EXOD598 The Goals of Punishment. Classically, the meting out of punishment in American criminal law is based upon four purposes: retribution, deterrence, incapacitation, and rehabilitation. Not all of these rationales work in every case, but they are the building blocks of criminal law. A simple example will demonstrate how these purposes of punishment are used in sentencing a defendant to prison. 1. Retribution. Imagine a bank robber is charged with threatening a teller with his gun and taking $500 from a bank. He is apprehended and convicted. Why put him in prison? First, we punish him because he broke the rules. In its simplest sense, retribution is encapsulated in the phrase, “You did the crime, now you must do the time.” In other words, the defendant “deserves” to be punished because he violated society's laws. By punishing the defendant, we reaffirm society’s values. While retribution is a key theory of punishment, there are problems with it, just as there are with the other theories behind punishment. At its essence, it is a theory based on the need for vengeance. Even if the defendant promises not to commit any other offences, and we are confident that he will not, we still punish him because he owes a debt to society. Retribution, as a theory, thus assumes that all of society's laws are fair and that, morally, the defendant deserves to be punished. However, what if the bank robber committed the crime because he needed the money to buy food for his children? Are we confident enough in the fairness of society's laws to claim that the defendant deserves to be punished because of his actions? There are many inequities in our society and we are always at risk of punishing people for violating rules they had no say in creating. Additionally, retribution assumes that the defendant can “pay society back” for his crime by being incarcerated. Sending our bank robber to prison will not reimburse the bank for his crime. Neither will capital punishment bring a murder victim back to life or make the victim's family whole again. The Torah’s insistence on an “Eye for eye, tooth for tooth” and “life for life” (Exodus 21:23-27) is a reminder that punishment should be proportional, but it is folly to believe that punishment will make a victim whole. Finally, there are practical reasons why retribution is problematic. America has been on a crusade to incarcerate criminal offenders. Right now, there are over 2.3 million Americans in prison. [Report of Pew Center on the States (Feb. 28, 2008). Available at http://www.pewcenteronthestates.org]. The United States has less than 5% of the world's population, but almost a quarter of the world's prisons. China, which is four times more populous than the United States, is a distant second, with 1.6 million of its people in prison. The cost of incarcerating America's defendants in the state and federal prisons is more than $60 billion [U.S. Department of Justice, Bureau of Justice Statistics (2005), “Direct expenditure for each of the major criminal justice functions.” available at http://www.ojp.usdoj.gov/bjs/glance/exptyp.htm] Even if we believe that it is appropriate to punish every person for his or her misconduct, the reality is that we cannot afford to do so. (By Laurie L. Levenson, "Judaism and CriminalJustice"

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EXOD599 The initial question that must be asked of any criminal justice system is: "What gives us the right to punish?" After all, in the early biblical stories, it is God who metes out punishment. God expels Adam and Eve; God curses Cain (Gen 4:10-11). One could argue that God acts as a model for the authority in any society; what God can do, so can the controlling powers of a community. But Judaism does not rely on the power model for justice. Rather, justice derives from covenant--the social contract individuals have with God and with each other. Thus, the key laws governing the criminal justice system are set forth in Exodus and Deuteronomy after Jews have become a people. They are no longer governed by the laws of a foreign ruler. They must have laws by which they can govern themselves. There were many models of criminal justice they could have chosen. Some were as simple as allowing victims' families to avenge the blood of their loved ones. But that is not a criminal justice system; that is human behavior and emotions unchecked by society or legal system, barely distinguishable from the way animals react when one of their own is injured. Judaism seeks to elevate a criminal justice system. It is not reactive; it is proactive. The goal is to control aberrant behavior and provide a society where accountability is based on reason and moral imperatives, not just emotional reaction. The right to punish derives from the natural right of members of the community to protect their community. Retribution (driving from "retribuo" -- Latin for "I pay back") authorizes punishment as a way to repair the harm an individual has caused, not just to another individual, but to society by undermining its laws. Because an individual has accountability for his actions, he is obliged to acknowledge transgressions and, to the extent possible, repair the damages caused not only to the direct victims of his actions but also to the moral fabric of society. It is, of course, a separate matter to define what kind of punishment will serve these goals. The famous lex talionis, "eye for eye, tooth for tooth," [this verse], encapsulates Judaism's approach to punishment. Punishment should be in direct response and proportional to the harm caused. While the rabbis later converted this biblical demand into a system of monetary compensation [M. Bava Kamma 8:1], the principle remains the same. (By Laurie L. Levenson, "Judaism and CriminalJustice"

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EXOD593 Although "An eye for an eye" does mandate punishing a person who maims another (Jewish law did not enforce this verse literally…), what is in frequently noted is that it limits the retribution which can be taken. For example, "An eye for an eye" forbids taking two eyes for an eye, even though people who avenge themselves on another often exact a far worse vengeance then the suffering that was inflicted upon them. ... Even though the language of the biblical verse seems definitive, the Rabbis understood it as meaning that on moral grounds, someone who intentionally blinds another deserves to lose his sight. But the court exacts only financial compensation, lest it commit the greater injustice of killing the offender while blinding him. "An eye for an eye" therefore establishes two biblical principles of justice: Evil must be punished, but punishment must be proportionate to and not exceed, the offense.

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EXOD595 It was taught in the school of Chezkiah: "An eye for an eye" -- and not an eye and a life for an eye [i.e., "An eye" must refer to monetary payment; for if "eye" is taken literally, the extraction of the eye might result in the taking of the life, and this is proscribed by Scripture] (Kethuvoth 38a)

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EXOD600 See [[EXOD401]] Exodus 20:10 slave BLOCH 58-59

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EXOD602 Why does the Bible condone archaic practices such as slavery? The Jewish people, and indeed mankind as a whole, view the Bible as a vibrant source of ethical inspiration. At the same time, some of the institutions described and even condoned in the pages of Scripture do not harmonize with our modern ethical sensibilities. The Torah seems to condone economic institutions that are archaic, to say least. We need to carefully examine the nature of the ethical insights provided by the prophetic writings. Q: Some of the institutions described in Scripture do not seem very ethical. For instance, we find that slavery is condoned. How then can view the laws of the Torah as the formal source of ethical guidance? A: There is unquestionably a certain tension between the ethical values emphasized in Scripture and some of the practices and institutions regulated and accepted by biblical law. In order to understand this paradox, we have to deepen our understanding of how the Torah is meant to lead mankind to an ideal human society. The central insight in this understanding is that Torah does not dictate exactly how our society should function. The object of the law is not that human beings should be robots and all of their actions inflexibly established by divine degree. The Torah gives specific laws that legislate a basic level of ethical behavior together with exalted values that guide us in using our own conscience and ethical judgment to build on these values and move mankind forward to the divine ideal. One source of these ideals is the stories and exhortations in the Torah. For example, the idea of human brotherhood equality is learned from the creation story. The Talmud states that even though God wanted the world to be filled with many people, He began the human race with a single individual to teach us that all humans are brothers, and no one can boast a lineage more elevated than anyone else's. We all have the same father, Adam, and afterwards Noah. Sanhedrin 37a. Another way we can discern the divine ideals is from the laws themselves. Beyond their specific content, each law has a profound inner message. The great medieval rabbi, Nachmanides, writes in his commentary on the Torah: [Deuteronomy 6:18] "It is impossible to mention in the Torah every detail of a person's conduct with his neighbors and friends, all of his business dealings and the policies of towns and countries, but after it [the Torah] mentioned many [individual laws]... It went back to state generally that we should do the right in the good in everything." In other words, the Torah gives us specific practices to create a foundation and lofty ideals to aspire to. The next thing we need to understand is how the human race is meant to move forward toward these ideals. The answer is that the process is evolutionary, not a revolutionary one in which our conceptions and institutions are systematically discarded. The Torah does not give us a roadmap with specific instructions for getting from here to there in a particular place and time. Its main importance is as a compass that provides us with the orientation in a specific locale while also pointing us in the proper direction of travel beyond. In other words, the educational vision of the Torah teaches us how to behave properly within current institutions and directs us toward the high road to universal human flourishing. Let us apply these concepts to the example you mention: slavery. At the time the Torah was given, slavery was a universal economic institution, perhaps a vital one. Since the educational vision of the Torah is not revolutionary, the first step in creating an ethical society is to establish fundamental ethical standards appropriate for the economic institutions that exist at the given time. This is done through the many commandments to ameliorate the status of the slave. Here are some examples: the commandment to give the slave Shabbat rest, through a sense of identification with his plight [Deuteronomy 5:13-14], the requirement to free slaves if they are subject to physical abuse, [this and following verse], the requirement to take care of their basic needs [Leviticus 25:37]. At the same time, the Torah contains passages that highlight the human cost of the institution of slavery. For example, the curses the Torah describes as a consequence of sin depicts slavery as the ultimate curse; it is mentioned last, after sickness and exile, as the lowest possible rung of human existence. [Deuteronomy chapter 28] This provides the impetus to create a more humane society in the future, a society in which this outdated institution will no longer have a place. So we see that the Torah begins by acknowledging the practical state of the human race, including the state that applied in the time when the Torah was given, even as it guides and inspires us to progress beyond our current state. The laws of the Torah contain an outer expression that enables us to maintain an ethical lifestyle according to the material circumstances that exist any given time, as well as an inner message of human brotherhood that enables the human race to transcend those social institutions, such as slavery, which are ultimately an obstacle to ethical perfection. ... The Torah gives us the means to maintain basic standards of decency and ethical behavior according to our imperfect surroundings. But it also provides an inspirational vision of a perfect future world, so that we may simultaneously strive to move beyond the surroundings and continuously work toward human perfection.

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EXOD601 See [[EXOD613]] Exodus 21:31 rule OXFORD 40

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EXOD603 See [[EXOD401]] Exodus 20:10 slave BLOCH 58-59

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EXOD604 Do not eat (or derive any benefit) from a killer ox that has been sentenced to death by an authorized court of law (beis din). Key concept: To impress upon us that whenever tragedy strikes, the cause for it must be shunned and disdained, even if the incident was accidental. An animal lacks intellect and self-control, but if it kills a human being it becomes disgusting in the eyes of Hashem, so we must distance ourselves from it. Reflection upon this mitzvah will cause us to be careful about our own actions. We will make sure that nothing that we do will ever cause harm or injury to anyone.

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EXOD605 A willful murder was punished by the courts. An accidental killer, however, was not deemed legally guilty of any crime. Yet there was a common perception of a moral guilt attached to a person who causes another man's death, even if he was not negligent in the legal sense of the word. This view was supported by the biblical law of the goring ox. An ox which killed a human being must be destroyed [this verse]. The destruction of the ox is justified by the need to prevent future mishaps. However, the law has an additional proviso. The meat of the ox is unfit for human consumption, even if the animal was ritually slaughtered. Rabbi Aaron of Barcelona (13th cent.) explained the prohibition on moral grounds. It is a pointed lesson, he alleged, that an animal which caused a human death is an odious creature, repugnant to all men. This will teach us to be extremely careful not to be the cause of the loss of a life, even in the absence of negligence (Chinuch 52).

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