Friday, September 13, 2019

The Lash?


Deut. 21:10 - 25:19

PrĂ©cis:  The parasha might be subtitled “entering society” because it describes the creation of a just and moral social network. It begins with the phrase “when you go forth” (ki tetze) to battle. This parasha, according to Maimonides, contains 72 mitzvot (commandments). Although they seem unrelated, they all deal with the morals and values that God wanted to be deeply implanted in the Israelites' society. They cover a wide variety of topics, from family life, human kindness, respect for property and animals, the safety of others, sexual relationships, escaped slaves, financial loans and charging interest, keeping promises, and remembering to blot out the name of one of Israel's greatest enemies. This assortment of commands included requirements that there be sex-distinct clothing; that mother birds not be separated from their eggs; that roof-tops have parapets; that seeds not be mixed in a field, and that “tzitzit” (fringes) be worn on garments.

Deut. 25:1–3“When there is a dispute between persons and they go to law, and a decision is rendered declaring the one in the right and the other in the wrong, if the guilty one is to be flogged, the magistrate shall have the person lie down and supervise the giving of the lashes, by count, as warranted by the offense. The guilty one may be given up to forty lashes, but not more, lest being flogged further, to excess, your brother be degraded before your eyes.”
               
                In these verses, we come face to face with corporal punishment, a practice which we reject in modern society. It may be that this “institution” was adopted because there were no prisons in ancient Israel, and some penalty short of death was required for relatively “minor” offenses.  Prison did exist in some other societies (as we know by Joseph’s imprisonment in Egypt). Here, we find concern for the criminal facing the lash. The lashes come only as a result of a sentence by a properly constituted court; they are limited in number; the offender had to be of sufficiently good health to survive the ordeal. Finally, the offender is referred to as one’s “brother” to indicate his essential humanity.
            In practice, lashes never exceed 39, to avoid the possibility of transgressing the numerical limit. Once punished, the offender returns to the community, in effect having paid his “debt to society.”
            In recent years, we have debated the impact of punishments which seem to exceed the limits of what the U.S. Constitution labels “cruel and unusual.” Those who rely on so-called “original intent” see no issue, inasmuch as criminals in the late 18th century were often hung or received corporal punishment. (Aside: you might observe that this writer does not agree with the concept of “original intent,” but that’s for another d’var.) Those with a broader interpretation of our Constitution discuss the continuing validity of capital punishment; another argument concerns the question of whether prolonged solitary confinement should be barred.
            From a Jewish perspective, we should recall that the cited punishment was seen as a kind of retribution, but, at the same time, the offender was always encouraged to repent (“do t’shuvah). Jewish tradition reminds us also that a court that sentences someone to the death penalty more than once in 70 years is considered a “murderous court.”
            In our examination of criminal justice issues today, the ability of offenders to repent and “do t’shuvah” should certainly be part of the calculus in which we engage when we consider how our criminal justice system operates.