Redeeming a Captive Caught in the Legal System

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by R. Gil Student

I. Important Mitzvah

In Jewish law and tradition, redeeming a captive (pidyon shevuyim) is the highest form of charity. The Talmud (Bava Basra 8a) refers to it with the unusual term of “great mitzvah” and Shulchan Arukh (Yoreh De’ah 252:1), the code of Jewish law, says that “there is no mitzvah as great as pidyon shevuyim.” Redeeming a captive takes precedence over all other forms of charity. Shulchan Arukh continues that someone who ignores the need to redeem a captive violates numerous biblical prohibitions and commands. However, these rules were formulated in a different time. Someone who was kidnapped by bandits or taken hostage by a lawless government requires a ransom for release. Does this apply to someone who is caught up in a legal system that follows rules and allows for due process?

In the past, we discussed whether pidyon shevuyim applies to someone who is guilty. According to some authorities, there is a mitzvah to free someone from captivity even if he is guilty, and even if he committed crimes against his own community. However, according to most authorities, there is no mitzvah to redeem someone who brought the captivity on himself, even if the punishment is greater than the crime. There is no debate, though, about paying the ransom for someone innocent. If bandits or a rogue government kidnapped an innocent Jew, the community must pay the ransom to free him, albeit with certain limitations against paying an exorbitant ransom to prevent encouraging kidnappings.

Kidnappings still exist in the modern world. There is a widespread corporate insurance product to protect company executives against kidnapping and pay for any necessary ransom. Pirates still roam the seas. And some governments imprison, torture and even kill people without cause. But what about governments that follow rules and provide relatively safe prison environments? If someone innocent is caught up due to false accusation and false conviction, is there a mitzvah to redeem him?

Of course, prisons are full of inmates who claim to be innocent. Criminal behavior usually goes hand in hand with lying. However, some people truly are innocent. If we could conclusively verify someone’s innocence, are we obligated by a “great mitzvah” to help free the innocent victim of a faulty justice system? No justice system is perfect. Sometimes people need to help the victims who fall through the cracks. Does this rise to the level of pidyon shevuyim?

II. A Captive in Danger

The key text to answering this question is the Talmudic passage in Bava Basra (8b, Koren Steinsaltz translation):

Rava said to Rabba bar Mari: (Concerning) this matter that the Sages stated, that redeeming captives is a great mitzvah, from where (is it derived)? Rabba bar Mari said to him: As it is written: “And it shall come to pass, when they say to you: To where shall we depart? Then you shall tell them: So says the Lord: Such as are for death, to death; and such as are for the sword, to the sword; and such as are for famine, to famine; and such as are for captivity, to captivity” (Jer. 15:2). And Rabbi Yoḥanan says: Whichever (punishment) is written later in this verse is more severe than the one (before it).

(Rabbi Yoḥanan explains:) The sword is worse than death… Famine is worse than the sword… (And) captivity is worse than all of them, as it includes all of them, (i.e., famine, the sword, and death).

According to this passage, captivity inherently involves death. Someone who is held captive is at the whim of his captors, who can starve him, torture him and even kill him. He lives under constant risk to his life. If so, the “great mitzvah” of pidyon shevuyim only applies to a captive whose life is at risk. That applies to anyone who is kidnapped or held in a lawless, foreign prison. It does not apply to someone held in a modern country governed by laws.

Rav Yechiel Michel Epstein (19th cen., Russia; Arukh Ha-Shulchan, Yoreh De’ah 252:1) says that the mitzvah of pidyon shevuyim applied only in ancient times and in contemporary times in lawless, distant places like Asia and Africa. This ruling would exclude modern legal systems. However, I am hesitant to give too much credibility to this ruling because in many places he clearly made similar comments in order to avoid the displeasure of the Czarist government (e.g. Orach Chaim 156:4 where he discusses a partnership with an Arab but clearly means a Christian and only deflects due to government pressure).

More recently, Rav Aharon Aryeh Katz (cont., Israel; Pesakim U-Teshuvos, Yoreh De’ah 252:1), the son-in-law of the author of Piskei Teshuvos, rules that pidyon shevuyim only applies to captives who might be killed by their captors. He writes that pidyon shevuyim applies today to those living in countries that do not care about innocent life and to those captured by underworld criminals. However, in countries where they do not wantonly kill innocent people and the only danger is imprisonment, pidyon shevuyim does not apply. In other words, someone innocent who is caught in the US or Israeli legal systems does not fall under the “great mitzvah” of pidyon shevuyim. Rav Katz adds that helping such an innocent victim still consists of a great mitzvah that falls into the category of chesed, just not pidyon shevuyim. Similarly, Rav Chaim Kanievsky (Derekh Emunah, Hilchos Matenos Aniyim, 8:66 and n. 198) says that pidyon shevuyim applies to a captive who is at risk of being killed by his captors.

III. All Innocent Captives

However, Rav Shmuel Eidels (Maharsha, 17th cen., Ukraine; Bava Basra 8b, s.v. kulhu) explains that when the Talmud says that all of the previous punishments are included in captivity, it does not mean that the captors might kill the prisoner. Rather, it means that someone in captivity is in a weakened condition and might die naturally. According to Maharsha, pidyon shevuyim applies even to a captive who is not in danger of being killed by his captors. According to this understanding, someone innocent who is caught in even the US or Israeli legal systems would fall under the great mitzvah of pidyon shevuyim. The stress and depression of imprisonment, the food quality and living conditions, all can contribute to a prisoner’s weakened condition. 

Rav Moshe Sofer (19th cen., Hungary; Chiddushei Chasam Sofer Ha-Shalem, Bava Basra 8b s.v. shevi, quoted in Mesivta, ad loc., Yalkut Bi’urim, s.v. ha-im shevi) quotes the Gemara (Megillah 14a) which says that if we recite Hallel in praise after being saved from slavery, certainly we recite it after being saved from death. That passage implies that death is worse than slavery. Does it not contradict the passage in Bava Basra (8b) which says that captivity is worse than death? Rav Sofer explains that captivity is difficult for observant Jews who face so many religious obligations and restrictions. The Gemara in Megillah refers to slavery before the giving of the Torah, when those obligations and restrictions did not apply. It seems from this comment that Rav Sofer does not see captivity as inherently including the possibility of being killed by captors. If so, presumably he would apply it to someone who is captive in the legal system. Or maybe the US and Israeli legal systems, which allow for a certain amount of religious freedom, would not fall into the category of captivity.

Rav Yisrael Meir Kagan (Chafetz Chaim, 20th cen., Poland; Ahavas Chesed, part 2, ch. 20, par. 2n) says that captivity applies even when there is no threat of death. He bases this on a ruling of the Shakh (Yoreh De’ah 252:10). That case is complex but Rav Avraham Danzig (19th cen., Lithuania; Chokhmas Adam 145:15) restates it simply and clearly: “A man and a woman who are in captivity in which there is no life danger, the woman [is redeemed] before the man… In a place where there is life danger, the man [is redeemed] before the woman.” Rav Danzig clearly applies the mitzvah of pidyon shevuyim to a case in which there is no life threat and only changes who is redeemed first based on the risk.

IV. Conclusion

If a truly innocent person is caught in the modern legal society, he can quickly go bankrupt from the costs to defend his innocence against an aggressive prosecutor. Even if he wins and clears his name, he will suffer from the immense burden of the financial debt he had to incur to defend himself. All authorities agree that it is a mitzvah to help alleviate this burden for someone who is truly innocent – again, I lack the expertise to determine who is innocent and therefore make no claims about specific individuals. Some believe that the mitzvah is chesed. As we have seen, other authorities, including the Chafetz Chaim, believe that the mitzvah rises to the level of pidyon shevuyim, redeeming a captive from bondage. Even if his life is not at risk from his captors – the police, prosecutors and prison guards – the stress and prison conditions weaken him and the lack of freedom inhibits him. Therefore, it is unquestionably an important mitzvah for every individual to help an innocent person defend himself from false prosecution. May all the innocent be redeemed from their captivity speedily.

(reposted from Jan ’23)

About Gil Student

Rabbi Gil Student is the Editor of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student currently is serving his third term on the Executive Committee of the Rabbinical Council of America and also serves as the Director of the Halacha Commission of the Rabbinical Alliance of America. He serves on the Editorial Board of Jewish Action magazineand the Board of OU Press. He has published four English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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