[Avodah] halachic attitude to the convicted

[Saul Mashbaum]

Rav Asher Weiss in Minchat Asher B'reishit chapter 57 p 371ff discusses
"Onesh haMaasar B'halacha",and brings sources from the g'mara and rishonim
on the topic.

Imprisonment has different functions in different situations, only one of
which is punishment.

1) When someone bodily injures someone else in such a way that there is a
chance the injured party may die, the guilty party is imprisoned, as the
g'mara learns from a pasuq (Sanhedrin 78b). Rashi there says that this is
done to insure that the guilty party does not run away, thus avoiding
punishment.
This was apparently even practiced after the Talmudic period, because there
is a dispute among the Gaonim if such arrests and incarcerations may be done
on Shabbat, or are they considered "asyat din b'Shabbat" (Shu"t Hagaonim
Shaari T'shuva 182),

2) Imprisonment of a suspect until trial is mentioned in the Yerushalim
Sanhedrin 7:8. ("Y'hei tafus ad
shyavou eidav") The Ran on Sanhedrin 56a applies this to monetary, not only
capital, crimes.

3) The g'mara Sanhedrin 81b mentions imprisonment ("machnisim oto l'kipa")
as part of the  punishment for a crime in three contexts:
a) Repeated bodily injury to someone else ("laka v'shana")
b) Murder without sufficient witness-based evidence ("Hahoreg et hanefesh
shelo b'eidim")
c) One who committed a crime three times, after being warned each time ("mi
shehitru bo shalosh p'amim")

4) The Rambam (Hilchot Rotzeach Ushirat Hanefesh 4:5) says that one who
orders the murder of another ("horeg al y'dei shaliah v'sachir") should be
killed by the king. Failing this, beit din may imprison him for many years,
among other punitive measures.

5) Imprisonment as a means of forcing one to comply with a court order is
mentioned  in the rishonim:

a) Rashi P'sachim 91a mentions someone imprisoned to force him to divorce a
wife he married improperly (such as a cohen who married a divorcee) , or
to pay money as ordered by a court.

b) Although there is a dispute as to whether imprisonment for debt (when the
debtor has the needed funds at his disposal)  is halachicly proper, Beit
Yosef ChM 97 and Rama SA ChM there note that many communities adopted this
practice

I believe  that the discussion here so far related to imprisonment as a
punishment only, but thought it
fruitful to cite sources relating to the whole subject of imprisonment in
halacha.

Saul Mashbaum
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