Somber Reflections on Our Theory of Punishment (Column 47)

With God’s help

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This column was written last week, before I posted the letter about Elor Azaria and before the truck-ramming attack that took place today (8.1.2017).

For some reason, around the discussion of Elor Azaria’s verdict, several claims were raised that dealt with the question whether a terrorist deserves the death penalty for his deed, and why this is not compared to a Jewish terrorist. Some go so far as to accuse Azaria’s supporters of racism because of the distinction between Jewish blood and Arab blood (see an especially fluent and foolish expression of this in Assaf Harel’s filmed essay that is cited in my correspondence with K.). These are foolish comparisons, grounded in an incorrect conception of punishment in general and of killing terrorists in particular. So it became clear to me that this post is quite suitable as a continuation of the previous one.

The opening of the post as well, which deals with a terrorist suspected of planning a truck-ramming attack, was written then, unrelated to the truck attack that occurred today in Armon HaNatziv, Jerusalem. Who knows whether today’s attacker is not the same suspect who was, in an act of utter folly, released back to his truck about a month ago.

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Recently I have had several somber reflections on our conception of punishment (in Israel, and in legal systems around the world generally). To the best of my judgment, there is an extreme lack of logic in punitive decisions handed down in court, and I will try here to point it out briefly.

How does one prevent attacks?

At the beginning of last month it was reported that a Palestinian suspected of planning a vehicular attack was released on condition that he not get into a truck [these words were written last week, before the truck-ramming attack that took place today]. This was the headline:

A Palestinian suspected of planning a vehicular attack was released – but was forbidden to return to his truck An East Jerusalem resident, aged 28, was released under restrictive conditions after the court ruled that there was reasonable suspicion that he would carry out an attack. Because the restriction harms his livelihood, he will be able to return to his truck after ten days

So we learned that despite there being reasonable suspicion that he was planning to carry out a vehicular attack, and despite their therefore forbidding him to get into a truck, he was released to his home. After ten days he will even be able to go back to driving his truck. The court apparently assumed that, as a law-abiding citizen, he would of course refrain from getting into a truck, since the court had forbidden him to do so. He is indeed a suspect, but only in vehicular attacks and indiscriminate murder; heaven forfend that there be any concern he might violate a court order. How good it is that there are judges in Jerusalem.

On the other hand, he is only a suspect and has not been tried and convicted. Can such a person be kept in prison without a judicial conviction? What is the more reasonable alternative to this folly? It seems to me that even if there is no alternative, what the court chose to do is the greatest folly of all. Either release him without restrictive conditions, because he has not been convicted, or keep him in prison in order to protect society from him. But to release him and forbid him to get into a truck is utter folly, as has been made clear. One could perhaps justify this strange decision if he were placed under constant surveillance, so that if he got into a truck they could immediately arrest him. But I doubt whether that is in fact what is done for every such suspect.

The law of the pursuer

The case in the previous section reflected the tension between a conception of punishment as sanction or retribution and a conception of it as protection of society. If a person has not been convicted, and especially if he has not yet done anything, he does not deserve retribution. But protection of society is relevant specifically before the act, and less so afterward. According to the protective conception, what is required in order to punish is not a criminal act but an assessment that there is danger that such an act will be committed. Here one punishes precisely when the act has not yet been done.

This is in fact the conception that underlies the law of the pursuer. When one sees Reuven pursuing Shimon in order to kill him, it is permitted and obligatory to kill Reuven, even though he is not liable to punishment, for he has not yet murdered. It is precisely before the murder that one must kill him in order to prevent the murder. This is a different kind of punishment, whose purpose is neither deterrence nor sanction but protection of society or the surrounding public. Therefore this punishment is imposed by any citizen who can do so, and not necessarily by authorized governmental institutions.

Of course, it is not reasonable to act on the basis of mere suspicion and kill a person or violate his rights. To harm a pursuer requires near certainty that he is about to murder or harm another person. But once such a probability exists, one must act on it immediately. All this applies to injuring him or killing him. As for putting him in prison in order to protect the pursued party or society, that naturally requires less certainty. Here all that is needed is reasonable suspicion that he is planning to cause harm. True, even in such a case it is not reasonable to act on the basis of just any suspicion whatsoever, but imprisonment certainly requires a lower threshold of certainty than killing. Imprisoning a pursuer in order to protect society is done on the basis of suspicion, and that is how it should be.

There is another difference between punishment as retribution and punishment as protection. Punishment as retribution should be proportional to the act, but punishment as protection should continue as long as the protection is needed. Suppose, for the sake of argument, that we have a clear suspicion that Reuven is about to steal one shekel from Shimon. According to the protective conception, he should be put in prison until the end of his days (or until the suspicion lapses and his motivation to steal, or his ideology, dissipates), even though this is only one shekel and even though the act has not yet been committed. Putting him in prison for a month has no meaning at all. Shimon received protection for a month, and afterward we return to exactly the same situation. In punishment for the sake of protection, there is no real connection between the severity of the punishment and the gravity of the offense.

Sentencing policy for convicted criminals

Up to this point we have dealt with someone regarding whom there is well-founded suspicion that he is about to commit an offense and harm someone else. But what troubles me no less in this context is our sentencing policy toward those who have in fact been convicted. Suppose some offender—a violent husband, a pedophile, a thief, a murderer, or a rapist—has been convicted and sentenced to five years in prison. After five years he leaves prison, and we return to the very same situation. With rapists and pedophiles (and certainly terrorists), the situation is even worse, because in their case this is probably the result of a tendency (or an ideology) and not of a free decision. It is reasonable to assume that the tendency or ideology did not change during the imprisonment. So why not keep such an offender in prison until the end of his days, or until the danger he poses dissipates?

The conventional answer is that the gravity of his actions justifies only five years and no more. Here there is a conception of punishment as retribution, that is, punishment as a sanction for the offense, and therefore it must be proportional to the gravity of the offense. But this is a flawed conception of punishment. What about the protection that we deserve from him? After the violent husband has served his sentence, is the wife no longer entitled to protection from him? What does that have to do with the gravity of his actions?

It is important to understand that there is no necessary contradiction between the different conceptions (deterrence, protection, sanction, and others besides). Our sentencing policy ought to be based on a weighing of all of them together. The consideration of gravity is rooted in punishment as retribution, but the consideration of protection can justify extending the sentence in order to protect society. On the contrary, I would have expected the punishment in our legal system to be intended primarily for protection (and perhaps also deterrence), not for retribution. Retribution and vengeance are God’s business. What is incumbent on us is to protect society from those who try to harm it.

The sentencing policy that follows from what has been said so far is this: if there is well-founded suspicion that Reuven poses a danger, he should be imprisoned until the stage at which, in our assessment, the danger has passed. There is absolutely no reason to release him from prison a moment earlier, regardless of the gravity of the act (even if he is planning to steal one shekel). Alternatively, if we are unwilling to punish solely for the sake of protection without retribution, then he should not be put in prison at all. I cannot understand a policy that fixes a sentence of a given severity for suspects in the commission of a crime. They should either be free, or be put in prison until the end of their days, or until the concern and danger they pose dissipate.

So much for those suspected of planning a crime. As for one who has been convicted, the situation is much simpler. Here there is clear justification for punishing him, both because he deserves retribution for what he did (since he has already committed the offense) and because the danger he poses is fully proven and completely clear (unlike a mere suspect). In such a case, regardless of the gravity of his actions, a person should not leave prison for the rest of his life, or until it is assessed with near certainty that the danger he poses has passed. Prison sentences for every offense whatsoever should be life sentences, or last until it is assessed that he no longer poses a danger. There is not the slightest shred of logic in punishment according to the gravity of the offense, unless we are dealing with a person who by now no longer poses any danger at all (a one-time offender, or someone whose crime arose from local and narrowly focused circumstances).

But that is not what we do. Every offender receives a punishment according to the gravity of his action, without taking the question of danger into account. The question of dangerousness arises only when early release or prison furloughs are discussed; there the degree of dangerousness is debated. But this is absurd. We are willing to release him completely from prison at the end of his term and do not fear the dangers he poses, but a week earlier we will not let him go out on furlough because of his dangerousness. This is simply a bad joke.

Thus, for example, terrorists are punished with prison terms whose length is determined by the gravity of their actions. This is absurdity incarnate. Not because I do not care about them (which of course is true), but because this sentencing policy is complete logical folly. A terrorist should sit in prison until we assess that his ideology or his capabilities have changed. It has absolutely no connection to the question whether he killed one person or a hundred, or merely lightly injured a camel in the safari. As long as it is clear that he is a terrorist and that he intends to murder, he should sit in prison (this, of course, on the assumption that he is not sentenced to death, which logic suggests is what should be done).

The "discussion" surrounding Moshe Katsav’s early release

In the discussion surrounding Moshe Katsav’s early release, this confusion found expression in truly absurd forms. Some argued that he had "paid his debt to society" (an absurd expression in my view). By contrast, the opponents argued that he had not regretted what he had done. Others explained that he still posed a danger, as though if he remained the additional year in prison the problem would be solved. But if he is dangerous, then not only should he not be released early, he should not be released at all. He should remain in prison until the end of his days (or at least until the end of his sexual potency). But this whole discourse takes place only around early release, and not around the length of the sentence as such.

Even a complete fool understood, and understands, that the dangerousness argument regarding Katsav is utter nonsense. There is not the slightest danger posed by Moshe Katsav at his age and at this stage of his life. But when early release and furloughs are discussed, no argument other than dangerousness can be raised. Therefore the learned committee of the Prison Service discussed this nonsense in learned and detailed fashion: whether he posed a danger or not. Testimony was brought before it from "experts" (which in my opinion is worth nothing), who at one point said one thing and later said another. All this when the truth is clear to everyone, even to someone who does not know how to spell the word psychology or criminology. Clearly there is no danger. Period. Moreover, if Katsav really does pose a danger, then what ought to be under discussion is not his early release but his release from prison as such. Will the additional year he sits in prison change anything one way or the other?! A veritable parade of folly. This case can join my earlier remarks about the quality of our public discourse.

Demolishing terrorists’ homes and killing them

Demolishing terrorists’ homes is another aspect of this "intelligent" discussion. First, the consideration arises that one is punishing the family and not only the offender. This is certainly a relevant consideration, and the counterargument is that this is required for the sake of deterrence (it seems to me that in most cases the family also has a part, active or passive, in the criminality). In some cases society finds it appropriate to punish even someone who is not guilty, or at least did not actually take part in the offense, if this is required by a broader consideration.

Now, of course, the demand arises to demolish the homes of Jewish terrorists as well. After all, there must be equality before the law, mustn’t there? Suddenly we have forgotten that the demolition is not a punishment but protection, or really social deterrence (that is, deterrence of future terrorists). If so, the demolition of homes should be discussed according to the question how necessary it is and how effective it is. Comparisons between the gravity of the actions of these people and those are simply irrelevant to this discussion. Here one must ask whether there is a widespread phenomenon of Jewish terrorists (that is, whether social deterrence is required), how far the dangerousness involved extends (how many terrorists there are, and how grave their intentions are—murder, or graffiti and setting fire to empty buildings), and of course how effective that deterrence is likely to be. All these considerations can differ—and they indeed do differ—between Jewish and Arab society.[1]

Incidentally, if I remember correctly, that is exactly what the state argued in the High Court of Justice discussion over demolishing the homes of Jewish terrorists. Surprisingly enough, those folks sometimes do say sensible things.

The discussion of killing terrorists suffers from the same defect. Many wonder what the justification is for killing a neutralized terrorist, and whether it is justified even if he did not kill anyone. Others draw comparisons to Jewish terrorists. The common denominator of almost all these discussions is the assumption that killing the terrorist is a punishment for his deed. But the justification for killing a terrorist (in a previous post I wrote that morally even a neutralized terrorist should be killed; only legally and disciplinarily one cannot do so) is preventive, not punitive. Killing him is intended to prevent future attacks that he will probably carry out. Therefore there is no reason to resort to the question whether his action justifies such a punishment (see my discussion with K.). Even if he has not yet done anything, he should be killed.

So as not to leave the page too bare, I will add here a discussion of the principled conception of punishment in Jewish law and in general.

A liberal conception of prohibition and punishment

Punishment is an inseparable part of law. Today it is commonly accepted that a law with no punishment attached to it is not a law. Moreover, in liberal conceptions it is sometimes explained that criminal law does not impose obligations or prohibitions on the citizen at all, but only on the judge. Haim Cohen remarks in his book HaMishpat that our criminal law is formulated as follows: "one who steals is punished thus and so," but there is no command in the law forbidding theft. It seems that the basis of this interpretation is a liberal conception according to which the government may not impose prohibitions on the citizen, who is a free human being. It may only set rules of conduct and duties for governmental institutions. In effect, what we have here is punishment without prohibition.

[Parenthetically, I should note that in my view this is an absurd approach, mere sophistry. If we are indeed so liberal, then how do we allow the judge to put our free citizen in prison? And even if we say that this is protection of society from him and not punishment in the usual sense, that is no different from a law that forbids the citizen to steal or murder as protection of society. Why does liberalism not permit us to impose such a prohibition on citizens in order to protect society?]

The conception of prohibition and punishment in Jewish law

The rule in Jewish law is that there is no punishment unless there is prior warning (Punishment is administered only where a prior warning has been given.). The intention is not only to the warning the offender must receive, but to the fact that there must be in the Torah a prohibition that warns us against the offense (that forbids it to us). In Jewish law there is no punishment without a prohibition. Thus, for example, the Torah prescribes the death penalty for one who curses God, but in addition a verse is also required that warns against it (that establishes a prohibition). The author of the Sefer HaChinukh explains this in commandment 69 as follows:

For the mention of a punishment in connection with a commandment is not sufficient for us without a warning. This is what our Sages, of blessed memory, always mean when they say, ‘We have heard the punishment; from where do we know the warning?’ The idea is that if no divine prohibition had come to us in the matter, and it merely said that one who does such-and-such will be punished in such-and-such a way, that would imply that anyone who wished could choose to accept the punishment, disregard the suffering, and violate the commandment, and by doing so he would not be acting against the will of God, blessed be He, and His command. The matter of the commandment would then become like a kind of transaction, as if to say: whoever wishes to do such-and-such may pay such-and-such and do it, or bear such-and-such suffering and do it. But that is not the intent of the commandments. Rather, God, for our benefit, has restrained us from certain things, and regarding some of them He informed us of the punishment that reaches us immediately, aside from transgressing His will, which is worse than everything. This is the meaning of their statement, of blessed memory, everywhere: ‘He does not punish unless He has first given warning’—that is, God does not inform us of the punishment that comes upon us for violating a commandment unless He has first informed us that His will is that we not do that thing for which the punishment comes.

He explains that if no warning (prohibition) had been written in the Torah, but only the punishment, we would think that the Torah does not forbid the act but only sets a punishment for one who does it. This is a kind of mechanical "punishment," and not a sanction for violating a prohibition. That is why the Torah also writes a warning. At first glance, one might see here the liberal conception mentioned above, according to which there is no prohibition on the person and nevertheless the system is obligated to punish him. But that is not correct, for as the author of the Sefer HaChinukh writes, the Talmud assumes that if there is a punishment there must also be a warning, even if it did not find such a warning in the verses (We have heard the punishment; from where do we know the warning? — we have heard the punishment; from where do we know the warning?). That is, in the final analysis this conception is not acceptable in Jewish law. The conclusion in Jewish law is that there is no punishment without a warning.[2]

On whom does the obligation to punish rest?

If so, punishment in Jewish law is always the result of a prohibition. Jewish law forbids things to citizens without fearing injury to liberalism. But it seems to me that in Jewish law the conception is even more radical and anti-liberal: not only the prohibition, but even the obligation to punish is imposed not only on the judge but also on the offender himself. This can be seen through the following example.

The Talmud in Sanhedrin 82a discusses the rule that in the case of one who has intercourse with an Aramean woman (a non-Jewish woman in public), zealots may strike him:

Rav Hisda said: One who comes to ask for a ruling is not instructed to do so. It was also stated: Rabbah bar bar Hana said in the name of Rabbi Yohanan: One who comes to ask for a ruling is not instructed to do so. Moreover, if Zimri had withdrawn and Pinhas had killed him, Pinhas would be liable for killing him; but if Zimri had turned around and killed Pinhas, he would not be liable for killing him, for Pinhas was a pursuer..

Pinchas killed Zimri as a zealot under the rule regarding one who has intercourse with an Aramean woman. This is a law that is not taught to the zealot, and he must do it on his own initiative. Moreover, even if Pinchas decides to kill Zimri, Zimri may defend himself and kill him under the law of the pursuer. There is no contradiction between this and the fact that in the eyes of the Torah and of God the zealot’s act is an act worthy of all praise (I hereby give him My covenant of peace, ‘Behold, I grant him My covenant of peace’), and yet Zimri still has the right to defend himself against him.

In the book Kli Chemda, at the end of Parashat Balak, he raises a difficulty with this Talmudic passage. By way of background, one should know that the permission to kill a pursuer is conditioned on the killing being necessary. If it is possible to injure him without killing him and thus save the pursued party (to save him by injuring one of his limbs — by saving him through one of his limbs), there is no permission to kill him. The author of the Kli Chemda therefore asks: how was Zimri permitted to kill Pinchas, when he could have saved himself without killing him? He merely had to stop sinning, and then Pinchas would not have killed him.

Without entering into several further stages of discussion, the bottom line that emerges from the Talmud is that although Zimri committed an act the Torah forbids, Zimri nevertheless has the right to sin, and Pinchas cannot demand that he stop sinning. And if Pinchas threatens him, then Zimri has the right to kill Pinchas and continue sinning. This is all the more so if someone threatens to kill me unless I give him one shekel. I may kill him, and I am not obligated to give him one shekel in order to avoid that. Holding on to my shekel is my right, and I am under no obligation to give him my shekel in order to save his life. If he threatens my life, I may defend myself and kill him.[3]

The Mishneh LaMelekh, on Maimonides, Laws of Murderer ch. 1 halakhah 15, raises the following doubt:

I was uncertain regarding one who kills unintentionally, where the blood avenger has permission to kill him: if the killer gathered strength and killed the blood avenger, is he liable for killing him? It seems to me that he is not liable, and support for this is the case of Zimri, regarding whom we say [Sanhedrin ch. 8]: If Zimri turned around and killed Pinhas, he is not liable for killing him. But I still do not have a conclusive proof for this. I was likewise uncertain regarding one who pursues another to kill him, and similarly one who pursues a forbidden sexual relation, where he may be stopped even at the cost of his life: if the pursuer gathered strength and killed the rescuer, is he liable for killing him? It appears that in these cases he is liable, for specifically in the case of Zimri—where for Pinhas there is no commandment but only permission—do we say that if Zimri turned around and killed Pinhas he is not liable; but in the case of one pursuing another to kill him, or pursuing a forbidden sexual relation, where there is a commandment to save the victim, as our master wrote, if the pursuer kills the rescuer he is liable. So too one may infer from the words of Rabbi Yeruham, of blessed memory, in Meisharim netiv 31, part 2, who wrote: ‘If the adulterer turned around and killed the zealot, even during the act, he is not liable, for the zealot was a pursuer, since there is no commandment to kill him, only mere permission.’ Thus he made the matter depend on the fact that there is no commandment to kill him; consider this carefully. And one who kills unintentionally has the same law as one who has relations with an Aramean woman, for the blood avenger has permission, not a commandment; consider this carefully.

He wonders whether this rule also exists with respect to other people who threaten him (such as a rescuer who threatens to kill a pursuer). His conclusion is that in these cases, if the pursuer kills the rescuer, he is liable to death, but this does not seem self-evident to him. After all, Pinchas too performed an act that merited God’s blessing, that is, there was here something akin to a commandment-act, and yet Zimri could defend himself and kill him. Therefore the Mishneh LaMelekh wondered whether perhaps a pursuer, too, would be allowed to kill the rescuer. Even his conclusion, that this is forbidden, is stated on reasoning alone and without proof.

And what about an agent of the religious court? Suppose a religious court sentences a person to death, and now the executioner arrives to carry out the sentence. Is the condemned man allowed to kill the court’s agent? In this case, it seems that the Mishneh LaMelekh does not even raise a question or a hesitation. It is obvious to him that here this is forbidden. Why? It seems to me that the explanation is that in this case the issue is not the commandment performed by the court’s agent, but the fact that the obligation to punish offenders rests on the entire public, and the religious court acts here as the public’s agent and in its name. If so, the offender himself, who is also part of the public, is bound by this halakhic obligation as well (= to kill himself insofar as he is one who is liable to death). Therefore he must allow the religious court and its agent to kill him as part of fulfilling that obligation. This does not mean that one who is liable to death must kill himself, for he is like any other citizen, who may not kill the condemned person.[4] But he must cooperate with the authorized institutions, and certainly not interfere with their (blessed) activity.

The conception of punishment in Jewish law

The meaning of all this is that the obligation to punish offenders rests on the entire public (including the offender himself) through the religious court as their agent, and the obligation to prevent criminality and harm (the law of the pursuer) rests directly on every person. In Jewish law as well, there is no necessary proportion between the gravity of the offense and the gravity of the punishment. Even so, punishment in Jewish law is apparently not intended to protect society but to provide atonement for the offender. According to Rashi on Sanhedrin (at the beginning of the seventh chapter), even killing a pursuer is done for his sake (to prevent him from sinning), and not only for the sake of protecting the victim. This is an obviously paternalistic and anti-liberal approach.

It is true that halakhic punishment usually does not deal with protecting society from the offender, for lashes at most deter but do not distance the offender from society. An unintentional killer who is banished to exile is likewise not sent there in order to protect society (for he poses no danger. He is not prone to criminality). As I have shown in several articles dealing with the halakhic theory of punishment (see here and here), the main purpose of punishment in Jewish law is atonement, which is an overtly religious element.

It is no wonder that many people (including myself) argue that it is impossible to run a modern state according to the rules of Jewish law, among other reasons because it lacks the elements of deterrence and protection (punishment is imposed only if the offender is warned in the presence of two valid witnesses and accepts the warning. Robbery carries no punishment at all. One who causes damage only indirectly is exempt, and so on). But Jewish law stipulates (see Derashot HaRan, discourse 11) that alongside the halakhic judicial system there is a system of the king’s law, and that is what is supposed to deal with the other aspects of sentencing policy (such as protection of society, prevention of criminality, and public education). This is what we expect from the king, and in our day from the state and the government. We may expect it, but as we have seen, we do not really receive it. It seems to me that in some respects it would be more accurate to say that one cannot run a state according to the rules of law as they are given a liberal interpretation in our circles.

[1] This reminds me of the comparison between the Sabbath siren among Jews and the muezzin’s loudspeaker among Muslims. Yet another comparison that is an intellectual joke, made in the name of holy equality.

[2] Of course, one can now return and ask: if this conception is clear to us in advance, that is, if there is an a priori assumption that if there is a punishment there must be a warning, then the difficulty returns (which the Sefer HaChinukh answers here): why does the Torah need to write the warning? Let it write only the punishment, and we will understand on our own that there is no punishment without a prohibition.

[3] See my article on killing a thief, Techumin 27.

[4] There is room for the reasoning that another citizen cannot do so because he has no permission to violate the condemned person’s rights (only governmental institutions have such authority), but the condemned person himself can, and perhaps should, kill himself. But this, if at all, of course only applies after his sentence has been handed down by a religious court. A Sabbath desecrator in our time, when there is no religious court that can sentence him to death, is not liable to death, and therefore clearly he is not obligated to put himself to death (and probably is also forbidden to do so).