Originally published in the Jewish Journal · Table for Five
They shall confess the sin they committed, and make restitution for the principal amount of his guilt, add its fifth to it, and give it to the one against whom he was guilty.
– Num. 5:7
Americans jail far more of themselves per capita than any other nation in the world, including El Salvador, Rwanda and Cuba, so it’s hard for us to imagine a criminal justice system without jails. Yet Torah does just that. It prescribes all sorts of penalties – repayments and fines, Temple sacrifices, flogging, and four terrible forms of capital punishment. If you rob me, confess your guilt, pay me back, then add another 20% to quell my desire for revenge and as a token for heaven. But you’re not going to jail.
It’s not as if the Torah didn’t know about jails. It mandates detention for some but only before trial or eventual punishment. Joseph languishes for years in Pharaoh’s dungeon. But Torah envisions a system of justice founded on a radically new vision of human nature, one that newly freed slaves might especially appreciate. Jail takes away the most basic right to freedom while nurturing the evil instinct for revenge. Jailing the guilty, as much as we dress it up as constructive, is fundamentally punitive, retaliatory, and hopeless. If the body remains free in society, without coercion the soul can learn to choose good over evil.
The Lubavitcher Rebbe zt’l advocated for national prison reform in America impelled by this insight. Justice succeeds only when it has a chance to rehabilitate the individual soul. After all, what a waste of time to rot in jail like Joseph when we can work to bring this world closer to the next.
