Drug Testing of Prisoners by Rabbi Howard Jachter

1998/5758

              In our continuing series of articles reviewing issues that concern the operating of Medinat Yisrael in accordance with Halacha, we will take a look at an important question- whether prisoners can be forced to submit to drug tests.  Our discussion will be based on an essay written on this topic by an Israeli attorney, Dr. Eliezer Ben Shlomo, that appears in the current issue of Techumin.

Human Dignity and Respect

              Israeli (as well as American) society has in the past few decades recognized the need to respect the rights of prisoners.  Some civil law judges have gone so far as to forbid testing prisoners for drugs, because it is a violation of the prisoner's dignity.  What does Halacha have to say about this issue?

              To begin with, we must state that dignity and respect plays a major role in the Halacha.  The Torah commands us to respect our parents, elderly individuals, rabbis, the king, the community leader, and the Kohen Gadol.  Halacha mandates us to respect the dignity of the community.  For example, we should not stand and roll the Torah to the correct place while the congregation sits and does nothing. This is an affront to the dignity of the community (Yoma 70b, also see Megillah 23a and 24b, Sotah 39b and 40b).  The Gemara in Moed Katan 21b provides a striking example of the Kavod that is due to a large group.  The Gemara records the prohibition for a mourner to greet others.  Nevertheless, the Gemara relates how, out of respect for a large gathering, Rav Chaim greeted a large group of people who came to comfort him when his sons died.

              The Gemara (Yevamot 12b) urges us to respect our wives more than ourselves.  Chazal in Pirkei Avot (2:10) teach us that one's respect for others should be as important as one's respect for oneself.  Thus, Kavod HaBriyot, human dignity, is a highly regarded value in the halachic system.

Kavod Habriyot Overrides Rabbinic Prohibitions

              Kavod Habriyot is so important that one may violate rabbinic prohibitions in order to preserve human dignity (Brachot 19b). An example is a situation in which if one discovers in public that his suit contains rabbinically prohibited Shaatnez.  One is not required to remove the suit and walk home in his underwear in order to avoid violating the rabbinic prohibition. Similarly, one is permitted to remove repulsive Muktze items on Shabbat from his home because of Kavod Habriyot (Beitza 36b).  Chazal permit a Kohen to pass through a field which is rabbinically forbidden for him to enter (because of concern of contact with dead bodies- Tum'at Mait) in order to facilitate their seeing kings, be they Jewish or non Jewish.  Interestingly, Rav Aharon Soloveitchik once related (in a lecture he delivered at Yeshiva University in 1988) that the great Rav Meir Simcha of Dvinsk (the "Ohr Sameach") once permitted a Jewish band to play music on Shabbat for the Czar when he came to visit Dvinsk (playing music on Shabbat is a rabbinic prohibition).

Passively Violating Torah Prohibitions for Kavod Habriyot

              The halacha goes as far as permitting us to passively violate Torah prohibitions for Kavod Habriyot.  For example, the Gemara (Baba Metzia 30a) permits an elderly person and or highly respected person to neglect the Mitzva of HaShavat Aveidah (restoring a lost object to its rightful owner) if it is beneath one's dignity to have to deal with that particular lost item.  In a particularly striking passage, the Gemara requires (Berachot 19b) one who is on the way to circumcise his son or offer his Korban Pesach and sees a dead person by the road (Mait Mitzva), to neglect his ritual obligations and attend to burying of the dead person.  This applies even to one who is both a Nazir and Kohen Gadol.

              Tosafot (Baba Metzia 30b) of course clarifies that this rule applies only to cases of very great potential insults to human dignity such as is suggested by the examples we have cited.  Rav Soloveitchik has noted the potential for abuse of this rule.  Kavod Habriyot does not permit us to violate Rabbinic prohibitions so as to enable us to watch television on Shabbat.

Limitations on Kavod Habriyot

              In his celebrated letter to the Bezalel Art Academy, Rav Kook teaches a vitally important lesson: never to focus on one value to the exclusion of all others.  For example, wisdom and righteousness are both extremely important, yet Kohelet teaches not to be too much of either a Tzadik or a Talmid Chacham.  Similarly, Chazal do not believe that Kavod Habriyot considerations outweigh active violation of Torah level prohibitions.  This applies even if one must suffer a great indignity.  Thus if one discovers that all his clothing is made of biblically prohibited Shaatnez he must immediatly disrobe even if he is in a public place.

The Dignity of a Criminal

              The Shaatnez example shows that if one is in active violation of Torah law he must bear the consequences despite the severe affront to his dignity.  The Gemara cites as a source for this approach a special Pasuk from the twenty first chapter of Mishlei.  This Pasuk teaches that there is no excuse to violate God's law.

              Three responsa of three great poskim demonstrate that Kavod Habriyot does not protect the rights of violators of Torah law.  Rav Yechezkel Landau (Teshuvot Nodeh Biyehudah 1: Orach Chaim 35), Rav Shlomo Kluger (Teshuvot Haelef Lecha Shlomo D.C.7) and Rav Yitzchak Elchanan Spektor (Teshuvot Ein Yitzchak Even Haezer 67) responded similarly to a tragic question.  All three of these outstanding luminaries were asked by men who had engaged in adultery if they were required to inform the woman's husband of the terrible deed.  The issue involved great difficulties, since a married woman who commits adultery is forbidden to continue to live with her husband.  Hence, perhaps the adulterer should be required to inform the husband to prevent him from living in sin with his wife.  On the other hand, perhaps Kavod Habriyot considerations permit the adulterers to remain silent.  Rabbis Landau, Kluger and Spektor all responded that the adulterer is required by halacha to disclose his terrible deed to the adulteress's husband.  Thus, we see considerations (the need for the husband to avoid living in sin) override the dignity of the sinner-criminal.

  Moreover, all Torah punishments involve violating the dignity of the sinner-criminal.  A prime example is Malkot (lashes).  The Torah (Devarim 25:3) does indeed limit the number of lashes so as to preserve some of the sinner's dignity, but nevertheless the /-8&; itself is a severe affront to the criminal's dignity.  Dr. Ben-Shalom appears to be correct in stating that we are concerned with the sinner's dignity only to a point- we punish the sinner with what is necessary for achieving atonement, but not beyond what is necessary.

Administering Drug Tests to Prisoners

              In 1977 the following case appeared on the docket of the Israeli (secular) Supreme Court. The prison authorities found that random drug tests with accompanying serious punishments for those testing positive for drugs, reduced the percentage of prisoners taking drugs from 70% to 2%. The prisoners filed a formal complaint to the District Attorney saying that these drug tests were "insulting, degrading, and an offense to their privacy and dignity."

              In the absence of any satisfactory Israeli law concerning this issue, one secular judge sought to apply halacha in this matter. He cited the cases we mentioned for which Kavod Habriyot takes precedence over some halachot and concluded that so great is Kavod Habriyot that it overrides the concern for drug use among the prison population.

              The president of the Supreme Court at that time correctly rejected that argument. He noted that great Rabbis throughout the generations enacted rules and punishment for the betterment of the community without regard for the rights of sinners to maintain their dignity. The community has the right to violate the privacy and dignity of criminals in order to protect itself from the evil specter or drugs. Indeed, the Sotah ceremony is mandated by the Torah despite the resultant insults to the privacy and dignity imposed on the suspected adulteress. Rav Shimon ben Shetach's act of executing 80 witches in Ashkelon all on one day is quite an indication that community welfare (to be rid of those sinners) has clear precedence over Kavod Habriyot.

              Dr. Ben-Shlomo summarizes the issue that community welfare (to be rid of those sinners) has clear precedence over Kavod Habriyot succinctly:

 "How great is Kavod Habriyot that it overrides rabbinic prohibitions.  However, even more important than Kavod Habriyot is maintaining law and order in society.  One may violate Kavod Habriyot to insure the stability of the society."

Kashering from Meat to Milk by Rabbi Howard Jachter

 Milking Cows on Shabbat part III by Rabbi Howard Jachter