Reward and punishment is a basic principle of Judaism. Imprisonment was never accepted by Torah as a legitimate form of penalization. Modern prison reform tries to rehabilitate the criminal and return him or her to the mainstream of life as a law-abiding citizen.
Life in the Diaspora is a form of incarceration, for we cannot serve G-d as we wish. We must refine and reform the galus - rehabilitation.
Crime and Punishment
The Baal Shem Tov (founder of the Chassidic movement) taught that everything a Jew sees or hears should serve as a lesson for him in his Divine service to his Maker.
In recent times the topic of prisons and criminals, crime and punishment has been hotly debated. How does Torah view this subject?
In every civilization through the annals of history, when the laws of society were promulgated, they always included provisions for punishment of criminals or offenders. When we review the history of criminal justice we find that the practice of incarcerating felons in a prison has always been one of the forms of punishment, with varying degrees of success as a deterrent to crime or as retribution for crime.
Punishment as Purification
Our Holy Torah, which firmly inculcates the principle of reward and punishment for our actions, clearly enumerates and defines many forms of punishment for sinners and for convicted offenders. While the principle of punishment in Jewish philosophy is never predicated on the principle of revenge or retribution, and always represents an aspect of teshuvah (repentance), purification and expiation, the Torah does include many forms of punishment, from simple fines, to flogging, to capital punishment in all its forms.
However, among all these various types of punition mentioned in the Torah we do not find the punishment of incarceration in jail. How strange!
Yosef in the Dungeon
"But," you will surely ask, "what about Yosef’s (Joseph's) stint in jail?" The Torah of course relates:
Yosef’s master had him arrested, and placed him in the dungeon where the King’s prisoners were kept. (Bereishis 39:20)
Moreover, it was as a result of being in that dungeon that he eventually rose to rule Egypt. Koheles says it this way: "For out of prison one came forth to reign." (Koheles 4:14) In the same chapter, which tells of Yosef’s cell-life. We are also told of the baker and wine steward of Pharaoh, who were arrested and joined Yosef in the dungeon. Would this not indicate that, in fact, Torah does recognize the concept of incarceration?
The answer is that, although Torah relates to us the details of the imprisonment of these people, it is talking of an Egyptian prison under Egyptian law. In no way does this convey the idea that imprisonment is a legitimate form of Jewish penalization.
What about the specific cases of Jewish imprisonment mentioned in the Torah? The Shabbos desecrator, who gathered wood, was arrested and: "they placed him under guard." (Bamidbar 15:34) Or the blasphemer, who was also brought to Moshe by the people who heard him, and "they kept him under custody...." (Vayikra 29:12) These examples of jail should be enough proof that penal incarceration was practiced in Biblical times! However, a closer look at the Scripture will reveal that the purpose of the jailing in these cases was only to keep the felon under custody until such time as their sentence could be decided. In both cases Moshe turned to G-d for instruction, after which justice was meted out in accordance with G-d’s will and they were punished. The incarceration was not part of the penalty.
We remain with one more possibility. The Talmud in Sanhedrin deals with criminals who were repeat offenders of serious crimes, or who committed capital offenses but could not be executed because of some minor technicality. In these cases the Mishnah teaches that they are "placed in a cell...." Is this not a form of jailing as punishment? Here again when the details of the case are clearly defined, we realize that the purpose of the detention in the cell was to subsequently inflict upon him a more serious punishment, and the imprisonment was therefore only the preparation for the real punishment. (cf. Sanhedrin 81:b)
Not as Punishment
The Lubavitcher Rebbe teaches that simply and clearly, there is no source in Torah for jail as punishment. As for the other forms of penalty which are delineated in Torah, although they may bear some similarity to incarceration (such as exile, slavery, etc.), they are essentially and basically different from classic imprisonment and they are based on different causes and motives.
This brings us to the obvious question: According to Torah, why is prison not acceptable as a proper form of punishment?
Serve G-d with Free Will
The purpose of existence is to make an abode for G-dliness in this world: "I was created solely to serve my Maker." If you lock a person behind bars, you restrict him from doing his duty. You deny him the opportunity of fulfilling his mission; you remove his reason for existence.
In order for a person to serve his Creator, he must live in a manner that he will truly accomplish something; he must have the freedom and independence to be his own boss. When G-d said of the Jews, "They are My servants," Rashi added, "And not slaves to slaves." In other words, when can a Jew be a servant of G-d - when he has no other lord over him.
In all other forms of punishment, after the criminal is penalized he can immediately return to his normal lifestyle, and because of his experience, he will hopefully live a better life of service to the Holy One, Blessed be He. But when one is incarcerated, we rescind his ability to act. Whatever he does under the orders of the prison administration or guards is done by coercion, which is not considered to be his personal action.
Death Penalty - Chesed
Everything commanded by Torah follows the principle of Chesed - kindness - even the rules of punishment. Even when Torah provides for the death penalty, its purpose is atonement. You will ask, "How can the executed person fulfill his role in life?" The answer is that in the case of a capital offender who has been sentenced to death, Torah ruled that his mission must be revoked, because by his own actions he has forfeited his role of doing the mission of G-d.
But Torah does not say, let him live, put him in prison and don’t let him carry out the mission of a living person, to toil and labor in search of G-dliness; to serve his Creator. Such a philosophy would be inhumane. Clearly, the institution of prison is against the teachings of Torah.
Prisons through History, Torture to Reform
Nevertheless, the nations of the world have a different view, and throughout history prisons have played a major role in their penal systems.
In modern times many national and state governments have begun to reevaluate the goals and results of their prison systems and have begun to realize the need for prison reform. Enlightened societies in this century have approached the problems of the jails, and the first liberalization introduced in the prisons was the removal of torture, corporeal punishment, and the infliction of pain, purely as a part of prison life. The theme of the prison was uplifted from being a place of suffering, per se, to first be an institution which must protect society by keeping dangerous criminals off the street, and secondly (perhaps only wistfully or hopefully), be a place where rehabilitation can take place.
Thirdly, the propounders of prison reform believe in the ideal that the prisoner must be reeducated and reformed to be able to go out into the world and live a new life of righteousness, as a law-abiding citizen, respecting and upholding the laws of the land!
Some truly revolutionary programs even include prisoners in outreach programs to troubled youth. The remorseful convicts try to impress upon the juvenile delinquents that a life of crime does not pay: "How do we know? - Look at us - we have lived through it all, and now we’re in for life!"
All of these activities and experiments are part of prison reforms, and their goal is rehabilitation of the criminal to the degree that he can be guided back into the normal mainstream of life and kept away from the path of recidivism.
Religious Freedom in Jail
In the spirit of these reforms and for the sake of the inmates, the opportunity also exists, for those who so desire, to practice their individual religious beliefs and observances while in prison. Although often this involves additional monetary outlays and expenses, nevertheless all efforts are made to accommodate the religious needs of the inmates in a penitentiary. Furloughs and other release options have also been introduced, and of course, good behavior and positive social conditioning will bring early parole.
When speaking of progressive reform and penitentiary one might think that life in a progressive jail is not so bad; in fact, there are certain advantages over normal civilian life. In prison, room and board is free. You are given medical attention when necessary and there are even educational and recreational opportunities. In civilian life one must work hard for these opportunities!
What is wrong with this logic? Simple: any normal person wants to be free; the greatest single G-d-given gift that a human being has is freedom. No matter how ideal life in prison might seem to be, it is the worst "hell," because a prisoner is not in control of his own existence; he cannot come and go as he desires.
[There is, of course, a similarity here with life behind the Iron Curtain, where basic human rights were denied. No material benevolence will compensate for the suffering and frustration of one who is denied his freedom.] Let us now use this paradigm of prison life to draw a moral lesson - as the Baal Shem Tov taught - for our daily lives and our Divine service to our Maker.
Diaspora Is Like Jail
A Jew who lives in the diaspora, at a time when there is no Beis HaMikdash (Holy Temple), is in jail. He cannot fulfill the mitzvos associated with the Temple. He would like to offer sacrifices, but it is impossible! In a sense, he is imprisoned! He is not free to do as he wills. Not only is he a wanderer, he is stymied and stuck.
But there is some goal in all this frustration; some purpose to the malaise. The descent must lead to an ascent. If so, being in the diaspora, we must capitalize on the mundane worldliness and reveal G-dliness even in this lowly place. The Midrash refers to this in speaking of Mashiach: "If one of you is carried away to Barbary and one to Samatria." (Shir Hashirim II, 8:2) By being exiled to the far corners of the globe, the sparks of G-dliness in the world will be purified and revealed, and a new plateau is attained, beyond the previous plane.
Four Must Offer Thanksgiving
In speaking of how we must recognize G-d’s Providence and individual care, Dovid HaMelech (King David) tells us:
Let them avow to the L-rd His loving-kindness and His wonderful works to the children of men. (Tehillim 107:8)
This verse refers to those who descend to a situation of danger and then are rescued. They must proclaim and announce the kindness of G-d for having saved them. The Talmud lists the four classic categories of those who must thank and praise G-d for salvation:
Those who have traversed the wilderness, one who has recovered from an illness, and a prisoner who has been set free. (Berachos 54b)
Galus as Descent
In all of these cases we will discern and discover a descent - and by extension we will compare this to the descent of the galus - but this descent waits for an opportunity to ascend. The praise and thanksgiving offered by Dovid HaMelech is the ascent which comes as a result of the descent.
Let us take a closer look at these cases. Going out to sea became necessary only because of the restrictions of the galus. In Mashiach’s times: "The one preoccupation of the whole world will be to know the L-rd." (Rambam Laws of Kings 12:5) It is only now in the galus that we must be preoccupied with earning a living and going out on the stormy seas of life. When Mashiach comes, "Blessings will be abundant, comforts within the reach of all." (ibid) Similarly in the other three examples. They all represent negative situations brought about by the galus.
Refine the Exile and Rise!
What is the purpose of all this? The goal is to refine the exile and to convert it, and thereby to rise to much greater heights.
This is what was meant by Dovid HaMelech - "Let them avow (give praise and thanksgiving) to the L-rd ..." - having fallen into the diaspora it will bring eventually to the revelation of G-d’s loving-kindness - not only His "loving-kindness" but also "His wonderful works." If not for the galus, they would never have been revealed. Just as the reforms of the penal system strive to bring the inmate back to self-respect and honor of being a law-abiding citizen, so too the "reform" of the galus brings the Neshamah (soul) back to its honorable state - even higher than before - closer to Mashiach!
The verse concludes with the words "...to the children of men," which shows us that we must proclaim and announce G-d’s great miracles and wondrous works to all mankind, Jew and non-Jew alike.
This will bring enlightenment also to the nations of the world, which leads to the general theme of the Navi:
For then I will turn to the peoples a pure language that they may all call upon the Name of the L-rd to serve Him with one consent. (Tzephaniah 3:9)