What Happens to the Dangerous Shoteh?

Law and order are at the core of any civilization. The Torah emphasizes their significance in demanding that courts be active not only in Jewish society[i] but in non-Jewish Noahide society as well.[ii] Due to the prevalence of these courts, the notion that crime calls for punishment is familiar to all. Once a criminal is deemed deserving of punishment, a court may apply various punishments, each of which responds in a different way and with a different objective. Some unique cases, though, are more complicated, since an offender may be deserving of some punishment even if he or she is not personally accountable. The case of the dangerous shoteh, the insane menace to society, belongs to this problematic category.

There are four primary roles that punishment for crime can play in a legal system.[iii] While no single punishment for a particular crime will achieve all of these objectives, it will likely fulfill several overlapping goals.

The foremost reason a legal system penalizes its offenders is to repair the damages their crimes inflicted: A robber must return the stolen goods, and an arsonist must pay for the property damage he inflicted.  A second objective of punishment is to deter crime via penalties. For the criminal, the experience of heavy fines, corporal punishment, or imprisonment discourages further violations. On a communal level, the mere presence of an enforced system of penalties can prevent others from being involved in criminal activity in the first place.

Another objective of some punishments is rehabilitation, which directly addresses the criminal’s mindset. For example, a sentence to community service may provide a convict with a new appreciation of his or her ability to positively contribute to society. A drug user’s imprisonment enforces a period of rehabilitation, during which he or she must remain clean. This can help an addict overcome dependency. This third motivation of punishment, unlike the first two, wishes to benefit the offender so that he or she can return to society as a better citizen.

The final goal of punishment is confinement – simply removing the criminal from society to make it safer. A high-profile murderer, rapist, or kidnapper will typically be very publicly imprisoned, even before trial, in order to keep the public safe and restore the community’s confidence. Incarceration for the purpose of removing threats does not necessarily aim to repair damages, discourage future offenses, or rehabilitate a criminal; its goal is solely to accelerate the return of order to society.

Different offenses have different underlying symptoms and resultant damages, and a legal system should endeavor to employ the punishment most appropriate for the particular crime. For example, in cases of accidental property damage, there is no need to convince the unintentional violator that damaging others’ property is wrong or to lock him or her up; the damager merely repays the victim, which both repairs damages and discourages future negligence. A bank robber, on the other hand, must return what was stolen and be deterred from future robberies, and, depending on the severity of the case, may need to gain a new perspective on community life.

The insanity defense is predicated on the acknowledgement that a mentally ill offender may not be fully accountable for his or her actions, for two potential reasons. Firstly, an insane person may not be aware that he or she is performing an act that is wrong; the defense asserts that it is unjust to punish a person who truly intended no malice through his or her actions. Alternatively, an insane individual may not have the capacity to fully control his or her behavior; by this rationale, it would be unfair to hold someone accountable for actions beyond his or her control. The current American federal law describing the insanity plea, the Insanity Defense Reform Act of 1984, focuses on the first basis of the insanity defense. According to this law, the defense must demonstrate that “[A]t the time… of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.”[iv],[v] As this law does not prescribe a definition of insanity, the jury is ultimately left to decide if a defendant lacks moral discernment and if he or she should be found not guilty by reason of insanity.

The closest analogue to the legally insane in the halakhic world is the shoteh, the mentally incompetent person who cannot exercise adequate discretion with regard to his or her actions. According to the Talmud, a person may be considered a shoteh based on a number of behaviors: roaming streets alone at night, sleeping in graveyards, and tearing his or her clothing.[vi] There is debate in the Talmud and Rishonim as to whether one is considered a shoteh only if he or she exhibits all these behaviors,[vii] whether one alone suffices,[viii] or whether the Talmud’s behaviors represent general categories which can be extended to other abnormal activities.[ix], [x]

Of course, a person halakhically considered a shoteh may not be found legally insane in a secular court, and a legally insane defendant may not qualify as a shoteh. The hazy boundaries of sanity are difficult to resolve in both Jewish and Western legal contexts, so this discrepancy is not surprising. However, as there is certainly an intersection between the legal and halakhic categories, their respective responses to a mentally ill offender can be meaningfully compared despite the definitional differences.

In American law, when a defendant is found not guilty by reason of insanity, he or she is not technically held accountable for the perpetrated crimes. Indeed, most of the aforementioned motivations for punishment are inapplicable. Any damages the insane person has inflicted are akin to those resulting from a natural disaster which no conscious party caused. There is no use in dissuading repeat violations, nor is there usually a need to discourage the broader community from mimicking the perpetrator’s unknowing crimes. Furthermore, any attempt to reshape the insane person to better contribute to society is likely futile.

Despite the technical exemption from punishment, however, the insane defendant is usually transferred to a mental hospital. Though this is not considered a punishment in the traditional sense, it fulfills the fourth goal of punishment – removing potentially dangerous criminals from society to prevent recurring offenses. Mental institutions thus accomplish, to a certain extent, the objective of imprisonment.

Halakhah, though, doesn’t appear to have a punishment parallel to prison for any criminal, let alone mental hospitals for the insane. While the Torah refers to a few cases in which people are held in custody, none employ long-term containment as a form of punishment in the manner of American jail. The Jewish man who cursed God in the desert was placed in mishmar (holding) while Moshe awaited divine instruction on how to proceed.[xi] Similarly, the man who gathered wood on Shabbat was held in mishmar so that the proper punishment could be determined.[xii] The Torah commands (according to Hazal) that if one man strikes another, the assailant is detained until the victim has either recovered from his injuries or died; in the case of recovery, the assailant pays certain reparations, but if the victim dies, the murderer is put to death.[xiii] In all of these cases, the imprisonment is a temporary action which is not a punishment, but is a delay tactic to establish either the halakhic ruling or the conclusive facts of the case.

Hazal created another instance of prison for very unique cases, though it too doesn’t align with the prison of secular society. The Mishnah and Talmud describe a scenario in which a murderer is unmistakably deserving of death, but cannot be executed due to a legal technicality.[xiv] The court places him in a kippah (enclosed chamber), where he is fed a diet designed to kill him. In this way, the Jewish court indeed executes the murderer, using one technicality (indirect execution) to solve another. The kippah punishment is also unlike secular prison, as it is primarily a form of execution rather than containment or rehabilitation.

Given the absence of prison or confinement as a punishment in Halakhah, how should an insane defendant be treated if he or she poses a threat to society?

Halakhah does not seem to prescribe a particular solution to this issue. However, this does not necessarily indicate that a Jewish court is to take no action. The halakhic system has limits in its scope, beyond which it might only suggest, rather than dictate, how to proceed. In the case of a mentally ill public menace, Halakhah provides only negative instruction: such a person cannot be held liable for his or her crimes. Appropriate responses and countermeasures are to be considered and determined on a case-by-case basis. It is the obligation of the Jewish court and government to maintain security in the general community, and they are licensed to unilaterally create and impose punishments to this end.[xv]  The court’s role in this case of a dangerous shoteh is similar to their role regarding a bor bi-reshut ha-rabbim – a pit (or other obstacle) in a public space. The court must remove the obstacle to protect innocent people, even though the pit is obviously not held personally accountable.[xvi]

Rambam exemplifies this super-halakhic response. The Mishnah records that a deaf-mute, shoteh, or child who damages others is exempt from punishment.[xvii] This is because they lack da’at – knowledge and discretion – and are thus unaccountable for their actions. Rambam writes in his commentary on the Mishnah, “All of this is simple; nonetheless, the judge should strike them greatly[xviii] in order to keep away the damages from other people.”[xix] While Rambam’s method may not be the most sensitive option, it still indicates that Rambam goes beyond the halakhic framework to tend to the practical requirement of protecting society from threats.[xx]

Rambam’s pragmatic desire to fill in the logical gaps of halakhic instruction is echoed in the Jewish community’s practices throughout its history, especially regarding imprisonment. Even though no halakhic sources exist for prison, Jews have used jail as a practical extra-halakhic punishment at least as early as the Ge’onim. Menachem Elon, a former Israeli Supreme Court justice, researched and wrote about the tradition of Jews throughout the ages to imprison their debtors in order to coerce repayment.[xxi] This occurred with the knowledge and consent of the leading rabbis of every generation.

The Torah itself is no stranger to prison. From Yosef[xxii] to Yehoyakhin,[xxiii] characters of ancient Jewish history have been imprisoned, and the Torah never needs to define for the reader what jail is. While most prisons in Tanakh belong to non-Jewish nations, this is not always the case: Yirmiyahu was imprisoned in Tsidkiyahu’s beit ha-kele after being accused of defection to the Babylonians.[xxiv] Obviously, this particular jail says nothing about the halakhic legitimacy of jail, as any society that wrongfully accuses and imprisons a prophet likely has little regard for Halakhah.

A verse in the Torah itself suggests that Halakhah does not exhaust the full gamut of legitimate punishments. When Eldad and Meidad prophesy in the camp without being selected for prophecy by Moshe, Yehoshua responds, “My master Moshe, imprison them!”[xxv] Surely, Yehoshua is aware that jail is never used as the halakhic punishment for violators! Nevertheless, incarceration is the appropriate way to keep two unlicensed prophets from corrupting the Jewish camp.[xxvi]

There may be no strictly halakhic reaction to the dangerous shoteh, but that does not mean that Halakhah thinks no action should be taken. The specific Jewish court that hears the case must select an appropriate course of action that protects society while minimizing the negative impact on the technically-exempt shoteh. At times, a Jewish court’s response may parallel that of a secular court. Maybe a contemporary Jewish court would also make use of modern mental hospitals, which are only a recent invention in comparison with the halakhic system. Sometimes, a Jewish court may propose a different solution from Western law. The halakhic court can act as it sees fit, since its jurisdiction extends to matters beyond what is halakhically prescribed. The case of the shoteh exemplifies this super-halakhic response which the Jewish court is not only entitled, but obligated, to provide.

Gilad Barach is a second-year YC student majoring in Physics and Mathematics, and is a staff writer for Kol Hamevaser.



[i] Devarim 16:18.

[ii] See Talmud Bavli, Sanhedrin 56b.

[iii] This list is not exhaustive, as there are additional motivations for punishment, like the strictly philosophical notion that criminals inherently deserve retribution. See, for example: Lawrence H. Davis, “They Deserve to Suffer,” Analysis 32:4 (March 1972): 136-140.

[iv] 18 U.S.C. § 17(a).

[v] An earlier defense, known as the Durham Rule, was based on the second reason of the insanity defense. If the court found that the defendant had an “irresistible impulse” to violate the offense, he or she would not be held accountable.  Later, courts rejected this defense for being too arbitrary, since it relied on psychiatrists’ testimony and sometimes resulted in alcoholics being acquitted of their crimes. More information can be found on Cornell University Law School’s website, http://www.law.cornell.edu/background/insane/insanity.html.

[vi] Hagigah 3b.

[vii] This is R. Huna’s opinion.

[viii] This is the simple reading of R. Yohanan’s opinion, as codified by Rash[who? If Rashi, I don’t think codified is the right word; if Rosh, doesn’t seem like the right citation], Hullin 1:4.

[ix] This is how Rambam codifies R. Yohanan’s opinion (Hilkhot Edut 9:9, and Kesef Mishneh ad loc.).

[x] For further discussion on the definition and qualifications of a shoteh, as well as halakhic implications, see: J. David Bleich, Contemporary Halakhic Problems, Vol. II (New York: Ktav Publishing House, 1983): 283-299.

[xi] Va-yikra 24:10-12

[xii] Be-midbar 15:32-34.

[xiii] Shemot 21:18-19; Sanhedrin 78b.

[xiv] Sanhedrin 79b, 81b.

[xv] Shulhan Arukh, Hoshen Mishpat 2:1 codifies the license for Beit Din to implement any punishment as they see fit.

[xvi] I thank R. Daniel Rapp for offering this analogy.

[xvii] Mishnah Bava Kamma 8:4; Talmud Bavli, Bava Kamma 87a.

[xviii]Le-hakkotam makkah rabbah;” literally, “to strike them a great strike.”

[xix] Rambam, Peirush ha-Mishnayot to Bava Kamma 8:4 (Jerusalem: Mossad ha-Rav Kook, 1965). The translation is the author’s.

[xx] It is not clear for whom Rambam intends this punishment. In Mishneh Torah (Hilkhot Geneivah 1:10), Rambam quotes a similar directive for the court to hit children and slaves when they steal, though the reason provided there is “so they should not become accustomed to steal.” Indeed, the Maggid Mishneh (ad loc.) notes that there is no source for this ruling, and that Rambam evidently derived it from logic. This halakhah might indicate that Rambam’s comment in Peirush ha-Mishnayot is limited to the child; however, the motivation for the ruling in Mishneh Torah is not to protect society, but rather to discourage future robberies, so this might be an independent case.

[xxi] Menachem Elon, Freedom of the Debtor’s Person in Jewish Law (Hebrew) (Jerusalem: Magnes Press, 1964). I thank R. Michael Rosensweig for introducing me to this book.

[xxii] Be-reshit 39:20.

[xxiii] Melakhim 2 25:27.

[xxiv] Yirmiyahu 37:15.

[xxv] Be-midbar 11:28.

[xxvi] Rashi ad loc. quotes the Sifrei (96): “Put them in jail, since they were prophesying, ‘Moshe will die, and Yehoshua will bring Israel to the land.’” This source clarifies the unrest that Eldad and Meidad’s uncontrolled prophecy would cause society.