatraz Robert F. Stroud (18901963), convicted murderer, became ornithologist in prison. [Am. Culture: Misc.]
  9. Black Hole of Calcutta Indian dungeon in which overcrowding suffocated prisoners. [Br. Hist.: Harbottle, 4546]
  10. Bok, Yakov held in prison for two years under dreadful conditions. [Am. Lit.: Bernard Malamud The Fixer ]
  11. Cereno, Benito captain held captive by mutinous slaves. [Am. Lit.: Benito Cereno ]
  12. Count of Monte Cristo Edmond Dantes; wrongly imprisoned in the dungeons of Chateau DIf. . [Fr. Lit.: The Count of Monte Cristo, Magill I, 158160]
  13. Denisovitch, Ivan struggles to stay alive in a Soviet prison camp. [Russ. Lit.: Solzhenitzyn One Day in the Life of Ivan Denisovitch ]
  14. Devils Island Guiana island penal colony (18521938); Alfred Dreyfus among famous prisoners there. [Fr. Hist.: NCE, 754]
  15. Droma chain forged to fetter wolf, Fenris. [Norse Myth.: LLEI, I: 326]
  16. Enormous Room, The portrays three months behind bars in France. [Am. Lit.: The Enormous Room ]
  17. Falconer prison where former professor Farragut, who had killed his brother, witnesses the torments and chaos of the penal system. [Am. Lit.: Cheever Falconer in Weiss, 151]
  18. Fortunato walled up to die in catacomb niche. [Am. Lit.: The Cask of Amontillado in Portable Poe, 309316]
  19. Fotheringay Mary Stuarts final prison and place of execution (1587). [Br. Hist.: Grun, 260]
  20. Hogans Heroes incarcerated in Stalag 13, unlikeliest of POW camps. [TV: Terrace, I, 357358]
  21. House of the Dead, The account of four years in the fortress-prison of Omsk. [Russ. Lit.: Dostoevsky The House of the Dead in Benét, 480]
  22. Ibbetson, Peter imprisoned for life, spends all his nights in blissful dreams of existence with his beloved. [Br. Lit. & Am. Opera: G. du Maurier Peter Ibbetson in Magill I, 736]
  23. Leavenworth the oldest military prison (est. 1874); also the name of a state penitentiary. [Am. Hist.: NCE, 984]
  24. Little Dorrit born and grew up in the prison where for twenty years her father is incarcerated for debt. [Br. Lit.: Dickens Little Dorrit ]
  25. Man in the Iron Mask mystery prisoner; legendary contender for Louis XIVs throne. [Fr. Hist.: Brewer Note-Book, 460, 555]
  26. Manette, Dr. lost memory during 18-year term in France. [Br. Lit.: A Tale of Two Cities ]
  27. Marshalsea ancient London prison, long used for incarcerating debtors. [Br. Hist.: Benét, 640]
  28. Newgate famed jail of London in centuries past. [Br. Hist.: Brewer Dictionary, 754]
  29. Pickwick, Mr . (Samuel ) imprisoned for refusing to pay dam-ages in a breach-of-promise suit. [Br. Lit.: Dickens Pickwick Papers ]
  30. Prisoner of Chillon, The poem by Lord Byron; based on imprisonment of François de Bonnivard. [Br. Lit.: Benét, 817]
  31. Rubashov, Nicholas political prisoner held in isolation and brutally questioned. [Br. Lit.: Arthur Koestler Darkness at Noon in Magill I, 187]
  32. San Quentin famous western California prison (established in 1852); the subject of many songs. [Am. Hist.: NCE, 2419]
  33. Sing Sing notoriously harsh state prison at Ossining, New York. [Am. Hist.: Flexner, 219]
  34. Torquilstone Front de Boeufs castle, where he imprisoned Rowena, Rebecca, and Isaac. [Br. Lit.: Walter Scott Ivanhoe ]
  35. Tower of London famed as jail. [Br. Hist.: Brewer Dictionary, 1094]
  36. Ugolino treacherous 13th-century count of Pisa, imprisoned and starved to death with his sons and grandsons. [Ital. Poetry: Inferno ]
  37. Valjean, Jean spent nineteen years in prison for stealing loaf of bread. [Fr. Lit.: Les Misérables ]

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Imprisonment

IMPRISONMENT

Incarceration; the act of restraining the personal liberty of an individual; confinement in a prison.

Imprisonment can be effected without the application of physical restraint by verbal compulsion coupled with the display of available force. The tort of false imprisonment involves the illegal arrest or detention of an individual without a warrant, by an illegal warrant, or by an illegally executed warrant, either in a prison or any place used temporarily for such purpose, or by force and constraint without actual confinement.

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Imprisonment

IMPRISONMENT

IMPRISONMENT , the act of depriving a person of his liberty by restricting his freedom of movement and confining him within a particular defined locality, where he is under the direct and constant supervision of the confining authority. This form of restraint on individual liberty is sometimes referred to as arrest or detention (maʿaẓar) and sometimes as imprisonment (maʾasar). The most frequent cases of imprisonment are:

(1) arrest of a person suspected of having committed a criminal offense in order to ensure his arraignment and presence at the trial or to prevent him from interfering with the course of inquiries;

(2) detention of a person convicted and sentenced to death or banishment, pending execution of the sentence;

(3) imprisonment without trial by virtue of an administrative order of the government, issued against a political background;

(4) imprisonment aimed at compelling compliance with the instruction of a judicial tribunal;

(5) imprisonment imposed as a punishment for the commission of an offense.

The first four categories of imprisonment were known in most ancient legal systems; punitive imprisonment, however, was apparently unknown in the legal systems of the ancient East or in Greek and Roman law, in keeping with the dictum of Ulpian: "carcer enim ad continendos homines, non ad puniendos habari debet" ("prison is intended for the confinement, and not punishment, of people"). Most European legal systems only came to give general recognition to imprisonment as a punitive measure from the commencement of the 14th century onward (see W. Mittermaier, Gefaengniskunde (1954), 2–3, 3–17; Von Hentig, Die Strafe, 2 (1955), 159–83; see also *Imprisonment for Debt).

in the bible

Biblical references to imprisonment within the context of Jewish law (the imprisonment of Joseph in Egypt (Gen. 39:20; 40:3–4, 7; 42:16–19) and of Samson by the Philistines (Judg. 16:21) were not within that context) are made in the cases of detaining a transgressor until delivery and execution of the judgment (Lev. 24:12; Num. 15:34) and as an administrative measure (i Kings 22:27; ii Chron. 16:10; Jer. 37:15–16; 38:4–14); at the close of the biblical period imprisonment is mentioned as one of the means entrusted to the court, presumably for the purpose of compelling compliance with its instructions (Ezra 7:25–26).

in the talmudic period

In the Talmud there are halakhot relating to a person detained in prison (with reference to the laws of Sotah – Sot. 4:5), a person promised his release from imprisonment (with reference to the laws of the paschal lamb – Pes. 8:6), and a person released from prison (with reference to the laws of Festivals – mk 3:1). During this period there were Jewish and gentile prisons for imprisonment at the hands of Jews and gentiles respectively (Pes. 91a; tj, Pes. 8:6, 36a, and mk 3:1, 81c). Mention is made of a building inhabited by the warder of the prison in Maḥoza, a Babylonian city, the majority of whose residents were Jewish (Yoma 11a; see also tj, Kid. 4:12, 66d).

Detention of a suspect pending completion of the judicial proceedings against him continued to be the most common form of imprisonment in this period (Mekh., Nezikin, 6; Ket. 33b); his detention was forbidden, however, unless it was possible to point to evidence tending to prove commission of the offense (tj, Sanh. 7:10, 25a). It was also customary to detain a person who had been convicted and sentenced to death pending execution of the sentence (Sif. Num., 114; Sanh. 11:4). The sages interpreted the passage from the Book of Ezra (7:25–26) as authority for the court to imprison a person refusing to comply with its instructions (mk 16a), and to this end severe conditions of detention were sometimes imposed (Oẓar ha-Geʾonim, ed. by B.M. Lewin, Mashkin, p. 68).

Imprisonment as *punishment for an offense is known for the first time during the talmudic period (referred to as hakhnasah la-kippah, i.e., confinement in a "cell" – Sanh. 9:5; Tosef., Sanh. 12:7–8). This punishment was imposed in two cases: after the offender had committed an offense for which the punishment was *karet (*Divine Punishment) three or more times; and for the offense of *murder whenever the court was unable – on account of procedural and formal defects – to convict the accused but was convinced that he had murdered the deceased. Conditions of imprisonment in the "cell" were particularly severe (Sanh. 81b). The sages found a hint for punitive imprisonment in a biblical passage; it was, however, apparently a rabbinical enactment (takkanah) made by virtue of the sages' authority to impose punishment for criminal offenses – even beyond the framework of the pentateuchal law – whenever rendered necessary by the existing exigencies (see *Takkanot and Yad, Roẓe'aḥ, 4:8–9).

in the post-talmudic period

In the post-talmudic times increasing recourse was had to imprisonment within the Jewish legal system and, along with pretrial detention and imprisonment to compel compliance with the instructions of the court, punitive imprisonment – imposed in respect of various types of offenses – became a common phenomenon in Jewish law, particularly from the early 14th century onward.

This phenomenon was linked to the problem of Jewish judicial autonomy in the various centers of Jewish life. This autonomy related primarily to the field of civil law, but in most Jewish centers it extended also to criminal law (see *Penal Law), although varying in scope from center to center (see *Autonomy, Judicial; *Mishpat Ivri). One of its manifestations in the field of criminal law was the existence of Jewish prisons in various centers, as is evident from numerous halakhic and historical sources; in particular, much material on this subject is available regarding the situation in Poland and neighboring territories, covering details such as the names of some of the prisons and their Jewish warders, their salaries, etc. (see Elon, in bibl., pp. 178–84). Imprisonment, within its various categories, was imposed by the bet din even in centers where there were no prisons under Jewish supervision, execution thereof being entrusted to the governmental authorities (Elon, ibid., 184f.).

Arrest and Detention

In the ninth century, the Babylonian Gaon*Paltoi decided that it was permissible to arrest an offender on the Sabbath if knowledge about him first came to light on this day (Halakhot Pesukot min ha-Ge'onim no. 135); later, a contrary decision was given by Sherira Gaon (Shibbolei ha-Leket no. 60) and the problem was discussed over a long period in the Codes (Rema, oh 339:4). In Spain various halakhot were fixed concerning the arrest of a person, particularly with reference to his release on guarantee or bail (Resp. Rosh, 13:3; Rashba, vol. 2, no. 242; Ribash, resp. 234–9, 508). Detention was also employed as a means of preventing someone from taking flight in circumstances calculated to cause great hardship to another, e.g., if the husband sought to place his wife in the position of an *agunah; in this event it was decided that arrest was permissible even on the Sabbath (Shevut Ya'akov, vol. 1, no. 14).

Imprisonment to Compel Compliance with the Court (Maʾasar Kefiyyah)

Imprisonment was used by the court as a means of compelling a husband to grant a bill of divorce (get) to a wife with whom marriage was prohibited (Rashi, Pes. 91a; Ribash, resp. 348), as well as in all other cases where it is permitted to compel the husband to grant a get (Rashba, vol. 2, resp. 276) and also as a means of compelling the levir to grant ḥaliẓah (Resp. Rosh 52:8; see *Levirate Marriage and *Divorce, and compare the legal position in the State of Israel in this respect).

Contempt of Court

Imprisonment was also used as a sanction for noncompliance with various instructions of the court (Rif. resp. 146; Ritba, resp. 159; Takkanot Medinat Mehrin (Moravia), no. 247; Pinkas ha-Medinah [Lita], no. 546). Imprisonment was mentioned by some of the posekim as a sanction available to the court (Maim. Yad, Sanhedrin 24:9; Tur, Ḥm 2); other posekim made no mention thereof in this context (Sh. Ar. and Rema, Ḥm 2), but in the later Codes this possibility was again acknowledged (Levush, Ir Shushan, Sema, Urim ve-Tummim, and Netivot ha-Mishpat, Ḥm 2).

Punitive Imprisonment

serious crimes

The talmudic law of hakhnasah la-kippah (see above) became an analogy for the imposition of similar punitive imprisonment in certain cases of murder, when the possibility of carrying out the capital sentence was excluded according to the original law (Yad, Roẓe'aḥ 4:8–9). Punitive imprisonment was likewise prescribed in cases of homicide not carrying liability, according to the original law, for the death sentence (Yad, Roẓe'aḥ 2:2–5) in a case of murder involving doubt as to whether the death resulted directly from the murderer's act (Ribash, resp. no. 251), or if there was one witness only (i.e., if he proved to be reliable and delivered convincing testimony – Yam shel Shelomoh, bk 8:6). A sentence of death was imposed on a Jew who committed, for the third time, the offense of informing on and denouncing a fellow Jew to the gentiles, and other forms of punishment, including imprisonment, were imposed for a first or second offense of this nature (see Finkelstein, Jewish Self-Government, p. 362; and *Informers).

Commencing in the 14th century, imprisonment became accepted in Jewish law, under the influence of the surrounding legal systems (see above) as a regular mode of punishment in respect of numerous other offenses. It became one of the most common and effective sanctions to be adopted by the Jewish courts and in various takkanot, in answer to the circumstances and conditions of Jewish life in different periods.

offenses against morality and the family laws

The penalty of imprisonment was imposed upon commission of offenses such as having sexual relations with a non-Jew (Zikhron Yehudah no. 91), *adultery (i.e. in cases of sexual relations with a married woman – Ribash, resp. no. 351), sodomy (Mabit, vol. 1; resp. no. 22), and prostitution; and, in some localities, it was imposed "against certain youths who harass girls and women in the streets at nighttime" (see Elon, in bibl., p. 193). Imprisonment was also imposed as a punishment for marrying in a ceremony attended by less than a minyan – aimed at avoiding various kinds of secret marriages (Ribash, resp. no. 232; see also *Takkanot; *Marriage).

offenses against property

Imprisonment was an accepted sanction for theft (see *Theft and Robbery; Ritba, resp. no. 159; Divrei Rivot no. 232; see also Elon, p. 194) and was imposed even when commission of the offense could not be proved by the testimony of two witnesses, but the court was persuaded of the theft on the strength of the circumstantial evidence (Tashbeẓ 3:168). Not only the thief was imprisoned, but also any person knowingly undermining the inquiry into the theft (Elon, p. 194).

assault and insult

Imprisonment was prescribed as the punishment for *assault, and in certain places a monetary fine was imposed – nonpayment whereof rendered the offender liable to imprisonment (Zikhron Yehudah no. 36; Elon, p. 195). *Defamation was also punished with imprisonment (ibid.).

GAMBLING

Playing games of chance, a common phenomenon in the Middle Ages, was combated by the Jewish communal leaders and courts by the adoption of various stringent measures (see *Gambling), including imprisonment imposed on both male and female participants and on the owner permitting gambling to take place on his premises. In terms of a takkanah enacted in the Cracow community in the middle of the 17th century, a woman sentenced to imprisonment was to be detained in nayen Dudik ("in the new 'Dudik'" – the name of a jail possibly intended for female prisoners only), for the period "from completion of the Shaḥarit service until completion of the Arvit service in the Synagogue" (see Elon, p. 196) – so that she was enabled to return home in the evening without spending the night in jail.

SUNDRY OFFENSES

Imprisonment was also imposed in respect of offenses of a religious nature, e.g., in the case of a person who threatened to become an apostate unless his request be met for the performance of a ceremony of marriage between himself and a woman prohibited to him by law (Ritba, resp. no. 179); it was also used against the followers of *Shabbetai Zevi, and even against the followers of Ḥasidism in its early controversial stages. It was likewise imposed for delivering false testimony, smuggling, and other offenses. In takkanot of the Cracow community, enacted at the end of the 16th century, the poor were prohibited, on pain of imprisonment, from begging for alms in the streets – the beadle of the synagogue being entrusted with the duty of collecting contributions and distributing them among the poor; this was justified on the ground that almsgiving in the streets was "tantamount to robbing the respectable poor," since such poor people were ashamed to beg for alms and turned solely to the communal charity box (Elon. pp. 196–7).

The Pillory and House Arrest

Putting offenders in the "Kuna," as the pillory was known in Poland and Lithuania, was a form of punishment meted out in these countries in the late Middle Ages, by Jews as well as gentiles. In some places the "Kuna" consisted of a chain attached to the wall of a synagogue, near the entrance, to which the offender was tied by his neck and hands for a number of hours and was aimed at submitting the offender to shame and ignominy. This form of punishment was commonly found in Catholic churches and on feudal estates and was sometimes imposed in the Jewish community as a punishment for defamation, informing, and like offenses (Elon, pp. 197–8). In the late 17th century, in the Hamburg congregation of Portuguese Jews, house arrest was a form of punishment imposed in respect of certain offenses (Elon, ibid.).

Treatment of Prisoners

It is apparent that punitive imprisonment was introduced into the Jewish legal system under the influence of legal systems surrounding the centers of Jewish life. This may be concluded from the use of the "Kuna" (see above) and from the fact that Jewish law, like other legal systems, only introduced imprisonment as a mode of punishment from the 14th century onward. In the process, Jewish law nevertheless stopped short of absorbing some of the accompanying features of imprisonment, such as the cruelty displayed toward prisoners and the inhuman conditions of their detention that prevailed in various countries until the 19th century. In various takkanot and responsa it was laid down, e.g., that prisoners awaiting trial were to be kept under different conditions of detention than those to which convicted prisoners were subject, and that the latter too were to be provided with food, clean quarters, and – separate therefrom – sanitary facilities (Elon, pp. 199–201)

[Menachem Elon]

application of jewish laws of imprisonment in case law of the israeli supreme court

A detailed discussion of the essence, nature and use of the penalty of imprisonment in Jewish Law can be found in judicial decisions of the Israel Supreme Court, a number of which will be dealt with in this article.

General – Preservation of the Prisoner's Dignity

In the case of Segal (Cr. A 344/81 State of Israel v. Segal, pd 35(4) 313), the Supreme Court was asked to rule on the appropriate severity of the prison sentence to be imposed on an offender convicted of drug offenses. The Court (Justice Menahem Elon) began its opinion by relating to the difficulty inherent in a determination of the severity of the punishment: "The legislator entrusted him [the judge] with penal sentencing – especially in respect of the penalty of imprisonment – with an upper limit, but no lower limit" (p. 321 of the decision). Further on in the judgment, the Court relates to the duty under Jewish Law to preserve the dignity and rights of the prisoner, and points out: "Originally, Jewish Law did not recognize imprisonment as a means of punishment. Even after it became reconciled to the idea, under the influence of surrounding judicial systems and inexorable necessity, the halakhic authorities protested against it and warned that human dignity must be safeguarded, even in circumstances of incarceration. This matter is treated in an illuminating fashion in a responsum by R. Hayyim Palaggi (*Palache), in Ismir, Turkey, during the first half of the 19th century, who spoke against incarcerating people in 'dirty and desolate cells,' as was the practice in his city of Ismir" (Resp. Hikekei Lev, ii, Ḥm 5). The Court added that: "This assimilation of the law practiced in the surrounding society did not involve adopting the accompanying phenomenon of brutal treatment of prisoners, inhuman conditions regarding food and accommodation and the like, that persisted even into the 19th century in different countries. In the words of the historian Salo Baron: 'Jewish prisons, one of which may still be observed in the Altneuschule in Prague, resembled modern penitentiaries rather than medieval towers and dungeons.' It was forbidden to subject people awaiting trial to the same conditions of imprisonment as those already sentenced. Prisoners sentenced for non-capital offenses were not to be housed in filthy places, for although they had sinned, they were still sons of Israel and were to be imprisoned with dignity" (ibid, p. 327).

Prisoner's Right to Medical Treatment and to a Choice of Physician

In the Tamir case (app 4/82 State of Israel v. Tamir, pd 37(3) 205), the Court heard a request by a prisoner to receive different medical consultation and treatment than those suggested by the prison authorities. The Court (Justice Menahem Elon) ruled that:

It is well established that, by virtue of the principle of personal freedom of all who are created in the Divine image, no person's bodily integrity may be infringed without his consent… This basic right includes a person's right to select the physician to whom his medical treatment will be entrusted…

The Court noted that this right has its origins in Jewish legal sources (see *Medicine and Law), and that:

The basic right to physical and mental integrity and well-being and to choosing the medical treatment which appears appropriate to him for their preservation, applies also to a person who is in prison or detention; the fact of imprisonment per se does not deprive him of any right, save where this is required by virtue of restrictions on his freedom of movement, or when there is an express provision of the law in this regard…

This Court has already stated that: "The right to physical integrity and human dignity is one to which prisoners and detainees are also entitled. The prison walls do not separate between a detainee and his human dignity… See how concerned the Sages were for a person's dignity and his rights, even if he had sinned. Maimonides, after discussing the various penal sentences available to the court, including imprisonment (Maim., Yad, Sanhedrin 24.9), makes the following concluding statement: 'All of these (punishments) are to be used at the discretion of the judge, in accordance with their appropriateness and their time. And in all these actions his intent must be for the sake of Heaven, and human dignity may not be a trivial matter in his eyes… for he must be cautious not to slight their honor' (ad loc., 10)…

Even with regard to a person sentenced to capital punishment (see *Capital Punishment), the Sages ordered that the executioner must carry out the death sentence in a manner which minimizes the suffering of the convicted criminal and without indignity, applying the verse 'And you shall love your neighbor as yourself ' (Lev. 19:18) from which they derived the principle: 'Choose for him a favorable death' (Ket. 37b; Sanh. 45a, 52b); to teach that even a person condemned to death is still 'your neighbor'…" (pp. 205–6 of the judgment).

In its decision, the Court ruled that "the statutory provisions imposing the duty of examination and treatment on the prison authorities […] do not deprive the prisoner of his right to the medical advice and treatment of his own choice, provided that he is prepared to bear the costs involved therein" (p. 209 of judgment)

Creditor's Duty to Attend to Debt-Prisoner's Needs

In the Tamir case, the Court proceeded to discuss the rights of prisoners under Jewish Law:

It is instructive to cite an enactment of the Council of the Principal Communities of Lithuania in 1637, regarding the obligation imposed on a creditor to provide food to his debtor while the latter is in prison for non-payment of his debt. Jewish Law originally imposed an absolute prohibition against imprisoning a debtor, who is unable to pay his debt, due to the resultant injury to his personal freedom… however, the proliferation of swindlers who avoided paying their creditors, using various fraudulent techniques, and a wave of bankruptcies, forced the halakhic authorities and the heads of the autonomous bodies in the various communities to allow the imprisonment of debtors, under certain terms and conditions, albeit only for a fixed and limited period of time. We can learn of one such condition from the aforementioned enactment, which stated as follows:

"If a creditor demands his debtor's imprisonment, he must provide for the latter's sustenance as determined by the court, and the cost of such sustenance shall be recovered together with his debt" (S. Dubnow (ed.), Pinkas ha-Medinah [Lita], Berlin, 5285 (1524), reg. 333, p. 70 J [for further detail, see *Imprisonment for Debt]).

…The guiding principle behind the attitude of Jewish Law to imprisonment is to be found in the exposition of Deuteronomy 25:3. On the basis of this verse, the Sages established an important principle in Jewish Law: "Once he [the guilty person] has been flogged, he is to be considered as your brother" (Mishnah, Mak. 3.15). This important principle applies not only after his punishment, but even while he is being punished, for he is your brother and fellow man, and his rights and his dignity as a human being are protected and remain with him (ad loc. pp. 207–208).

In the spirit of these provisions of Jewish Law, the Court ruled that the prison authorities have a duty to enable juveniles imprisoned therein to realize their right to study; that various books must be allowed into the prison, so long as there is no danger of immoral activity or incitement against the state; that prisoners be given beds to sleep on, so long as there is no tangible danger that the prisoners will use them for violent purposes against the jailers or against other prisoners; and that a prisoner has a right to take part and to vote in elections conducted in the state, for "the non-violation of any rights enjoyed by a prisoner, which were enjoyed by him before restrictions were placed on his freedom of movement, is to the prisoner's benefit, in order to preserve, insofar as possible, the connection between him and the free society from which he came and from which he is now temporarily separated by the prison walls; and it is also in the interests of society, so as to promote, insofar as possible, the prisoner's rehabilitation, and by so doing to facilitate his return and reintegration into society of which, even in his cell, he continues to be a part" (ad loc. pp. 210–13).

Prisoner's Right to Marital Relations: The Cities of Refuge Model

In the Weil case (hc 114/86 Weil v. State of Israel, pd 41(3) 477), the Supreme Court was asked to rule on a prisoner's right to have time alone with and to conduct marital relations with his spouse. The Court (Justice Menachem Elon) ruled that:

It is absolutely clear that the denial to a mature person of the opportunity for sexual relations for a lengthy period of time is a severe deprivation… The sexual impulse, according to Judaism, is a welcome and positive human characteristic. The Bible states that, after the creation of the world, "God saw all that He had made and it was very good" (Gen. 1:31). The Sages remarked that the words "it was very good" refer, inter alia, to the human [sexual] impulse, without which "no man would build a house, marry a woman, or have children" (Genesis Rabbah 9.7; cf. Yoma 69b). Judaism, in contradistinction to other religions, totally shuns sexual abstinence, both for ordinary people as well as for men of the cloth, and regarded such abstinence, like other forms of abstinence from the pleasures of this world, as a negative phenomenon (Yevamot 63aff.; and cf. Nedarim 20a, 22a, 77b; bm 84a, Eruvin 18a), and every person is enjoined to carry out the religious commandment to "be fruitful and multiply" as well as to fulfill his conjugal obligation to his spouse (see supra). What the halakhah requires is that man should utilize his impulses with the proper balance, pursuant to the Sages' bidding: "When dealing with the inclination [towards procreation]… the left hand should push away, but the right hand should draw them close" (Sotah 47a; for more on such "balancing methods" in the Sages' thought, see Iggeret ha-Kodesh attributed to Ramban, in Kitvei Ramban, Chavell edition, 1964, vol. ii, p. 315ff.; and cf. A.L. Epstein, Darkhei Ishut u-Minhageha, 1959, pp. 27–29) (pp. 482–83 of the judgment).

The Court noted that, in the United States, case law has tended towards recognizing this right of the prisoner and facilitating its realization, and that in Spain there are explicit provisions in the Prison Ordinance facilitating such visits. In one judicial ruling in the U.S, this right was even recognized in respect of a Muslim prisoner by virtue of his freedom of religion, for his religion required him to engage in conjugal relations with his spouse.

The Court found an example of the appropriate attitude towards a criminal serving a prison sentence in Jewish Law, in the law relating to cities of refuge:

Torah, as well as the halakhah, states that the purpose of this rule was to save the slayer from the vengeance of the victim's family ("the blood avenger"). However, it was also regarded, as early as in the tannaitic period, as a punishment for the homicide, and the exile took place even when there was no possibility of vengeance being taken, and even when the slayer waived his entitlement to such protection (Sifrei, Deut. §181; cf. Or Sameah on Maimonides, ad loc. 6.12; D.Z. Hoffman on Deut. 19:5)" (ad loc., p. 494 (see at length *City of Refuge)).

The Torah's provisions regarding the conditions of the manslayer's confinement within the city of refuge are especially instructive, and the Court proceeded to examine them:

Under the law, the slayer brought his family with him to the city of refuge; moreover, he was to be given a place to live and allowed to earn his livelihood and to receive an education, and other such necessities of life. As aforesaid, 42 cities populated by the Levites, who were counted amongst the teachers and sages of the people, served as cities of refuge, and this environment was intended to promote the prisoner-slayer's rehabilitation. These and other laws are detailed in various places throughout the Talmudic literature (see Sifrei on Numbers and Deuteronomy, ad loc.; Mak. 7a–13a; Tosefta, Mak., chapters 2, 3)" (ibid. p. 495; and see further *City of Refuge).

The Court concludes its deliberation on the cities of refuge as a model for the appropriate mode of punishment, by stating: "The law relating to the blood avenger and the cities of refuge does not apply today but, in discussing contemporary methods of punishment, we ought to carefully consider the concept underlying the method of punishment reflected in the cities of refuge. Exile to a city of refuge and its applicable rules is an example of deprivation of freedom – the exiled prisoner's freedom of movement is restricted, being forbidden to leave the confines of the city of refuge – that nevertheless preserves the human dignity of the offender, his position in his family, and his place in the society from which he came… The laws and principles reflected in the punishment whereby the prisoner is deprived of his freedom in the city of refuge to which he is exiled constitute an example of the ideal model of imprisonment, worthy of aspiration, even if the chances of its realization does not seem likely in the current reality of the society in which we live" (ibid., p. 497).

On the basis of the above principles, the Court determined that a prisoner's right to marital relations with his spouse overrides the difficulties inherent in realizing this right – related to the performance of the prison sentence – and it therefore ruled that the prison authorities and the legislator have a duty to facilitate the realization of this right, by the granting of leave and by structuring cells in such a manner as to allow for marital visits in prisons.

This judgment was given prior to the enactment of the Basic Laws in the State of Israel. Today, following the enactment of the Basic Law: Human Dignity and Freedom, which requires that the interpretation and application of laws be conducted in a manner that synthesizes the values of the State of Israel as a Jewish state with its values as a democratic state, it is certainly obligatory on the courts in Israel to rule on these issues pertaining to human rights and dignity, according to the principles set down in Jewish Law over the generations.

Forced Imprisonment in the State of Israel

The Rabbinical Courts (Enforcement of Divorce Judgments) Law, 5755 – 1995, empowers Israeli rabbinical courts to use imprisonment as a sanction against a recalcitrant husband who refuses to issue a get to his wife, after a court has ordered him to do so (see *agunah), as well as against those who refuse to undergo the ḥaliẓah ceremony (see *Levirate Marriage). The manner in which the imprisonment is performed is similar to the way it is conducted in the event of a contempt of court. Section 3A of the Law determines that if the recalcitrant husband is a prisoner, an order may be given for his seclusion in a special cell for a period of up to five days each time. See *Divorce, for an extensive treatment of this procedure.

bibliography:

S. Assaf, Ha-Onshin aḥarei Ḥatimat ha-Talmud (1922), passim; M. Shalpoverski, in: Ha-Torah ve-ha-Medinah, 5–6 (1952/54), 302–5; M. Elon, in: Sefer Yovel le-Pinḥas Rosen (1962), 171–201. add. bibliography: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:10, 11, 26, 113, 389, 648f., 653, 664–666, 705; 3:1353; Idem, Jewish Law (1994), 1: 9, 10, 28, 127, 471; 2:802f., 808, 821f., 870; 4:1615; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (1986), 2:332, 336; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 230; M. Elon, Kevod ha-Adam ve-Ḥeruto be-Darkhei Hoẓa'ah le-Po'al (2000); A. Sheinfeld, "Torts," in: N. Rakover (ed.), Ḥok le-Yisrael (1991), 138–42; I. Warhaftig and S. Rabinowitz, "Arei Miklat be-Ma'arekhet ha-Anisha ha-ModernitDugmah Yissumit mi-Torat ha-Anishah shel ha-Mishpat ha-Ivri," in: Sha'arei Mishpat, B(3) (2001), 353–81; E.Y. Waldenberg, "Ma'asar ke-Emẓa'i u-ke-Onesh – be-Ẓomet ha-Torah ve-ha-Medinah, A (Alon Shevut) 1991, 389.

[Menahem Elon (2nd ed.)]

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Imprisonment

Imprisonment

Introduction to Imprisonment...149
Hanging A Woman...150
Executive Order 9066...153
One Day in the Life of Ivan Denisovich...156
Human Rights Abuses in Shahist Iran...160
The Visit...164
Nigeria: On the Anniversary of Ken Saro-Wiwa's Execution, Human Rights Organizations Call for Reform...168
U.N. Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment...170
Conditions in Primam Prison, Jeddah...173
We, On Death Row...176
Open Letter to Deng Xiaoping...179
Expressing the Sense of the House of Representatives Regarding Several Individuals Who Are Being Held as Prisoners of Conscience by the Chinese Government for Their Involvement in Efforts to End the Chinese Occupation of Tibet...181
Coming Out of Solitary Confinement, Schlusselburg Fortress Prison, Russia, 1886...184
A Passion for Solitude...187
By Right of Memory...189
Chile: Torture Testimonies to Be Concealed for Fifty Years...191
Last Secrets of Nazi Terror—an Underground Labor Camp...194
Question of Detainees in the U.S. Naval Base in Guantanamo...197
Camp Delta Four in the Guantánamo Bay Naval Station, Cuba...200

Introduction to Imprisonment...149

PRIMARY SOURCES

Hanging A Woman
    Karl Heinzen, 1855...150

Executive Order 9066
    Franklin D. Roosevelt, 1942...153

One Day in the Life of Ivan Denisovich
    Alexander Solzhenitsyn, 1963 (English translation)...156

Human Rights Abuses in Shahist Iran
    Amnesty International, 1976...160

The Visit
    Timothy Garton Ash, 1993...164

Nigeria: On the Anniversary of Ken Saro-Wiwa's Execution, Human Rights Organizations Call for Reform
    Amnesty International, 1996...168

U.N. Report on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
    Nigel S. Rodley, 1996...170

Conditions in Primam Prison, Jeddah
    United Nations Economic and Social Council, 1996...173

We, On Death Row
    Paul D'Amato, 2000...176

Open Letter to Deng Xiaoping
    Fang Lizhi, 1989...179

Expressing the Sense of the House of Representatives Regarding Several Individuals Who are Being Held as Prisoners of Conscience by the Chinese Government for Their Involvement in Efforts to End the Chinese Occupation of Tibet
    Tom Udall, 2002...181

Coming Out of Solitary Confinement, Schlusselburg Fortress Prison, Russia, 1886
    Vera Figner, c. 1921...184

A Passion for Solitude
    Nawal El Saadawi, 2002...187

By Right of Memory
    Alexander Tvardovsky, c. 1968–1991...189

Chile: Torture Testimonies To Be Concealed for Fifty Years
    Anonymous, 2004...191

Last Secrets of Nazi Terror—an Underground Labor Camp
    Luke Harding, 2005...194

Question of Detainees in the U.S. Naval Base in Guantanamo
    Government of Cuba, 2005...197

Camp Delta Four in the Guantánamo Bay Naval Station, Cuba
    Andres Leighton, 2005...200

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