As the Jewish community observes the fast of Tisha B’Av on July 15 and 16, California prisoners will complete the first week of their hunger strike in protest of solitary confinement in Special Housing Units. More than 3,000 California prisoners spend 23 hours a day in an 8-by-10-foot cell, with almost no human contact.
The rabbis of the Talmud had their own ancient SHU, which they called the kipa (literally, “dome”). What would they say about the modern version?
First of all, prisons did not constitute part of traditional Jewish criminal justice systems — the typical sentences were fines, corporal punishments, banishment or, in extreme cases, capital punishment.
While the Torah allows for capital punishment, the rabbis of the Talmud were so uncomfortable with the death sentence that they effectively legislated it out of existence. Lest the court accidentally kill an innocent person, the rabbis insisted on two eyewitnesses unrelated to one another, to the victim or to the accused. These witnesses were re-quired, for example, to warn the perpetrator about the consequences beforehand.
There is no evidence that a Jewish court ever carried out a death sentence. In a few egregious cases the rabbis would sentence an offender to the kipa. In this tiny cell, the prisoner would be given inedible food and eventually perish, seemingly at the hands of God rather than a human executioner.
Even so, some Talmudic rabbis and most later commentators were so uncomfortable with the kipa that they reduced its permitted use drastically. And as with capital punishment, there is no evidence that a rabbinic court ever actually placed anyone in such a cell.
What is striking, then, is that the ancient SHU was not a mode of rehabilitation or a kind of “penalty box”— it was a death sentence. This was the rabbis’ essential insight.
Solitary confinement violates Jewish law in two other important ways. First, prisoners have no access to a fair trial before being condemned to SHU. In contrast, the Torah identifies a just court system as one of the pillars of a civilized society. Second, the Torah prohibits excessive punishment, lest “your brother be degraded before your eyes” (Deuteronomy 25:3). The rabbis explained that until the moment of punishment, this person may be referred to as “wicked.” But after sustaining punishment, he once again becomes our “brother” (Sifrei, Ki Tetze 286).
While today’s SHUs do not necessarily directly bring about death (though suicide rates are significantly higher than among the general prison population), the conditions of isolation are inconsistent with physical and mental health.
In 19th-century America, the Quakers experimented with solitary confinement in the belief that it would prompt repentance. Instead, prisoners went mad. Since then, researchers have proven that the symptoms of prolonged isolation — defined as more than 15 days — include anxiety, heart palpitations, hallucinations, violent fantasies, depression and suicidal thoughts. For this reason, international bodies including the United Nations classify solitary con-finement as torture.
In California, more than 500 prisoners have been in SHU for 10 years or more, some for up to 40 years. Most have been placed in SHU not for violent behavior but for administrative violations or accusations of “gang association.” Usually, the only way out of SHU is by offering information about gang members. This places inmates in a Catch-22: Those without gang affiliation have nothing to share and cannot leave; those with information, if they reveal it, risk being murdered when they re-enter the general prison population.
The striking prisoners have presented a number of demands, most of which the state agreed to during a 2011 hunger strike but has failed to implement. Some constitute wholesale changes: ending prolonged solitary confinement and banning the practice of punishment by withholding food or providing inedible food. Others are smaller and more poignant: granting one phone call a week, allowing participation in correspondence courses, permitting one photo a year from family or friends, and providing regular access to sunlight.
On this Tisha B’Av, as we mourn the tragedies of the Jewish past and pray for the messianic era, let’s also dedicate our fasts to supporting SHU inmates in their quest for health, dignity and companionship.
Rabbi Jill Jacobs is executive director of the New York–based T’ruah: The Rabbinic Call for Human Rights.