Solitary Confinement as Torture: One Jewish View

By Rabbi David J. Cooper, Kehilla Community Synagogue, May 24, 2012

I will begin with the assumption that solitary confinement is torture. I have this on good information from the National Religious Committee Against Torture and they have it on good information from those who have directly experienced such confinement.

Torture must be clearly called for what it is: an intentional infliction of pain on someone either physically or mentally or both. In our age, we have come to a time in society when more and more we have come to reject the infliction of pain as a means for punishment and as a means of obtaining information. Torture is illegal under U.S. and international law, although we do know that this prohibition has been violated by our officials.

By so many reports, solitary confinement is an intentional infliction of pain for the purpose of punishment. I can only agree with NRCAT that it is torture.

If torture is illegal, and if solitary confinement is torture, then solitary confinement is a form of impermissible imprisonment.

The entire trajectory of the Jewish tradition in this regard has been that those who are wrongfully subjected to imprisonment must be released. In regard to solitary, this means a release from confinement by oneself to be with others in the prison population. 

The obligation to release someone from unlawful imprisonment is not only incumbent upon those who improperly hold others captive, but the entire community is held responsible for the release of the captive.

Moses Maimonides, the leading interpreter of Jewish Law of the 12th century and whose judicial determinations are still cited as Jewish precedent, wrote in his Mishneh Torah [Laws of Gifts to the Poor 8:10]:

       Redeeming captives takes precedence over providing food and clothing for the poor.
       There is no greater commandment than redeeming captives. 

Maimonides based this holding on the reasoning that failure to redeem such captives was a simultaneous violation of the commandments to not harden one’s heart, to extend tzedaka, to not stand idly by in the face of another’s suffering, to support those in need, to love your neighbor as yourself, and to affirmatively act in the face of the endangerment to human life. He concluded: “There is no more inclusive mitzvah than that of redeeming captives.” To fulfill this mitzvah was to fulfill several mitzvoth, and to violate this mitzvah was a violation of them all.

Being kidnapped yourself, or having your family or friends kidnapped or being thrown into dungeons and held for ransom was a daily event that Jews experienced in many places over the centuries. This was not an isolated circumstance that only affected the few, but the community as a whole experienced itself under attack when these abductions and imprisonments happened. The community would keep a fund going so as to be able to ransom those wrongfully restrained.

This value of releasing those who are improperly imprisoned is not an obscure part of Jewish Law requiring deep research into medieval and Talmudic texts. By my calculation, and I could be undercalculating here, one who observes all the traditional prayer services each day, makes reference to the release of prisoners at least five times a day in their prayers. Each of these prayers derives from Psalm 146:7 that says “Securing justice for those who are wronged, extending food to the hungry, YHVH releases the imprisoned.”

Thus, in the daily early morning prayers we say, “Blessed are You, YHVH, ruler of time and space, releasing the imprisoned.” Psalm 146 itself is chanted as part of the daily section called Psukey D-Zimra. But most tellingly, the silent prayer of communion, the Amida which is a central element of the service, is repeated three or four times a day in several variations, but every variation contains the second blessing called “G’vurot” which extolls God’s powerful actions including the release of prisoners. [[M’chalkel chayim b-chesed…, u-matir asurim]]. Matir asurim means “freeing those imprisoned.”

Perhaps you might think that this releasing of those improperly restrained is left only to God to carry out. Lest you think that, consider Isaiah 42: 6-7: “I, YHVH, I call out to you through justice, I grasp your hand and I formed you, and I gave you over to be a covenantal people to enlighten the nations.” Among the covenantal responsibilities Isaiah puts forward, is the mandate to “rescue prisoners from confinement, and—from the dungeons—those who sit in the dark.”

The earliest chapters of Genesis are the first portrayal of what the Torah regards as necessary for human dignity. It affirms that each of us is created in a divine image, it affirms that we are all relatives of each other, and through its stories the Torah considers how human beings should deal with the pains of existence. From the first sentence of Genesis up to chapter 2 verse 17, the word tov, meaning “good,” is mentioned ten times. It is always a positive until we reach verse 18 of chapter 2 when for the first time God says “lo tov” – “not  good.” And what is so not good? “Lo tov hey’ot ha-adam levado,” “It is not good for the human being to be alone.” It is the first expression of negative goodness of the entire Hebrew Bible.

Now if human isolation in the context of the Garden of Eden is considered not good from a God’s-eye-point-of-view, how much more so is it bad for a human to be alone and in the confinement of a cell. 

It is our responsibility to free those wronglfully imprisoned and to alleviate suffering. As individuals, as a community, and as a society may we fulfill the mitzvah of matir asurim.

 Please join with me in singing Linda Hirschhorn’s song, Circle Chant:

Circle round for freedom,
Circle round for peace,
For all of us imprisoned,
Circle for release.

Circle for the planet,
Circle for each soul,
For the children of our children,
Keep the circle whole.

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