The Non-Leftist View of Crime and Punishment – ‘We Do Not Show Mercy in Court’

I. Negotiating a Sentence

The proposed punishment to the brother caught stealing Yosef’s silver cup poses an interpretational problem whose resolution can shed light on the rabbinic attitude to mandatory minimum sentences. After being accused collectively of stealing the cup of Yosef, Pharaoh’s minister, the brothers denied the charge to Yosef’s overseer. As a challenge to the accusation, they suggested that if one of them is found to have the cup, he should die and the rest should be enslaved (Gen. 44:9). This proposal, offered in mistaken confidence that the brothers would emerge acquitted, differentiates between guilty parties. The one holding the stolen object would receive a harsher sentence than the accomplices.

The overseer replied that this is true–whoever is caught with the stolen merchandise will be enslaved and the rest will go free (v. 10). When Binyamin is caught with the cup, Yehudah proposes that all the brothers be enslaved and none executed (v. 16), thereby equating all the guilty parties. Yosef responded that Heaven forbid he should do that. Rather, just the thief would become a slave (v. 17).

This entire exchange is puzzling and has sparked numerous explanations. Why does the overseer say that the brothers are correct and then offer a different punishment? And why does Yosef reply “Heaven forbid” that he should punish all the brothers?

II. Justice and Mercy

Rashi (v. 10) says that the overseer agrees that according to the law the thief should be executed and the rest of the brothers imprisoned. The accomplices should receive a lighter sentence. However, the overseer offered a more lenient deal, that the guilty party should be enslaved and the accomplices freed.

Ramban (v. 10) explains differently. He suggests that the brothers were saying that they did not collectively steal the cup. If anyone stole it, he did it on his own, for which he should be executed. Really the others should then go free because they were not accomplices. However, they offered themselves as slaves anyway. The overseer and Yosef accepted that the thief worked alone and therefore refused to punish the other brothers even a little. “Heaven forbid” that they should punish the innocent brothers.

According to Rashi–Ramban asks–why did Yosef say “Heaven forbid”? After all, he offered a deal to lessen the punishment. Why would it be so terrible if he enforced the actual punishment? And why did the overseer tell the brothers that they are right if he then offers a different proposal?

III. Mandatory Minimum Sentencing

Rav Yitzchak Arama (Akeidas Yitzchak, no. 30) challenges these questions. Showing mercy is godly, an act following in the divine footsteps. Even though God established rules with which to guide the world, He shows mercy and refrains from fully punishing those who violate the rules. “Heaven forbid” that Yosef would impose the actual sentence and refuse to show mercy to the thief. Of course he and his overseer would offer lesser sentences than called for by law.

Rav Yosef Shaul Nathanson (Divrei Shaul, v. 17) disagrees with Rav Arama. A judge cannot show favoritism or set aside the required sentence. Doing so would cause chaos by draining the laws of their deterrent effect. However, this only applies to general violations. In this case, the brothers were shown to have stolen from Yosef and therefore Yosef–as the victim–could choose to refrain from pressing charges or to request a lesser sentence. However, had the offense been against someone else, a government official would have no right to lighten the punishment.

Rav Nathanson’s objections represent the conservative response to activist judges who undermine laws by lightening sentences of convicted criminals. Rav Arama expects merciful judges to impose lightened sentences. In sharp contrast, Rav Nathanson demands mandatory minimum sentencing, removing the judge’s mercy from the sentencing decision.

IV. Talmudic Precedent

Some might be tempted to suggest that Rav Arama was following the Sages of the Talmud. After all, the Mishnah (Makos 7a) contains a famous debate over the extreme hesitance of various Sages to execute a criminal. Indeed, Rav Nathanson quotes Rabban Shimon Ben Gamliel’s denunciation of the other Sages as murderers for refusing to execute deserving criminals.

However, while the Sages believed in minimizing executions, they did not include mercy as a consideration. Procedural issues determine when execution should be imposed. For example, judges must ask whether witnesses properly warned the criminal and must interrogate the witnesses for strict consistency. The subjective opinion of the judge and the composure of the criminal do not play a role in the decision. Even a penitent criminal must be punished.

Additionally, the Rambam (Mishneh Torah, Hilkhos Rotzei’ach 2:4-5) explains that even when a court acquits a murderer for procedural or evidentiary reasons, a king or court may still punish the perpetrator for deterrent effect.¹ Mercy is a fundamental Jewish value. But mercy must be showered primarily on potential future victims by protecting them from harm.